Bihar State Sunni Waqf Board v. Shazia Alam wife of Dr. Rizwan Rahman Khan

--Plaintiffs-opposite parties 1st Set. 3. Shagufta Yasmin, Shop No.R.H.8., Meena Bazar, Patna Market, Muradpur, P.S.Pirbahore, District-Patna. -- Defendant-Oppposite Party 2nd Set. WITH C.R. No.1270 of 2009 ---- Bihar State Sunni Waqf Board, Patna through its Chief Executive Officer, namely Md. Abul Hasan S/o Haji Sk. Mohiuddin, CEO- Bihar Sunni Waqf Board, Haj Bhawan, Patna. --Petitioner. Versus

1. Shazia Alam wife of Dr. Rizwan Rahman Khan through her constituted attorney Mr. S.A.Alam, R/o 403 Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, Town and District-Patna.

2. Farida Alam (minor) daughter of S.A. Alam under the guardianship of S.A.Alam who is the natural guardian of his minor daughter and resident of 403, Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, District-Patna. --Plaintiffs-opposite parties 1st Set.

3. Asif Yusuf S/o Late Suleman Yusuf, Shop No.R.H.10, Meena Bazar, Patna Market, Muradpur, P.S.Pirbahore, District-Patna. -- Defendant-Oppposite Party 2nd Set. - 4 - WITH C.R. No.1271 of 2009 ----- Bihar State Sunni Waqf Board, Patna through its Chief Executive Officer, namely Md. Abul Hasan S/o Haji Sk. Mohiuddin, CEO- Bihar Sunni Waqf Board, Haj Bhawan, Patna. --Petitioner. Versus

1. Shazia Khan wife of Dr. Rizwan Rahman Khan through her constituted attorney Mr. S.A.Alam, R/o 403 Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, Town and District-Patna.

2. Farida Alam (minor) daughter of S.A. Alam under the guardianship of S.A.Alam who is the natural guardian of his minor daughter and resident of 403, Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, District-Patna. --Plaintiffs-opposite parties 1st Set.

3. Kamal Ashraf, Shop No.----. Meena Bazar, Patna Market, Muradpur, P.S.Pirbahore, District-Patna. -- Defendant-Oppposite Party 2nd Set. WITH C.R. No.1272 of 2009 ----- Bihar State Sunni Waqf Board, Patna through its Chief Executive Officer, namely Md. Abul Hasan S/o Haji Sk. Mohiuddin, CEO- Bihar Sunni Waqf Board, Haj Bhawan, Patna. --Petitioner. Versus

1. Shazia Alam wife of Dr. Rizwan Rahman Khan through her constituted attorney Mr. S.A.Alam, R/o 403 Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, Town and District-Patna.

2. Farida Alam (minor) daughter of S.A. Alam under the guardianship of S.A.Alam who is the natural guardian of his minor daughter and resident of 403, Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, District-Patna. --Plaintiffs-opposite parties 1st Set. 3. Abdul Wahid son of Late Altaf Hussain, Shop No.R.H.3, Meena Bazar, Patna Market, Muradpur, P.S.Pirbahore, District-Patna. -- Defendant-Oppposite Party 2nd Set. WITH C.R. No.1273 of 2009 ---- Bihar State Sunni Waqf Board, Patna through its Chief Executive Officer, namely Md. Abul Hasan S/o Haji Sk. Mohiuddin, CEO- Bihar Sunni Waqf Board, Haj Bhawan, Patna. - 5 - --Petitioner. Versus

1. Shazia Alam wife of Dr. Rizwan Rahman Khan through her constituted attorney Mr. S.A.Alam, R/o 403 Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, Town and District-Patna.

2. Farida Alam (minor) daughter of S.A. Alam under the guardianship of S.A.Alam who is the natural guardian of his minor daughter and resident of 403, Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, District-Patna. --Plaintiffs-opposite parties 1st Set.

3. Atique Haque, Shop No.39, Meena Bazar, Patna Market, Muradpur, P.S.Pirbahore, District-Patna. -- Defendant-Oppposite Party 2nd Set. WITH C.R. No.1274 of 2009 ---- Bihar State Sunni Waqf Board, Patna through its Chief Executive Officer, namely Md. Abul Hasan S/o Haji Sk. Mohiuddin, CEO- Bihar Sunni Waqf Board, Haj Bhawan, Patna. --Petitioner. Versus

1. Shazia Alam wife of Dr. Rizwan Rahman Khan through her constituted attorney Mr. S.A.Alam, R/o 403 Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, Town and District-Patna.

2. Farida Alam (minor) daughter of S.A. Alam under the guardianship of S.A.Alam who is the natural guardian of his minor daughter and resident of 403, Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, District-Patna. --Plaintiffs-opposite parties 1st Set.

3. Sanjida Hussain D/o I. Hussain, Shop No.R.H.6, Meena Bazar, Patna Market, Muradpur, P.S.Pirbahore, District-Patna. -- Defendant-Oppposite Party 2nd Set. WITH C.R. No.1275 of 2009 ---- Bihar State Sunni Waqf Board, Patna through its Chief Executive Officer, namely Md. Abul Hasan S/o Haji Sk. Mohiuddin, CEO- Bihar Sunni Waqf Board, Haj Bhawan, Patna. --Petitioner. Versus

1. Shazia Alam wife of Dr. Rizwan Rahman Khan through her constituted attorney Mr. S.A.Alam, R/o 403 Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, Town and District-Patna.

2. Farida Alam (minor) daughter of S.A. Alam under the guardianship of S.A.Alam who is the natural guardian of his - 6 - minor daughter and resident of 403, Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, District-Patna. --Plaintiffs-opposite parties 1st Set.

