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2015 Supreme(Chh) 126
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, J.
Rajesh Kumar and Ors. - Appellants
Vs.
President (Mutwalli), Dharmik Sanstha Maszid Garib Nawaz - Respondent
Second Appeal No. 364 of 2005
Decided On: 29.04.2015
Advocate Appeared:
For the Appellants: Y.C. Sharma, Anita Suryavansi
For the Respondent: Rajendra Kumar Patel
Headnote:
Accommodation Control Act - Section 3 - Code of Civil Procedure - Section 100 - Transfer of Property Act - Section 106 - Oral and documentary evidence - Trial Court - Defendants preferred first appeal there against - First appellate court, after re-appreciating oral and documentary evidence brought on record while dismissing the appeal, affirmed the judgment and decree passed by the trial court, leading to filing of this Second Appear under Section 100 of the Code of Civil Procedure - Questioning the legality and validity of impugned judgment and decree, the instant second appeal under Section 100 has been preferred by appellants/defendants - Substantial question of law formulated has been set out in the opening paragraph of this judgment - learned counsel for the appellants/defendants would submit that both the courts below have concurrently and grievously erred in holding that the plaintiff is registered and is exempted from the provisions of Accommodation Control Act as per Section 3(2) of the said Act in view of the fact that certificate of registration has not been filed by plaintiff to prove the fact of being registered - He would further submit that the plaintiff was also required to prove the valid termination of tenancy in accordance with Section 106 of Transfer of Property Act – Held, A careful reading of the notification issued under the provisions of Section 3(2) of the Act of 1961 clearly exempts registered under Act, 1954 from the provisions of Act, 1961 and, therefore, the plaintiff was not required to establish the ground for eviction under Section 12 Act, 1961 thus finding recorded by trial Court as affirmed by the First Appellate Court holding that plaintiff/Institution is registered with Board Bhopal and exempted from the provisions of Section 3(2) of the Act, 1961 is a finding based on oral and documentary evidence on record, which is neither perverse nor contrary to the record and the said findings and the decree granted by both the courts below is hereby affirmed - This brings me to next substantial questions of law whether defendants tenancy has been terminated in accordance with law - Defendants have filed their reply to notice stating that notice for eviction was received by them and, thereafter, the suit was instituted and as such, notice was given to the appellants/defendants under Section 106 of the Transfer of Property Act to vacate the suit premises - Merely because the notice issued by plaintiff has not been filed, the findings of trial Court as affirmed by the first appellate court cannot be said to be perverse especially when such fact is pleaded and admitted by defendants that notice for termination of tenancy was served to the appellants/defendants and, as such. both substantial questions of law are answered against the appellants/defendants and in favor of the respondent/plaintiff Government may, be notification, exempt from all or any of the provisions of this Act any accommodation which is owned by any educational, religious or charitable institution or by any nursing or maternity home, the whole of the income derived from which is utilized for that institution or nursing home or maternity home - State Government, in exercise of powers under Section 3(2) of the Act of 1961, issued the notification dated 7-9-1989 and thereby exempted the properties of the trusts registered under the provisions of the Act of 1951 for educational religious or charitable purpose from the provisions of the Act of 196 - Notification dated 7-9-1989 stated as under - Appeal dismissed
Sanjay K. Agrawal, J.
1. The substantial question of law formulated and to be answered in the second appeal preferred by defendants are as under:-
"(i) Whether both the Courts below were justified in arriving to the finding that the plaintiff is the registered Waqf and as such he is exempted from provisions of the Accommodation Control Act as per Section 3(2) of the C.G. Accommodation Control Act in view of the fact that certificate of registration has not been filed by the plaintiff ?
(ii) Whether both the Courts below were justified in decreeing the suit in the absence of proof of valid notice under Section 106 of the Transfer of Property Act solely on the ground of the reply given by the defendants to such notice ?"
Imperative facts required to be noticed for adjudication of the above stated substantial questions of law are as under:--
"(2.1) Plaintiff claiming to be the registered Waqf under the provisions of Waqf Act, 1954 and being registered with the Waqf Board, Bhopal and being registration No. 5, dated 9.8.1963 filed a suit for eviction and arrears of rent against the defendants (defendant No. 1 - Lalchand Nebhwani died during pendency of the suit and his legal representative were brought on record) stating inter alia that they were tenants at the monthly rent of Rs. 330/- and as such the suit accommodation is required for the religious purpose/bonafide need, registered notice 22.12.1995 was served to the appellants/defendants as the defendants have not vacated the suit accommodation leading to filing of the suit for the reliefs claimed as aforementioned.
(2.2) Appellants/defendants filed their written statement controverting the allegations made in the suit stating inter alia that only suit land was let out to them and also denied for want of knowledge the fact that the plaintiff -Institution is the registered Waqf."
2. The Trial Court, by its judgment & decree dated 9.5.2001, decreed the suit finding inter alia that defendants are the tenants of the plaintiff; and the plaintiffs being the registered Waqf is exempted from the provisions of the Chhattisgarh Accommodation Control Act, 1961 (henceforth 'Act, 1961') as per Section 3(2) of the Act, 1961 plaintiff is not required to establish the ground under Section 12(1) of the Act of 1961.
3. The defendants preferred first appeal there against. The first appellate court, after re-appreciating the oral and documentary evidence brought on record while dismissing the appeal, affirmed the judgment and decree passed by the trial court, leading to filing of this Second Appear under Section 100 of the Code of Civil Procedure.
4. Questioning the legality and validity of impugned judgment and decree, the instant second appeal under Section 100 has been preferred by appellants/defendants. The substantial question of law formulated has been set out in the opening paragraph of this judgment.
5. Mr. Y.C. Sharma, learned counsel for the appellants/defendants would submit that both the courts below have concurrently and grievously erred in holding that the plaintiff is registered Waqf and is exempted from the provisions of Accommodation Control Act as per Section 3(2) of the said Act in view of the fact that certificate of registration has not been filed by the plaintiff to prove the fact of Waqf being registered. He would further submit that the plaintiff was also required to prove the valid termination of tenancy in accordance with Section 106 of the Transfer of Property Act and, as such, the plaintiff has failed to plead and prove the valid termination of tenancy under Section 106 of the Transfer of Property Act and, therefore, impugned judgment & decree deserves to be set aside.
6. On the other hand, Shri Rajendra Kumar Patel, learned counsel appearing for the plaintiff/respondent would submit that both the courts below have rightly held that plaintiff is the registered Waqf. He would further submit that defendants themselves have admitted the fact of receipt of notice 22.12.1995 (Ex
