DATTATRAY HANAMANTRAO BIDIKAR Vs. DILSHAD BEGAM

JUDGEMENT

(1.) THE petitioners have challenged the order allowing the application of the respondents filed under Section 151 CPC and ordering transfer of suit bearing O. S. No. 35/05 to the Wakf Tribunal.

(2.) THE facts relevant for the purpose of this petition are as under: the petitioners are the plaintiffs in OS No. 35/05 pending on the file of the III Additional Civil Judge (Senior Division), Belgaum seeking the relief for possession of the suit property from the respondents. The suit property is the ancestral shed in CTS No. 1039 measuring about 700 square yards situate at Belgaum and the boundaries are mentioned in para No. l of the plaint. The petitioners claim that the suit property belonged to one shahajabdi and she sold it to one Mohammed Sadiq Abdul Rehaman anagolkar under a registered sale deed dated 20th February 1952 and one Mr. Mohiddin Saheb Khanapuri was occupying the suit property as a tenant. Later the said Mohammed Sadiq Abdul Rehaman Anagolkar sold the suit property to one Vinayaka Gajanan Deshpande and the tenancy of Mohiddin Saheb Khanapuri was continued. The owner Vinayak Deshpande filed suit in OS No. 372/55 in the civil Court wherein the tenant Mohiddin Saheb Khanapuri was a party in the suit. In the said suit, the father of the defendant Nos. 3 and 4 and grand-father of defendant Nos. 1, 2, 5, 6 and 7 in this suit admitted the title of Vinayaka Deshpande and the suit came to be compromised in favour of Vinayaka Deshpande as per the compromise decree dated 23. 2. 1958. The tenant delivered the possession to Vinayaka Deshpande as per the compromise decree and in due course of time the suit property was purchased by Amirbi Gousesaheb Desai and Khatalbi Gousesaheb Desai and later through further sale transaction the property came to the possession of Mohammed Khan G Desi, who inturn sold the suit property to the plaintiffs and their brothers under the registered sale deed dated 29. 7. 1980 for a consideration of Rs. 42,251/ -. Their names were entered in the CTS records and ultimately the plaintiffs filed the petition in HRC No. 124/81 seeking eviction of the tenants i. e. , the respondents. During the pendency of the HRC petition, it is alleged that there was an oral partition in between the plaintiffs and his two brothers and the suit property fell to the share of the plaintiffs and the said partition was effected in the year 1984. The fact of partition was informed to the City Survey Authorities and in pursuance of the partition the names of the plaintiffs came to be entered in the CTS records as the owners. It is the case of the petitioners that the respondents, who were the tenants on a monthly rent of Rs. 50/-p. m. did not pay the rent regularly. But, due to the subsequent development of partition, the HRC No. 124/81 was withdrawn with permission to file a fresh suit. It is the case of the petitioners that the suit property is not dedicated to any trust, much less the Syed Darga of Belgaum and that the trust is not in existence and therefore, they claim that the provisions of Bombay trust Act are not applicable and so also, the provisions of the Indian Wakf act. It is thereafter the petitioners filed HRC No. 87/66 under Section 21 (l) (h) Karnataka Rent Control Act, 1961 and the defendants in the suit appeared in the HRC petition and filed the written statement denying the title and also the relationship of landlord and tenants. It was their contention that the suit property is the wakf property and that the Court had no jurisdiction. An issue was framed in HRC No. 87/86 with regard to the existence of relationship of landlord and tenant and after the trial, a decree of eviction came to be passed on 9. 1. 1991. The Court held that there exists the relationship of landlord and tenant between the parties. Aggrieved by the judgment and decree in HRC No. 87/86 the defendants file HRC revision No. 27/1991 before the District Judge, belgaum and it came to be dismissed on merits, vide judgment and order dated 18. 4. 