RATNZAN KHAN Vs. DEVENDRA KUMAR

JUDGEMENT

(1.) THE respondent No. 1, Devendra Kumar, instituted civil suit No. 5 -A/85 in the Court of 1st Civil Judge Class -II, Bhopal against the petitioners on the ground that he was in possession of the land which was let out to him by the Mutawalli Committee Aukaf -e -Amma Bhopal. A prayer was made in which said suit seeking permanent injunction restraining the petitioners from interfering in his possession. The petitioners filed the written statement disputing the allegations made against them and took a positive plea that they were in possession of the land and they had been residing in the said land since 1955 as sub -tenants of Sardar Amar Singh. It was also put forth that the petitioners were given a relief of Rs. 1000/ - by the Collector, Bhopal on 22.5.84 as the whole house was burnt. A further stand was taken that they became direct tenants of Mutawalli Committee and Jameel Khan was paying rent to Mutawalli Committee The said suit was dismissed for default of appearance continued to remain in possession. After lapse of eight years the respondent No. 1 filed another civil suit No. 14 -A/92 for possession in the Court of XII th Civil Judge, Class -II, Bhopal on the ground that the petitioners had taken forcible possession of the land in question on 23.4.84. As set forth summons of the suit were not served on the petitioners, but the Court proceeded ex parte. The said civil suit continued at Bhopal but later on it was transferred to the respondent No. 2 which proceeded ex parte against the petitioners without serving summons and rendered an ex parte decision on 19.11.1996 as contained in Annexure P -9.

(2.) A counter affidavit has been filed by the respondent No. 1 contending, inter alia, that the respondent No. 1 is a tenant of Mutawalli Committee, Aukaf Ammaya, Bhopal since 1974 and has occupied the premises admeasuring 48' x63' and running a school 'Montesary Public School which has been recognized by the Government. In the year 1984 the petitioners encroached upon the premises and they are rank trespassers. It is put forth that the order which has been challenged by the petitioners has already been executed and, therefore, the petitioners have no right to assail the same. The petitioners refused to receive the notices issued by the Civil Court and, therefore, the Civil Court proceeded ex parte. When the matter stood transferred to the Wakf Tribunal and the process -server approached the petitioners to serve the notice, the petitioners refused to receive the notice and under these circumstances, the tribunal proceeded ex parte and after complying with the provisions of law passed the judgment on 19.11.1996. Thereafter the same was sent for execution. It is highlighted that the learned civil Judge proceeded for execution keeping in view the order passed by the respondent No. 2. It is put forth that the petitioners had not approached this Court with clean hands inasmuch as though they had already filed an application under Order 9 Rule 13 of the Code of Civil Procedure on 29.8.98 for setting aside the ex parte decree passed against them, have not mentioned the same in the writ petition. A copy of the said application has been brought on record an Annexure R -l. It is the stand in the return that the petitioners are trespassers over the land and have no right whatsoever. It is submitted that the respondent No. 1 was directly given the said premises on rent. Certain receipts of the rent deposited by the respondent No. 1 have been brought on record. The rent receipts which have been produced by the petitioners have been disputed by the respondent No. 1 on the ground of erroneous interpretation placed on the said receipts inasmuch as the documents clearly show that no tenancy right was conferred by Mutawalli Committee on the petitioners. It is also urged that decision given by the respondent No. 2 is neither a nullity nor non est in the eye of law.

(3.) I have head Mr, A.S. Usmani, learned counsel for the petitioners and Mr. P.N. Dubey, learned Deputy Advocate Genera for the State.