IMPORTANT POINT
The court held that the commercial nature of a lease is preserved despite residential use, invoking protection under the Kerala Land Reforms Act, 1963.

JUDGMENT :

AMIT RAWAL, J.

Petitioner – plaintiff instituted a civil suit W.O.S. No.184 of 2019, by laying challenge to the order of the Administrator of the Kerala State Waqf Board dated 11.07.2014, ordering the eviction from the schedule property measuring 44 cents of land and for the injunction not to evict the petitioner owing to the facts pleaded in the plaint.

2. It was averred that the schedule property originally belonged to Kakkad Juma-ath Palli, Kannur, which was given on lease to many tenants and thereafter, leased out to Kakkad Oil Mills and Industries vide registered document bearing No.474/1947 of S.R.O., Kannur. In lieu thereof an amount of Rs.500/- was received as premium and annual land rent was fixed as Rs.36/-. The said industry went under liquidation and on 16.01.1960, the plaint schedule property including the building and structure thereon was put to public auction.

3. The plaintiff's father acquired the rights in the aforementioned property by lease assignment deed No.550 of 1960, whereby the tenancy rights of the entire building and the structure erected by the said Kakkad Oil Mills, was conferred, for a paltry amount of Rs.3,250/-.

4. On the basis of the complaint made by the 5^th respondent that the status of the petitioner-plainti encroacher, the CEO put up a note on 11.07.2014 before the Administrator and the Administrator passed ejectment order dated 11.07.2014, a one line order, without affording any opportunity to the petitioners/plaintiffs. The order was though assailed before the appellate Tribunal, but of no avail. In that background, the declaration as aforesaid has been sought. In the plaint, the benefit of Section 106 of the Kerala Land Reforms Act, 1963 was also set up. Besides that, the eviction proceedings was also assailed on the ground that, in the earlier round of litigation by the Wakf in original suit No.26/1965, the claim for eviction was rejected by decision dated 13.11.1961, with the direction to the plaintiff to continue to pay the rent.

5. Respondent - Wakf contested the suit on various grounds and stated that, the status of the petitioner/plaintiff as per the provision of Section 3(ee) of the Wakf Act had become of an encroacher and even by virtue of the purchase document or the status continued to be a tenant and not that of an owner. The previous suit basically was decreed commanding the petitioner – plaintiff to pay the arrears of rent. The ownership of the property throughout always vested with the Wakf. Based upon the afore-mentioned pleadings, the learned Tribunal framed following issues cum additional issues:

“Issues

1) Whether the order passed by the administrator of the Waqf Board dated 11.7.2014 is null and void?

2) Whether the plaintiffs are entitled for the benefit under Section 106 of the Kerala Land Reforms Act?

3) Whether the plaintiffs are entitled for a declaration as prayed for?

4) Whether the plaintiffs are entitled for an injunction as prayed for?

5) What is the order as to reliefs and costs? Additional issues

6) Whether the suit is maintainable for want of Section 80 notice?

7) Whether the suit is maintainable against the impugned order of the Waqf Board?

8) Whether the suit is barred by resjudicata, estoppels and waiver?

9) Whether Ext.A4 lease deed is valid or legal?”

6. The Plaintiff examined three witnesses and brought on record following documents whereas the defendants did not examine any witness and brought on record the following documents:

“ Plaintiff Exhibits: