Md. Ahmed Ali and ors. Vs. Alastu Talimi Trust and anr. - Court Judgment

G. Yethirajulu, J.

1. These second appeals are preferred by the tenants of various premises of a Wakf against the judgment and decree of the first appellate Court confirming the eviction order passed by the Civil Court.

2. S.A. No. 372 of 1999 is preferred by the defendant in O.S. No. 4712 of 1991. He was the tenant of the suit mulgi situated at Charminar, Hyderabad on a monthly rent of Rs. 50/-. He committed default in payment of rent for a period of seven (7) months i.e., from 1-4-1989 to 30-10-1989.

3. S.A. No. 373 of 1999 is preferred by the defendant in the suit. He was the tenant of the suit mulgi situated at Charminar, Hyderabad taken on a rent of Rs. 50/- p.m. He committed default in payment of the rent for 20 months from 1-9-1987 to 31-7-1989.

4. The appellant in S.A.No. 374 of 1999 is the defendant in O.S. No. 4720 of 1991, He is the tenant of the suit mulgi at Charminar, Hyderabad, on a monthly rent of Rs. 30/-. He committed default in payment of rent for a period of eight (8) months i.e., from 1-1-1989 to 31-8-1989.

5. The appellant in S.A.No. 375 of 1999 is the defendant in O.S. No. 4716 of 1991. He was the tenant of the first plaintiff-trust in respect of the suit mulgi situated at Charminar, Hyderabad on a monthly rent of Rs. 50/-. He committed default in payment of rent for a period of 13 months i.e., from 1-10-1988 to 31-10-1989.

6. The appellants in S.A. No. 378 of 1999 are the defendants in O.S. No. 4714 of 1991 filed for eviction and recovery of rent. They were the tenants of the suit mulgi situated at Charminar, Hyderabad on a monthly rent of Rs. 45/-, They committed default in payment of rent for a period of six (6) months i.e., from 1-4-1989 to 30-9-1989.

7. The appellants in S.A. No. 379 of 1999 are the defendants in O.S. No. 4721 of 1991 filed for eviction and recovery of rent. They were the tenants of the suit mulgi situated at Charminar, Hyderabad on a monthly rent of Rs. 35/-. They committed default in payment of rent for a period of six (6) months i.e., from 1-4-1989 to 30-9-1989.

8. S.A. No. 405 of 1999 was preferred by the defendant in O.S. No. 4718 of 1991 filed for eviction and recovery of rent. He was the tenant of the suit schedule premises situated at Abids, Hyderabad on a monthly rent of Rs. 300/-. He committed default in payment of rent for a period of two months i.e., from 1-3-1991 to 30-4-1991 and denied the agreed rent at Rs. 300/-. According to him, the rent was only Rs. 50/- per month.

9. S.A. No. 470 of 1999 as preferred by the defendant in O.S. No. 4715 of 1991. He was the tenant of the suit premises situated at Abids, Hyderabad on a monthly rent of Rs. 400/-. The tenancy of the defendant was for a period of eleven (11) months from 142-1973. After expiry of the lease period the defendant is being continued on the same terms and conditions on month-to-month basis commencing on the first and expiring at the end of the month. The defendant is harassing the first plaintiff-trust by making false complaints, therefore, the plaintiff decided not to continue him as a tenant.

10. S.A. No. 488 of 1999 was preferred by the defendant in O.S. No. 4717 of 1996. He was the tenant of the suit mulgi situated at Charminar, Hyderabad on a monthly rent of Rs. 135/-. He committed default in payment of the rent for a period of 18 months i.e., from 1-2-1988 to 31-7-1989.

11. S.A. No. 843 of 1999 is preferred by the defendants in O.S. No. 4721 of 1991. They are the tenants of the suit mulgi situated at Charminar, Hyderabad on an agreed rent of Rs. 35/-. They committed default in payment of rent for a period of six (6) months i.e., from 1-4-1989 to 30-9-1989.

12. S.A. No. 848 of 1999 is preferred by the defendants in O.S. No. 4714 of 1991. They were the tenants of the suit mulgi situated at Charminar, Hyderabad on a monthly rent of Rs. 45/-. They committed default in payment of rent for a period of six months i.e., from 1-4-1989 to 30-9-1989.

13. The appellant in S.A.No. 856 of 1999 is the defendant in O.S. No. 4716 of 1991 filed for eviction and recovery of rent in respect of the suit mulgi situated at Charminar, Hyderabad on a monthly rent of Rs. 50/-. He committed default in payment of rent for a period of 13 months i.e., from 1-10-1988 to 31-10-1989.

