Partly allowed

M.Aseera v. P.v.Sainabi

Kerala HC18 Oct 2022CRP(WAKF)/27/2021

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of a revision petition against a Wakf Tribunal order. The Court held that the property is Wakf land and the lease expired. It allowed the Tribunal's decision, extending the vacated possession deadline to April 20, 2023, and directed payment of rent and damages.

What did the court decide?

Allowed the revision partly. Directed the revision petitioner to surrender the shop room by April 20, 2023, deposit arrears, and pay damages of Rs.1,000 per month from August 1, 2017.

M.Aseera Vs P.v.Sainabi — Property and Title | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE S.V.BHATTI

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THE HONOURABLE MR.JUSTICE BASANT BALAJI

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TUESDAY, THE 18^TH DAY OF OCTOBER 2022 / 26TH ASWINA, 1944

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CRP(WAKF) NO. 27 OF 2021

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WOS 394/2019 OF WAKF TRIBUNAL, KOZHIKODE

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PETITIONER/S:

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M.ASEERA,AGED 50 YEARS W/O ABDUSAMAD, PEARLS GARDEN CHAKORATHKULAM, EAST HILL ROAD, KACHERI AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT-673 006.

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BY ADVS.J.VIVEK GEORGE K.K.NESNA

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RESPONDENT/S:

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1 P.V.SAINABI,AGED 82 YEARS W/O LATE K.V.ALIKOYA, MUTHAWALLI, PADINJARE PALLI VEEDU THARAVAD WAQF, ANAS VILLA, MANARI ROAD, P.O.PANNIYAKARA, KOZHIKODE TALUK, KOZHIKODE DISTRICT-673 003.

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2 THE CHIEF EXECUTIVE OFFICER, THE KERALA STATE WAKF BOARD, V.I.P ROAD, ERNAKULAM-682 017.

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3 KERALA STATE WAKF BOARD, REPRESENTED BY THE CHIEF EXECUTIVE OFFICER, V.I.P ROAD, ERNAKULAM-682 017

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BY ADVS.R. SUDHISH (CAVEATOR) R.SUDHISH M.MANJU

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THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON 18.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRP(WAKF) NO. 27 OF 2021

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S.V.BHATTI & BASANT BALAJI, JJ.

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- - - - -- - - -- - - - - - - - - - -- - - - - - - - - C.R.P.(WAKF) NO. 27 OF 2021

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JUDGMENT

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(Dated this the 18^th day of October 2022)

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Basant Balaji J.,

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The petitioner/revision petitioner is the first defendant

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in W.O.S.No.394 of 2019 on the files of the Wakf Tribunal,

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Kozhikode.

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The suit was filed for eviction, arrears of rent and damages.

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The plaint averments in brief is as follows:The

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plaint schedule shop room is a wakf property which

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belonged to Padinjare Palliveedu Tharwad Waqf and it was

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taken on lease by first defendant/revision petitioner on

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4.4.2006 from the then muthawalli namely Imbichi

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CRP(WAKF) NO. 27 OF 2021

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Pathummabi by executing a kychit of period of 3 months for a monthly rent of Rs.900/-. Rent was subsequently

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enhanced to Rs.1,000/-. The defendant is conducting a sanitary ware shop and the there is arrears of rent from January 2017 onwards without any reason. On 14.7.2017 a registered lawyer notice was issued by the muthawalli to the first defendant terminating the tenancy with effect from

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31.7.2017. A reply was sent to the notice with false contentions. Hence, suit was filed for arrears of rent, damages for unauthorised use and occupation till the date of surrender at the rate of Rs.1,000/- per month.

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The revision petitioner filed a written statement

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contending that the plaint schedule shop room occupied by him is not a Wakf property. Hence the Tribunal has no

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jurisdiction to entertain the suit. The plaintiff/1^st

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respondent was not ready to accept the rent and that is why it fell in arrears. The document relied on by the plaintiff

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does not relate to a Wakf. The first defendant has sent a reply to the notice stating true facts and the tenancy of the revision petitioner canot be terminated under section 106 of the Transfer of Property Act as he is the statutory tenant under the provisions of the Kerala Buildings (Lease and Rent control) Act and hence, prayed for dismissal of the suit.

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The respondent Chief Executive Officer filed a written statement stating that the Wakf involved in this matter is registered with the State Wakf Board as No.6628/RA and the revision petitioner is an encroacher in

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the Wakf property. This suit was tried along with W.A.No. 394 of 2019 and a common judgment was passed. The

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Tribunal allowed the petition and directed the revision petitioner to surrender vacant possession of the plaint schedule shop room within a period of 3 months and the revision petitioner was directed to pay Rs.8,000/- to the 2^nd plaintiff towards arrears of rent. An amount of Rs.1,000/per month was directed to be paid from 1.8.2017 till the date of surrender as damages for unauthorised use and

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occupation. Aggrieved by the said judgment this revision is filed by the first defendant.

