MOHAMMED ZAHEER AHMED Vs. SYED SHAH SHUJAUDDIN QUADRI

JUDGEMENT

(1.) This C.R.P. is directed against the judgement dated 09.08.2005, passed by the Chief Judge, City Small Causes Court, Hyderabad, dismissing the appeal in R.A. No. 299 of 2001, confirming the order dated 06.06.2001, passed by the IV Additional Rent Controller, Hyderabad, allowing R.C. No. 718 of 1991, filed by the landlords seeking eviction of the tenants. Heard the learned counsel for the petitioners-tenants and the learned counsel for the respondents-landladies.

(2.) The learned counsel for the petitioners-tenants submitted that the respondents- landlords are not the owners of the property which they are in possession and it belongs to the wakf, and though the petitioners-tenants raised the question of jurisdiction of the Court to decide disputes in relation to disputes arising out of the properties belonging to the wakf at the earliest point of time, the Court below committed an error in holding that it was raised at a belated stage. In support of his submission that in relation to disputes arising out of the properties belonging to wakf, the Wakf Tribunal alone has jurisdiction to decide, he placed reliance on the judgment of a Division Bench of this Court in M. Bikshapathi v. Government of Andhra Pradesh. He submitted that the petitioners-tenants took the property for commercial use, and the Court below committed an error in holding that the petitioners-tenants have changed the user of the property from residential to commercial. He thus prayed that the impugned order be set aside and the C.R.P. allowed.

(3.) The learned counsel for the respondents-landlords supported the judgment impugned in the revision. He submitted that the property belongs to the respondents-landlords, and the petitioners-tenants having obtained the same on lease, are continuing therein, and when they defaulted in payment of rents and changed the user of the property, they filed the R.C. The petitioners-tenants in their counter as well as in evidence admitted the jural relationship of landlords and tenants between the respondents and tenants as also the lease deed entered into between them. Having admitted so, they cannot be allowed to contend that the property belongs to the wakf, and the Rent Control Court has no jurisdiction to decide the question of jurisdiction. In support of his contention that the Rent Controller has to decide the jural relationship of landlord and tenant in a regular enquiry and not by way of summary enquiry, he placed reliance on the Full Bench judgment of this Court in Changanlal v. Narsingh Pershad. He thus prayed that the C.R.P. be dismissed. Both the Courts below have concurrently found that the petitioners-tenants defaulted in payment of rents to the respondents-landlords for a period of ten months from December, 1990 to September, 1991. Though the petitioners-tenants contended that the property belongs to the wakf and the Wakf Tribunal alone has jurisdiction to decide disputes arising out of wakf properties, R.W.1 in his cross-examination stated that "the suit property is attached to the mosque. I have not enquired in the Wakf Board till date whether suit property is a wakf property or not". Further, it is not their case that the Wakf Board had informed them that the property belongs to them and that they should pay the rents to them. This apart, the petitioners though in support of their contention that the property belongs to the wakf, filed Gazette Notification, in his cross-examination he admitted that in Ex.B4-Gazette Notification, the suit property number is not mentioned. That he does not know whether he mentioned that the suit property is a wakf property. He further stated that "the house number in question is not specifically referred in Ex. B73. It is not true to suggest that Ex.B73 was published collusively. I do not know if after publishing Ex. B73, the Wakf Board people came to us and claimed the suit property. From the year 1981 till date we never paid any rent to the Wakf Board and Wakf Board did not demand rent". Having regard to the evidence of R.W.1, as discussed above, no exception can be taken to the orders under revision holding that the property belongs to the respondents, and more so when the petitioners-tenants failed to prove that the property belongs to the wakf. Though the petitioners-tenants contend that the Rent Controller has no jurisdiction to decide the disputes arising out of wakf properties, and the Wakf Tribunal alone has the power to decide such disputes, the fact remains, the petitioners-tenants admitted that the petition schedule property is no where mentioned in Exs. B3, B4 and B5, upon which they placed reliance, and they having admitted the jural relationship of landlords and tenants, and having paid the rents also to them, cannot be allowed to contend that the property belongs to the wakf, and more so when they failed to substantiate such a plea. There can be no quarrel on the proposition of law that in relation to disputes arising out of wakf properties, the Wakf Tribunal alone has the jurisdiction to decide, as also reliance placed by the learned counsel for the petitioner in that context on the judgment of a Division Bench of this Court in M. Bikshapathy v. Government of Andhra Pradesh. In the instant case, the dispute is between two individuals, and as observed above, the petitioners-defendants admitted the jural relationship of landlords and tenants and also paid the rents, and this apart, they utterly failed to prove that the property belongs to the wakf. Such being the admitted case of the petitioners-tenants, I fail to understand how a dispute as to jural relationship of landlord and tenant, can exists at all between the respondents-landlords and petitioners- tenants. When the property itself does not belong to the wakf, the question of the Wakf Tribunal assuming jurisdiction to decide whether the disputed property belongs to the wakf or not, does not arise, and more so when there is no claim put up by the Wakf Board or the Mosque contending that the property which was leased out by the respondents-landlords to the petitioners-tenants belongs to them. Be that as it may, in Changanlal v. Narsingh Pershad, a Full Bench of this Court held that the Rent Controller has to decide the question of jural relationship only in a regular enquiry and not a summary enquiry, and as such, the petitioner cannot be allowed to contend that the Rent Controller had no jurisdiction to entertain the R.C. and decide the question of jural relationship of landlord and tenant between the parties, and more so when the property in question is not a wakf property.