14. The appellants in S.A. No. 858 of 1999 are the defendants in O.S. No. 4712 of 1991 filed for eviction and recovery of rent in respect of the suit mulgi situated at Charminar, Hyderabad on a monthly rent of Rs. 50/-. They committed default in payment of rent for a period of seven (7) months i.e., from 14-1989 to 30-10-1989.

15. S.A. No. 858 of 1999 is preferred by the defendant in O.S. No. 4713 of 1991 filed for eviction and recovery of rent of a mulgi situated at Charminar, Hyderabad. He committed default in payment of rent @ 50/ - p.m. for a period of 23 months i.e., from 1-9-1987 to 31-7-1989.

16. The first respondent, is the Arasthu Talimi Trust, Hyderabad. It was registered with A.P. State Wakf Board as a Wakf. It is the landlord owning mulgis in question at Charminar and Abids respectively. The Wakf and the A.P. State Wakf Board are the plaintiffs 1 and 2 in all the suits. The plaintiffs filed the suits for recovery of possession of the suit mulgis, arrears of rent and mesne profits from the dates of default till the date of delivery of possession and for costs on the ground that the defendant/s-tenant/s committed default in payment of rent.

17. All the defendants took a common plea that the first plaintiff is not a Wakf under the Wakf Act. The suit mulgis are more than 50 years old, therefore, the civil suits are not maintainable and the first plaintiff erred in coming to the Civil Court instead of moving the Rent Controller for the reliefs sought for.

18. The Courts below gave a concurrent finding that the suit properties are Wakf properties and as the properties relating to the Wakfs are exempted from the purview of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 ('the Rent Control Act' for brevity), the suits are maintainable against the defendants and as the defendants committed default in payment of rents, they are liable to be evicted from the respective mulgis. The suits were accordingly decreed by the Trial Court and confirmed by the first appellate Court.

19. Since these are the second appeals governed by Section 100 of the Code of Civil Procedure, there is no scope to enter into the factual aspects, therefore, the appellants raised some substantial questions of law by contending that the first respondent-trust is not a wakf to get exemption from the purview of the Rent Control Act, and that the Civil Court has no jurisdiction to entertain the suits.

20. Since common questions of law arose in all these appeals and as the respondents are common in all the appeals, the appeals are jointly heard.

21. CCCA No. 243 of 1999 was preferred by the tenants of one of the properties of the first plaintiff-trust situated at Abids, Hyderabad against the judgment and decree of eviction granted by the Senior Civil Judge, City Civil Court, Hyderabad in O.S. No. 830 of 1991 challenging its validity and legality.

22. According to the first plaintiff, the defendants orally agreed to pay Rs. 3,600/-p.m. towards rent and committed default in payment of rent for two months i.e., from 1-3-1991 to 30-4-1991. Hence the suit for eviction and recovery of rent.

23. The defendants, while taking the plea of maintainability of the suit and the capacity of the first plaintiff as a Wakf, questioned the quantum of rent by contending that the monthly rent of the suit premises was only Rs. 600/- and not Rs. 3,600/-.

24. The Trial Court decreed the suit by holding that the monthly rent was at Rs. 3,600/-. The Trial Court further held that the suit is maintainable.

25. Since this is a first appeal preferred by the defendants against the judgment and decree of the Trial Court, the mixed question of law and fact can be taken into consideration. In view of the dispute raised by the defendants regarding the quantum of rent, it may be appropriate to take up the said aspect as one of the points for consideration.

26. Since there are two common points involved in this first appeal and the second appeals, this appeal is also clubbed with the second appeals and the common judgment is delivered.

27. Though different sets of documents were marked in the above suits, almost all of them are common documents, therefore, the documents marked in O.S. No. 830 of 1991 corresponding to C.C.C.A. No. 243 of 1991 are taken into consideration for the disposal of these appeals.

