Smt. Sanjida vs Smt. Shaukat Ara Begum and Others

S.S. Chauhan, J.—The present second appeal has been filed against the judgment and decree dated 18.8.2010 passed by the Additional District Judge, Court No. 13, Lucknow upholding the judgment and decree dated 24.7.2001 passed by the Vth Additional Civil Judge (SD), Lucknow.

The Suit was initially filed with the allegations that Mohd. Ali @ Chabban Saheb was the landlord of a land situated at Deendayal Road, Asharfabad. Mohd. Ali transferred the land in dispute in favour of Plaintiff No. 2 by means of sale deed dated 18.8.1967. On 6.10.1956 the disputed compound was given on rent of Rs. 20/- by Mohd. Ali, Plaintiff No. 1 to Defendant No. 1 and an agreement was executed to that effect in favour of Plaintiff No. 1 The Defendant No. 1, Habib Ahmad used to pay rent to Mohd. Ali, but he stopped to pay the rent from 6.8.1967 and in spite of the objection of Mohd. Ali, Plaintiff No. 1, the Defendant No. 1 raised certain construction on the land in question. The title of Plaintiff No. 1 was also denied by the Defendant No. 1. The Defendant No. 1 also sublet and allowed Munni Devi to live in the said premises without the permission of the land lord. During the pendency of the Suit, Defendant No. 2 died and her heirs were substituted. Plaintiff No. 1 and his father sent a notice through registered post u/s 106 of the Transfer of Property Act on 2.9.1968 to Defendant No. 1, deceased Habib Ahmad, and granted him 30 days time to vacate the land in question along with the constructions and pay the outstanding rent. The said notice was also affixed on the door of the compound and this was done on account of the fact that Defendant No. 1, Habib Ahmad refused to receive the notice. Since the title of Plaintiff No. 1 was denied, therefore, in the alternative the relief for possession was also claimed in the Suit. After the death of Defendant No. 2, her heir Defendant No. 2/1 filed additional written statement stating therein that during her life time Defendant No. 2 executed a Will deed on 1.10.1988 in favour of Defendant No. 2/1. Defendant No. 2 expired on 29.10.1988 and after his death Defendant No. 2/1 has become the owner of the entire property. It was further stated that the disputed land does not belong to the Plaintiffs and neither they have got any right over the same. It was also stated in the additional written statement that the land belongs to Takia and, therefore, it cannot be termed to be a personal of anybody. In such circumstances, the land does not belong to the Plaintiff No. 1 nor Plaintiff No. 2. The house constructed on the said land is in the name of Munni Devi and is recorded in the records of the Nagar Mahapalika and the Lucknow Jal Sansthan and Munni Devi has always been paying the House Tax and the Water Tax. She has also obtained electricity connection in her name. After framing of the issues, the parties were allowed to adduce evidence and after conclusion of the evidence, the trial court proceeded to decree the Suit for ejectment along with the damages @ Rs. 20/- per month from the date of filing of the Suit and in respect of the rest of the claim, the Suit was rejected. The Defendants feeling aggrieved with the aforesaid decree, preferred an appeal and in the appeal they filed certain documents under Order 41 Rule 27 of the Code of Civil Procedure. Before the trial court an application was moved for framing of additional issue, but the said application was rejected by the Munsif. Feeling aggrieved with the aforesaid order, a revision was preferred before the District Judge, which too was rejected. After rejection of the revision, the Defendants filed Writ Petition No. 1548 (MS) of 2001 before this Court, which was also dismissed vide order dated 25.5.2001. Therefore, the issue was settled finally in this regard. The Waqf Board was also not impleaded as a party in the Suit.

Thereafter, the Suit proceeded and was decreed. Against the said judgment and decree an appeal was filed and during the pendency of the appeal another attempt was made by the Appellant to file the copy of the registration certificate issued by the Sunni Central Board of Waqf before the appellate court. Copy of the Khasra and the map was filed in the year 1999 before the trial court although the same was obtained in the year 1997. The said application of the Appellant was rejected on 3.8.2002. Against this order, a revision was preferred before this Court, which was allowed vide judgment and order dated 4.12.2002 and the judgment and the order dated 3.8.2002 was set aside and it was ordered that the documents be taken on record. Against this order Plaintiff-Respondent preferred SLP No. 7263 of 2004, which was decided on 5.11.2004. In the said appeal a direction was given to the effect that the appellate court will be untravelled by any observation of the High Court and will decide the maintainability of the said application. Thereafter, the maintainability of the application along with the appeal was decided and it was found that no reasonable and plausible explanation has been given as to why the said document was not filed at the initial stage when the Khasra and the map was filed.

I have heard learned Counsel for the Appellant.

The main argument of the counsel for the Appellant is that the land in question is a Takia ((grave land) and, therefore, the Plaintiff is not the owner of the said land and the documents filed by the Appellant under Order 41 Rule 27 CPC ought to have been accepted.