3. Tashimul Abedin, Shop No.40A, Meena Bazar, Patna Market, Muradpur, P.S.Pirbahore, District-Patna. -- Defendant-Oppposite Party 2nd Set. WITH C.R. No.1386 of 2009 ---- Bihar State Sunni Waqf Board, Patna through its Chief Executive Officer, namely Md. Abul Hasan S/o Haji Sk. Mohiuddin, CEO- Bihar Sunni Waqf Board, Haj Bhawan, Patna. --Petitioner. Versus

1. Shazia Alam wife of Dr. Rizwan Rahman Khan through her constituted attorney Mr. S.A.Alam, R/o 403 Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, Town and District-Patna.

2. Farida Alam (minor) daughter of S.A. Alam under the guardianship of S.A.Alam who is the natural guardian of his minor daughter and resident of 403, Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, District-Patna. --Plaintiffs-opposite parties 1st Set.

3. Ashfaque son of not known, Shop No.42, Meena Bazar, Patna Market, Muradpur, P.S.Pirbahore, District-Patna. -- Defendant-Oppposite Party 2nd Set. WITH C.R. No.1387 of 2009 Bihar State Sunni Waqf Board, Patna through its Chief Executive Officer, namely Md. Abul Hasan S/o Haji Sk. Mohiuddin, CEO- Bihar Sunni Waqf Board, Haj Bhawan, Patna. --Petitioner. Versus

1. Shazia Alam wife of Dr. Rizwan Rahman Khan through her constituted attorney Mr. S.A.Alam, R/o 403 Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, Town and District-Patna.

2. Farida Alam (minor) daughter of S.A. Alam under the guardianship of S.A.Alam who is the natural guardian of his minor daughter and resident of 403, Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, District-Patna. --Plaintiffs-opposite parties 1st Set.

3. Arifuzzaman son of not known, Shop No.R.H.1, Meena Bazar, Patna Market, Muradpur, P.S.Pirbahore, District-Patna. -- Defendant-Oppposite Party 2nd Set. WITH - 7 - C.R. No.1388 of 2009 ---- Bihar State Sunni Waqf Board, Patna through its Chief Executive Officer, namely Md. Abul Hasan S/o Haji Sk. Mohiuddin, CEO- Bihar Sunni Waqf Board, Haj Bhawan, Patna. --Petitioner. Versus

1. Shazia Alam wife of Dr. Rizwan Rahman Khan through her constituted attorney Mr. S.A.Alam, R/o 403 Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, Town and District-Patna.

2. Farida Alam (minor) daughter of S.A. Alam under the guardianship of S.A.Alam who is the natural guardian of his minor daughter and resident of 403, Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, District-Patna. --Plaintiffs-opposite parties 1st Set.

3. Md. Imanuddin, Meena Bazar, Patna Market, Muradpur, P.S.Pirbahore, District-Patna.

4. Md. Zafar son of Late Late Abdul Qayum Shop No.RH-2, Meena Bazar, Patna Market, Muradpur, P.S. Pirbahore, Town and District Patna. -- Defendants-Oppposite Parties 2nd Set. WITH C.R. No.1389 of 2009 ---- Bihar State Sunni Waqf Board, Patna through its Chief Executive Officer, namely Md. Abul Hasan S/o Haji Sk. Mohiuddin, CEO- Bihar Sunni Waqf Board, Haj Bhawan, Patna. --Petitioner. Versus

1. Shazia Alam wife of Dr. Rizwan Rahman Khan through her constituted attorney Mr. S.A.Alam, R/o 403 Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, Town and District-Patna.

2. Farida Alam (minor) daughter of S.A. Alam under the guardianship of S.A.Alam who is the natural guardian of his minor daughter and resident of 403, Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, District-Patna. --Plaintiffs-opposite parties 1st Set. 3. Md. Ekram Sharfuddin son of not known, Shop NoRH-4, Meena Bazar, Patna Market, Muradpur, P.S.Pirbahore, District-Patna. -- Defendant-Oppposite Party 2nd Set. WITH C.R. No.1390 of 2009 ---- Bihar State Sunni Waqf Board, Patna through its Chief Executive Officer, namely Md. Abul Hasan S/o Haji Sk. Mohiuddin, CEO- Bihar Sunni Waqf Board, Haj Bhawan, Patna. - 8 - --Petitioner. Versus

1. Shazia Alam wife of Dr. Rizwan Rahman Khan through her constituted attorney Mr. S.A.Alam, R/o 403 Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, Town and District-Patna.

2. Farida Alam (minor) daughter of S.A. Alam under the guardianship of S.A.Alam who is the natural guardian of his minor daughter and resident of 403, Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, District-Patna. --Plaintiffs-opposite parties 1st Set.

3. Md. Raza, Shop NoRH-7, Meena Bazar, Patna Market, Muradpur, P.S.Pirbahore, District-Patna. -- Defendant-Oppposite Party 2nd Set. WITH C.R. No.1391 of 2009 ---- Bihar State Sunni Waqf Board, Patna through its Chief Executive Officer, namely Md. Abul Hasan S/o Late Haji Sk. Mohiuddin, R/o Ishrat Menzil Bagh, P.S. Khajekala, District-Patna. --Petitioner. Versus

1. Shazia Alam wife of Dr. Rizwan Rahman Khan through her constituted attorney Mr. S.A.Alam, R/o 403 Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, Town and District-Patna.

2. Farida Alam (minor) daughter of S.A. Alam under the guardianship of S.A.Alam who is the natural guardian of his minor daughter and resident of 403, Park View Apartment, South Gandhi Maidan, P.S. Gandhi Maidan, District-Patna. --Plaintiffs-opposite parties 1st Set.

