Eviction; Muthulakshmi Ammal Vs. Seethimarakkarakath Alikoya Wakf [Kerala High Court, 17-06-2016]

Civil Law – Jurisdiction – Statutory Changes – a Court must have regard to circumstances existing when the issue of jurisdiction is tried and must decide it in the light of circumstances existing as at that date – the appeal proceedings being in continuation of the original proceedings, the statutory changes lis pendence do affect the outcome of the proceedings—even as regards jurisdiction.

Wakf Act – Ss. 83 & 85 – Buildings (Lease and Rent Control) Act (Kerala) – Wakf Property – Tenancy – Eviction – Petitioner has all along taken a consistent stand that the property does not belong to the Wakf and, therefore, the tenants should be allowed to have the benefit of rent control legislation – Whether Civil Court alone, instead of Wakf Tribunal, would have the jurisdiction to try a suit for eviction? Held, Suit schedule property was dedicated through the registered Wakf Deed – an extract of Register of Wakfs, issued by the Kerala Wakf Board, Ernakulam, in which the property stood reflected – Tribunal, on the basis of these documents has concluded that the suit schedule property belongs to the Wakf – discrepancy in the description of the property, the Tribunal felt, is minor not capable of casting any cloud on the identity of the property – Muthavalli of the Wakf inducted the tenants and that the tenants have also admitted that they have paid the rent to the Wakf – Tribunal has recorded that the defendants have also admitted the plaintiff as their landlord – to dilute the Tribunal’s findings concerning the nature of the property and also the status of the first respondent as the landlord, the petitioner has produced no countervailing material – therefore, find no justification to upset the well-considered findings of fact arrived at by the Tribunal on the nature of the property and the first respondent’s entitlement to seek eviction.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

Antony Dominic & Dama Seshadri Naidu, JJ.

CRP No.226 of 2007

Dated this the 17th day of June, 2016

AGAINST THE DECREE & JUDGMENT IN OS 13/2004 of WAKF TRIBUNAL, KOZHIKODE DATED 06-12-2006

REVISION PETITIONER/1ST DEFENDANT

MUTHULAKSHMI AMMAL

BY ADV. SRI.THOMAS ANTONY

RESPONDENTS/PLAINTIFF & 2ND DEFENDANT

SEETHIMARAKKARAKATH ALIKOYA WAKF, (A WAKF REGISTERED UNDER THE WAKF ACT) AND ANOTHER

R1 BY ADV. SRI.A.BALAGOPALAN R1 BY ADV. SRI.A.RAJAGOPALAN R1 BY ADV. SRI.M.S.IMTHIYAZ AHAMMED BY ADV.SRI.K.SHIBILI NAHA

ORDER

Dama Seshadri Naidu, J.

Facts in Brief

This revision petition arises out of eviction proceedings in O.S.No.13 of 2004 on the file of the Wakf Tribunal, Kozhikode. Having suffered a decree of eviction, the tenants are before us.

2. The facts in brief are that the then Muthavally of the plaintiff Wakf inducted the defendants’ predecessor as a tenant into the suit schedule property, a house, about fifty years ago. Though the monthly rent began at 200/-, from August 1999 onwards, it was said to have been raised to 700/-. In the course of time, on 12.09.2001, the successor Muthavalli issued a notice to the defendants, who succeeded as tenants after the death of their predecessor, demanding arrears of rent and also vacant possession of the property.

3. Besides traversing the notice contents in her reply, the first defendant sent a demand draft for 7920/- declaring that amount to be the arrears of rent. Later, on 23.7.2003, the landlord issued another notice terminating the tenancy, apart from demanding arrears of rent. When the defendants did not comply with the plaintiff’s demand, it initiated eviction proceedings.

4. The defendants set up a defence primarily contending that the property does not belong to the Wakf, and that it is amenable to

Kerala Buildings (Lease and Rent Control) Act.

In other words, the defendants have sought to take shelter under the beneficial provisions of the rent control enactment. According to the defendants, the building was taken on lease about 50 years ago, and there was no periodical raise in the rent, which remained at 200/- per month. Even in 1997, the tenants agreed to raise the rent only by 200/-, rather than 700/-. Eventually, they have contended that the suit for eviction is not maintainable, that the property does not belong to the wakf, and that there was no cause of action for the landlord to seek their eviction.

5. During the trial, the learned Tribunal, among other things, has framed a specific issue whether the plaint schedule property is outside the purview of Kerala Buildings (Lease and Rent Control) Act.

6. The plaintiff examined on its behalf the Muthavalli as PW1 and marked Exts.A1 to A10 documents. On the other hand, the first defendant got herself examined as DW1, apart from marking Exts.B1 to B7 documents.

7. Holding that the property belongs to Wakf and that the defendants are liable to vacate, the learned Tribunal decreed the suit through its judgment dated 6 th December 2006. Aggrieved, the first defendant alone filed the present revision, in which the plaintiff is the first respondent. They shall be hereafter referred to thus.

Submissions: Petitioner’s:

8. Sri Thomas Antony, the learned counsel for the revision petitioner, has strenuously contended that the first respondent, has miserably failed to establish before the Tribunal that the property belongs to the Wakf. According to him, the Tribunal’s reliance on Ext.A10, the Wakf deed, is grossly erroneous and misplaced. In elaboration, he has submitted that the property in Ext.A10 does not cover, in the first place, the plaint schedule property. He has, in the alternative, submitted that even the description of the property in Ext.A10 entirely differs from and does not match with that of the suit schedule property.

9. As a sequel to his submission that the property does not belong to the Wakf, the learned counsel has further contended that the defendants are entitled to the benefit of the rent control legislation. It is also his specific contention that the first respondent has failed to establish before the Tribunal that there had been any proper revision of rent. By the same reckoning, it has also failed to establish that the defendants are liable to pay the arrears of rent at the enhanced rate. According to him, the first respondent has placed no material before the Tribunal to drive home its contention as regards the revision of rent, much less the arrears of rent.

10. Summing up his submissions, the learned counsel has submitted that even if one were to assume that the suit schedule property was a Wakf property, civil court alone, instead of the Tribunal, would have the jurisdiction to try a suit for eviction. To support his submission, the learned counsel has placed reliance on