Nabbooma Bee and anr. Vs. Syed Ali Akbar NizamuddIn Hussain - Court Judgment

SooperKanoon Citationsooperkanoon.com/442084
SubjectTenancy;Civil
CourtAndhra Pradesh High Court
Decided OnDec-14-2007
Case NumberSecond Appeal No. 254 of 1999
JudgeP.S. Narayana, J.
Reported in2008(2)ALD269; 2008(2)ALT351
ActsRent Control Act; Wakf Act - Sections 3(1)
AppellantNabbooma Bee and anr.
RespondentSyed Ali Akbar NizamuddIn Hussain
DispositionAppeal dismissed
Excerpt:
- - b-1, b-2 and b-3 as well and would maintain that in the light of the same the stand taken by the plaintiff cannot be a sustainable stand. a-3, a-4, a-5, a-6, a-7, a-8 and a-9 as well and would maintain that there had been some confusion, but the same can be clarified, especially, in relation to ex. the present appellants are unsuccessful defendants in o. since the defendant failed to pay the rent thereafter, the plaintiff got issued legal notices on 06.5.1985 and 2.10.1985 to the defendant nos. 15. strong reliance was placed on exs. b-2 and b-3 as well. b-1 to b-3 as well. though certain of the findings recorded by the appellate court may not be satisfactory, on a careful analysis of the whole factual matrix, this court is satisfied that the appellants-defendants had not taken sustainable pleas in the written statement and even otherwise no convincing evidence as such had been placed before the courts below in this regard and, hence, in the light of the clear oral evidence which had been adduced by the plaintiff well coupled with exs. a-1 to a-9 as well, this court is of the considered opinion that the concurrent findings recorded by the court of first instance and also the appellate court need no disturbance at the hands of this court .16. accordingly the second appeal shall stand dismissed with costs granting a months time to vacate the schedule premises.p.s. narayana, j.1. this court on 12.3.1999 made the following order.the second appeal is admitted. questions (a) and (b) of paragraph 9 of the memorandum of grounds of appeal are the substantial questions to be considered in this second appeal.the said grounds (a) and (b) read as hereunder:(a) whether the courts below had jurisdiction to entertain the eviction suit in the light of ex.b-2 declaratory decree declaring that the properties of darga are not wakf properties?(b) whether the courts below were justified in assuming that the suit properties are wakf properties in the absence of primary document of muntakhab being produced by the plaintiff and in the teeth of ex.b-2 decree declaring to the contrary?learned senior counsel sri vilas v. afzulpurkar, also had pointed out that apart from the said grounds (a) and (b) under 9, ground (c) also may have to be considered and the said ground (c) reads as hereunder.(c) whether the courts below were justified in holding ex.a-1 to a-3 having been proved in law inspite of the fact that the attesting witness was scribe was not examined and the signatures of a-2 cannot be compared by the court without the aid of an expert2. sri vilas v. afzulpurkar, learned senior counsel representing appellants, would maintain that both the court of first instance and also the appellate court totally erred in appreciating the respective stands taken by the parties. when the very right and title of the plaintiff had been denied, the burden is on the plaintiff to establish the same. the learned senior counsel also had drawn the attention of this court to exs.b-1, b-2 and b-3 as well and would maintain that in the light of the same the stand taken by the plaintiff cannot be a sustainable stand. further, the learned senior counsel would contend that the appellate court totally erred in relying upon the definition of 'landlord' within the meaning of rent control act since the same cannot be made applicable. at any rate, in the light of the specific stand taken in ex.b-1 by the father of the plaintiff the suit itself cannot be maintained and when that being so, in the light of the findings which had been recorded by the appellate court, this is a fit matter where an order of remand to be made. learned counsel also had taken this court through the relevant documents and the findings recorded by both the court of first instance and