JUDGMENT
P.S. Narayana, J.
1. On 20-8-1998 this Court made the following order:
2. The questions formulated in ground No. 9(a) and (b) are the substantial questions of law. The said grounds ‘a’ and ‘b’ in ground No. 9 read as hereunder:
(a) Whether the lower appellate Court was justified in declaring Ex.A12 as invalid in law and particularly in the absence of any pleadings or evidence let-in by the defendant during the trial as well as any such contention raised by the defendant before the trial Court?
(b) Whether the lower appellate Court was justified in declaring the suit as non-maintainable in spite of the fact that the plaintiff had specifically notified the A.P. Wakf Board in Ex.A.18 of 4-4-1985 about the filing of the present suit and in the absence of any objection from the Wakf Board filed the present suit on 19-12-1985?
3. Sri Vilas Afzul Purkar, the learned Senior Counsel representing the appellants-plaintiffs had taken this Court through the findings recorded by the Court of first instance and also had taken this Court through the findings recorded by the appellate Court and would comment when the fact that the first plaintiff had been the mutawalli is not in serious controversy, the appellate Court recording a finding that only an ex parte decree was obtained by the third plaintiff and by that itself it cannot be said that he is mutawalli and not entitled to continue the action, cannot be sustained.
4. The learned Counsel pointed out to the evidence available on record in general and Exs.A12 and A18 in particular. The learned Counsel also would maintain that mere inaction of the Andhra Pradesh Wakf Board also cannot be taken as a ground to non-suit the plaintiffs especially in the light of the stand taken by the respondent-defendant. At any rate, the Counsel would maintain that the findings recorded by the appellate Court are totally unsustainable findings.
5. Per contra, Sri Vedula Venkataramana, the learned Counsel representing the respondent-defendant would maintain that though several legal heirs of the deceased-first plaintiff were brought on record, there is no specific pleading regarding devolution of the office of mutawalli and in the absence of the same unless there is a specific plea it cannot be inferred that Office devolved on the third plaintiff and thus the third plaintiff is entitled to continue litigation. The learned Counsel would also maintain that it may be true that whether the decree is a ex-parte decree or a decree on merits, the decree to be honoured. But however, this cannot be said to be a judgment in-rem and this is a judgment in-personam and in view of the limitations relating to the admissibility and relevancy and binding nature of such decree especially in the absence of the A.P. Wakf Board being made a party, these questions cannot be effectively gone into and hence in the light of the same, the findings recorded by the appellate Court is well justified. In all fairness, the learned Counsel would also maintain that certain of the findings recorded by the appellate Court though not happily worded, ultimately the conclusion arrived at by the appellate Court cannot be found fault. Even otherwise, in the light of the limitations specified under Section 100 of the Code of Civil Procedure, since the questions of law pointed out being not the substantial questions of law, the second appeal is bound to fail. The learned Counsel incidentally pointed out that no serious prejudice would be caused to the institution as such for the reason that always A.P. Wakf Board is at liberty to invoke the remedy under the relevant provisions of the Wakf Act.
6. Heard the learned Counsel on record and perused the material available on record.
7. The parties hereinafter would be referred to as “plaintiffs” and “defendants” as shown in O.S. No. 4393 of 1985 on the file of the Court of IV-Assistant Judge, City Civil Court, Hyderabad. The suit was originally instituted by the first plaintiff as ‘mutawalli’ and since the first plaintiff died, plaintiffs 2 to 9 were brought on record as the legal representatives of the first plaintiff by order dated 3-3-1989 in IA No. 116 of 1989. The suit was instituted for recovery of possession of the plaint schedule property consisting of two rooms of the wakf property bearing No. 17-5-16, Shaukat Manzil, Yakutpura and for recovery of mense profits amount to Rs. 800/- p.m., and also for recover of future mesne profits @ Rs. 50/- per month from the date of filing of the suit till the date of delivery of vacant possession of the plaint schedule property.