28. The facts leading to the filing of the second appeals are as follows:

29. The first plaintiff is an educational trust for the benefit and education of the children of Arastu family and has got different properties, including the properties at Charminar and Abid Road, Hyderabad, endowed and they are listed with the Wakf Board. Sri Saleem Hussaini Arastu is the Secretary of the said trust. The appellants herein and defendants in the suits were the tenants of the suits mulgis, on oral agreements on rent, excluding electricity consumption charges. As per the said agreements the tenancy commences from 1st of every month and ends by the end of the same month of the English Calendar. The defendants-tenants committed breach of rental agreements and failed to pay the rent for the periods mentioned in respect of each suit. The first plaintiff filed eviction cases before the Rent Controller, City Civil Court, Hyderabad, on the ground of default of payment of rents. Subsequently the defendants filed I.As. and separate Rent Control Cases for deposit of rents, during the pendency of Rent Control Cases filed by the plaintiffs. The plaintiffs have withdrawn those cases on the ground that the Rent Controller has no jurisdiction over the wakf properties. Thereafter the first plaintiff got issued legal notices under Section 106 of the Transfer of Property Act to all the defendants-tenants terminating their tenancies and demanded to pay the arrears of rent and called upon them to vacate the suit mulgis as on the dates specified in the respective notices. When the defendants denied those claims, the plaintiffs filed the suits.

30. The defendants filed written statements contending that they are the lawful tenants of the first plaintiff and are governed by the provisions of the Rent Control Act. They denied the averments of the plaints that Sri Saleem Hussaini Arastu is the Secretary of the trust and the suit mulgis are registered wakf properties. The first plaintiff belongs to Shia Ismailia Tyebia Daudi Boharas community and its Dai Ul-Multauq stationed at Bombay is the Religious Head of the said community and he is the sole trustee of the properties of the Daudi Bohra community. Denying the averments of the plaints in all the suits, the defendants contended that the first plaintiff has not filed copy of the resolution of trust appointing Mr. Saleem Hussaini as Secretary and the plaintiffs are not entitled to any relief as per G.O. Ms. No. 1313 dated 24-9-1969. The suits are therefore liable to be dismissed with exemplary costs.

31. Basing on the rival pleadings the Trial Court framed appropriate issues in all the suits and took up the matters for trial. During trial, the plaintiffs examined P.W.1, Saleem Husssaini, the Secretary of the trust and another person as P.W.2 and got some documents marked. The defendants got themselves examined as D.W.1 in almost all the suits, except in O.S. Nos. 4718 and 830 of 1991, but did not mark any documents on their behalf. In O.S. No. 4718 of 1991 the defendants examined D.Ws.1 and 2 and got marked Exs.B-1 to B-6 and in O.S. No. 830 of 1991 the defendants examined D.Ws.1 and 2 and got marked Exs.B-1 to B-18. The Trial Court during the recording of evidence of the witnesses marked X-series also.

32. The trial Court after taking into consideration the evidence adduced by both parties delivered its judgments on 10-4-1996 in all the suits allowing them with costs by holding that the first plaintiff is entitled for recovery of possession of the suit mulgis from the defendants with rent and compensation for their illegal occupation from 1-7-1991 till the date of delivery of possession. The trial Court also directed the defendants to vacate and handover the vacant suit mulgis to the first plaintiff within two months from the date of judgments and decrees.

33. The defendants being aggrieved by the judgments and decrees of the trial Court preferred appeals before the first appellate Court challenging their validity and legality. The plaintiffs filed X-Objections before the first appellate Court in respect of the findings given by the trial Court regarding the payment of Court Fee.

34. During the pendency of the appeals the respondents-plaintiffs filed interlocutory applications seeking permission to adduce further documentary evidence and to receive the documents. The respondents-plaintiffs filed an Urdu Gazette notification, Hyderabad Deccan dated 4th Behman 1346 Fasli, with English translation and a certified copy of the receipt for publication charges along with the said petition. The said I.A. was allowed and the first appellate Court marked the said documents in continuation of A-series.

35. The first appellate Court after taking into consideration the entire material available on record through judgments dated 28-1-1999 dismissed the appeals filed by the defendants and allowed the X-Objections filed by the first respondent-first plaintiff regarding the payment of Court Fee. The first appellate Court accordingly confirmed the judgments of the trial Court on all the issues framed by it, except the Additional Issue regarding the payment of Court Fee.

36. In O.S. No. 830 of 1991 corresponding to C.C.C.A. No. 243 of 1999, the trial Court after framing appropriate issues, examined the witnesses of the parties and got marked the documents produced on their behalf. After taking into consideration the evidence on record, the trial Court through its judgment dated 23-9-1999 decreed the suit with costs directing the defendants 1 to 5 to vacate the suit schedule premises and to deliver vacant possession of the same to the first plaintiff within three months from the date of the judgment. The trial Court further directed the defendants to pay a sum of Rs. 14,400/- to the first plaintiff towards arrears of rent for the months of March, 1991 to June, 1991 and also directed to pay a further sum of Rs. 10,850/- towards damages for use and occupation of the suit premises with effect from 1-7-1991 to 5-9-1991. The trial Court held that the plaintiffs are also entitled for future mesne profits from 6-9-1991 till the date of delivery of possession of the suit schedule property and the same to be ascertained by way of filing a separate application under Order 20 Rule 12 C.P.C.