also appellate court.3. per contra, sri p. gangaiah naidu, learned senior counsel representing respondent-plaintiff would maintain that concurrent findings had been recorded by both the court of first instance and also appellate court. the learned counsel also had taken this court through the relevant findings and further explained what was the nature of relief, which had been prayed for by the father of the plaintiff in ex.b-1 and also further had drawn the attention of this court to ex.a-10 apart from exs.a-1, a1-a, a-2. the learned counsel also had drawn the attention of this court to exs.a-3, a-4, a-5, a-6, a-7, a-8 and a-9 as well and would maintain that there had been some confusion, but the same can be clarified, especially, in relation to ex.b-1 in the light of the nature of the relief which had been prayed in ex.b-1 and the averments made in the said plaint.4. heard the counsel on record.5. the substantial questions of law on the strength of which the second appeal had been admitted and yet another substantial question of law which had been pointed out by the learned senior counsel sri vilas v. afzulpurkar already had been specified supra. the present appellants are unsuccessful defendants in o.s.no.1532 of 1986 on the file of iii assistant judge, city civil court, hyderabad, and appellants in a.s.no.215 of 1994 on the file of ii additional chief judge, city civil court, hyderabad. it is needless to say that the respondent is the successful plaintiff in both the courts below.6. the parties herein would be referred to as plaintiff and defendants as shown in o.s.no.1532 of 1986. 7. the plaintiffs filed the suit for eviction of the defendants and their men from the plaint schedule property and also for further relief of possession and mesne profits.8. the averments made in the plaint in brief are as hereunder.the suit premises bearing no.5-6-583/2/3 situated inside dargah hazrat shah qamosh saheb, nampally, hyderabad is the wakf property and the plaintiff was the mutawalli and sajjada of the above said dargah. husband of the defendant no.1 and father of the defendant no.2 by name mohd. ismail took the suit premises above mentioned on rent of rs. 12/- by executing a rental deed on 10.4.1975 in favour of the plaintiff's father, who by that time was the mutawalli of the said dargah to which the suit property was situated. after the death of said ismail i.e., the husband of defendant no.1 and the father of the defendant no.2, the defendants who were the legal heirs, had approached the plaintiff and requested them to continue them in possession of the suit premises as tenant offering to pay rent of rs. 25/- per month for the said premises and the plaintiff agreed for it. it is also stated that whenever defendant no.2 paid rents, the plaintiff used to issue receipts and the defendant no.2 used to acknowledge it. the defendant paid rents up to the end of december 1983 and thereafter stopped to pay the same. since the defendant failed to pay the rent thereafter, the plaintiff got issued legal notices on 06.5.1985 and 2.10.1985 to the defendant nos.1 and 2 terminating the tenancy and directing him to hand over the vacant possession of the suit premises by 30.6.1985, for which defendants got issued reply notices denying the tenancy and ownership of the plaintiff as mutawalli and on the other hand claimed the ownership rights over the suit premises. hence, the suit.9. the defendants filed common written statement with the following averments denying that the suit property is part of the property of dargah hazrat shah qamosh saheb, nampally, and it belongs to wakf. it is also denied that the husband of the first defendant had taken the premises on lease and that he had executed rental agreement. the further stand is that the suit premises is the self-acquired and private property of mohd. ismail, the husband of the first defendant and father of the second defendant, and they came into possession about 42 years ago and defendants acquired title to the property after the demise of mohd. ismail and they became absolute owners. further, it is specifically denied that they approached the plaintiff and requested him to continue as tenant. the plaintiff had no right, title or interest in suit property, so he is not entitled to terminate the tenancy. the termination is illegal against the real owners.10. on the strength of the pleadings, the following issues were settled by the court of first instance.