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Andhra Pradesh High Court
Judges : BILAL NAZKI, L.NARSIMHA REDDY
Sri Radhakrishna Rice Mill Co. - Appellant
Versus
Jumma Maseed - Respondent
Decided On : 04-19-02
Civil Procedure Code, 1908 – Sections 92 and 93 - Religious Endowments Act, 1893 - The Wakf Act, 1954 – Sections 15, 36(f) , 29 and 42 - Wakf Act of 1995 – Sections 32, 42 and 56 - Charitable Endowments Act 1890 - Wakf (Amendment) act, 1984 – Sections 15 and 69 - The Religious Endowments act, 1863 - Wakf (Amendment) Act, 1894 - Tenant - Constructed a Mosque - Sake of convenience - Seeking eviction of tenant - Proceedings under adjudication are as under way back in 17th century one Sahib acquired extensive properties at and constructed a Mosque on the part of it and endowed remaining property for benefit of Mosque - Its affairs went on smoothly for about two centuries - Administration of mosque and its properties should be regulated in accordance with a Scheme one Mr Sahib and others filed OS No. 113/13 on file of Sub-Court under Ss. 92 and 93 of Code of Civil Procedure and provisions of Religious Endowments Act, 1893 - They prayed for framing of a scheme regarding administration of Mosque and different properties and they be appointed as Trustees for Mosque - Sahib claimed to be descendents of founder of Mosque Sahib - After taking into account evidence on record and relevant provisions of law trial Court framed Scheme through its order dated - Salient features of scheme were (A) shall be first Trustee of Mosque and its properties - He shall hold office for life and shall have power to appoint his successor (B) succeeding Trustees shall also have power to appoint their successors and successors shall be among descendents of founder Mr sahib (C) Where if any Trustee dies or vacates office without appointing his successor Court may appoint Trustee from among descendents of founder on applications of three worshippers of (D) If there is no person among descendents qualified to fill office Court may appoint a stranger (E) A Panchayat or Committee consisting of five respectable residents of shall be constituted to supervise and control management and administration of trust by Trustees - Learned Standing counsel for A. P. Wakf Board addressed Court with reference to various provisions of Wakf Acts of 1954 and 1995 - He has also placed before this Court various authorities on subject and ultimately submitted that continuance of lease in favour of tenant is in gross violation of provisions of Wakf Act of 1954 and 1995 and that Mosque was put to great loss on account of unlawful continuance of tenant – Held, relationship of lessor and lessee between Mosque and tenant is not at all in dispute - It is no doubt true that possession of tenant over premises is spread over several decades - But it should not be forgotten that tenant suffered a decree for eviction way back in - Possession for a long period by itself does not render tenancy permanent - It should be evident from conditions of lease that tenant will be entitled to continue in premises as long as business for which premises is teased subsists - There were several lease deeds executed one after other between parties - In none of these leases such a clause existed - Further earlier lease deeds stood annulled and compromise recorded in E. P. No. 50/60 was treated as an independent lease by this Court through orders in CMANo 304/66 - Order passed in EP No. 50/50 also does not contain such a clause - Therefore lease in favour of tenant cannot be said to be permanent - Another reason why plea of tenant cannot be accepted - Mosque filed OS No. 84/48 seeking eviction of tenant - Tenant did not raise plea of permanent tenancy - On other hand tenant agreed to vacate premises and a consent decree came to be passed - Orders that came to be passed in successive EPs filed by Mosque have effect of only permitting tenant to continue for specified periods indicated therein - Therefore even if there existed any semblance of permanency in tenancy – From factual aspects there is legal aspect also - Mosque is undisputedly a registered Wakf - Scheme framed by trial Court in Scheme Suit (O. S. No. 113/13) has bearing only on the appointment of Mutawalli - So far as administration of properties is concerned provisions of 1954 Act and thereafter 1995 Act are applicable - In fact Scheme which was framed in the year contained following clause trust property shall vest in trustee for time being who shall take possession of and administer the same in accordance with principles of religion and provisions of Mohammedan Law and Religious endowment Act – Order Accordingly.
( 2 ) THE appellants in AS. No. 480/76 are the petitioners in CRP Nos. 642 and 643 of 1997. For the sake of convenience, they are referred to as the tenant . The respondent in the appeal and the CRP Nos. 642 and 643 of 1997 is Jumma Masjid. Vijayawada, which is referred to as the Mosque for the sake of convenience. There are rival contenders for the office of the Trustee/mutawalli in respect of the said Mosque. They are arrayed in the proceedings in various capacities. To avoid confusion, they are referred to by their names.
( 3 ) THE facts which gave rise to the proceedings under adjudication are as under : way back in the 17th century, one Shah musafir Sahib, acquired extensive properties at Vijayawada and constructed a Mosque on the part of it and endowed the remaining property for the benefit of the Mosque. Its affairs went on smoothly for about two centuries.
( 4 ) FEELING that the administration of the mosque and its properties should be regulated in accordance with a Scheme, one Mr. Abdul Hakim Sahib and others filed OS No. 113/13, on the file of the Sub-Court, bezwada (now Vijayawada), under Ss. 92 and 93 of the Code of Civil Procedure and provisions of Religious Endowments Act, 1893. They prayed for framing of a scheme regarding administration of the Mosque and different properties and they be appointed as Trustees for the Mosque. Hakim Sahib claimed to be the descendents of the founder of the Mosque viz. , Shah Musafir Sahib. After taking into account the evidence on record and the relevant provisions of law, the trial Court framed the Scheme through its order dated 30-9-1915. The salient features of the scheme were : (A) Mohammed Abdul Hakim shall be the first Trustee of the Mosque and its properties. He shall hold office for life and shall have the power to appoint his successor; (B) The succeeding Trustees shall also have the power to appoint their successors and the successors shall be among the descendents of the founder Mr. Shah Musafir sahib; (C) Where, if any Trustee dies or vacates the office without appointing his successor, the Court may appoint the Trustee from among the descendents of the founder, on the applications of three worshippers of bezwada; (D) If there is no person among the descendents qualified to fill the office, the Court may appoint a stranger; (E) A Panchayat or Committee consisting of five respectable Mohammedan residents of Bezwada shall be constituted to supervise and control the management and administration of the trust by the Trustees. If the majority of the committee feels that the nominee of the outgoing Trustee is not fit to hold office, they may pass a resolution in writing stating their objections to his nomination and may move the Sub-Court of bezwada for his removal. (F) The property of the trust shall vest in the Trustee and he shall administer the same in accordance with the principles of mohammedan religion and the provisions of mohammedan Law and the Religious Endowment Act. (G) The Trustee or the members of the trust are liable to be removed or suspended by the Court, on proven acts of misconduct and neglect of duty;having framed the above Scheme and appointed one Abdul Hakim as the Trustee, the trial Court had also constituted the panchayats. Abdul Hakim nominated his brother Abdul Rahim to be his successor on 11-4-1945. Abdul Rahim accepted the nomination and through its order in I. A. No. 677/ 45 in O. S. No. 113/13, the trial Court approved the same.
( 5 ) DURING the tenure of Abdul Rahim as the Trustee, the Wakf Act, 1954 (hereinafter referred to as the 1954 Act ) came to be enacted. He was appointed as the 1st Chairman of A. P. Act Wakf Board. He made some attempts to change the mode of nomination or succession of Trusteeship to the Mosque. He executed two Wakf Deeds on 2-11-1961 and 1
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