KHUDAWAND HAIYAL QAIYOOM Vs. SABIR

JUDGEMENT

(1.) The plaintiff has filed this Second Appeal for setting aside the judgment and decree dated 28th May, 1991 passed by the learned IInd Additional District Judge, Shahjahanpur dismissing the appeal filed by him against the judgment and decree dated 31st October, 1979 of the Trial Court dismissing Original Suit No. 131 of 1979.

(2.) The plaintiff/appellant filed the suit for ejectment of defendant-respondent from house no. 230 situated in Mohalla Baruzai, I Pukhta Talab in Shahjahanpur and for recovery of Rs. 740/- as arrears of rent and Rs. 20/- as damages for use and occupation. The suit was filed on the allegations that Khan Bahadur Mohd. Rafiullah Khan was the owner of the house in dispute along with his other property and on 10th February, 1941 he had executed a 'waqf alalaulad' and endowed the entire property to the almighty god. He had made himself the Mutawalli of the said waqf and also reserved the power to amend the terms of the waqf deed. Line of succession was mentioned in the deed and pursuant thereto after the death of Shafiullah Khan, his daughter's son, Mushir Hasan Khan became Mutawalli and started looking after the waqf property. The disputed house was waqf property and it was let out to defendant respondent by Shafiullah Khan on a rent of Rs. 20/- per month. It was also alleged that the defendant respondent paid rent up to 1st December, 1973 and thereafter stopped paying rent and as the said rent was not even paid after service of notice, the aforesaid suit was filed.

(3.) In the written statement, the defendant-respondent denied the title of the plaintiff-appellant and specifically alleged that Khan Bahadur Mohd. Rafiullah Khan was never the owner of the house in dispute. The waqf deed was also denied. He also denied that he took the house in dispute on rent and, therefore the suit for ejectment and recovery of arrears of rent was not maintainable. In fact, he alleged that he had acquired the house in dispute from Sri Kachcha Khan. In the alternative he pleaded that he had perfected his title by adverse possession.