(1) whether the defendants are liable to be evicted from the suit premises?(2) whether the defendants are liable for mesne profits?(3) whether the plaintiff is entitled for past mesne profits?(4) to what relief?11. to substantiate the case of the plaintiff before the court of first instance, he had examined himself as p.w.1 and also examined p.ws.2 and 3 and marked exs.a-1 to a-10. the second defendant examined himself as d.w.1 and exs.b-1 to b-3 were marked. 12. the court of first instance, on appreciation of evidence, decreed the suit and directed the defendants to hand over possession of the suit property within two months. aggrieved by the same, the defendants preferred appeal a.s.no.215 of 1994 on the file of ii additional chief judge, city civil court, hyderabad. the appellate court framed the following points for consideration.(1) whether there is the relationship of landlord and tenant between the parties and, if so, whether the plaintiff is entitled for eviction of the defendants/appellants from the schedule premises and for delivery of vacant possession of the suit property?(2) whether the defendants perfected their title to the suit property by adverse possession? (3) whether the plaintiff is entitled for mesne profits, if so, to what amount and for which period?(4) to what relief?13. the appellate court discussed oral and documentary evidence available on record commencing from paras 9 to 14 and ultimately dismissed the appeal with costs throughout confirming the decree and judgment made by the court of first instance in o.s.no.1532 of 1986. the appellants-defendants were directed to vacate schedule premises and deliver vacant possession of the same to respondent-plaintiff on or before 31.01.1999. aggrieved by the same, the present second appeal had been preferred.14. except the evidence of d.w.1 there is no other evidence available on record and no doubt reliance was placed on exs.b-1 to b-3. the relief prayed for by the father of the plaintiff in o.s.no.454 of 1970 on the file of iv assistant judge, city civil court, hyderabad, is for a declaration that the dargah and shrine was not wakf property strictly within the meaning of the provisions of section 3(1) of wakf act and prayed for injunction as ancillary relief restraining the wakf board from demanding any contribution and statements of account pertaining to the income and expenditure of the institution viz., dargah hazrath shah qamosh sahab qibla, nampally, hyderabad, vide notices of demand dated 11.11.1969, 19.5.1970 and for costs. 15. strong reliance was placed on exs.b-2 and b-3 as well. ex.a-10 is the certified copy of order in w.p.no.5804 of 1990. on a careful reading of ex.a-10 it appears that the father of the plaintiff had taken a specific stand relating to nature of the property as belonging to the wakf. findings in detail had been recorded by both the court of first instance and also the appellate court on appreciation of oral and documentary evidence available on record, the evidence of p.ws.1 to 3 and d.w.1 and also the documentary evidence exs.a-1 to a-10 and exs.b-1 to b-3 as well. though certain of the findings recorded by the appellate court may not be satisfactory, on a careful analysis of the whole factual matrix, this court is satisfied that the appellants-defendants had not taken sustainable pleas in the written statement and even otherwise no convincing evidence as such had been placed before the courts below in this regard and, hence, in the light of the clear oral evidence which had been adduced by the plaintiff well coupled with exs.b-1 to b-3 and also ex.a-10 if carefully scrutinized along with exs.a-1 to a-9 as well, this court is of the considered opinion that the concurrent findings recorded by the court of first instance and also the appellate court need no disturbance at the hands of this court .16. accordingly the second appeal shall stand dismissed with costs granting a months time to vacate the schedule premises.
Judgment:

P.S. Narayana, J.

1. This Court on 12.3.1999 made the following order.

The second appeal is admitted. Questions (a) and (b) of paragraph 9 of the memorandum of grounds of appeal are the substantial questions to be considered in this second appeal.

The said grounds (a) and (b) read as hereunder:

(a) Whether the courts below had jurisdiction to entertain the eviction suit in the light of Ex.B-2 declaratory decree declaring that the properties of Darga are not wakf properties?

(b) Whether the courts below were justified in assuming that the suit properties are wakf properties in the absence of primary document of Muntakhab being produced by the plaintiff and in the teeth of Ex.B-2 decree declaring to the contrary?

Learned senior counsel Sri Vilas V. Afzulpurkar, also had pointed out that apart from the said grounds (a) and (b) under 9, ground (c) also may have to be considered and the said ground (c) reads as hereunder.

(c) Whether the courts below were justified in holding Ex.A-1 to A-3 having been proved in law inspite of the fact that the attesting witness was scribe was not examined and the signatures of A-2 cannot be compared by the court without the aid of an expert

2. Sri Vilas V. Afzulpurkar, learned senior counsel representing appellants, would maintain that both the court of first instance and also the appellate court totally erred in appreciating the respective stands taken by the parties. When the very right and title of the plaintiff had been denied, the burden is on the plaintiff to establish the same. The learned senior counsel also had drawn the attention of this Court to Exs.B-1, B-2 and B-3 as well and would maintain that in the light of the same the stand taken by the plaintiff cannot be a sustainable stand. Further, the learned senior counsel would contend that the appellate court totally erred in relying upon the definition of 'landlord' within the meaning of Rent Control Act since the same cannot be made applicable. At any rate, in the light of the specific stand taken in Ex.B-1 by the father of the plaintiff the suit itself cannot be maintained and when that being so, in the light of the findings which had been recorded by the appellate court, this is a fit matter where an order of remand to be made. Learned Counsel also had taken this Court through the relevant documents and the findings recorded by both the court of first instance and also appellate court.

3. Per contra, Sri P. Gangaiah Naidu, learned senior counsel representing respondent-plaintiff would maintain that concurrent findings had been recorded by both the court of first instance and also appellate court. The learned Counsel also had taken this Court through the relevant findings and further explained what was the nature of relief, which had been prayed for by the father of the plaintiff in Ex.B-1 and also further had drawn the attention of this Court to Ex.A-10 apart from Exs.A-1, A1-A, A-2. The learned Counsel also had drawn the attention of this Court to Exs.A-3, A-4, A-5, A-6, A-7, A-8 and A-9 as well and would maintain that there had been some confusion, but the same can be clarified, especially, in relation to Ex.B-1 in the light of the nature of the relief which had been prayed in Ex.B-1 and the averments made in the said plaint.

4. Heard the counsel on record.

5. The substantial questions of law on the strength of which the second appeal had been admitted and yet another substantial question of law which had been pointed out by the learned senior counsel Sri Vilas V. Afzulpurkar already had been specified supra. The present appellants are unsuccessful defendants in O.S.No.1532 of 1986 on the file of III Assistant Judge, City Civil Court, Hyderabad, and appellants in A.S.No.215 of 1994 on the file of II Additional Chief Judge, City Civil Court, Hyderabad. It is needless to say that the respondent is the successful plaintiff in both the courts below.

6. The parties herein would be referred to as plaintiff and defendants as shown in O.S.No.1532 of 1986.

7. The plaintiffs filed the suit for eviction of the defendants and their men from the plaint schedule property and also for further relief of possession and mesne profits.

8. The averments made in the plaint in brief are as hereunder.

The suit premises bearing No.5-6-583/2/3 situated inside Dargah Hazrat Shah Qamosh Saheb, nampally, Hyderabad is the wakf property and the plaintiff was the Mutawalli and Sajjada of the above said Dargah. Husband of the defendant No.1 and father of the defendant No.2 by name Mohd. Ismail took the suit premises above mentioned on rent of Rs. 12/- by executing a rental deed on 10.4.1975 in favour of the plaintiff's father, who by that time was the Mutawalli of the said Dargah to which the suit property was situated. After the death of said Ismail i.e., the husband of defendant No.1 and the father of the defendant No.2, the defendants who were the legal heirs, had approached the plaintiff and requested them to continue them in possession of the suit premises as tenant offering to pay rent of Rs. 25/- per month for the said premises and the plaintiff agreed for it. It is also stated that whenever defendant No.2 paid rents, the plaintiff used to issue receipts and the defendant No.2 used to acknowledge it. The defendant paid rents up to the end of December 1983 and thereafter stopped to pay the same. Since the defendant failed to pay the rent thereafter, the plaintiff got issued legal notices on 06.5.1985 and 2.10.1985 to the defendant Nos.1 and 2 terminating the tenancy and directing him to hand over the vacant possession of the suit premises by 30.6.1985, for which defendants got issued reply notices denying the tenancy and ownership of the plaintiff as mutawalli and on the other hand claimed the ownership rights over the suit premises. Hence, the suit.