37. The defendants being aggrieved by the judgments and decrees of the first appellate Court and the trial Court in O.S. No. 830 of 1991 preferred these appeals challenging their validity and legality.

38. The following are the points taken up for consideration:

(1) Whether the first plaintiff, Arasthu Talimi Trust, Hyderabad, is a Wakf which is entitled for exemption from the purview of the A.P. Buildings (Rent, Lease and Eviction) Control Act, 1960?

(2) Whether the Civil Court has no jurisdiction to try the suits and whether the suits are not maintainable under law?

(3) Whether the rent for the premises covered by O.S. No. 830 of 1991 and C.C.C.A. No. 243 of 1999, was Rs. 600/- as contended by the appellants or Rs. 3,600/- as contended by the first respondent-first plaintiff?

Point No. 1:

39. The appellants-defendants contended that the first plaintiff-Arastu Talimi Trust is not a public trust within the definition of the 'wakf, as defined under the provisions of the Wakf Act, 1954 ('the 1954 Act' for brevity). They further contended that the first plaintiff is not entitled for exemption to come within the purview of the Rent Control Act. It is contended on behalf of the first plaintiff that the first plaintiff is a wakf entered in the register of wakfs long prior to the Wakf Act, 1954 came into force and, as the Government exempted such wakfs to come within the purview of the Rent Control Act, it need not approach the Rent Controller and it has every right to file a suit before the Civil Court, which is competent to try and decide the issue in question. In order to test whether the first plaintiff is a wakf, which is entitled for exemption to come within the purview of the Rent Control Act or not, it would be appropriate to refer to the relevant provisions, the facts of the case and the legal position governing this field.

40. The words 'endowment', 'endowed property', 'endower' and 'Kitb-ul-Avkhaf (Book of Endowment)' as defined in the (Hyderabad) Endowment Regulations (sanctioned by his Exalted Highness the Nizam on 16th Shahban 1358 Hijri) - 1349 F-1940 A.D. read thus:

Endowment:

Every transfer of property which any person may have made for religious purpose or for purposes of charity or public utility will be called 'Endowment'.

Endowed property:

The property which is transferred in this way will be called 'Endowed Property'.

Endower:

The person transferring the property in this way will be called the 'Endower' (Vaqif).

Kitb-ul-Avkhaf (Book of Endowment) means every such register in which all the estates or properties endowed under this Act are entered.

41. The word 'Wakf' is defined under Section 3(1) of the Wakf Act, 1954, which reads as follows:

3. Definitions :--In this Act, unless the context otherwise requires;

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(1) 'Wakf' means the permanent dedication by a person professing Islam, ('or any other person') of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable and includes-

(i) a Wakf by user (but such Wakf shall not cease to be a Wakf by reason only of the user having ceased irrespective of the period of such cesser);

(ii) 'grants', (including Mashrut-ul-Khidmat) (muafies khairati, qazi services, madadmash' for any purpose recognized by the Muslim Law as pious, religious or charitable); and

(iii) (a Wakf-Al-Aulad)

(Provided that in the case of a dedication by a person not professing Islam, the Wakf shall be void if, on the death of such person, any objection to such dedication is raised by one or more of his legal representatives.) Substituted by Act 69 of 1984.

42. The words 'wakf' and 'wakif' as defined under Section 3(r) of the Wakf Act, 1995 ('the 1995 Act' for brevity) reads as follows:

'Wakf means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognized by the Muslim Law as pious, religious or charitable and includes-

(i) a Wakf by user but such Wakf shall not cease to be a Wakf by reason only of the user having ceased irrespective of the period of such cesser;

(ii) 'grants', including mashrut-ul-khidmat for any purpose recognized by the Muslim Law as pious, religious or charitable; and

(iii) a Wakf-allal-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim Law as pious, religious or charitable.

And 'Wakif means any person making such dedication.

