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2018 Supreme(Mad) 2917
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
T. RAVINDRAN, J.
Riyas Nisha - Petitioner
Versus
Mohamed Akbar - Respondent
C.R.P. (NPD) (MD) No. 2375 of 2008; M.P. (MD) No. 1 of 2008; C.R.P. (NPD) (MD) No. 2506 of 2010
Decided On : 06-12-2018
Advocate Appeared:
For the Petitioner: S. Kumar
For the Respondent: V.R. Venkatesan
Headnote:
Wakf Act, 1995 - Section 83 - Sections 6, 7,and 84 - Section 83(1) - Wakf Amendment Act, 2013 - Property Belongs To Jamia Mosque – Tenant – Arrears Of Rent – Possession Of Property - Case of plaintiff in brief is that suit property belongs to Jamia Mosque and plaintiff is President of Mosque and accordingly, suit property is under his management - Suit property was taken on lease by defendant for running a School in year 2002 by way of oral lease - Tenancy is calculated according to English Calender month and present rent of Rs.1,000/- per month to be paid on or before 5th day of every succeeding English Calender month, however, defendant has been keeping rent unpaid from month of July, 2005 and inasmuch as suit property is belonging to religious institution and situated near Mosque, same is required for common purpose of Jamath and Jamath has also decided to improve suit property for welfare of Jamath and accordingly, tenancy of defendant was terminated by giving a notice - Defendant sent a false reply, containing frivolous reasons and thereby, refused to vacate suit property and arrears of rent is from the month of July to November, 2005, amounting to Rs.5,000/- and furthermore, defendant is also liable to pay damages for use and occupation of suit property at rate of Rs.1,000/- per month and accordingly, suit has been laid for necessary reliefs – Held, According to plaintiff, suit property is required for developing Jamath for purpose of running Madharsa and conducting Arabic Classes, Wakf Tribunal had failed to consider abovesaid requirement of plaintiffs Mosque for vacating defendant from suit property and in such view of matter, in court considered opinion, reasonings adduced by Wakf Tribunal, despite defendant having failed to pay rent continuously and keeping arrears of rent not paid for more than five months and also thereafter, continued not to pay rent for successive months and in addition to that, having chosen to deny title of plaintiff without any basis and considering bona fide requirement of plaintiff of suit property for development of Jamath, for declinment of relief of recovery of possession sought for by plaintiff – Mosque is found to be unjustified and without any basis and not in accordance with law - In light of above discussions, Judgment and Decree of Wakf Tribunal, are modified and accordingly, held that plaintiff is entitled to recover possession of suit property from defendant and that defendant is ordered to pay rent to plaintiff at rate of Rs.1,000/- per month from July, 2005 till November, 2005 and thereafter, to pay the sum at rate of Rs.1,000/- per month as damages till handing over of possession of suit property to plaintiff and defendant is accordingly directed to handover possession of suit property to plaintiff on or before 31.05.2019 – Appeal Allowed.
The abovesaid civil revision petitions are directed against the Judgment and Decree dated 28.08.2008, passed in O.S.No.4 of 2006, on the file of the Principal Subordinate Court, Tirunelveli.
2. For the sake of convenience, the parties are referred to as per the rankings in the Trial Court.
3. Suit for recovery of possession, arrears of rent and future damages.
4. The case of the plaintiff in brief is that the suit property belongs to Jamia Mosque and the plaintiff is the President of the abovesaid Mosque and accordingly, the suit property is under the his management. The suit property was taken on lease by the defendant for running a School in the year 2002 by way of the oral lease. The tenancy is calculated according to the English Calender month and the present rent of Rs.1,000/- per month to be paid on or before 5th day of every succeeding English Calender month, however, the defendant has been keeping the rent unpaid from the month of July, 2005 and inasmuch as the suit property is belonging to the religious institution and situated near the Mosque, the same is required for the common purpose of the Jamath and the Jamath has also decided to improve the suit property for the welfare of the Jamath and accordingly, the tenancy of the defendant was terminated by giving a notice on 10.11.2005. The defendant sent a false reply, dated 25.11.2005, containing frivolous reasons and thereby, refused to vacate the suit property and the arrears of rent is from the month of July to November, 2005, amounting to Rs.5,000/- and furthermore, the defendant is also liable to pay the damages for the use and occupation of the suit property at the rate of Rs.1,000/- per month and accordingly, the suit has been laid for the necessary reliefs.
5. The case of the defendant in brief is that the Wakf Tribunal has no jurisdiction to entertain the suit, since the property involved in the suit is not the wakf property and the property originally belonged to Madarasa Mohamathia Kalvi Sangam and Syed Jamalutheen started a School with the lease and licence of the abovesaid Sangam and constructed the School building and accordingly, he got the School recognized in his name as Correspondent and after him, his son also took pains to improve the School and while so, some disgruntled elements filed a suit in O.S.No.496 of 1943, on the file of the District Munsif Court, Tirunelveli, as though the defendant's predecessors wanted to convert the suit property as a private property and the abovesaid suit filed for declaration and possession, the defendant's predecessors never questioned the right of the Sangam and a compromise memo was filed in the abovesaid suit, thereby accepting the right of the Sangam and the Sangam allowed the defendant's predecessor Mohammed Ghouse to be in the possession for a period of five years on monthly rent and consequently, the Sangam had become defunct and the then President made an oral gift of the site bearing the School to the then Correspondent and accordingly, the President also requested the Correspondent to pay some amount to the Jamia Pallivasal as donation and the same was accepted by the defendant's predecessor and thereby, paying the said amount to the Pallivasal, at present, the defendant is paying a sum of Rs.1,000/- to the Pallivasal as donation and the Pallivasal never owned the suit property and not entitled to claim any right over the suit property and there is no relationship of landlord and tenant. The Mosque Authorities have been issuing receipts for the collection of the rent in respect of their building and the abovesaid rent receipts have been utilized for receiving donation from the defendant. Only on the basis of the abovesaid receipts, the plaintiff is now claiming title to the the suit property on the basis of the landlord – tenant relationship. The suit property is not the wakf property. Jamia Mosque is a notified wakf, however, the suit property is not included in the said wakf and after the demise of t