9. The defendants filed common written statement with the following averments denying that the suit property is part of the property of Dargah Hazrat Shah Qamosh Saheb, Nampally, and it belongs to wakf. It is also denied that the husband of the first defendant had taken the premises on lease and that he had executed rental agreement. The further stand is that the suit premises is the self-acquired and private property of Mohd. Ismail, the husband of the first defendant and father of the second defendant, and they came into possession about 42 years ago and defendants acquired title to the property after the demise of Mohd. Ismail and they became absolute owners. Further, it is specifically denied that they approached the plaintiff and requested him to continue as tenant. The plaintiff had no right, title or interest in suit property, so he is not entitled to terminate the tenancy. The termination is illegal against the real owners.

10. On the strength of the pleadings, the following issues were settled by the court of first instance.

(1) Whether the defendants are liable to be evicted from the suit premises?

(2) Whether the defendants are liable for mesne profits?

(3) Whether the plaintiff is entitled for past mesne profits?

(4) To what relief?

11. To substantiate the case of the plaintiff before the court of first instance, he had examined himself as P.W.1 and also examined P.Ws.2 and 3 and marked Exs.A-1 to A-10. The second defendant examined himself as D.W.1 and Exs.B-1 to B-3 were marked.

12. The court of first instance, on appreciation of evidence, decreed the suit and directed the defendants to hand over possession of the suit property within two months. Aggrieved by the same, the defendants preferred appeal A.S.No.215 of 1994 on the file of II Additional Chief Judge, City Civil Court, Hyderabad. The appellate court framed the following points for consideration.

(1) Whether there is the relationship of landlord and tenant between the parties and, if so, whether the plaintiff is entitled for eviction of the defendants/appellants from the schedule premises and for delivery of vacant possession of the suit property?

(2) Whether the defendants perfected their title to the suit property by adverse possession?

(3) Whether the plaintiff is entitled for mesne profits, if so, to what amount and for which period?

(4) To what relief?

13. The appellate court discussed oral and documentary evidence available on record commencing from paras 9 to 14 and ultimately dismissed the appeal with costs throughout confirming the decree and judgment made by the court of first instance in O.S.No.1532 of 1986. The appellants-defendants were directed to vacate schedule premises and deliver vacant possession of the same to respondent-plaintiff on or before 31.01.1999. Aggrieved by the same, the present second appeal had been preferred.

14. Except the evidence of D.W.1 there is no other evidence available on record and no doubt reliance was placed on Exs.B-1 to B-3. The relief prayed for by the father of the plaintiff in O.S.No.454 of 1970 on the file of IV Assistant Judge, City Civil Court, Hyderabad, is for a declaration that the Dargah and Shrine was not Wakf property strictly within the meaning of the provisions of Section 3(1) of Wakf Act and prayed for injunction as ancillary relief restraining the Wakf board from demanding any contribution and statements of account pertaining to the income and expenditure of the institution viz., Dargah Hazrath Shah Qamosh Sahab Qibla, Nampally, Hyderabad, vide notices of demand dated 11.11.1969, 19.5.1970 and for costs.

15. Strong reliance was placed on Exs.B-2 and B-3 as well. Ex.A-10 is the certified copy of order in W.P.No.5804 of 1990. On a careful reading of Ex.A-10 it appears that the father of the plaintiff had taken a specific stand relating to nature of the property as belonging to the wakf. Findings in detail had been recorded by both the court of first instance and also the appellate court on appreciation of oral and documentary evidence available on record, the evidence of P.Ws.1 to 3 and D.W.1 and also the documentary evidence Exs.A-1 to A-10 and Exs.B-1 to B-3 as well. Though certain of the findings recorded by the appellate court may not be satisfactory, on a careful analysis of the whole factual matrix, this Court is satisfied that the appellants-defendants had not taken sustainable pleas in the written statement and even otherwise no convincing evidence as such had been placed before the courts below in this regard and, hence, in the light of the clear oral evidence which had been adduced by the plaintiff well coupled with Exs.B-1 to B-3 and also Ex.A-10 if carefully scrutinized along with Exs.A-1 to A-9 as well, this Court is of the considered opinion that the concurrent findings recorded by the court of first instance and also the appellate court need no disturbance at the hands of this Court .

16. Accordingly the second appeal shall stand dismissed with costs granting a months time to vacate the schedule premises.