8. On the respective pleadings of the parties, the Court of first instance having settled the issues recorded the evidence of PWs.1 and 2 and DWs.1 to 3 and marked Exs.A1 to A70 and Exs.B1 to B37 and ultimately came to the conclusion that the appellants-plaintiffs are entitled to the reliefs as prayed for and accordingly decreed the suit. The defendant in the suit being aggrieved by the said decree and judgment preferred the appeal, A.S. No. 35 of 1998 on the file of the Court of Principal Special Judge, SPE & ACB Cases, City Civil Court, Hyderabad and the appellate Court on appreciation of oral and documentary evidence came to the conclusion that the respondent herein, the defendant has not been residing in the suit property as a tenant but as owner and as son of Nawab Kazimyar-jung and further recorded a findings that the Court was not inclined to accept that the defendant was the tenant of the suit property and ultimately allowed the appeal. Aggrieved by the same, the present second appeal is preferred. The substantial questions of law on the strength of which the second appeal was admitted by this Court already had been specified supra.
9. The brief averments made in the plaint are as under:
It was pleaded that the property bearing Nos. 17-1-515 to 526 Shoukat Mansion situate at Yakutpura, Hyderabad is a Wakf property and the plaintiff is the mutawalli of the suit Wakf property. The plaintiff in the capacity of mutawalli has let-out two rooms in the first floor of the wakf property bearing No. 17-3-516 to the defendant on 10-8-1967 on a monthly rent of Rs. 20/- per month for residential purpose. The defendant has executed a rental deed in favour of the plaintiff on 10-8-1967. The defendant had paid rents upto February, 1968 and the plaintiff No. 1 issued receipts in favour of the defendant as and when the defendant paid the rents. The defendant had not paid the rent from March, 1968 onwards with an evil design and cause loss to the wakf property. The plaintiff No. 1 got issued a notice dated 22-10-1985 to the defendant calling upon the defendant to pay the arrears of rent of Rs. 4,240/- from March 1968 to October 1985. The defendant in spite of receipt of the said notice did not pay the rent and the defendant not issued any reply to the said notice. The plaintiff also terminated the tenancy of the defendant under the above said notice calling upon the defendant to vacate the suit property on 10-11-1985 or any other date according to the defendant the period of tenancy ends. The defendant is liable for damages and mesne profits at the rate of Rs. 50/ per month for use and occupation of the suit property from November 1985 onwards. The plaintiff is also entitled to recover the arrears of rents from November 1982 to October 1985 amounting to Rs. 720/-.
10. Respondent herein as defendant filed written statement and additional written statement as well and the plaintiffs filed a rejoinder.
11. The stand taken by the respondent is that the property bearing No. 17-3-515 to 526 situate at Yakutpura, Hyderabad, is a wakf property. The plaintiff No. 1 is not the mutawalli of the said property and the plaintiff No. 1 has no right to interfere in the management of the wakf properties. The defendant is the eldest son of Nawab Kazim Jung Bahadur. The defendant shall be mutawalli of the Ashoorkhana he being the eldest son. It is incorrect to say that the plaintiff No. 1 leased out the suit property to the defendant on a monthly rent of Rs. 20/-. It is also false to say that defendant has executed a rental deed in favour of the plaintiff No. 1 on 10-8-1967. The rental deed and counterfoils are forged and fabricated documents. The defendants is the eldest son of late Nawab Kazim Jung Bahadur and the defendant is residing in the said property since his birth. Hence the question of obtaining any portion on rent does not arise. The defendant filed petition in the Wakf Board for declaration that the defendant being the eldest son of mutawalli as mutawalli and challenging the right of plaintiff. The plaintiff No. 1 is not having any locus standi to claim towliath. The rights of Towliath are in dispute and proceedings are pending before A.P. Wakf Board. Unless and until the matter of Towliath finally decided the plaintiff has no right to file any suit as mutawalli. There is no permission of Wakf Board to the plaintiff for filing the present suit.
12. On the strength of the respective pleadings, written statement and additional written and rejoinder, the following issues were settled before the Court of first instance.
(1) Whether the plaintiff is entitled to evict the defendant and to have the vacant possession of the suit schedule property?
(2) Whether the plaintiff is entitled to arrears of rent of Rs. 720/- and mesne profits of Rs. 80/- totalling to Rs. 800/-?
(3) Whether the plaintiff is entitled to future mesne profits at Rs. 50/- per month?
(4) Whether the suit is liable to be dismissed for want of permission from Wakf Board?
(5) Whether the plaintiff paid the sufficient Court-fee and suit is valued properly?
(6) Whether this Court has no jurisdiction to try the suit?
(7) Whether the defendant is the tenant of the plaintiff?
(8) Whether the notice of termination of tenancy is valid?
(9) Whether the plaintiff is the mutawalli of the wakf property i.e., suit property?
(10) To what relief?
