MOHD. BASHIR Vs. AZIZUL QADAR

JUDGEMENT

(1.) THIS is a second appeal filed by the defendant-appellant against the judgment and decree of the lower appellate Court decreeing a suit for ejectment, arrears of rent and damages after setting aside the decree passed by the trial Court dismissing the suit.

(2.) THE house, in respect of which the suit was filed and of which the defendant-appellant is a tenant, belongs to a waqf. The father of the plaintiff-respondent was the mutwalli of the waqf. On the death of the father, according to the plaintiff-respondent, he and his brother (Rafiqual Qadar) became mutwallis and used to manage the property. The appellant was admittedly the tenant of this house on a monthly rent of Rs. 4. There was a litigation in the year 1948 regarding the recovery of rent in respect of this house but it ended in favour of the appellant, the Court finding that no amount was due from the appellant as he had deposited all the rent due from him. Later, it appears that a suit under section 92 of the Code of Civil Procedure was filed by some of the beneficiaries of the waqf for the removal of Rafiqual Qadar from mutwalliship and for taking accounts from him. In 1957 that suit was decreed by the District Judge, Rafiqual Qadar was removed and the plaintiff-respondent was appointed mutwalli.

(3.) THE trial Court dismissed the suit, holding that the appellant had validly made the deposit under section 7-C (2) of the Act and that, consequently, the provisions of section 3 (1) (a) of the Act were not attracted. The lower appellate Court took the view that the respondent was entitled to a decree for ejectment as the deposit was not in accordance with the provisions of section 7-C (2) of the Act. It held that, before making the deposit, the appellant had not offered to pay the arrears of rent to the respondent which was a condition precedent to the applicability of the provisions of section 7-C (2). This view of the lower appellate Court is based on the decision of a Division Bench of this Court in Ahmad Ali v. Mohamad Jamaluddin, 1963 All LJ 567 : (AIR 1963 All 581). This case has been referred to this Full Bench by a Division Bench on the ground that Ahmad Alis case requires reconsideration. No particular question of law was framed or preferred for the opinion of the Full Bench, so that the entire case is before us for consideration.