3. Md.Akbar son of Late Abdul Gaffar, Shop NoRH-8, Meena Bazar, Patna Market, Muradpur, P.S.Pirbahore, District-Patna. -- Defendant-Oppposite Party 2nd Set. -------- For the petitioner : Mr. S.Arshad Alam with Mr. Md.Arif & (in all the civil revisions) Mr.Guatam Kumar Yadav, Advocates. For opposite parties 1st Set . : Mr. Ansar Alam with (in all the civil revisions) Mr.Shabbir Ahmad, Advocates. For opposite party 2nd Set : Mr.Mahmood Alam with (in all the civil revisions) Mr. Kaushal Kishore, Advocates. ----- - 9 - O R D E R 4/ 14-10-2009 All the aforesaid 18 civil revisions have been heard together and are being decided by this common order as same points are involved in all the aforesaid cases, which have been filed by the Bihar State Sunni Waqf Board, Patna through its Chief Executive Officer (hereinafter referred to as „the Board‟ for the sake of brevity), who is the petitioner in all the civil revisions, against Shazia Khan and Farida Alam, who are opposite parties no.1 and 2 in all the aforesaid cases, challenging various orders passed by the learned Munsif-I, Patna, rejecting intervention application filed by the Board for being added as party to the various eviction suits out of which these civil revisions have arisen.

2. The aforesaid civil revisions respectively arise from Eviction Suit Nos. 10 of 2007, 09 of 2007, 07 of 2007,12 of 2007, 13 of 2006, 20 of 2007, 08 of 2006, 10 of 2006, 22 of 2007, 09 of 2006, 18 of 2007, 12 of 2006, 08 of 2007, 11 of 2006, 11 of 2007, 21 of 2007, 23 of 2007 and 19 of 2007, all of which were filed by Shazia Khan and Farida Alam, who are plaintiffs-opposite parties 1st Set, for eviction of the various tenants, who are defendant-opposite party 2nd Set and are different in all the suits and revisions, from the respective shop katras/ rooms held by them as tenants on the ground of default in payment of rent by the respective tenants and also for recovery of arrears of rent etc.

3. During the pendency of the aforesaid eviction suits, the Board, which was not party to the suits, filed intervention applications under Order I Rule 10 read with Section 151 of the Code of Civil Procedure - 10 - (hereinafter referred to as „the Code‟ for the sake of brevity) in January, 2009 for being added as party in all the aforesaid suits. The said applications were contested by the plaintiffs-opposite parties 1st Set and finally the learned Munsif, Patna after considering the facts and circumstances of the case as well as the materials on record rejected the said applications of the intervenor- Board vide his different orders, which are respectively dated

20.02.2009, 19.02.2009, 19.02.2009, 21.02.2009, 21.02.2009, 24.02.2009,

26.02.2009, 18.02.2009, 25.02.2009, 25.02.2009, 19.02.2009, 25.02.2009,

21.02.2009, 26.02.2009, 24.02.2009, 20.02.2009, 24.02.2009

13.03.2009.

4. The said orders of the learned court below have been challenged by the Board in these civil revision, in all of whom the only point to be decided is that as to whether the Board is a necessary party to the said eviction suit and whether the said suits can proceed without impleading the Board. The plaintiffs-opposite parties 1st Set have appeared through their learned counsel and have filed their counter affidavits in the said civil revisions. Defendant-opposite parties 2nd Set of all the civil revisions have also appeared through their learned lawyers and participated in the arguments. From their arguments it is quite apparent that admittedly the shop katras/rooms involved in the aforesaid suits are portions of Mina Bazar, Muradpur, Patna, which originally belonged to Syed Haider Imam and defendants-opposite party 2nd Set were his tenants, whereas plaintiffs- opposite parties 1st Set are the descendants of the said Late Syed Haider Imam.

5. However, the claim of the petitioner-Board is that before his - 11 - death Syed Haider Imam gifted the suit properties to his wife Shahar Bano Begum by unregistered deed of Hiba-bil-ewaz, whereafter the said Shahar Bano Begum became the absolute owner of the suit property and started receiving rent from the tenants and subsequently on 13.09.1974 she filed an application before the Board stating that she had created an oral waqf on

01.09.1974 along with a plain Tauliatnama dated 13.09.1974 and accordingly on 28.10.1974 the Board recorded the said property as Waqf Estate no.1553 in the register of Board under Section 26 of the Waqf Act,

1956. It is also claimed by the Board that on 14.07.1979 the said Shahar Bano Begum filed an application before the Board for release of the said property from the Waqf by deregistration in view of a decision of the Full Bench of this Court with regard to same property in case of The Commissioner of Income Tax, Bihar, Patna Vs. Syed Saddique Imam and others, reported in 1978 P.L.J.R.297, but subsequently on 06.05.1981 the said Shahar Bano Begum filed a fresh application for withdrawal of her application dated 14.07.1979 and accordingly the Board in its meeting dated

20.04.1985 ordered that the waqf estate was not de-registered, but due to typographical mistake the word „not‟ could not be typed in the aforesaid order dated 20.04.1985 and hence vide order dated 27.07.1987 the Board corrected the said mistake in its order dated 20.04.1985. It is also stated that said orders have never been challenged by anybody till date and the suit property remained as waqf property even after the death of Shahar Bano Begum in the year 1993-94.

6. Mr. S. Arshad Alam, learned senior counsel of the petitioner- Board in his erudite and scholarly argument analyzed the points involved - 12 - elaborately and exhaustively and submitted that since the suit properties are waqf properties, the Board is a necessary party in view of the specific provisions of law, namely Section 92 of the Waqf Act, 1995 and Section 59 of the Waqf Act, 1954. He further submits that if the plaintiffs-opposite parties 1st Set have any dispute regarding waqf, the proper course for them was to get the said dispute settled by the Waqf Tribunal under Sections 6 and 7 of the Waqf Act, 1995 and only thereafter when the Tribunal decides in their favour they can become entitled to file such eviction suits. In this regard he has also relied upon a decision of this court in case of Azimuddin Vs. Arshad Kamal & Ors, reported in 1997(1) P.L.J.R.689 as well as a decision of the Karnataka High Court in case of Anjuman-E-Islamia, Kollegal Vs. Sakeenabi and others, reported in A.I.R. 1986 Karnataka 75, with respect to meaning of interested person.