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Heard.

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The counsel for the revision petitioner submits that

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the Wakf in this case is a Wakf al-aulad, a private Wakf and hence the property is not a Wakf, but only the rent received from the building is of wakf. Since the shop room

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is not a Wakf, the Tribunal ought not have entertained the

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petition and should have dismissed the same as not maintainable. The petitioner has been carrying out business in the shop room for the last 15 years and there is no suitable room available in the locality for shifting his business. Hence the benefit under Kerala Buildings (Lease

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and Rent Control) Act is available to the petitioner.

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The counsel for the respondent submits that

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Ext.A1 was a lease executed on 4.4.2006 between the

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revision petitioner and the then muthawalli and it is specifically stated in Ext.A1 that :

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"മമേപ്പടടി വഖഫഫ് വകയയയും അത�ന� മേയത്തവലടി എന്ന നടിലകഫ് 1-)o പപാർടടി കകവശയും വവചയനടന്നതയ വരയന്നതയമേപായ തപാവഴെ പടടികയടിൽ വടിവരടിച വഹകൾകഫ്"

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Therefore, the revision petitioner cannot contend that the

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plaint schedule shop room is not a Wakf as he has

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acknowledged it as a Wakf way back in 2006 when the property was taken on lease. The contention that the property is not a Wakf property has been answered in negative relying on Ext.A1 lease deed, in which it is specifically stated that first party is a muthawalli having possession over the plaint schedule shop room and the property is a Wakf property. Moreover, Ext.A8 is the extract of wakf register which shows that Padinjare Palliveedu Tharawad Waqf was registered in the year 1992 with No.6628/RA with the Kerala State Wakf Board. The Tribunal held that the plaint schedule shop room is a wakf property coming within the meaning of Section 3 (r) of the Wakf Act. Ext.A1 lease deed shows that the lease amount

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was Rs.900/- which was fixed for three months thereafter and Ext.A4 was executed on 1.8.2007 after the original

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lease period expired. The plaint schedule shop room being a wakf property, the tenants cannot seek protection under the Kerala Buildings (Lease and Rent Control) Act because Wakf buildings are exempted from the application of the said Act by virtue of Section 25 of the Act. Wakf of the Properties Lease Rules 2014 made in exercise of power under control of Section 56(1) of the Wakf Act. Rule 23 deals with termination of lease on default of the lessee by issuing one month notice. It also prescribes that after the expiry of lease period unless the period is extended by the act of the parties, the lease will be treated as expired. Rule 24 of the Wakf Properties Lease Rules makes it clear that the lessee shall immediately surrender the lease possession of the premises upon the expiration or termination of lease, failing which, he will be treated as an encroacher liable to

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be removed under Section 54 of the Wakf Act.

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Admittedly, in this case the lease period is already

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over. In such a situation, the revision petitioner can only be termed as an encroacher and the Tribunal has rightly held that the revision petitioner/ first defendant shall surrender vacant possession of the plaint schedule shop room to first respondent within 3 months and to pay Rs.8,000/- towards rent. The use and occupation fee at the rate of Rs.1000/- per month from 1.8.2017 till the date of delivery of the plaint schedule shop room was also ordered. On going through the judgment of the Tribunal, we feel that the Tribunal was right in directing the first respondent to surrender vacant possession of the shop room and to pay the rent as well as the damages for the unauthorised use and occupation of the

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building.

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The counsel for the revision petitioner submits

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that the revision petitioner may be allowed some time to move out of the plaint schedule shop room and to surrender

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the vacant possession of the building. Taking note of the fact that the revision petitioner was in possession of the building doing business from 2006 onwards, we feel that a period of six months can be granted to the revision petitioner to vacate the premises.

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In the result, this Revision is disposed of with the following directions:

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(1). The revision petitioner shall surrender the shop room to the first respondent on or before 20.4.2023.

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(2). The revision petitioner shall deposit the entire arrears of rent as on today to the first respondent within one month from today and also damages at the rate of Rs.1,000/- per month with effect from

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1.8.2017 till today.

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(3). The revision petitioner shall continue to pay rent till vacant possession of the shop room is delivered to the first respondent as ordered by the Tribunal.

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(4). If the rent of the plaint schedule shop room is in arrears for two months the first respondent is at liberty to execute the judgment of the Tribunal.

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S.V.BHATTI, JUDGE

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sd BASANT BALAJI, JUDGE

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dl/

M.Aseera v. P.v.Sainabi

Case brief

What is this about?

What did the court decide?

M.Aseera v. P.v.Sainabi

Case brief

What is this about?

What did the court decide?

What the court decided

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