Sangeeta Chandra, J. - (1.) This petition under Article 227 of the Constitution of India has been filed by the petitioners-tenants challenging the order passed by the Prescribed Authority dated 11.05.2017 in P.A. Case No. 4 of 2014 as well as the judgment and order dated 09.01.2018 passed by the learned Additional District Judge, Court No. 1, Amroha in Rent Control Appeal No. 5 of 2017.
(2.) Learned counsel for the petitioners submits that the grand-father of the petitioners, namely, Vishambhar Nath had taken a shop No. 4 from the Muttawalli of the waqf of late Latif Ahmed on 04.05.1939. Thereafter, the father of the petitioner Nos. 1 and 2 was the tenant till his death and the petitioners became the tenants of the shop in question. There was never any default in payment of rent. The original owner of the property in question was Haji Abdul Latif, son of Haji Khuda Baksh, who had seven sons. Late Haji Abdul Latif created a waqf of his entire property during his life time including the shop in question bearing No. 4. This Waqf Deed was duly registered before the U.P. Sunni Central Waqf Board, Lucknow on 14.01.1992. After the death of Haji Abdul Latif, the elder son Abdul Hameed became Muttawalli of this waqf, which was waqf Al-Alaulad. Abdul Rasheed, the brother of Abdul Hameed fraudulently executed a Sale Deed in favour of his son, namely, Abdul Rafeeq of the shop in question on 29.04.1969. There was some dispute regarding the appointment of Muttawalli eventually Imamuddin became the Muttawalli appointed by the Waqf Board. Abdul Rasheed son of Haji Abdul Latif was never recognized as Muttawalli by the Waqf Board and also since the property belonged to the Waqf and no prior permission was taken from the Waqf Board, he had no authority to execute a Sale Deed of the shop in question in favour of his son Abdul Rafeeq on 29.04.1969. Abdul Rafeeq thereafter executed another Sale Deed on 05.08.2010 of the same shop, of which the petitioners are tenants, in favour of five person, who have been arrayed as respondent Nos. 1 to 5. Since, the shop in question was a Waqf property and it was sold out without permission of the Waqf Board, the Sale Deeds were null and void. The landlords were trying for long time to evict the petitioners, and Abdul Rafeeq, the vendor of Sale Deed dated 05.08.2010 had filed a suit for eviction, namely, Suit No. 4 of 2008 claiming himself to be the Muttawalli of Waqf Allahtala Malik Waqf Al-Alaulad against the father of the petitioner Nos. 1 and 2, Ishwar Chandra. This suit was dismissed for non prosecution on 03.05.2014. Another Suit No. 2 of 2008 was filed by Imamuddin, the appointed Muttawalli of Waqf Allahtala Malik Waqf Al-Alaulad against Ishwar Chandra again for payment of rent and eviction, which was also dismissed in default on 27.08.2016. Admittedly, the shop in question belongs to Waqf, and therefore, no Release Application could have been entertained under section 21 (1)(a) of the U.P. Act No. 13 of 1972, and when such Release Application was filed by the respondents, the petitioners took specific objection to the maintainability of the Release Application on grounds of it being a Waqf property in his written statement. The learned Trial Court framed issues and decided the issues whether the shop in question was a Waqf property or not by its order dated 27.09.2016. It wrongly relied upon the boundaries mentioned of the shop Nos. 3 and 4 in the Waqf Deed of 1929 and compared the same to the boundaries mentioned of the shop No. 4 in Release Application, and did not take into account the intervening period of almost 90 years, wherein there were several changes on the spot. The learned Trial Court found that it could not be said that the shop in question was a Waqf property. Later on, the Trial Court allowed the Release Application by its order dated 11.05.2017. Aggrieved against the orders dated 27.09.2016 and 11.05.2017, Rent Control Appeal No. 5 of 2017 was filed. The learned Appellate Court has arbitrarily rejected the appeal on 09.01.2018. Hence, this petition has been filed.
(3.) Learned counsel for the petitioner has placed reliance upon a judgment rendered by the Hon'ble Supreme Court in Sayyed Ali vs Andhra Pradesh Wakf Board, Hyderabad, 1998 2 SCC 642 to submit that a Waqf is a permanent dedication of property for the purposes recognised by Muslim law as pious, religious or charitable and the property having been found as Wakf would always retain its character as Wakf - "Once a Wakf always a Wakf".;