7. Learned counsel for the petitioner-Board also laid stress upon Section 2(f) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as „the Act‟ for the sake of brevity) as well as a decision of this court in case of Shyam Sunder Kishan Lal & Others Vs. Sajjan Kumar Singhania & Ors, reported in 1996(1) P.L.J.R.344, with respect to the meaning of „landlord‟ under the Act. So far the meaning of „Waqf‟ and the legality of registration and de-registration is concerned, learned counsel for the petitioner-Board has relied upon two decisions of this court in case of Subrat Shankar Bhaduri & others Vs. The Bihar State Sunni Waqf Board and others, reported in1976 P.L.J.R 526, and in case of Bibi Sayeedunnisa and another Vs. The Collector of Sitamarhi and another, reported in 1991(2) P.L.J.R.501. He has also averred that the law is well - 13 - settled that the Waqf Board alone can institute or defend any suit regarding a waqf property as has been held by this court in case of Bihar State Sunni Wakf Board through its Secretary, Patna Vs. Sheikh Mohamad Golam Bari and another, reported in 2005(4) P.L.J.R.36.

8. Learned counsel for the petitioner-Board has claimed that the basis of the plaintiffs‟ claim are only a decision of a Full Bench of this court in case of The Commissioner of Income Tax, Bihar, Patna (Supra) as well as the compromise decree dated 29.08.1998 passed by the learned Subordinate Judge, Patna in Partition Suit No.299 of 1981. He has also submitted that the said Full Bench decision has no connection with the instant matter as it concerns assessment of income tax for the year 1965-66 referred by Income Tax Tribunal under Section 256(1) of the Income Tax Act, 1961 for deciding as to whether in the facts and circumstances of the case the income from the house property calls for its inclusion in the total income of the assessee. It is also claimed that the said decision did not show anything about the waqf as it was out of context and neither the Waqf estate or the Waqf Board were parties, nor were they noticed and hence the said decision was not at all relevant for deciding the issues involved in the instant case. So far the compromise decree of partition suit is concerned, it is claimed by the learned counsel for the petitioner-Board that the said compromise was between the heirs of Shahar Bano Begum whereas the Board was not a party to the said compromise and hence the said compromise decree was not binding on the Board and it cannot legally take away the right and title of the Board over the suit properties. In the said circumstances, learned counsel for the petitioner-Board has submitted that - 14 - the Board was a necessary party being the main interested person and was specifically required under the law to be impleaded as party to such suits, hence, the learned court below committed serious error of jurisdiction in rejecting the intervention applications of the Board and refusing to implead it as party to the aforesaid eviction suits.

9. Mr. Mahmood Alam, learned counsel for the defendant- opposite party 2nd Set in all the civil revisions appeared and supported the arguments of learned counsel for the petitioner-Board claiming that rent receipts were issued to them or to their predecessor by Shahar Bano Begum on behalf of the waqf estate which is apparent from the seal on the receipts of the years 1974, 1975 and 1976. Apart from the said receipts, he produced a receipt of 1987 issued to the tenants by someone whose name was not legible and was without any seal. Apart from the aforesaid four rent receipts, no receipt of any period was produced by learned counsel for opposite party 2nd Set to show payment of any rent to Shahar Bano Begum or anyone else on behalf of the Waqf Estate.

10. On the other hand, Mr. Ansar Alam learned counsel for plaintiffs-opposite parties 1st Set has submitted that the suit properties belonged to Late Syed Haider Imam and it did not pass over to his wife Shahar Bano Begum as the deed relied by the Board was an unregistered Hiba-bil-ewaz which was not legal as per the requirement of the Registration Act,1908 and the Transfer of Property Act, 1882 and this matter has been decided by a Full Bench of this court in case of The Commissioner of Income Tax, Bihar, Patna (Supra) and hence Shahar Bano Begum had no right or title to donate it to the waqf estate and get it registered in the Board - 15 - and when she realised the said facts she got the waqf estate de-registered by the order of the Board itself dated 20.04.1985. It was also stated that in the Tauliatnama no description of the property was given and there was no material at all to show that the suit property was ever treated as a waqf property. It was also claimed by learned counsel for the plaintiffs-opposite parties 1st Set that after the death of Late Syed Haider Imam the entire property devolved upon his heirs jointly and for their partition some of the heirs filed Partition Suit No.299 of 1981 in which all the other heirs as well as the Board were also impleaded as defendants, but in view of the aforesaid decision of the Full Bench in case of The Commissioner of Income Tax, Bihar, Patna (Supra), and the order issued by the Board dated 20.04.1985 (05.10.1985), the Chairman of the Board who was defendant no.9 in the said suit, admitted that he was not a necessary party to the suit and only thereafter the partition suit was decreed on compromise on 29.08.1998 in which the suit property fell into the shares of plaintiffs-opposite parties 1st Set. Learned counsel for the plaintiffs-opposite parties 1st Set also relied upon several decisions of this court in case of Satya Narain Thakur Vs. Shyama Nand Yadav @ Lakshmi Yadav, reported in 2009(2) P.L.J.R.363 and also in case of Arbind Kumar Pal Vs. Hazin Bibi Khairun Nissa & Ors, reported in 2005(2) P.L.J.R.14.

