suit under Section 83(2) of the Wakf Act, 1995 for eviction. The suit was decreed by a judgment dated 21.02.2015. The appellant filed A.S.No.98 of 2016, but the same was dismissed - There is no necessity for the Managing Committee of a Wakf to obtain the prior permission either of the Wakf Board or of the Chief Executive Officer to initiate action for recovery of possession from the tenants. -Section 90 (1) requires the Court or Tribunal, in every case relating to title or possession of Wakf property or the right of a Mutawali or beneficiary, to issue notice to the Board. An obligation was imposed under Section 90(1) upon the Wakf Tribunal or Court. The consequence of non-compliance with the obligation under sub-section (1) is spelt out in sub-section (3). Sub-section (3) merely states that in the absence of a notice under sub-section (1), any decree passed can be declared as void if the Board applies to the Court in this behalf. Sub-section (3) of Section 90 does not confer a right upon the tenant to come up with a plea that if no notice is issued under Section 90(1), the decree becomes void. Therefore, it is not for the appellant to say that the failure to issue notice makes the decree void. It is for the Wakf Board to say that. In any case, the object behind Section 90 is to protect Wakf as well as Wakf property. The object behind the Managing Committee of a Wakf evicting a tenant is also to protect the interest of the Wakf. - Section 54 applies to encroachers. When I made a pointed query to the learned counsel for the appellant as to whether the appellant is an encroacher, the learned counsel had no alternative except to deny the same. Therefore, what applies to an encroacher cannot be invoked by a person, who does not admit to be an encroacher.

HONBLE SRI JUSTICE V.RAMASUBRAMANIAN AND HONBLE MS. JUSTICE J. UMA DEVI                

SECOND APPEAL No.1014 of 2016    

21-04-2017

 Mohammed Iftekhar Uddin, S/o. Mohammed Abdul Rahman, R/o. 75-7-2,    
Bhavanipuram, Vijayawada.  Petitioner

Imdadgha Complex, Sarai Mosque Wakf, Rep. by its Secretary Mohammad Rafi,    
S/o. Abdul Sattar, R/o. D.No.76-8-18, Crambay Road, Bhavanipuram, Vijayawada,
Secretary, Board of Trustees of Sarai Mosque, Imdadghar, Kaleswarao
Market,Vijayawada-1, Krishna District. Respondent

Counsel for the appellant: Mr. S.M. Subhani

Counsel for Respondent: Mr. Ravi Kumar Tholety

                               
<GIST:

>HEAD NOTE:  

? Cases referred

1. AIR 2016 CALCUTTA 351  

THE HONBLE SRI JUSTICE V. RAMASUBRAMANIAN          

SECOND APPEAL No.1014 of 2016    

JUDGMENT:  

      Aggrieved by concurrent judgments of both the Courts below
directing eviction, the tenant of a Wakf has come up with the above
second appeal.
      2. Heard Mr. S.M. Subhani, learned counsel appearing for the
appellant and Mr. Ravi Kumar Tholety, learned counsel appearing for the
respondent.
      3. The respondent is admittedly a Wakf. They filed a suit under
Section 83(2) of the Wakf Act, 1995 for eviction. The suit was decreed by
a judgment dated 21.02.2015. The appellant filed A.S.No.98 of 2016, but
the same was dismissed by the first appellate Court by a judgment and
decree dated 16.11.2016. Hence the present second appeal.
      4. The substantial questions of law raised by the appellant are as
follows:
1.      Whether the Lower Appellate Court is right in not framing the
detailed points for consideration as required under Order 40 Rule
31 CPC and also consider all the grounds raised by the Appellant
herein in these Appeals as per the judgments of this Honble
Court reported in 2002 (2) ALT 589 and 2005 (3) ALD 813?
2.      Whether the Lower Appellate Court is right in conforming the
eviction order of the trial court directing the eviction of the
Appellant/defendant from the suit schedule premises on the
basis of eviction suit filed by the plaintiff Managing Committee
without the consent and directions of the Wakf Board as
required under Section 13(3) and Section 27 of the Wakf Act,
1995?
3.      Whether the Lower Appellate Court is right in ordering of
eviction of defendant from the plaint schedule premises by
dismissing the appeal with cost confirming the eviction order of
the trial Court without there being a statutory notice to the
Wakf Board under Section 90(1) of the Wakf Act, 1995?

