M P WAKF BOARD BHOPAL Vs. SIRAJ BI

JUDGEMENT

(1.) THIS appeal is by the plaintiff, M. P. Wakf Board, Bhopal.

(2.) IT appears that the suit house originally belonged to Hafiz Abdul hafiz. who created a wakf of the same in the year 1943 and its ownership and management vested in the Awkaf Department of the erstwhile State of Bhopal and now the management is vested in the M. P. Wakf Board, Bhopal. The plaintiff's case was that on 1st August 1947 the defendant No. 1 Sk. Mahtab hussain, who is now represented by his legal representatives, had entered into an oral contract of tenancy with the Awakf Department of Bhopal in respect of the house in suit. The Awakf Department had not granted any express permission for sub-letting of the whole or any part of the accommodation. The defendant, however, sub-let a portion of the leased property to defendants 2 to 5. Apart from this, the defendant No. 1 removed his possession from rest of the portion of the building and handed over the same to one Zakaullah. It was also the case of the plaintiff that the defendant No. 1 failed to pay rent in respect of the demised premises for several years and also failed to pay the arrears in spite of demand. Finally, a demand was made on the defendant no. 1 for payment of rent through a notice dated 18-11-1961 which was served on the defendant on 20-11-1961. That notice had also terminated the tenancy of the defendant No. 1. The plaintiff, thereafter, filed the present suit on 5-1-1962 for ejectment of the defendants and for arrears of rent. The grounds for ejectment were : (i) arrears of rent, (ii) sub-letting, and (iii) removing possession over a portion of the demised premises. It appears that after the portion of the demised premises was allowed to be occupied by Zakaullah, he entered into a contract of tenancy with the Awakf Department and hence the arrears were claimed at the rate of Rs. 22/8/- per month, representing the proportionate rent of the premises remaining with the defendant No. 1.

(3.) THE defence was that Zakaullah was allowed to occupy part of the premises only temporarily. The plaintiff by entering into a contract of tenancy with Zakaullah wrongfully deprived the defendant No. 1 of possession of the demised premises. So long as the possession was not restored to the defendant, he was not liable to pay any rent. It could not, therefore, be said that the defendant was in arrears of rent. It was also urged that the defendant No. 1 had let out the premises to the defendants 2 to 5 with the permission of the original landlord ; and when in 1947 he entered into fresh agreement with the Awakf Department, the premises were already sub-let and as such there was implied, if not express, permission for sub-letting. It could not, therefore, be said that the sub-letting was without permission of the landlord. As there was no permanent abandonment of the premises by the defendant, the third ground was also not available to the plaintiff. It was admitted that the notice issued by the plaintiff was served on the defendant No. 1. It was, however, urged that the notice was not valid inasmuch as the tenancy of the portion of the demised premises could not have been validly terminated.