N.L.Ganguly - (1.) THIS writ petition is directed against the order dated 6-6-93 passed by the Prescribed Authority in a suit under section 21 (1) (a) of U. P. Act No, 13 of 1972. The proceedings were going on and has reached the stage of final disposal. An application under section 63 of the U. P. Muslim Waqfs Act was moved on behalf of the petitioner. Shia Central Board of Waqfs, U. P. Lucknow for impleading the waqf as a party in the proceedings. It has been stated in the application moved by the petitioner with an affidavit that the property in question is a waqf property. The property could not be sold in view of the provisions of section 49 of U. P. Muslim Waqf Act, I960. The learned Judge Small Causes Court observed that the applicant-landlord in the proceedings under section 21 had purchased the property in 1977 in an auction sale after obtaining the permission from the Ceiling Authorities. The sale in favour of the landlord was confirmed and he became absolute owner of the property. The auction sale in favour of the landlord was never challenged by Shia Central Board of Waqfs, U P. The learned couasel for the petitioner placed section 68 of U. P. Muslim Waqfs Act, 1960 which is quoted below : "68. Board to be made a part to a suit for proceeding regarding a waqf on its application : In any suit or proceeding in respect of a waqf or any waqf property by or against a stranger to the waqf or any other person, the Board may appeal and plead as a party to the suit or proceeding." It is submitted by the learned counsel for the petitioner that perusal of the section shows that it was mandatory for the court to have impleaded the petitioner as a party in the proceedings under section 21 of the Act. It was submitted that the intention of the legislature was that the property of the Waqf Board be protected and unauthorised person may not usurp the property of the Waqf Board. It was further submitted that in view of the provisions of section 49 (A) and (B) of the U. P. Muslim Waqf Act, the transfer of immovable property of the Waqf would be void. He further submitted that the property in question was transferred to the landlord applicant in the proceedings under section 21 of the Act and for want of requisite previous sanction from Waqf Board, the sale was illegal and void.
(2.) HEARD the learned counsel for the petitioner at length and perused the order impugned and the accompanying annexure filed with the writ petition, It is clear from the observations in the order impugned that there is no documentary evidence to show that the property iu question was recorded in the name of the petitioner. The arguments before the Judge Small Causes Court was that there was no materials on record to indicate that the property is not the property of Shia Central Board of Waqfs, The submission of the learned counsel appears to be wholly misconceived. Negative proof is not possible and it was wrongly submitted that there is nothing on record to show that the property is not of waqf property. On the contrary, there is nothing on record to show that the property was recorded in the name of Waqf Board. The learned counsel for the petitioner submitted that another proceedings are going on between the Waqf Board in which the property in question is a subject matter of dispute. The details of such material evidence is not on record. The provisions of section 68 clearly shows that it has to be shown by the Waqf Board that the property is a Waqf property. The mandatory requirements that the property is a Waqf property is lacking in the present case. The learned counsel for the petitioner cited a decision Sunni Central Board of Waqf U. P. through the Secretary v. Smt. Rabia Basri, 1966 ALJ 791. The facts of the. said case are quite different and in that case the defendant in the suit had admitted that the property in question involved in the suit was the property of the waqf and the transfer made by one Abdul Razzak was without authority. Thus, it was held that the transfer by Abdul Razzak in favour of the plaintiff was illegal and without authority. In the present case, neither there is any such finding nor any of the parties in the proceedings under section 21 admitted the claim of the petitioner that the property in question belong to waqf Board. In proceedings under section 21 of U. P. Act no. 13 of 1972, the proceedings which are summary in nature, these questions involving decision' about the ownership of the property could not be gone into. For the purpose of the Rent Control Act and person who has let out the premises and receiving the rent is the landlord for the purpose of the Act. In the proceedings under section 21 of the Act if the landlord who has let out the premises to the other tenant, the proceedings may proceed and decide, according to law. If there is any claim or title of the Shia Central Board of Waqfs, they are at liberty to proceed in the matter and file a separate suit for adjudication. The property was purchased in 1977 by the landlord and he continued to be in possession, he may have matured the certain rights in his favour by adverse possession. A right which he has created, cannot be disturbed. After considering the arguments of the learned counsel for the petitioner at length, I am not inclined to invoke the jurisdiction under Art. 226 of the Constitution of India.
(3.) THE writ petition is dismissed summarily. Petition dismissed,;