2001, confirming the decree of eviction. Aggrieved by the confirmation, the defendants and others approached this Court in HRRP no. 342/01 and during the pendency of the revision before this Court, the karnataka Rent Control Act, 1961 was abolished and the Karnataka Rent act came into force. In view of change in law, the petition in HRRP 342/01 was abated as per Section 70 (2) (c) read with Section 2 (3) (g) of Karnataka rent Act, 1999. This Court directed the trial Court to dispose of the suit, in case if it is filed by the petitioners within a period of one year as the petitioners were litigating for possession of the property since from the year 1986. It is further alleged that the defendants deposited an amount of Rs. 6,350/- in CCD No. 772 dated 22. 2. 1991 in HRC No. 87/86 admitting their tenancy over suit property and also deposited the rent in HRC revision. The petitioners also contend that they filed the suit in OS No. 653/03 against the defendants before the Civil Judge (Senior Division), Belgaum and as the steps were not taken at proper time the suit came to be dismissed on the ground that the steps for service of notice to the defendants were not taken. The petitioners contend further that the provisions of Karnataka Rent act, 1999 are not applicable to the suit property and therefore, they got terminated the tenancy of defendants by issuing the notice of termination under Section 106 of the Transfer of Property Act and the defendants though, received the notice of termination did not comply and failed to deliver the possession. In the circumstances, the petitioners approached the trial Court and instituted the suit in OS No. 36/05 seeking possession of the suit property alleging that they are the landlords and the defendants are the tenants and sought vacant possession of the suit property. It is thereafter that the defendant Nos. 1 and 2 filed an application in LA. No. 3 requesting to transfer the suit to the Wakf Tribunal and in support of the said application an affidavit came to be filed by the second defendant, wherein he claims that he is in possession of the property for more than 60 years and the Chief Executive Officer of the Karnataka Board of Wakfs has filed a suit against the plaintiffs and also the defendants in KWT/ bgm/sr. 39/02 and it is pending on the file of the Karnataka Wakf Tribunal, belgaum division, Belgaum, wherein the relief of declaration is sought seeking the sale deed executed in favour of plaintiffs is null and void and therefore they claimed that there are two rival claims in respect of the suit property and that prima facie the suit property is the wakf property, which was registered under the Bombay Trust Act before the Assistant, Charity commissioner at Sl. No. B58. He also contends that the schedule property belongs to syed Idrus Darga and that now it is deemed to be registered under the Wakf Act. So, also it is his contention that the suit before the wakf Tribunal is now posted for evidence, wherein the title of the plaintiffs over the suit property has been questioned. It is their further contention that the amended Wakf Act, 1985 came into force w. e. f. 1. 1. 1996 and any matter which involves the question of right, title and interest in the Wakf property has to be decided by the wakf Tribunal constituted under the Wakf Act, 1995 (hereinafter called as 'the Act 1995') and therefore, they contended that the trial Court has no jurisdiction to decide the dispute in respect of the suit property. In the circumstances, it was their contention that the suit has to be transferred to the Wakf Tribunal for disposal in accordance with law. The petitioners filed their objections to the LA. No. 3 denying the allegation made and contended that the suit property is not at all the Wakf property and they also denied inclusion of the suit property at Sl. No. B58 in the register at Sl. No. B58 under the Bombay Public Trust Act. It is also their contention that there is no question involved in this suit which has to be tried by the Wakf Tribunal. They narrate the history with regard to the hrc petition for eviction and ultimately order of this Court wherein the hrc petition was abated and therefore, it is their contention that the trial court has the jurisdiction to proceed on with the suit and that there is no necessity to transfer the suit to the Wakf Tribunal. The trial Court heard on LA. No. 3 and on appreciation of the material on record allowed the application of defendant Nos. 1 and 2 and aggrieved by the said order this Writ Petition has been filed by the petitioners, who are the plaintiffs before the trial Court, challenging the validity of the order of transfer of the suit.

(3.) I have heard the learned Counsel for the petitioners and also the respondents.