11.So far the provision of Order I Rule 10 of the Code is concerned, learned counsel for the plaintiffs-opposite parties 1st Set relied upon a decision of this court in case of Shyam Sunder Kishan Lal and others Vs.Sajjan Kumar Singhania and others, reported in 1996(1) P.L.J.R.344, and upon a decision of the Calcutta High Court in case of Gulab Ch. Gupta Vs. - 16 - Ramjeeban Sahu and another, reported in A.I.R.2008 (N.O.C) 1460 (CAL), in which it was specifically held that no person, except landlord and tenant, is necessary for an eviction suit as such suit is decided on the basis of the relationship of landlord and tenant between the parties. In this regard, the learned counsel claimed that the plaintiffs-opposite parties 1st Set have got a series of rent receipts from 1996 duly signed by all the tenants-defendants- opposite parties 2nd Set also for about a decade which were produced by learned counsel for the plaintiffs-opposite parties 1st set in court.

12. In reply to the aforesaid arguments of learned counsel for the plaintiffs-opposite parties1st Set, learned counsel for the petitioner-Board submitted that unregistered deed in question executed by Syed Haider Imam in favour of Shahar Bano Begum is a simple Hiba and only for the purpose of saving himself from the rigors of Income Tax Act, it was not noted as Hiba-bil-ewaz and even Hiba-bil-ewaz is a pure gift and cannot be held to be a sale. In this connection, he relied upon a decision of the Calcutta High Court in case of Nasib Ali Vs. Wajed Ali, reported in A.I.R. 1927 Calcutta 197, a decision of the Allahabad High Court in case of Mt. Kulsum Bibi Vs. Shiam Sundar Lal, reported in A.I.R. 1936 Allahabad 600, a decision of the Bombay High Court in case of Jaitunbi Fatrubhai Vs. Fatrubhai Kasambhai and others, reported in A.I.R (35) 1948 Bombay 114 and a decision of the Allahabad High Court in case of Someshwar Vs. Barkat Ullah and others, reported in A.I.R. 1963 Allahabad 469. So far the compromise decree dated

29.08.1998 passed in Partition Suit No.299 of 1981 is concerned, it is stated that letter dated 27.07.1987 issued by the Board showing that the waqf properties were not de-registered was not produced before the learned - 17 - Subordinate Judge and only letter of the Board dated 20.04.1985 showing de-registration was produced and hence the said decree cannot legally deny the right of the Board to be impleaded in the aforesaid eviction suits.

13. From the facts and circumstances of the case as well as from the arguments and materials produced on behalf of the parties, it is quite apparent that all of them admit that the properties involved in all the aforesaid suits originally belonged to Late Syed Haider Imam as absolute and exclusive owner thereof and the defendants-opposite parties 2nd Set or their predecessors were his tenants. Hence the points in issue in the instant revisions are as follows:- (i) Whether the entire property devolved upon Shahar Bano Begum on the basis of the unregistered Hiba-bil-ewaz executed by her husband Late Syed Haider Imam and on its basis she acquired any right and title to orally create a waqf, execute a Tauliatnama and file any application before the Board for registration of the suit properties as waqf property? (ii) Whether the Board before registering the waqf estate made any inquiry as required under Section 25(7) of the Waqf Act, 1954 with respect to the genuineness and validity of the application and the right and title of the applicant? (iii) Whether the said Bibi Shahar Bano Begum and the Board were bound by the decision of the Full Bench of this Court in case of The Commissioner of Income Tax, - 18 - Bihar, Patna (Supra) and on its basis was justified in getting the the said waqf deregistered on 20.04.1985 (05.10.1985)? (iv) Whether letter dated 14/27-7-1987 issued by Secretary of the Board can be deemed to be legal and valid changing the earlier order of the Board dated

20.4.1985 (05.10.1985)? (v) Whether the Board had been able to show that the suit properties were ever treated as waqf properties either in the life time of Shahar Bano Begum or after her death in the year 1993-94 and rent receipt was obtained by it from the tenants-defendants-opposite parties 2nd Set? (vi) Whether the plaintiffs-opposite parties 1st Set have been able to show that they inherited the suit properties from their predecessor Late Syed Haider Imam and by way of compromise decree dated 29.08.1998 in Partition Suit No.299 of 1981 and as such they were being treated as landlords by defendants-opposite parties 2nd Set themselves? (vii) Whether in the light of the facts and circumstances of the case the Board was a necessary party for the disposal of the abovementioned eviction suits?

14. So far the aforesaid points no.(i) to (iii) are concerned, the said matters cannot be legally decided for the first time either in the - 19 - abovementioned eviction suits or in the instant civil revisions, but if such matters with regard to genuineness and legality of a document as well as the right and title of a person has already been decided earlier by a court of competent jurisdiction, the court can legally reject the claim of a party which is contrary to the earlier decision. In this regard, reference is made to a decision a Full Bench of this court in case of The Commissioner of Income Tax, Bihar, Patna (Supra). No doubt, the said judgment was passed in Tax Case No.36 of 1970 which was referred to the High Court by Income Tax Tribunal under Section 256(1) of the Income Tax Act, 1961 with respect to the assessment of income tax for the year 1965-66 for deciding as to whether in the facts and circumstances of the case, the income from the house property calls for its inclusion in the total income of the assessee who was Late Syed Haider Imam.The properties involved in the instant suits are parts/portions of the house properties involved in the said case. When the said tax case came up for hearing before a Division Bench of this court it observed that the Bench which had heard the earlier reference in Tax Case No.10 of 1968 relating to assessment year 1963-64 had not noted the contrary view taken by this court in case of Md. Usman Khan Vs. Amir Khan, reported in A.I.R. 1949 Patna 237, wherein it was held that an oral gift of an immovable property worth more than Rs.100.00 by a Mohammedan in favour of his wife, in lieu of the dower debt, does not pass a valid title in her favour in as much as such a transaction is not a true Hiba-bil-Ewaz, but a sale and so it can only be effected by a registered instrument. Hence, on account of the conflict between the two division Bench decisions of this court, namely the order in case of Md. Usman Khan (supra) and the order in Tax Case No.10 of 1968, - 20 - the Division Bench referred Tax Case No.36 of 1970 before a Full Bench. It may be noted here that during the pendency of the assessment proceeding the original assessee Syed Haider Imam died and in his place his heirs were substituted.

