Tenancy claims under the Waqf Act require evidentiary support, and dismissal at the threshold without a hearing is improper.

ORDER

1. Leave granted.

2. The appellant is aggrieved by the order dated 23.01.2020 passed by the High Court of Judicature for Rajasthan at Jodhpur, whereby his challenge to the order dated 31.10.2019, passed by the Waqf Board Tribunal, Jaipur (for short, `the Tribunal’) was turned down.

3. Vide the above-stated order, the Tribunal accepted an application under Order VII Rule 11 CPC, filed by the Rajasthan Waqf Board, and rejected the petition moved by the appellant under Section 83(2) of the Waqf Act, 1995 (for short, `the Act’) claiming himself to be a tenant in Shop No.31 which is a Waqf property.

4. The Tribunal was of the view that since the appellant himself had admitted that the tenancy was in the name of his elder brother – Vijay Kumar Soni, and that he was running the shop “Sony E-Mitra” because his elder brother was not maintaining good health, this was a sufficient admission to hold that the appellant was not a tenant and as such, his petition under Section 83(2) of the Act was not maintainable. The High Court has affirmed the said order by observing as follows:

”9. Thus, it is evident that the petitioner is not the tenant of shop number 31 whereas his elder brother Vijay Kumar is the tenant of shop number 31. It appears as such that his elder brother Vijay Kumar has been declared encroacher on shop number 31 and he was directed vide notice dated 28.08.2019 that he will deliver the possession of the shop within 7 days otherwise his encroachment on the shop will be removed. Immediately thereafter, on 17.09.2019, petitioner moved petition under section 83(2) Waqf Act 1995 and he alleged himself to be the tenant of shop number 31 and sought relief for non-eviction from the shop. Petitioner did not produce any such document on record wherein the petitioner has been stated to be the tenant of shop number 31 whereas the notice that has been served through Qamar Hussain. Therein, it has been alleged that petitioner is the tenant of shop number 1 and produced the receipt and rent agreement wherein the number of shop is not recorded. In this situation, as the petitioner did not have any interest in shop number 31, no cause for the suit arises for filing the petition under section 83 (2) of Waqf Board Act.”

5. We have heard learned counsel for the parties and carefully perused the material placed on record.

6. It appears to us that the statement of the appellant recorded in the Police Station Gopalpura to the effect that the shop in question is under the tenancy of his elder brother (Vijay Kumar Soni) or that he was running the shop because his elder brother was not maintaining good health is a question of fact that could be determined at an appropriate stage on the basis of the evidence to be led by the parties. If that statement is read in its entirety, it may be seen that the appellant is in physical possession of the shop and is running his business. Whether he is a tenant or an unauthorised occupant or a licensee, etc. are essentially the questions of fact which will be decided in due course of time. It was not a case where Order 7 Rule 11 could be invoked to reject the appellant’s petition at the threshold.

7. Consequently, the appeal is allowed; the order dated 31.10.2019 passed by the Waqf Board Tribunal, Jaipur, as well as the judgment dated 23.01.2020, passed by the High Court of Judicature for Rajasthan at Jodhpur, are set aside. The petition filed by the appellant under Section 83(2) of the Act is restored to its original number.

8. The Tribunal is directed to complete the proceedings after giving fair opportunities to the parties to lead their respective evidence and make an endeavour to conclude the proceedings within one year from the date of receipt/production of a copy of this order.

9. It is clarified that we have not expressed any opinion on the merits of the case.

10. During the pendency of the proceedings, the status quo, as directed by this Court vide order dated 18.09.2020, shall be maintained by the parties.