13. On behalf of the plaintiffs, PWs. 1 and 2 were examined and Exs.Al to A17 were marked and on behalf of the defendants DWs.1 to 3 were examined. Exs.B1 to B37 were marked. The Court of first instance proceeded to record the finding while answering the issues commencing from Paragraphs 8 to 30 and ultimately decreed the suit. The appellate Court in AS No. 38 of 1995 specified supra framed the following points for consideration at Paragraph No. 11.
1. Whether the first plaintiff was the mutawalli of the suit property and after his death whether the other plaintiffs or third plaintiff has became mutawalli?
2. Whether the suit is maintainable in the absence of Wakf Board or permission from Wakf Board?
3. Whether the defendant is not the tenant in the suit premises?
14. Further discussed the oral and documentary evidence commencing from Paragraph Nos. 12 to 23 and ultimately allowed the appeal. The fact that the plaint schedule property is the wakf property is not in serious dispute between the parties. The suit is instituted for recovery of possession, arrears of certain and certain other ancillary reliefs. It is also not in serious controversy that the civil Court can entertain the suit being Wakf Property since the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 are not applicable and civil Court has jurisdiction to entertain such suit. The suit was originally instituted by Md. Shabbir Hussain Khan who died during the pendency of the suit and plaintiffs 2 to 9 were brought on record as his legal representatives. The specific case of the plaintiffs is that the deceased first plaintiff was the mutawalli of the plaint schedule property and the same was let out to the defendant under a rental deed and subsequent thereto the deceased-first plaintiff nominated plaintiff No. 3 as mutawalli under a deed of nomination dated 17-2-1982 and thus on the death of the plaintiff No. l, plaintiff No. 3 became mutawalli and he has been rendering services as mutawalli in relation to the wakf property in question. It is also the case of the plaintiff, plaintiff No. 3 also submitted an application to the A.P. Wakf Board to recognize him as mutawalli of the wakf property. The Xerox certified copy of the deed of nomination stands in the name of PW.1 Mohammed Zaki Abdul Hasan, the father of PWs.l and 2 was marked as Ex.A.1. The copy of the letter from the mutawalli to the Secretary A.P. Wakf Board praying for permission to file suit against defendants it marked as Ex.A18. On the question of maintainability of the suit by a mutawalli in relation to recovery of possession and the ancillary reliefs of a wakf property, the Counsel on record in fact did not seriously canvass this question.
15. The appellate Court on appreciation of the whole evidence available on record, observed that the decree made in OS No. 3318 of 1990 as against the Andhra Pradesh Wakf Board by the third plaintiff to the effect that he is the hereditary mutawalli of the plaint schedule property, Ex.A69 is an ex parte decree and hence the same is not binding on the defendant. Certain further findings had been recorded on appreciation of oral and documentary evidence. It is no doubt true that Ex.A69 may not be a judgment in-rem but it is pertinent to note that this declaration was obtained as against A.P. Wakf Board and the present suit had been instituted by the original mutawalli and now further being prosecuted by the successors-in-interest of mutawalli of plaintiff No. 3. No doubt certain submissions were made by the Counsel representing respondent that except the amending of cause title no specific plea relating to the devolution of the Office of the mutawalli had been specifically pleaded. On verification of records, this Court is satisfied that no doubt no such specific plea in the plaint as such had been carried by moving an appropriate application for the amendment of the pleading. The question is whether this ground be taken as a serious ground of attack in the present second appeal. In the light of the findings, which had been recorded both by the Court of first instance and also the appellate Court, it is not as though the respondent is being taken by surprise since Ex.A69 was marked, PW.1 examined Ex.A12 was also relied upon. So both the parties were aware of the respective stands taken by the parties and having fought this litigation, at this distant point of time, the respondent is not justified in raising such contention for the reason that this Court is thoroughly satisfied that no serious prejudice as such had been suffered by the respondent-defendant. Yet another question is relating to the binding nature of Ex.A69. The original mutawalli instituted the suit. It is not the case of the either of the parties that mutawalli in anyway acted adverse to the interest of the institution as such. Mutawalli, in fact is claiming these reliefs in the interest of the institution and to protect the institution. In that view of the matter, Ex.A69 to be viewed and in the light of the specific stand taken by the plaintiffs and further as deposed by PWs.l and 2 and well supported by documentary evidence to record finding that Ex.A69 is not binding on the respondent-defendants so far as it relates to the status of the plaintiff No. 3 to continue the litigation cannot be sustained.