15. It transpires that the Full Bench heard the matter referred to it regarding the validity of the said unregistered Hiba-bil-Ewaz executed by Late Syed Haider Imam in favour of his wife Shahar Bano Begum at length and also considered the provisions laid down in Mulla‟s Principles of Mahomedan Law; Syed Ameer Ali‟s Mahommden Law and Ballies‟ Digest of Mohummadan Law; as well as decisions of the Privy Council in case of Hirendra Singh Vs. Rameshwar Singh reported in A.I.R.1928 P.C.112; the judgment of the noted Jurist Justice Mahmood in case of Fida Ali reported in 1888 A.W.N.175; the judgment in case of Rahim Baksh Vs. Mohammed Hasan reported in 1888 A.W.N.266; and also the decision of a Division bench of this court in case of Md. Usman Khan Vs. Amir Mian reported in A.I.R. 1949 Patna 237 in which Justice Ramaswami in his leading judgment relied upon the decisions in case of Abbas Ali Shikdar Vs. Karim Baksh Shikdar reported in XIII C.W.N.160, in case of Saburannessa Vs. Sabdul Sheikh reported in A.I.R. 1934 Calcutta 693, in case of Sarifuddin Mohammad Vs. Mohiuddin Mohammad reported in A.I.R. 1927 Calcutta 808, and in case of Fateh Ali Shah Vs. Muhammad Baksh reported in A.I.R. 1928 Lahore 516. In the light of full fledged discussion considering each and every aspect of the matter, the Full Bench of this court answered the question referred to it vide its judgment dated 08.11.1977, reported in 1978 P.L.J.R. 297, holding that an oral transfer of immovable property worth more than Rs.100.00 cannot be - 21 - validly made by a Muslim husband to his wife by way of gift in lieu of dower debt (Hiba-bil-Ewaz) which also exceeded Rs.100.00 as such a transaction is neither a gift nor a combination of gifts which can be made orally rather it is a sale which can be effected by means of a registered instrument only.

16. From the aforesaid discussions, it is quite apparent that the aforesaid judgment of the Full Bench was not merely an order with regard to assessment of tax for a particular period not affecting the other parties, rather by the said judgment the unregistered Hiba-bil-Ewaz in question executed by Late Syed Haider Imam in favour of his wife Shahar Bano Begum has been declared illegal and invalid. Thus, the said judgment of the Full Bench is binding upon the learned court below as well as on this court and in view of the said decision of the Full Bench the claim of the petitioner-Board that Shahar Bano Begum acquired right and title over the suit properties on the basis of the aforesaid Hiba-bil-Ewaz cannot be allowed.

17. The facts and circumstances also show that the claim of the petitioner-Board is that after the said Hiba-bil-Ewaz, Shahar Bano Begum filed an application before the Board on 13.09.1974 along with a Tauliatnama on the basis of an oral waqf dated 01.09.1974 and on its basis the Board registered it as Waqf Estate No.1553 on 28.10.1974 under the provision of Section 26 of the Waqf Act, 1954. Learned counsel for the Board has produced the Waqf Register prepared under Section 26 of the Waqf Act, 1954, but has failed to produce any application or Tauliatnama said to have been filed by Shahar Bano Begum, nor he was able to produce any document to show that any inquiry as required under Section 25(7) of the Waqf Act, - 22 - 1954 with regard to genuineness and validity of the application and the alleged title of the applicant was made before registering the said property as waqf or even to show that the suit property was ever treated as waqf property. Thus the said registration in the Board was itself illegal and non est. Furthermore, realising that she had no right or title over the suit properties to transfer or create any waqf the said Shahar Bano Begum filed an application before the Board on 14.07.1979 for deregistration of the properties in question, whereafter the Board itself in its meeting dated 20.04.1985 deregistered the same vide its resolution No.01(supplementary) dated

05.10.1985 and information regarding it was sent by the Board to the State Government as well as to the heirs of Late Syed Haider Imam on 10.07.1987, a copy of which is annexed to the counter affidavit of opposite parties 1st Set. Thereafter there was no occasion for the Board or any one else to resort to any procedure prescribed in Sections 6 and 6-A of the Waqf Act 1954 or in Sections 6 and 7 of the Waqf Act 1995.

18. It is true that the State Government is not vested with any power under the Act to direct the Board to treat a property registered in the waqf as a non-waqf property, nor there is anything in the Act which gives any power to the Board to release a property which was earlier recorded as a waqf property, but this does not mean that the Board cannot correct its own records in view of the question of right and title already decided by not only a competent court but by a Full Bench of the High Court which clearly shows that Shahar Bano Begum had no right or title to transfer the suit property or to create a waqf out of it and on the basis of the said decision she had herself applied before the Board for releasing the property. Hence the Board was - 23 - quite justified in releasing the suit properties from the register of the waqf as the said decision was binding not only upon Shahar Bano Begum but also upon the Board.

