MOHAMMAD JAHAN BEGUM Vs. ABDUL HAKIM

JUDGEMENT

(1.) The respondent, Abdul Hakim, claiming himself to be Mutawalli of property known as Chhoti Masjid, Bara Hindu Rao, Delhi, (for short 'the Masjid'), and as such vested with the powers of superintendence and control over the said Masjid and properties appurtenant thereto, on the basis that the said Masjid was a wakf property, instituted a suit against the appellant for recovery of possession of the roof of premises No. 4964 66 and 496', Chhoti Masjid, as delineated in the plan, annexed with the plaint. The allegation in the suit was that the defendant, (appellant herein), was a tenant only in a shop bearing No. 4967 and that neither the roof of this shop nor of any other adjacent shop or passage were under her tenancy, but some time back, approximately three years two months from the institution of the suit, she had illegally encroached upon the said roof and had raised some unauthorised con- struction in the shape of tinshed, without any permission of the plaintiff. Alleg- ing that the super-structures put up on the roof were illegal, and the defendant a trespasser in respect to the roof portion of the shop, a decree was sought for a direction to her to hand over vacant possession of the roof after removing or demolishing the super-structures put up by her unauthorisedly. A notice calling upon the defendant to remove the allegedly unauthorised structure we also stated to have been served before filing the suit but without any result.

(2.) . The suit was contested on a number of preliminary objections. One which is the most relevant for the purpose of this regular recond appeal was as to the locus standi of the plaintiff to institute this suit. The defendant contended in the written statement that he was not a duly authorised person for the purpose of signing and verifying the plaint or filing the suit, and the suit was liable to be dismissed on this short ground. It was also pleaded that there was a relationship of landlord and tenant between the Masjid and the defendant in respect to the shop premises No. 4967, including its roof as well as the roofs of the main gate of the Masjid bearing municipal No. 4966, and the two shops bearing No. 4964 and 4965 under tenancy of a meat-seller and a barber respectively. It was Contended that by virtue of this relationship of landlord and tenant, the civil suit was barred under the provisions of Section 50 of the Delhi Rgnt Control Act. The suit prayer was resisted alleging that the structure in the form of wooden khokha with tin shed over the roof of shop No. 4967 and main gate of the Masjid bearing No 4966 had been in existence since 1955-56 and had been put up with the consent and approval of the then Mutawalli and that a door had been left in the said khokha for access to the roof of shop Nos. 4964 and 4965. The defendant alleged that the present suit had been brought mala fide and without any authority, and that the roofs of the three shops and the main gate bad been under use of the defendant since inception of the tenancy and two walls of the height of 7 had also been put up her on the eastern side as well as southern side of the roof.

(3.) . The parties went to trial on these pleadings. The trial Court gave judgment in favour of the plaintiff decreeing the suit, as prayed for, holding that it had been proved on record by the plaintiff that he had been managing this property, collecting rents him tenants including the defendant and also paying house-tax bills in respect of the properties, and as such he was a person very much connected with the affairs of the Masjid in question. Reliance was also placed on a letter Ex. Public Witness 4/1 addressed by one Major SK.. Hussain, as Secretary of the Delhi Wakf Board, to one Mohd. Naqi Kaprewala, General Secretary of the Masjid, approving names of the President, Secretary and other office bearers of the managing committee of the Masjid, where name of Abdul Hakim plaintiff figured as president. The Court accordingly held that the plaintiff was a Person, who has to be taken to be the Mutawalli of the Masjid, and was thus a competent person to institute the suit, and sign and verify the plaint for recovery of the wakf property.