16. None other contention had been advanced by the Counsel on record. Be that as it may, the evidence of PWs.l and 2 being clear and categorical and the same had been appreciated at length supra and the evidence of DWs.1, 2 and 3 also had been appreciated. Exs.A1 to A70 and Exs.B1 to B37 had been dealt with by both the Courts of first instance and also the appellate Court. Ex.A1 is the rental deed, Exs.A2, A3, A4 to A8 are the counterfoils. Ex.A9 is the certified copy of muntakahab, Ex.A10 certified Xerox copy of the A.P. Gazette notification in which the Wakf Properties are published. Ex.A11 is the entry in the A.P. Gazette, Ex.A12 xerox certified copy of the deed of nomination already had been referred to supra, Ex.A.13 is the xerox certified copy of the English translation of Ex.A12. Ex.A14 is the certified copy of the judgment in OS No. 3 806 of 1982 on the file of the Court of V-Assistant Judge, City Civil Court, Hyderabad. Ex.A15 is the certified copy of the decree in OS No. 3806 of 1982 on the file of the Court of V-Assistant Judge, City Civil Court, Hyderabad. Ex.A16 is the legal notice issued by the plaintiffs Counsel to the defendant. Ex.A17 is the postal acknowledgment. Ex.A18 is the copy of the letter from the mutawalli already had been specified supra. Ex.A19 is the sketch plan showing the two rooms in occupation of the defendant Ex.A20 is the postal acknowledgment. Exs.A21 to A70 also had been relied upon. Ex.A69 is the certified copy of the decree in OS No. 3318 of 1990 on the file of the Court of IV Assistant Judge, City Civil Court, Hyderabad already had been referred to supra and several of the other documents, which had been relied upon. Ex.A21 is the certified copy of the compromise memo in OS No. 2753 of 1987 on the file of the Ill-Assistant Judge, City Civil Court, Hyderabad. Exs.A22 to A29 are the English Translations of Exs.A1 to A8. Ex.A30 is the deed of nomination executed by Mohammed Kazim Ali Khan in respect of Ashoorkhana in favour of Mohammed Shabbir Khan. Ex.A.31 is the English translation of Ex.A30. Ex.A32 is the notice issued by the A.P. Wakf Board to the father of PW.1 cancelling the tenancy in Urdu. Ex.A33 is the English translation of Ex.A32. Ex.A.34 is the notice issued by the A.P. Wakf Board to the plaintiff No. 12 intimating the postponement of eviction. Ex.A35 is the English translation of Ex.A34. Ex.A36 is the Office copy of xerox reply letter addressed by the plaintiff No. 1 to the A.P. Wakf Board. Ex.A37 is the English translation of Ex.A36. Ex.A38 is the xerox copy of the letter in Urdu addressed by the plaintiff No. 1 to the A.P. Wakf Board returning the rental amount remitted by M.A Hameed. Ex.A39 is the English translation of Ex.A28. Ex.A40 is the office copy of the document in Urdu addressed by the plaintiff No. 1 to the A.P. Wakf Board calling of to return the rental amount. Ex.A41 is the English translation of Ex.A40. Ex.A42 is the copy of letter filed by PW.1’s uncle in the A.P. Wakf Board. Exs.A43 to A58 are the signatures of PW.2, Zaffer, defendant and plaintiff No. 1 in Exs.A1, A3, A4, A5, A6, A7, A8. Ex.A59 is the rental deed executed by the father of PW.2. Ex.A60 is the English translation of Ex.A59, Exs.A61 to 67 are the counterfoils of the rental receipts dated 10-8-1967 to 10-2-1968. Ex.A68 is the certified copy of judgment in OS No. 3318 of 1990 on the file of IV-Assistant Judge, City Civil Court, Hyderabad. Ex.A69 is the certified copy of the decree in OS No. 3318 of 1990 on the file of IV-Assistant Judge, City Civil Court, Hyderabad. Ex.A70 is the certified copy of the orders passed in IA No. 947 of 1991 in OS No. 3318 of 1990 on the file of IV-Assistant Judge, City Civil Court, Hyderabad. Apart from the oral and documentary evidence i.e., the evidence of PWs.1 and 2 and Exs.A1 to A70 specified supra, the evidence of DWs.1 to 3 and Exs.B1 to B37 also is available on record. Ex.Bl is the wakf deed executed by the grandfather of DW.1 Ex.B2 is the English translation. Ex.B3 is the certified copy of marriage certificate in Urdu. Ex.B4 is the English translation of Ex.A3. Ex.B5 is the copy of letter from Sri Ali Adil, Advocate to the Secretary, A.P. Wakf Board. Ex.B7 is the certified copy of the report of the inspector, AP Wakf Board. Ex.B8 is the copy of the letter from the Assistant Receiver addressed to the