Question No.1:
      5. It is true that the lower appellate Court could have framed
detailed points for consideration as required under Order XLI Rule 31
C.P.C. The points taken up for determination by the first appellate Court
are as follows:
1.      Whether the eviction order by the trial Court under the
impugned judgment is sustainable based on the material on
record?
2.      To what relief?

      6. On point No.1 there has been a discussion by the first appellate
Court. Therefore, this is not a case which can be treated as one that
would fall foul of Order XLI Rule 31 C.P.C. Hence the first question of law
is answered against the appellant.
Question No.2:
      7. The second question of law is as to whether the Managing
Committee of the Wakf would require the consent and directions of the
Wakf Board under Section 13(3) and Section 27 of the Wakf Act, 1995.
      8. Under Section 13(3), the Wakf Board is required to be a body
corporate having perpetual succession. It has no correlation to the
disputes of this nature. Insofar as Section 27 is concerned, the same
speaks about the delegation of powers by the Board. Therefore, the same
has nothing to do with the issues arising in this case.
      9. There is no necessity for the Managing Committee of a Wakf to
obtain the prior permission either of the Wakf Board or of the Chief
Executive Officer to initiate action for recovery of possession from the
tenants. Hence the second question of law is also answered against the
appellant.
Question No.3:
      10. The 3rd question of law revolves around Section 90(1) and (3)
of the Act. Heavy reliance is placed by the learned counsel for the
appellant upon the judgment of the Division Bench of the Calcutta High
Court in Sayed Hassan Ali v. Mahammed Sahidul Islam , wherein a
Division Bench of the Calcutta High Court held that in the light of the
prescription contained in sub-section (3) of Section 90 issuance of a
notice before institution of the suit was mandatory.
      11. But I do not think that the decision of the Calcutta High Court
can be applied to the facts of the present case. Section 90 (1) requires the
Court or Tribunal, in every case relating to title or possession of Wakf
property or the right of a Mutawali or beneficiary, to issue notice to the
Board. An obligation was imposed under Section 90(1) upon the Wakf 
Tribunal or Court. The consequence of non-compliance with the obligation
under sub-section (1) is spelt out in sub-section (3). Sub-section (3)
merely states that in the absence of a notice under sub-section (1), any
decree passed can be declared as void if the Board applies to the Court in
this behalf. Sub-section (3) of Section 90 does not confer a right upon the
tenant to come up with a plea that if no notice is issued under Section
90(1), the decree becomes void. Therefore, it is not for the appellant to
say that the failure to issue notice makes the decree void. It is for the
Wakf Board to say that. In any case, the object behind Section 90 is to
protect Wakf as well as Wakf property. The object behind the Managing
Committee of a Wakf evicting a tenant is also to protect the interest of
the Wakf. There is no conflict of interest between the respondent/plaintiff
and the Wakf Board. Hence the third question of law is also to be
answered against the appellant.
      12. Based upon Section 54(1) of the Wakf Act, 1995 one more
question of law was sought to be raised by the learned counsel for the
appellant in the course of arguments. But obviously, Section 54 applies to
encroachers. When I made a pointed query to the learned counsel for the
appellant as to whether the appellant is an encroacher, the learned
counsel had no alternative except to deny the same. Therefore, what
applies to an encroacher cannot be invoked by a person, who does not
admit to be an encroacher.
      13. Hence the substantial questions of law are answered against
the appellant and the Second Appeal is dismissed.
      14. The learned counsel for the petitioner, made a plea, after the
dismissal of the second appeal, to grant six months time to vacate and
handover the vacant possession. The said request would be considered, if
the petitioner files an affidavit to the said effect. Post on 27.04.2017 for
filing affidavit.
      15.       As a sequel, miscellaneous petitions pending, if any, shall
stand closed. There shall be no order as to costs.

__________________________  
JUSTICE V. RAMASUBRAMANIAN      
21st April, 2017

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