JUDGMENT :

SUDESH BANSAL, J.

1. Appellants-defendants-tenants have filed this second appeal under Section 100 CPC challenging the decree for eviction dated 27.09.2008 passed by Civil Judge (Senior Division), Tonk in civil suit No. 82/2004 in relation to the shop in question on the ground of bona fide and personal need and which has been affirmed in First Appeal No. 81/2008 passed by District Judge, Tonk vide judgment dated 21.08.2009.

2. The simple issue involved in this second appeal is whether the eviction decree passed by two courts below recording a fact finding that the rented shop of appellants is required for landlord’s grandson-Mohammad Haleem to start grocery business suffers from perversity or not however, counsel for appellants-tenants has tried to make a persuasive attempt seeking declaration of eviction decree passed by civil court as without jurisdiction and nullity raising inter alia following points:

(I) That in the plaint itself, it was pleaded that for this rented shop, the landlord-Hazi Alladin by creating waqf of waqf-alal-aulad for the benefit of his family members including son and grandson and appointed plaintiff as mutawalli, hence, the rented shop is a waqf property and the jurisdiction of civil court to pass an eviction decree in relation to the waqf property is barred.

(II) That in relation to the rented shop of appellants, either the eviction proceedings could have been brought before the Waqf Tribunal or in the alternative, by treating the rented shop as “public premise” the eviction proceedings could/would have been initiated before the Estate Officer under the provisions of Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (hereinafter referred to as “the Unauthorised Occupants Act of 1964”).

(III) That the eviction suit instituted before the civil court for the rented shop was without jurisdiction as the jurisdiction of civil court stands barred either under Section 85 of the Waqf Act, 1995 or by virtue of Section 10(A) of the Unauthorised Occupants Act of 1964.

(IV) In addition to the aforementioned points, learned counsel for appellants-tenants submitted that fact findings recorded by two courts below regarding the issue of bona fide necessity, comparative hardship and partial eviction are perverse and the mutawalli had no right to initiate eviction proceedings.

Hence, according to counsel for appellants whole eviction proceedings commenced before the civil court and the eviction decree passed by the civil court are without jurisdiction and deserve to be quashed and set aside.

3. Per contra, learned counsel appearing for respondent-plaintiff has urged that admittedly appellants are tenants in the rented shop of Hazi Alladin @ Rs. 40/- per month. It has been pleaded in the plaint that Hazi Alladin made a family settlement by way of execution of a registered waqf deed for the benefit of his family and descendants including his son and grandson Mohammad Haleem. Landlord-Hazi Alladin, settler of waqf made private waqf in the nature of waqf-alal-aulad (not waqf-alal-allah) for the benefit of his family and in the waqf deed itself, the plaintiff was authorized to manage, maintain and deal with the rented shop to look after the interest of beneficiaries of the waqf. Since, in the private waqf of waqf-alal-ul-aulad itself, Mr. Mohammad Haleem S/o Mohammad Siddaqi is one of the beneficiaries and being unemployed he is in bona fide requirement of the rented shop to start his own grocery business, therefore, for his bona fide and reasonable necessity, the mutawalli rightly instituted the eviction suit before the civil court under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 on 30.01.2003 against appellants-defendants-tenants. He submits that rented shop is not a “public premise” and appellants are tenants in the shop and not unauthorized occupants, therefore, provisions of the Unauthorised Occupants Act of 1964 are not applicable to the rented shop. Counsel