The aforesaid documents of the Appellant have been taken into consideration by the appellate court and elaborate finding has been recorded in this regard by the court considering the observation of apex Court wherein the judgment passed by the High Court was challenged and was observed that such plea was never raised since the date of filing of the Suit i.e. 7.10.1968 up till 1988 when the original Defendant died. The heirs of the deceased were brought on record after death of the original Defendant No. 2 and raised contradictory plea and stated that the land belongs to Waqf and is a Waqf property. This plea has not been taken at any point of time before the trial court and, therefore, the appellate court has rightly rejected the claim of the Appellant in regard to admission of the documents which were not filed and were filed at a belated stage. The evidence was produced before the court in regard to genuineness of the signatures on rent agreement of the tenancy as well as to prove the signatures on the rent agreement. The appellate court while dealing with the aforesaid pleading considered the cases reported in Vidyawati Vs. Man Mohan and others, Vidyawati Vs. Man Mohan and others, , Nalamothu Sayi Babu Naidu Vs. Chidipothu Krishnaiah, Nalamothu Saibabu Naidu v. Chidipothu krishnaiah, and 1996 CCR 884, Siromani Gurdwara Committee v. Jaswant Singhand while relying upon the aforesaid ratio of law propounded by the apex Court held that the filing of additional documents at the appellate stage has rightly been rejected by the appellate court.

The next point, which has been argued in respect of the issuance of notice to the Waqf Board is concerned, since the Waqf Board was neither party nor any relief was sought against the Waqf Board and the attempt of the Appellant to get the additional issue framed at earlier point of time was rejected by the trial court, against which a revision was preferred, which too was rejected. The Appellant thereafter preferred Writ Petition No. 1548 (MS) of 2001, which was also dismissed vide judgment and order dated 25.5.2001. The initial attempt of the Appellant having failed to bring on record a plea in regard to the title, another attempt was by the Appellant at the appellate stage to file the registration certificate issued by the Waqf Board. The said certificate was not filed initially before the trial court and no reasonable and plausible explanation has been given as to why the same could not be filed at the earlier occasion. The Appellant has been improving his case time and again only with a view to thwart the rightful claim of the landlord. Initially, Defendant No. 2, Munni Devi admitted the ownership of the landlord and so the heirs, who stepped into the shoes of Munni Devi cannot take a contradictory plea and once the documents filed by the Appellant have been rejected by the appellate court in view of the observations made by the apex Court in SLP No. 7263 of 2004, there was no need to issue any notice as argued by the counsel for the Appellant. The requirement of sending notice to the Waqf Board being not a party nor read as a party nor any relief being claimed against the Waqf Board, was not necessary in the facts and circumstances of the case.

The rent agreement executed between the parties was duly proved by obtaining the expert opinion from the forensic laboratory and admitted signatures of Defendant. Therefore, the ownership of the Plaintiff-Respondent cannot be doubted in any manner.

From the pleadings of the parties, it is clear that the Plaintiff has given the land in question on rent to Defendant No. 1, Habib Ahmad and Defendant No. 2, Munni Devi came and started living on rent with Habib Ahmad. No written statement has been filed on behalf of Habib Ahmad and the ownership has been claimed by Defendant No. 2, Munni Devi on the basis of adverse possession. Once the rent agreement of tenancy was proved, the right accruing on the basis of adverse possession cannot mature as Munni Devi can be termed to be an illegal occupant and sub-tenant.

The points, which are sought to be raised in the second appeal do not raise any substantial question of law and are concluded by finding of fact.

Considering the aforesaid circumstances, I do not find any merit in this second appeal. It is accordingly dismissed.

25.11.2010

After dictation of the judgment, Mr. Mohd. Arif Khan, Senior Advocate, appearing for the Appellant started making allegations against the Court in a high tone and showing disrespect to the Court said that this is the last case which he has argued in this Court and he will not argue any case in future before this Court. He has also stated that his petitions have continuously been dismissed by this Court and this Court is biased with him in rejecting his petitions. He has further made allegations against the Court that the Court is swayed by certain things, which are being told behind his back. He has also said that various Second Appeals have been admitted today, while his Second Appeal has been dismissed and withheld the Court proceedings for about 15 minutes making various allegations against the Court and also pointing that he does not care at all for such orders. At an earlier occasion also he has behaved in a similar manner and has tried to blame the Court by making the same allegations

The conduct of Mr. Mohd. Arif Khan, Senior Advocate, itself is not worthy of a Senior Advocate and taking the totality of the circumstances, it amounts to misconduct on his part being Senior Advocate. The Court is taking serious view of the matter and is of the view that a warning be issued to Mr. Mohd. Arif Khan, Senior Advocate not to indulge in such behaviour in future.

The Registrar is directed to communicate this order to Mr. Mohd. Arif Khan, Senior Advocate and keep it in Court record.