43. The learned Counsel for the appellants-tenants submitted that Section 3(1)(iii) of the 1995 Act satisfies the test of 'Wakf. He further submitted that the Government of A.P. issued a Gazette Notification covered by Ex.B-16 dated 16-3-1989 notifying the list of Shia Wakfs situated in Hyderabad City of Telangana Region surveyed under Section 4 (iii) of the Act and published under Section 5(2) of the 1954 Act. The learned Counsel also submitted that the first respondent-trust did not find place in this Gazette (Ex.16), therefore, it cannot be treated as a 'Wakf registered under the 1954 Act. The learned Counsel further submitted that though there are Musalman Wakf Validating Acts, 1913, 1923 and 1930 in the British ruled India, there was no corresponding Act in the erstwhile Nizam State. He also submitted that except Hyderabad Endowments Regulation, 1349 Fasli, there was no statute, prior to the above regulation, governing the wakfs in Nizam State. The learned Counsel further submitted that the suit property was neither included in the list of endowments under the Hyderabad Endowments Regulation, 1349 Fasli nor in the notification under the 1954 Act. Subsequent to the 1954 Act came into force, in a survey conducted by the Government of Andhra Pradesh regarding all the wakfs in the State, the name of the first plaintiff did not find place in Ex.B.16-Gazette Notification dated 16-3-1989 as a wakf, therefore, the first plaintiff cannot be treated as a wakf.

44. The first respondent-trust is relying on Ex.A-1-Trust Deed executed by Dr. Shaik Abdul Hussain and is contending that dedication of property for the welfare of the prodigy of the wakif is also a charitable purpose, therefore, it comes within the definition of 'wakf under Section 2(1) of the 1954 Act. In the light of the rival contentions regarding the nature of dedication, I wish to refer to the documents marked by both parties to test whether the first respondent-trust is a 'wakf and is entitled for exemption to come within the purview of the Rent Control Act.

45. One Saleem Hussaini Arastu is the Secretary representing the Trust. He was examined as P.W.1 in all the suits. He stated in his evidence that he obtained permission from the Wakf Board to file the suits. According to him, the trust was created in the year 1934 for the benefit of the religious and educational activities of the family members by his great-great-grandfather. His great-grandfather executed a document of wakf covered by the original of Ex.A-1 registered with the Government. It was filed into Court along with English translation-Ex.A-2. He stated that the first plaintiff is a trust and it is a private wakf property. The trust was formed for the benefit of the family members, for charity and to help the handicapped persons. The trust is paying 6% of its income towards fund for the Wakf Board, 10% of the fund to the handicapped and the rest of the amount provided for the benefit of the family members.

46. The appellants-tenants did not adduce any evidence to disprove that the first plaintiff-trust is a wakf. Ex.A-1 is a wakfnama. As per Ex.A-2-English translation of Ex.A-1, one Dr. Shaik Abdul Hussain executed a wakfnama on 10th Sherwar 1349 Fasli, corresponding to 16th July 1934. In the wakfnama, he nominated five (5) persons of the family as trustees and they accepted the trusteeship to fulfil the desire of the wakif and the aims and objects of the wakf. He mentioned in the said Wakfnama that he has been in exclusive possession, and enjoyment, as owner, of the property mentioned therein, which was purchased from his own funds. He conveyed and delivered the wakf property by declaring that the properties donated by him shall remain in possession of the trustees mentioned therein. He desired that he shall be the head of the Trust so long as he is alive and after him his elder son Dr. Khursheed Hussain shall be the Secretary of the Trust. In the wakfhama it was further desired by him that during his lifetime if any trustee pass away or resigns, he shall appoint another person and after him, the trustees or head of the Trust or Secretary shall be appointed by the trustees.

47. The object of the Trust is to utilize the income of the Wakf properties for payment of taxes, expenses for collection of rents, expenses for maintenance of, security of, and repairs of donated properties for the purpose of religious and general education of his sons and daughters, to help the infirm, physically handicapped among his sons and daughters and grandsons and grand-daughters, if there are any. The trustees at their discretion shall sanction amounts for their maintenance, loans for the purpose of education against the security of property and 5% of the income shall be separated for scholarships to the unprotected orphans or core students, education and training of the children and grand-children and their children as long as they continue to exist or the males and females among them. P.W.1 stated that they were managing the Trust to fulfil the object under which the Trust was created.

48. The first plaintiff in order to prove that it is a registered trust filed Ex.A-61-certified copy of Namona Muntakhab by Plaintiff No. 2 (English translation-Ex. A-62). Ex.A-63-Gazette notification dated 22nd Ramzan-Ul-Mubarak, 1355 Hizri. Column No. 14 of the Tabular Form enclosed to the Gazette notification issued by Asafian Government reads as follows:

As per the order of the Sir Nawab, Chariman, Eccalastical Department, Lr. of Secretariat and Commissionerate of Eccalastical Department (2573) dated 14th Shahre-yur, 1345 Fasli, and as per the file of Directorate, 1/2, Wags-Section for the year 1345 Fasli, the said property entered into the wakf register.