19. So far point nos.(iv) and (v) are concerned, letter dated 14/27.07.1987 issued by the Board relied upon by learned counsel for the petitioner-Board merely states that in office letter no.1873 dated 10.07.1987 the word “not” was not typed by mistake between the words “was” and “deregistered” in the 3rd line of the said letter and it should be read as “not deregistered”. But to prove the correctness of letter dated 14/27.07.1987, learned counsel for the petitioner-Board did not produce the original resolution of the Board dated 05.10.1985, nor the earlier resolution of the Board dated 05.10.1985 has been sought to be corrected by any subsequent resolution of the Board, rather merely a letter to that effect has been sent by the Secretary without any specific direction/resolution of the Board in that regard. In the said circumstances, the said letter of the Secretary dated 14/27- 071987 has got no validity at all in the eye of law nor it has been shown that it was ever acted upon by anyone.

20. It may be noted in this regard that Partition Suit No.299 of 1981 had been filed by some of the heirs of Late Syed Haider Imam against the remaining heirs for partition of the entire property of Syed Haider Imam, including the suit properties of the aforesaid eviction cases, and in that partition suit the plaintiffs, as a matter of precaution, impleaded the Board also through its Chairman as defendant no.9 who appeared and admitted before that court that he was not a necessary party to the suit obviously because the suit property was not a waqf property. Hence, it is quite apparent - 24 - that the order of the Board regarding deregistration of the suit property from the register of the waqf dated 20.04.1985 (05.10.1985) was throughout acted upon by the authorities of the Board, including its Chairman and no step was taken by the Board or its Chairman to inform the court with respect to the letter of the Secretary dated 27.07.1987 and the partition suit was decreed on compromise on 29.08.1998, according to which the suit properties fell into the share of the plaintiffs-opposite parties 1st Set. Thereafter also the Board or its authorities never challenged the said decree of the partition suit according to which the suit property was given to the plaintiffs-opposite parties 1st set. This sufficiently proves that the suit properties are not the waqf properties nor are they being treated as waqf properties by the authorities of the Board itself.

21. It is quite strange to note that admittedly the said Shahar Bano Begum had died in the year 1993-94, but the petitioner-Board has failed to produce any paper or to even name the Mutwalli or the committee which is looking after the waqf estate, although more than 15 years have lapsed. The petitioner-Board has also failed to produce any chit of paper to show that the tenants were either recognizing the Board or the waqf estate as its landlord or had paid any rent to them. In the said circumstances, it is quite apparent that the letter of the Secretary dated 14/27-07-1987 has got no value in the eye of law as Secretary has no jurisdiction to modify or change the specific resolution/order of the Board. The aforesaid facts and circumstances also clearly order/resolution the Board

20.04.1985/05.10.1985, the suit properties were never treated as waqf properties even by the Board or its authorities and rightly so because of the - 25 - specific decision of a Full Bench of this court in case of the Commissioner of Income Tax, Bihar, Patna (Supra) and also in view of the judgment and decree in the partition suit.

22. So far point nos. (vi) and (vii) are concerned, it is not in dispute that the plaintiffs-opposite parties 1st Set are the heirs of the admitted original owner Late Syed Haider Imam. Furthermore after the alleged un- registered Hiba-bil-Ewaz executed by Late Syed Haider Imam in favour of his wife Shahar Bano Begum was declared illegal and invalid by a Full Bench of this court in case of the Commissioner of Income Tax, Bihar, Patna in the year 1977 and there being no other deed of transfer, the suit property naturally and automatically devolved upon the heirs of late Syed Haider Imam after his death as per the specific provisions of law. Thereafter Partition Suit No.299 of 1981 in which all the heirs of late Syed Haider Imam were admittedly parties, having been decreed on contest vide judgment and decree dated 29.08.1998 in which the suit properties were allotted to the share of the plaintiffs-opposite parties 1st Set, they were clearly the owners of the suit properties. The Board, which itself through its Chairman was defendant no.9 in the abovementioned partition suit having admitted before that court that it was not a necessary party for the said partition suit clearly because none of the properties involved in the partition suit was a waqf property and not having challenged the said decree of the partition suit, cannot be legally held to be entitled to raise any dispute with regard to title of the plaintiffs-opposite parties 1st Set, specially in eviction suits.

23. Furthermore, the learned counsel for the plaintiffs-opposite parties 1st Set has produced before this court a register containing a series of - 26 - rent receipts for more than a decade signed by them as well as by the various tenants, whereas the tenants, who are defendants-opposite parties 2nd Set could produce only four rent receipts one each of 1974, 1975, 1976 and 1987, out of which the receipt of 1987 was issued by someone whose name is not legible, nor there is any seal of the Board thereon. So far the receipts of 1974, 1975 and 1976 are concerned, they bear the signature of Shahar Bano Begum along with the seal of the waqf estate, but that is the period after the registration of the waqf in the year 1974 and before its deregistration in the year 1985. No rent receipt has been produced either by the Board or by the tenants for any period after 1985 except the single receipt of 1987 which does not even bear the seal of the waqf estate, nor does it clearly show the name of the person who had issued it. In the said circumstances, the plaintiffs-opposite parties 1st Set have been able to prove that they inherited the suit properties from their predecessor Late Syed Haider Imam and by way of compromise decree in the partition suit and as such they were being treated as landlords by the defendants-opposite parties 2nd Set themselves and thus the Board was not a necessary party for the disposal of the abovementioned eviction suits.

