IMPORTANT POINTS
The exercise of power of the Tribunal to order eviction of Waqf property in the occupation of the tenant could arise only on the motion of the Chief Executive Officer of the Board, who is to, first of all, satisfy himself that the person liable for eviction from the tenanted premises is an encroacher. Under Section 3(ee) of the Waqf Act, a tenant who continues to occupy the tenanted premises after termination of tenancy is also an 'encroacher'. Therefore, it may prima facie appear that jurisdiction of Waqf Tribunal to entertain a suit for eviction could accrue only on the application of the Chief Executive Officer of the Waqf Board. If this is accepted as the correct position of law, the present suit for eviction brought at the instance of the Mutawalli of Kinasseri Yatheem Khana cannot be said to be instituted in accordance with the provisions under Section 85 of the Act.

ORDER :

T.V.ANILKUMAR, J.

1. The revision petitioner is the 1st defendant before the Waqf Tribunal, Kozhikode in O.S.No.77/2019 filed by the 1st respondent, Kinasseri Yatheem Khana, seeking eviction of the revision petitioner from the plaint schedule shop room bearing Door No.27/1795 of Kozhikode Corporation and for realisation of the arrears of rent, both past and future.

2. The suit was decreed by the Tribunal ordering eviction of the revision petitioner as well as granting arrears of rent with cost and interest. Being aggrieved by the impugned decree dated 25.5.2019, the 1st defendant, who is the tenant of the shop room, has filed this revision petition.

3. The plaint schedule shop room belongs to the 1st respondent, Yatheem Khana which is represented in the suit by its Secretary. The building consisting of the plaint schedule shop room was purchased in the name of former President of the Yatheem Khana, Sri.Veerankutty Haji as per Ext.A5 sale deed, dated 26.09.1990 executed by its erstwhile owners. The plaintiff leased out the shop room to the revision petitioner on 15.2.1991 for a monthly rent of Rs.200/-for a period of three months and later it was increased to Rs.500/-, which is the current rate of rent.

4. The landlord -tenant relationship between the parties is not under dispute nor is there any dispute as regards the current monthly rent of Rs.500/-. The plaintiff filed the suit after terminating the tenancy with the 1st defendant by sending Ext.A1 lawyer's notice on 23.5.2013, alleging that the 1st defendant kept the rent in arrears since the month of February, 2013. The 1st defendant replied through his lawyer denying the allegation of default in payment of rent and claimed that the rent upto the month of November, 2013 was already paid. He also disowned the liability to surrender the tenanted premises to the plaintiff, alleging that the property was not a Waqf property. The plaintiff sued the 1st defendant for eviction and arrears of rent claiming it to be a Waqf registered with the 2nd defendant, the Kerala State Waqf Board.

5. Contentions raised by the revision petitioner before the Tribunal are three fold. It was contended that the plaint schedule shop room was not a Waqf property and therefore the Waqf Tribunal lacked jurisdiction to entertain the suit for eviction and arrears of rent. The revision petitioner therefore claimed to be a statutory tenant entitled to get protection under the provisions of the Kerala Building (Lease and Rent Control) Act, 1965 (for short, 'the Rent Act'). It was also contended that even if the plaint schedule property was assumed to be a Waqf, the eviction and arrears of rent were not reliefs which are permitted to be decided or settled under provisions of Section 85 of the Waqf Act, 1995 (for short, 'the Act') and the Waqf Tribunal lacked jurisdiction to decide the present lis brought before it. It was lastly contended that the period of default in payment of rent alleged by the plaintiff was incorrect and the rent was paid upto the month of November, 2013; and therefore the decree claimed for arrears of rent as quantified in the suit could not be granted.

6. The learned Tribunal examined PW1 on the side of the plaintiff and the 1st defendant got himself examined as DW1. On the side of the plaintiff, Exts.A1 to A7 were admitted in evidence and Exts.B1 to B6 were received in evidence on the side of the revision petitioner. Exts.C1 and C1(a) are Commission report and plan prepared in the suit.

7. The Tribunal after hearing both sides, rejected in part the contentions raised by the revision petitioner and held that the plaint schedule property is a Waqf and the suit for eviction and arrears of rent, is perfectly maintainable before the Tribunal, since the Act as well as the Waqf Properties Lease Rules, 2014, made adequate provisions for eviction of tenant and recovery of arrears of rent from the tenant. The protection from eviction claimed under the provisions of the Rent Act was denied on th