49. The petitioners also filed Exs.A-66 to A-72-receipts for payment of the contribution to A.P. Wakf Board in the year 1974 and afterwards. The first plaintiff also filed the copies of the book on assessment of house tax covered by Exs.A-75 to A-83. In Ex.A-82- complaint filed by one Ali Azhar, one of the tenants, the first plaintiff was described as Arastu Talimi Trust represented by its Secretary. In Ex.A-83 also M/s. Hazi Kurban Hussain and Sons have shown the first plaintiff as the Arastu Talimi Trust in the caveat filed before the Principal Rent Controller, City Small Causes Court, Hyderabad. In Ex.A.84-complaint made before the A.P.Wakf Commissioner, Hyderabad, by two ladies viz., M/s. Qumar Fatima and M/s. Sakina Ali Azhar, pointing out certain irregularities and mismanagement described the first plaintiff as the Arastu Talimi Trust. Ex.A-110 is the letter dated 8-4-1974 from the Secretary of Arastu Talimi Trust to the Secretary, A.P. Wakf Board mentioning as follows:

50. The Trust was registered along with its properties and its registration number being 1986 page 158-160 Behi No.1, Volume 7, dated 1st Meher 1343 Fasli (7-8-1934). Entry was made in Wakf Board Muntakab on 5th Azur, 1946 through letter of Muntakab No. 103 File No. 1/2. Awakaf Department, 1345 F (10th October, 1934). Regarding the payment of Wakf Board Fund, Ex.A-112 is the notice under Section 46 of the 1954 Act by the Wakf Board to the Trust demanding payment of contribution and Exs.A-110, 113, 114, and 115 are some of the letters addressed by the Secretary, Arastu Talimi Trust to A.P. Wakf Board.

51. The learned Counsel for the first respondent-Trust submitted that the appellants never raised any objection to treat the first plaintiff as a wakf within the period prescribed under the Act for raising objections and the notification became final treating the first plaintiff as a wakf under Mohammedan Law. The learned Counsel further submitted that even if the first respondent is treated as a private trust, it is governed under the Wakf Act and as the appellants did not raise any objection within the prescribed period under law, they cannot now take a plea that the Trust is not a validly registered Trust, therefore, it is not entitled for exemption from the purview of the Rent Control Act.

52. The learned Counsel for the appellants in support of his contentions that the Trust cannot be treated as a wakf, relied on the following judgments of the Apex Court.

53. In Radhakanta Deb v. Commr., Hindu Religious Endowments, Orissa, : [1981]2SCR826 , tbe Supreme Court held that the Mohammedan Law recognizes the existence of a private trust which is also of a charitable nature and which is generally called Waqf-allal-aulad, where the ultimate benefit is reserved to God but the property vests in the beneficiaries and the income from the property is used for the maintenance and support of the family of the founder and his descendants. In case the family becomes extinct, then the Wakf becomes a public wakf, the property vested in God. A public wakf under the Mohammedan Law is called Waqf-fi-sabi-lil-lah.

54. In Sayyed Ali v. Andhra Pradesh Wakf Board, Hyderabad, : [1998]1SCR398 , the Supreme Court held that under Section 6 of the 1954 Act a question arises whether a property specified as wakf property in the list of wakfs published under the Act, is a wakf property or not? The Board or Mutawallis of the wakf or any person interested therein may institute a suit in a Civil Court of competent jurisdiction for a decision on the question and the decision of the Civil Court in respect of the said matter shall be final. It is also provided therein that the Civil Court shall entertain no such suit after the expiry of one year from the date of publication of the list of wakfs under Sub-section (8) of Section 5 of the Act. Therefore, any dispute relating to the character of wakf property is to be decided in the manner provided under the Wakf Act subject to the result of the civil suit, if filed, the list of wakfs published in the Official Gazette is final and conclusive.

55. In the case covered by the above decision, no suit was filed challenging the wakf property. The entries in the Official Gazette describing the property as wakf became final and conclusive.