Secretary Muslim Wakf Board. Ex.B9 is the English translation of Ex.B8. Ex.B10 is the certified copy of the letter from Zain-ul-abedin to the Secretary, AP Wakf Board. Ex.B11 is the English translation of Ex.B10. Ex.B12 is the certified copy of cancellation of GPA granted in favour of plaintiff. Ex.B13 is the English translation of Ex.B12. Ex.B.14 is the certified copy of cancellation of Tauliatship in favour of plaintiff. Ex.B15 is the English translation of Ex.B 14. Ex.B 16 is the certified copy of intimation dated 4-4-1970. Ex.B17 is the certified copy of deposition of witness No. 12 for the defendant No. 4 in OS No. 15/ 67 on the file of Additional Chief Judge, City Civil Court, Hyderabad (Temp). Ex.B18 is the certified copy of the certificate issued by the Secretary, Paire-Mirmomin Sab Sulotan Shahi grave yard dated 3-6-1972. Ex.B19 is the English translation of Ex.B18. Ex.B20 is the certified copy of the application filed by the defendant seeking permission for burial of his grandfather in the grave yard. Ex.B21 is the English translation of Ex.B20. Ex.B22 is the letter issued by the Secretary, A.P. Wakf Board. Ex.B23 is the English translation of Ex.B22. Ex.B24 is the certified copy of proceedings of Assistant Receiver of Ashoorkhana. Ex.B25 is the English translation of Ex.B24. Ex.B26 is the certified copy of report of surveyor of A.P. Wakf Board. Ex.B27 is the English translation of Ex.B26. Ex.B28 is the certified copy of proceedings of Assistant Receiver of Ashoorkhana. Ex.B20 is the certified copy of survey report of surveyor of A.P. Wakf Board. Ex.B31 is the English translation of Ex.B30. Ex.B32 is the certified copy of report of Assistant Receiver. Ex.B33 is the certified copy of application addressed to the Chairman of A.P. Wakf Board. Ex.B34 is the certified copy of application addressed to Secretary, A.P. Wakf Board. Ex.B35 is the bona fide Certificate issued by Headmaster, City High School, Lad Bazaar. Hyderabad. Ex.B36 is the certified copy of certificate issued by spiritual Head of shia community. Ex.B37 is the agreement of settlement. The voluminous documentary evidence placed before the Court no doubt would go to show certain correspondence. Whatever may be the other factual controversies between the parties, in a second appeal this Court is expected to decide especially in a case of this nature whether the Court of first instance recorded reasons in detail and ultimately decreed the suit. The appellate Court reversed the same on certain question like maintainability of the suit, binding nature of Ex.A69 and also in particular the validity or other wise of Ex.A12 or Ex.A18.
17. On careful analysis of the whole evidence available on record, certain findings relation to the defendant being illegitimate child and other aspects need not be seriously gone into. The only question to be decided is that in the light of the evidence available on record, whether the reversing of decree and judgment of the Court of first instance made by the appellate Court to be sustained especially in the light of the substantial questions of law raised on the strength of which appeal had been admitted. In the light of the findings recorded by this Court especially in the light of the evidence of PW.1 supported by PW.2 and also Ex.A9, Ex.A12, Ex.A18 and Ex.A69 in particular, this Court is of the considered opinion that the Court of first instance arrived at a correct conclusion and ultimately decreed the suit and the reversal made by the appellate Court on the ground of maintainability of the suit or other grounds which had been already referred to supra cannot be sustained and accordingly the decree and judgment of the appellate Court are hereby set aside and the decree and judgment of the Court of first instance are hereby restored. The second appeal is allowed with costs. Inasmuch as at this stage, the Counsel for respondent requests time to vacate the premises in view of the fact that the decree is for recovery of possession, three months time is hereby granted for vacating the premises on condition of the respondent-defendant depositing an amount of Rs. 20,000=00 (Rs. twenty thousand only) before the Court of first instance within a period of four weeks from today, in default of such deposit, the appellants-plaintiffs are at liberty to put the decree into execution.