RAMSWAROOP Vs. MOHAMMAD ISLAM

JUDGEMENT

(1.) Appellants-defendants-tenants have filed this second appeal under Sec. 100 CPC challenging the decree for eviction dtd. 27/9/2008 passed by Civil Judge (Senior Division), Tonk in civil suit No.82/2004 in relation to the shop in question on the ground of bona fide and personal need and which has been affirmed in first appeal No.81/2008 passed by District Judge, Tonk vide judgment dtd. 21/8/2009.

(2.) The simple issue involved in this second appeal is whether the eviction decree passed by two courts below recording a fact finding that the rented shop of appellants is required for landlord's grandson-Mohammad Haleem to start grocery business suffers from perversity or not however, counsel for appellants-tenants has tried to make a persuasive attempt seeking declaration of eviction decree passed by civil court as without jurisdiction and nullity raising inter alia following points:-

(3.) Per contra, learned counsel appearing for respondentplaintiff has urged that admittedly appellants are tenants in the rented shop of Hazi Alladin @Rs.40.00 per month. It has been pleaded in the plaint that Hazi Alladin made a family settlement by way of execution of a registered waqf deed for the benefit of his family and descendants including his son and grandson Mohammad Haleem. Landlord-Hazi Alladin, settler of waqf made private waqf in the nature of waqf-alal-aulad (not waqf-alal-allah) for the benefit of his family and in the waqf deed itself, the plaintiff was authorized to manage, maintain and deal with the rented shop to look after the interest of beneficiaries of the waqf. Since, in the private waqf of waqf-alal-ul-aulad itself, Mr. Mohammad Haleem S/o Mohammad Siddaqi is one of the beneficiaries and being unemployed he is in bona fide requirement of the rented shop to start his own grocery business, therefore, for his bona fide and reasonable necessity, the mutawalli rightly instituted the eviction suit before the civil court under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 on 30/1/2003 against appellants-defendants-tenants. He submits that rented shop is not a "public premise" and appellants are tenants in the shop and not unauthorized occupants, therefore, provisions of the Unauthorised Occupants Act of 1964 are not applicable to the rented shop. Counsel for respondent further submits that the present eviction suit involves the dispute of eviction of tenant on the ground of bona fide necessity of landlord's grandson and this civil suit does not involve any dispute of waqf whether or not a property is a waqf property or whether a waqf is a shia waqf nor the Board of Muslim Waqf or any person interested in a waqf either religious trust, masjid or beneficiary of waqf have disputed the eviction proceedings before the civil court. The dispute involved in the eviction suit does not fall within the disputes prescribed under Ss. 6 and 7 of the Waqf Act, 1995 therefore, it is wrong to say and tenant has no locus standi to say that civil court has no jurisdiction to entertain, trial and pass eviction decree. Learned counsel for respondent vehemently urged that appellants-tenants did not took any such defence/objection in their written statement before the trial court nor they have disputed the nature of waqf as waqf-alal-aulad (which is wholly different from the waqf-alal-allah) and appellants being admitted tenants in the rented shop have no locus standi to raise such issues at the appellate stage more particularly when they themselves admitted to be a tenant in the rented shop of Hazi Alladin. He submits that appellants-tenants are making an attempt to twist the issue of eviction into the issue of dispute related to waqf property, just for his own benefit to retain possession of rented shop for a longer period and to evade their eviction pursuant to eviction decree itself. He submits that the points raised by counsel for appellants in the present appeal are preposterous, unfair and without having any locus. Counsel for plaintiff argued that the eviction decree passed by civil court on the ground of bona fide and personal necessity against appellant-tenants suffers from no infirmity and perversity as such the same do not calls for any interference at the stage of second appeal and the same is liable to be sustained.