56. A wakf is a permanent dedication of property for purposes recognized by Muslim Law as pious, religious or charitable and the property having been found as wakf would always retain its character as a wakf. Once a property dedicated as a wakf is always a wakf. After a wakf has been created, it continues to be so for all times to come and further continues to be governed by the provisions of the Act. A wakf once registered and entered in the Register of Wakfs need not be entered again under the provisions of the subsequent enactments. Ex.A-63-Gazette Notification and Ex.A-110-letter of the first plaintiff amply established that the wakf was registered and entered in the Register of Wakfs.

57. The trend of the above decisions indicate that a private trust also comes within the definition of wakf, therefore, the above decisions are in no way helpful to the appellants. On the other hand, they are in support of the plea of respondents:

58. In Siddique Fatima v. Mahommed Hasan, : [1978]3SCR886 , the Supreme Court held as follows:

After the validating Act of 1913, on the basis of the law as it prevailed even before creation of a wakf for the purpose of the maintenance of the members of the Wakif's family and their descendants is also a charitable purpose. According to Shia Law the wakf is irrevocable after possession is given to the beneficiaries or the Mutawalli. The settlor divests himself of the ownership of the property and of everything in the nature of usufruct from the moment the wakf is created. In purely metaphorical sense the expression 'ownership of God' is used but unlike Hindu Law, since conception of a personal God is not recognized, there is no ownership of God or no property belongs to God in the jural sense, although the ownership of the property becomes reverted in God as he is originally the owner of all things. The Shia authorities considered the property as transferred to the beneficiaries or to the object of the Wakf. Strictly speaking, the ownership of the wakf property has no jural conception with any exactitude. The corpus is tied down and is made inalienable. Only the usufruct and the income from the corpus of the wakf property is available for carrying out the objects of the wakf. A Mutawalli is like a Manager rather than a trustee. The Mutawalli, so far as the Wakf property is concerned, has to see that the beneficiaries got the advantage of usufruct.

59. In the light of the documentary proof and the above legal position, I have no hesitation to hold that the first respondent-trust is a wakf comes within the definition of 'wakf', as defined under Section 3(1) of the Act.

60. So far as the exemption of the wakf from the purview of the Rent Control Act is concerned, Section 26 of the A.P. Buildings (Lease, Rent and Eviction) Act, 1960, reads as follows:

26. Exemptions :--Notwithstanding anything in this Act the Government may, by notification in the Andhra Pradesh Gazette, exempt, subject to such conditions and terms, if any, as they may specify in the notification, any building or class of buildings from all or any of the provisions of this Act.

61. In pursuance of Section 26, the Government of Andhra Pradesh granted exemption to the wakf under Endowments Regulation of 1349 Fasli and Wakf Act, 1954.

62. A Government Order issued by the ' Government of Andhra Pradesh covered by - G.O. Ms. No. 622 dated 4-5-1960 reads as follows:

In exercise of the powers conferred by Section 26 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, the Government of Andhra Pradesh hereby exempts from the operation of the provisions of the said Act, all the buildings, godowns, etc., belonging to the religious and charitable institutions in the State governed by or under the provisions of either Madras Hindu Religious Charitable Endowments Act or the Endowment Regulation of 1349 Fasli.

63. G.O. Ms. No. 380 dated 16-3-1970 issued by the Government of Andhra Pradesh reads as follows:

In exercise of the powers conferred by Section 26 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, (A.P. Act XV of 1960), and in supersession of the notification issued in G.O. Ms. No. 575, General Administration (Accommodation-B) Department dated 12th May, 1961, and published as notification No. 271 at page 1607 of Part I of Andhra Pradesh Gazette dated 1-6-1961, the Governor of Andhra Pradesh hereby exempts from the operation of all provisions of the said Act, the Buildings in the State which are the properties of any wakf as defined in Section 3(1) of the Wakfs Act, 1954 (Central Act 29 of 1954).

64. In the light of the above Government Orders, and in view of the stand of respondent No. 2-Wakf Board that the first respondent-Trust is a wakf, included in the list of wakfs, the plaintiff wakf is exempted from the purview of the Rent Control Act. The first appellate Court therefore rightly held that the first respondent-wakf is exempted from the purview of the Rent Control Act. I do not find any grounds to interfere with the findings of the first appellate Court concerning second appeals and Trial Court concerning first appeal. This point is accordingly answered against the appellants and in favour of the respondents.

