SHAH MOHAMMAD HABIB SAJJADA NASIN Vs. MOULVI MANZOOR ALI

JUDGEMENT

(1.) This is an appeal by the plaintiff against the judgment of a single Judge of this Court affirming the judgment of the Second Additional Subordinate Judge, Chapra, and dismissing the plaintiff's suit for recovery of possession of certain Wakf-property situate in Manalla Brahampur in Chapra town. The facts found are these. One Sah Mohammad Sayeed was the Mutawalli of the Wakf till his death in 1945. The appellant plaintiff is his son. Mutawalli Sayeed leased out the disputed properties on a permanent basis, in favour of defendant No. 1 by executing three registered documents on the 16th December, 1927. The recitals in the documents show that the settlement was made for agricultural purposes and the settles was given the rights to cultivate the lands and perform other agricultural operations. After the death of Mutwalli Sayeed, the plaintiff (his son) tried to annul the leases on the ground that a Mutwalli had no right to create an agricultural lease of wakf-property for a period exceeding three years and that consequently his successor-in-office was entitled to avoid the lease. The learned single Judge, while agreeing with the proposition of law that a Mutwalli cannot grant a permanent lease of the Wakf-property, nevertheless held that the defendant No. 1 acquired occupancy rayati status by virtue of the provisions of the Bihar Tenancy Act and that consequently he was not evictable. This is the only point of law for consideration in this appeal.

(2.) It is settled law that a Mutwalli has no power to grant a lease of Wakf-property for agricultural purposes for a term exceeding three years (See Section 208 of Mulla's Mahomedan Law, fifteenth edition). But the more difficult question to decide is whether when such a lessee holds over and remains in possession of the land for more than twelve years, he acquires occupancy rights by virtue of the provisions of the Bihar Tenancy Act. The answer to this depends on (1) what will be the status of the lessee when he obtains possession of the leasehold property from the Mutawalli, and (2) what will be his status when he continues in possession after the expiry of the period of three years for which the Mutvalli had undoubted authority to grant the lease.

(3.) As already stated, the leases were for agricultural purposes. Hence when defendant No. 1 obtained the leases from the then Mutwalli in 1927 and entered into possession of the leasehold property, he clearly became a raiyat. It is true that in those registered leases the Mutawalli purported to grant a permanent right, but the leases will not on that account become wholly void, but they will be valid to the extent of the authority conferred by Muhammadan Law on the Mutawalli to grant such agricultural leases. Hence for a period of three years from 1927 the status of defendant No. 1 would be that of a mere non-occupancy raiyat. When that period expired, it was open to the Mutawalli, or to any other beneficiary of the wakf property, to take steps for his eviction, but this was not done, with the result that the defendant continued to remain in possession as a non-occupancy raiyat for more than the statutory period of twelve years till the death of the old Mutawalli sometime in 1945. Thus having been inducted as a raiyat on the disputed property, defendant No. 1 continued in possession as a raiyat for the prescribed period of twelve years and he acquires occupancy rights by virtue of Sections 20 and 21 of the Bihar Tenancy Act. Thus, though the Mutawalli had no power to create a permanent agricultural lease, nevertheless by the operation of another law, namely, the Bihar Tenancy Act, occupancy rights would accrue to the lessee, provided that the lessee is a raiyat and continues in possession of the land as raiyat for the period of twelve years,