BIHARILAL Vs. TAMIZUL HAQUE

JUDGEMENT

(1.) ORDER :- A suit for eviction of the petitioners was filed in 1970 by the opposite party describing himself as mutawalli of M. Safiullah Wakf Estate of Tinsukia. The mutawalli had to come forward as the property belonged to the aforesaid Wakf. Eviction was sought, inter alia, on the ground that the petitioners had defaulted in paying rent since the month of Feb., 1962, and that the suit property being in a "very miserable condition" needed reconstruction. The petitioners denied that the premises belonged to the aforesaid Wakf and that the plaintiff was a duly constituted mutawalli of the same. The averments relating to the petitioners being defaulters or that the premises were needed bona fide for reconstruction were also denied.

(2.) On the pleadings of the parties 9 (nine) issues were framed of which we are concerned with Issues Nos. 1, 2, 5 and 6 which read as below :- "1. Whether the suit is maintainable ? 2. Whether the plaintiff has right to sue ? 5. Whether the defendants are defaulters in respect of rent for the suit premises ? If so what is the arrear ? 6. Whether the suit house are old and required reconstruction ? During the trial, both the sides examined witnesses and exhibited a number of documents. Among the documents exhibited by the plaintiff is Exhibit-1 which is a copy of the registered deed of Wakf dt. 14th Aug., 1946. After the evidence was over and arguments had been heard the plaintiff filed a certified copy of the aforesaid deed along with a petition, which was marked as Exhibit 'X'. Mention may also be made about Exhibit 2, which is a letter written by petitioner No. 1 to the mutawalli of M. Safiullah Wakf Estate stating, inter alia, that the writer of the document had agreed to take the shop in question as a monthly tenant. The documents produced by the defendants include Exhibit 'Ka' series, which are copies of challans manifesting deposit of rent by the tenant which was shown payable to M. Safiullah Wakf Estate.

(3.) The suit was initially decreed by the trial Court. On appeal being preferred, the suit came to be dismissed as, according to the learned District Judge, the suit was not maintainable and the plaintiff had no right to sue. These are subject matters of Issues Nos. 1 and 2. The suit was held as not maintainable because reliance was sought to be placed on Exhibit-2 alone to show that the suit premises have been taken on settlement by the defendants. As, however, Exhibit-2 is not a registered document, it was held to be inadmissible, and the suit based on it was regarded as not maintainable. In so far as the plaintiff's right to sue is concerned, the view taken was that as the property formed part of a Wakf estate and when the terms of the disposition had been reduced to writing, it was incumbent to execute a registered deed by which the Wakf had been created. As the same was, however, not produced, nor secondary evidence of the same was given, Issue No. 2 was decided against the plaintiff. In taking this view the opinion expressed by this Court in SA 65/71 (Kamini Bala Deka v. Tamizul Haque) was also borne in mind.