24. Learned counsel for the petitioner- Board has relied upon a decision of the Calcutta High Court in the case of Nasib Ali (Supra), a decision of the Bombay High Court in case of Jaitunbi Fatrubhai (Supra) and two decisions of Allahabad High Court in case of Mt. Kulsum Bibi (Supra) and in case of Someshwar (supra) claiming that Hiba-bil-ewaz is a pure gift and cannot be legally held to be a sale. It may be noted in this connection that the said question has already been settled by the Hon‟ble Privy Council, the Hon‟ble Supreme Court as well as Larger Benches of High Court that Hiba- - 27 - bil-ewaz in lieu of dower debt cannot be held to be a gift or a combination of gifts, rather it is a sale which can be effected by means of registered instrument only. In this regard, decisions noted in paragraphs 14 and 15 above are very clear. Apart from it, the principles of law laid down by Syed Ameer Ali‟s Mahommden Law and Mulla‟s Mahomedan Law are against the point raised by the Board and considering all the aforesaid provisions of law and case laws, the Full Bench of this court had finally decided the issue in the year 1977 in the case of the Commissioner of Income Tax, Bihar, Patna (supra).

25. In the aforesaid facts and circumstances, it is quite apparent that the plaintiffs of the aforesaid eviction suits were clearly persons not only interested in the suit property but had inherited it from the admitted owner Syed Haider Imam and had got the suit properties in partition vide unchallenged decree in the partition suit. Thus, the decision of the Karnataka High Court in the case of Anjuman-E-Islamia Kollegal (Supra) relied upon by learned counsel for the petitioner-Board is not applicable to the facts and circumstances of the case as in that case the person, who was raising the dispute against the waqf, was not a person interested. So far the other decision of this court relied upon by learned counsel for the petitioner- Board in case of Azimuddin (supra) is concerned, it was held that if the disputed property is declared and registered as waqf property and had been mutated in the revenue records accordingly, the Secretary of Board had no authority to de-register/ amend the disputed property from the waqf register. The said case law is also not applicable to the facts and circumstances of the case as neither the suit property had ever been declared as waqf property nor it was - 28 - treated as such in the revenue records and deregistration was made not by the Secretary of the Board, rather it was made in the meeting of the Board by its special resolution. However, in the said decision the court had held that a person disputing the property to be waqf should file a representation before the Board which is authorised to decide the question as to whether particular property is or is not a waqf property and that decision of the Board is final unless the aggrieved party gets it set aside from the civil court. In the instant case, Shahar Bano Begum, who is said to have created waqf, had herself filed representation before the Board which had decided on the basis of the Full Bench decision of this court that it was not a waqf property and it has to be de-registered and the said order having not been set aside by any civil court, is legal and final as per the said decision itself.

26. Learned counsel for the petitioner-Board has also relied upon Section 2 (f) of the Act as well as upon a decision of this court in case of Shyam Sunder Kishan Lal and others (supra) claiming that plaintiffs- opposite parties 1st Set do not come within the meaning of “landlord” under the Act. Section 2(f) of the Act provides that term “landlord” includes the person who for the time being is receiving or is entitled to receive the rent of a building whether on his own account or on behalf of another if the building is let out to a tenant. The same view is expressed by a Bench of this court in the aforesaid case. However, from the facts and circumstances of this case, the plaintiffs- opposite parties 1st Set have been able to show that they are not only entitled to receive the rent of the suit premises, but they are in fact receiving the rent from the tenants, namely the defendants-opposite parties 2nd Set. In the said circumstances, the said provision of law as well as case - 29 - law does not at all help the petitioner- Board.

27. Learned counsel for the petitioner-Board has relied upon two decisions of this court in case of Subrat Shankar Bhaduri and others (supra) as well as Bibi Sayeedunnisa and another (supra) claiming the legality of registration and illegality of de-registration of a „waqf‟ as per the meaning of the term. However, both the aforesaid cases were only with regard to the provisions of Sections 36A and 36B of the Waqf Act, 1954 and of Section 3(1) and 26 of the Act in the situation of alienation of waqf property without sanction of the Board and recovery of waqf property transferred in contravention of Section 36A of the Waqf Act. In the former decision it was also held that the Board can decide the question as to whether the property belongs to a waqf and it can do so after giving notice to the person concerned who is claiming that the property is not a waqf. In the said circumstances, these two decisions also do not help the claim of the petitioner-Board.

28. Learned counsel for the petitioner-Board has relied upon another decision of this court in case of Bihar State Sunni Wakf Board through its Secretary, Patna (supra). In the said decision it has been held that notice under Section 90 of Waqf Act, 1995 has to be issued to the Board in every suit or proceeding including an eviction suit relating to title or a possession of waqf property and in that case the Board has to be impleaded as a party in the suit under Section 92 thereof, but in the instant case, it is clear from the decision of the Full Bench of this court in case of the Commissioner of Income Tax, Bihar, Patna, (Supra) as well as from the decree of Partition Suit No.299 of 1981 and the decision of the Board itself and also the rent receipts that the suit property was not a waqf property, nor - 30 - the provision of the Waqf Act, 1954 or the Waqf Act, 1995 was applicable thereto and hence neither any notice was required to be sent to the Board, nor the Board was required to be impleaded in the eviction suits. Hence, the said decision also is of no help to the petitioner- Board.

29. In the said circumstances, it is quite apparent that no person, except the plaintiffs-opposite parties 1st Set who claim to be landlord as well as defendants-opposite parties 2nd Set who are admittedly tenants, is a necessary party for deciding eviction suits. However, sub-tenants, if any, and, if required, may be impleaded provided the plaintiffs, who are dominus litus, make a prayer to that effect as the suit for eviction is based on a contract and the scope for adjudication of the dispute involved is restricted between the landlord and the tenant and it cannot legally be enlarged by adding the petitioner- Board as party defendant to the aforesaid eviction suits.

30. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned orders of the learned court below passed in the aforesaid eviction suits, nor does it find any jurisdictional error therein. Accordingly, all the aforesaid 18 civil revisions are hereby dismissed with a direction to the learned court below to expedite the hearing of the eviction suits which are already several years old. (S. N. Hussain, J.) A.F.R. Sunil