Point No. 2:

65. Under Point No. 1 it was held that the first plaintiff is a wakf under Mohammedan Law and it is entitled for exemption to come within the purview of the Rent Control Act. When once the Rent Control Act has no application to the suit properties, the only course that is open to the first plaintiff-trust is to approach the Civil Court for eviction and other reliefs against the tenants. The suits are therefore perfectly maintainable before the Civil Court. P.W.I is the great-grandson of the wakif. He obtained permission from the second plaintiff to file the suit as Secretary of the Wakf. Other Trustees or members of the wakf did not raise any objection regarding his prosecuting the suits. The suits are not for his personal benefit. He is not disqualified from holding the post. It is not the version of the appellants that another person- is the Secretary. P.W.1 throughout asserted that he is the Secretary of the wakf. In the light of the above circumstances the mere non-filing of the resolution of the trust nominating him as Secretary does not disentitle him to file the suit. This point is accordingly answered against the appellants-defendants (tenants) and in favour of the respondents-plaintiffs.

Point No. 3:

66. The first plaintiff in the suit notice dated 30-4-1991 mentioned that as per the oral agreement between the parties, the defendants are liable to pay Rs. 3,600/- per month towards rent by 5th of every English calendar month in advance and the defendants committed default in payment of the rent for the period from 1-3-1991 to 30-4-1991 i.e., for two months @ Rs. 3,600/-per month. The defendants through their reply notice denied the quantum of rent at Rs. 3,600/- and claimed that the rent was only Rs. 600/- p.m. The defendants in order to prove that they did not commit any default in payment of the rent relied on Exs.B-3 and B-4-receipts issued by the first plaintiff and contended that they paid the rent @ Rs. 600/ - p.m. in advance for a period of six (6) months under Ex.B-3 from July, 1991 to December, 1991 and under Ex.B-4 for the period from January, 1991 to June, 1991. Exs.B-3 and B-4-receipts indicate that there are corrections. In Ex.B-3 the month February was corrected as July to December. In Ex.B-4 the month 'January' which was originally written was retained and the words 'to June' were added.

67. D.W.1 stated in his evidence that they are regularly paying the rent in advance for a period of six or seven months. The payments made were mostly by cheques and the first plaintiff used to issue receipts two to four days later for the rents received by it. In November, 1990 though they paid rent for six months, no receipt was given to them. The rent paid in November was for the months of January, 1991 to June, 1991 amounting to Rs. 3,600/-. He further stated that they gave another cheque in June, 1991 towards rent for the months of July, 1991 to December, 1991 for a sum of Rs. 3,600/-. No receipt was given to them even for the payment of the said rent. He further stated that on 9-1-1991 and 12-1-1991 Exs.B-9 and B-10-letters were sent requesting to issue receipts. They received two receipts on 18-1-1991. In the receipts it was mentioned that the rent was received for the months of January, 1991 and February, 1991 respectively. Immediately they made a representation to the first plaintiff about the said receipts. The office copy of the said representation is Ex.B-11. After receiving the said representation the then Secretary of the first plaintiff Dr. Yousuf Hussain corrected the receipts after satisfying himself that the rent paid was for the months of January, 1991 to June, 1991 covering a period of six months and the other one from July, 1991 to December, 1991 covering a period of another six months. The then Secretary also signed under the corrections made in the rental receipts.

68. There is no consistency in the above version of D.W.1 and he did not properly explain who made those corrections and under what circumstances those corrections were made. The person who initially gave the receipts is different from the person who is said to have made the corrections. The person who attested the corrections in the receipts of the defendants was not examined to prove the circumstances under which they were making the payment of rent in advance. The defendants did not explain since how long they were adopting the said practice and what were the circumstances under which they were compelled to remit the rent for six to seven months in advance. The defendants did not summon the records of the plaintiffs to prove whether any corresponding corrections were made in the relevant registers, since those corrections are not reflecting in the office copy of the receipts issued by the Secretary of the first plaintiff. The counterfoils of the receipts were initialled by the first defendant, therefore, there is no escape for him except to concede that the rent as on the date of committing default was Rs. 3,600/- p.m. After carefully going through the entire evidence and after considering the totality of the circumstances, I do not find any grounds to interfere with the judgment of the trial Court in O.S. No. 830 of 1991. This point is accordingly held against the appellants and in favour of the plaintiffs.

69. In the result, the second appeals and the first appeal are dismissed by confirming the judgments and decrees of the first appellate Court and also the judgment and decree of the trial Court in O.S. No. 830 of 1991. Each party to bear its own costs.

ORDER

After pronouncing the judgment on this day, i.e., 27-6-2003 by dismissing the second appeals, on a further submission made by the learned Counsel for the appellants, this Court made the following order:

'Three months time is granted to the tenants for evicting the premises on condition of payment of arrears of rent. They shall not induct any third party into the mulgies'