MUHAMMED ASHRAF Vs. LSLAMIC PREACHING TRUST

JUDGEMENT

(1.) Petitioner is the respondent in O.S.32/2015 on the files of the Waqf Tribunal, Kozhikode. The Original Suit was filed seeking an order for the eviction of the petitioner herein from building Nos.9/228, 9/230 and 9/231 of Vazhakkad grama panchayat. The petitioner filed a written statement admitting the tenancy with respect to the aforesaid shop rooms and the title of the respondents. But, subsequently the petitioner came to know that actually he is not in occupation of the aforesaid three shop rooms and he is in occupation of one shop room bearing No.9/228 only. Similarly, the above said rooms are situated in the property having an extent of 2.25 cents purchased by virtue of assignment deed No.1320/1992, by Isiyathul Islam Trust. This property was never purchased by the plaintiff and the petition schedule property belongs to the said Trust. In the above context, the petitioner filed I.A.484/2016 praying for amending the written statement so as to deny the occupancy of scheduled shop rooms bearing door Nos.9/230 and 9/231 and the title of the respondent.

(2.) The 1st respondent filed objection opposing the amendment inter alia contending that the status of the 1st defendant is that of an encroacher, by virtue of Section 3(ee) of the Waqf Act, 1995 as amended by Act 27 of 2013 and that the defendant admitted his tenancy in the reply notice and in the earlier written statement. According to them, in the written statement the petitioner admitted that shop rooms are Waqf properties. Therefore the matters sought to be incorporated by way of amendment is clearly barred under Section 116 of the Indian Evidence Act and that the act of defendant in challenging the title of the plaintiff is barred by virtue of Section 111 of the Indian Evidence Act. With the above contentions they prayed for dismissal of the interlocutory application.

(3.) On the rival pleadings the tribunal considered the requirement of amendment as contended by the petitioner and dismissed the petition on a finding that the matters sought to be incorporated by way of amendment are clearly barred under Section 116 of the Indian Evidence Act. The legality and correctness of the aforesaid findings, by which the tribunal passed the impugned order, are challenged in this Original petition.