CHAIRMAN, AUQAF COMMITTEE Vs. SURAJ RAM

JUDGEMENT

(1.) THIS is defendants second appeal in a suit filed by the plaintiff for an injunction restraining the defendant appellant from evicting him i. e. the plaintiff -tenant. The present suit has arisen in the following circumstances:

(2.) THE plaintiff brought a suit in the court of Sub Registrar, Munsiff, Jammu, on the allegation that he was in possession of the property in question which consists of 3 marlas and 2 sarsaies of land over which the plaintiff had constructed a house. By virtue of an order passed by the Auqaf Committee under Section 44 of the Jammu and Kashmir Muslim Wakafs Act, 1959 (hereinafter referred to as the Act) the plaintiff was directed to be evicted from the premises. The plaintiff filed an appeal before the District Judge Jammu against this final order and a compromise was arrived at between the parties be which the plaintiff agreed to vacate the premises on 31 -7 -61 and gave a statement in support of the compromise. On the basis of the statement, a compromise decree was passed by the District Judge, on 30 -7 -60. The plaintiff averred that in fact the property was not Wakaf property at all and therefore the Committee had no jurisdiction to evict him. I was also pleaded that the admission made by the plaintiff before the District Judge was wrong on a point of fact and was made in ignorance of the rights of the pltff. The case was resisted by the defendant -Auqaf Committee who pleaded that the plaintiff was tenant of the Committee having been inducted by the Committee on the land and the plaintiff had constructed a house thereupon without the permission of the Committee. The defendant further averred that in fact by virtue of the preliminary notice dated 22 -11 -959 the plaintiff was asked to show cause why he should not be evicted from the premises because his possession was unlawful and unauthorised. The pltff. instead of showing cause to the Committee filed an appeal before the District Judge against this preliminary notice which was however dismissed by the District Judge on 18 -12 -1959 is being premature. Thereafter the committee continued: its proceedings and sent a final notice D/ - 6 -2 -1960 after hearing the plaintiff, directing the plaintiff to vacate the premises. This notice culminated in the final order directing the plaintiff to vacate. Thereafter the pltff. filed an appeal before the District Judge against the order of eviction which was compromised on 30th July 1960 wherein the plaintiff admitted in tacit terms that he was the tenant of the defendant and he would vacate the premises by end of July 1961. Subsequently an application under S. 148 for extension of time was given by the plaintiff to the District Judge which was also dismissed on 11 -8 -1961. Thus having found himself unable to remain in possession of the premises, the plaintiff appears to have taken the aid of the Civil Court by filing a most ordinary type of a suit. In the present suit which was filed on 12 -8 -1961 the plaintiff prayed that the order of the Committee was without jurisdiction and that his admission before the District Judge could not be relied upon as it was made in ignorance of the real facts. The suit was decreed by the Munsiff on 18 -3 -1969 and the District Judge also dismissed the appeal of the defendant on 20 -12 -1969. Thereafter the defendant has come up in second appeal to this court and when the case was heard by me, I by my order dated 26 -11 -1970 remitted the case to the trial court for giving a finding on two issues namely:

(3.) ON the question of the validity of the notice, however it was held that in view of the decision of the Supreme Court in Northern India Caterers (P) Ltd. v. State of Punjab reported in AIR 1967 SC 1581 provisions of Sections 43 and 44 of the Act were ultra vires. The appeal has now been placed before me for hearing and only two points have been argued before me by counsel for the respondent -plaintiff. The reports of the courts below containing the findings of fact have not been challenged before me and therefore it must be held that the decree passed by the District Judge on 30 -7 -1960 was a legal valid decree and was rightly passed on the admission of the plaintiff. It would also appear that if the admission was voluntary then it was established that the property in question was Wakaf property and the plaintiff was a tenant of the defendant.