# Kammo Since Deceased & Ors v. Shahmim Ahmad & Anr

- **Citation:** (2024) 5 ILRA 785
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-09
- **Case number:** Second Appeal No. 340 of 2024
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kammo-since-deceased-ors-v-shahmim-ahmad-anr-51985
- **Pages:** 10

## Headnote

A. Civil Law - Code of Civil Procedure, 1908
- ORDER VIII, Rule 4, 5 - Evasive denial in
Written statement - Order 8 Rule 4 of C.P.C.
mandates that defendants must make
specific denials. Order 8 Rule 5 of C.P.C.
mandates that every allegation of fact in
the plaint should be denied specifically or
by necessary implication, and if it is not
done, the said allegation shall be treated as
admitted.
In
the
instant
case,
the
Defendant
challenged
the
impugned
judgment on the ground that, as per the
waqf deed, the male descendant shall be
appointed as Mutawalli, and as Usman was
elder to plaintiff no. 2, therefore, Usman
could only be appointed as Mutawalli.
Court found that it was stated in paragraph
no. 1 of the plaint that plaintiff no. 2 was
the Mutawalli of plaintiff no. 1. In reply to
the aforesaid assertion in the plaint,
defendants in paragraph no. 1 of the
written statement have made a bald denial.
Court was of the view that such denial does
not come within the periphery of denial as
contemplated under Order 8 Rule 4 of
C.P.C. Court was of the view that the denial
about the appointment of plaintiff no. 2 as
Mutawalli was only an evasive denial,
inasmuch as if the defendants were
disputing
the
appointment
and
competence of plaintiff no. 2 to act as
Mutawalli of plaintiff no. 1, the defendants
should
have
specifically
pleaded
the
grounds on which they alleged that
plaintiff no. 2 could not be appointed as
Mutawalli. (Para 32, 33, 34)

B. Waqf Act, 1995, S. 83 - Jurisdiction -
Appellant argued that an amendment in
Section 83 of the Waqf Act, 1995 was
incorporated by Act No. 27 of 2013, and
sub-section
1
of
Section
83
was
substituted, and after the amendment, the
civil appeal preferred by the plaintiff stood
abated, and the remedy of the plaintiff was
to file a fresh suit before the Waqf Tribunal.
The question of jurisdiction was not raised
by the defendants before the court below.
However, since the question of jurisdiction
raised by the appellant was a pure question
of law, therefore, the Court proceeded to
consider the same. The amendment was
incorporated w.e.f. 01.11.2003. Civil court
decided the lis between the parties on
06.08.2011 by dismissing the suit and an
appeal
was
filed
by
the
plaintiff/
respondents. Parties participated in the
suit voluntarily, and the suit was decided
by the competent court. Appeal is a
continuation of the suit, but the appeal
should always lie to a higher forum. Since
the amending act is silent about the forum
of appeal in cases where the suit had been
786 INDIAN LAW REPORTS ALLAHABAD SERIES
decided by the competent civil court before
the incorporation of the amendment in the
Waqf Act, therefore, the First Appellate
Court was the competent court to decide
the
appeal,
and
the
objection
of
jurisdiction raised in the appeal was held to
be devoid of merit. (44, 45)

Dismissed. (E-5)

List of Cases cited:

## Text

5 All. Kammo Since Deceased & Ors. Vs. Shahmim Ahmad & Anr.
785
is no such right. No authorities, apart from
those relating to the grant of notional
increments in the matter of annual
increments, were brought to this Court's
notice during the course of arguments and
we do not think that the principle, governing
the grant of notional increment in a case
where increment falls due, a day after
retirement, would apply to the case of grant
of ACP.

12. In this view of the matter, there
is no force in this petition. It fails and is
dismissed.

13. There shall be no order as to costs.
----------
(2024) 5 ILRA 785
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.05.2024

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Second Appeal No. 340 of 2024

Kammo Since Deceased & Ors.
 ...Appellants
Versus
Shahmim Ahmad & Anr. ...Respondents

Counsel for the Appellants:
Ajay Kumar Sharma

Counsel for the Respondents:
Utpal Chatterji

A. Civil Law - Code of Civil Procedure, 1908
- ORDER VIII, Rule 4, 5 - Evasive denial in
Written statement - Order 8 Rule 4 of C.P.C.
mandates that defendants must make
specific denials. Order 8 Rule 5 of C.P.C.
mandates that every allegation of fact in
the plaint should be denied specifically or
by necessary implication, and if it is not
done, the said allegation shall be treated as
admitted.
In
the
instant
case,
the
Defendant
challenged
the
impugned
judgment on the ground that, as per the
waqf deed, the male descendant shall be
appointed as Mutawalli, and as Usman was
elder to plaintiff no. 2, therefore, Usman
could only be appointed as Mutawalli.
Court found that it was stated in paragraph
no. 1 of the plaint that plaintiff no. 2 was
the Mutawalli of plaintiff no. 1. In reply to
the aforesaid assertion in the plaint,
defendants in paragraph no. 1 of the
written statement have made a bald denial.
Court was of the view that such denial does
not come within the periphery of denial as
contemplated under Order 8 Rule 4 of
C.P.C. Court was of the view that the denial
about the appointment of plaintiff no. 2 as
Mutawalli was only an evasive denial,
inasmuch as if the defendants were
disputing
the
appointment
and
competence of plaintiff no. 2 to act as
Mutawalli of plaintiff no. 1, the defendants
should
have
specifically
pleaded
the
grounds on which they alleged that
plaintiff no. 2 could not be appointed as
Mutawalli. (Para 32, 33, 34)

B. Waqf Act, 1995, S. 83 - Jurisdiction -
Appellant argued that an amendment in
Section 83 of the Waqf Act, 1995 was
incorporated by Act No. 27 of 2013, and
sub-section
1
of
Section
83
was
substituted, and after the amendment, the
civil appeal preferred by the plaintiff stood
abated, and the remedy of the plaintiff was
to file a fresh suit before the Waqf Tribunal.
The question of jurisdiction was not raised
by the defendants before the court below.
However, since the question of jurisdiction
raised by the appellant was a pure question
of law, therefore, the Court proceeded to
consider the same. The amendment was
incorporated w.e.f. 01.11.2003. Civil court
decided the lis between the parties on
06.08.2011 by dismissing the suit and an
appeal
was
filed
by
the
plaintiff/
respondents. Parties participated in the
suit voluntarily, and the suit was decided
by the competent court. Appeal is a
continuation of the suit, but the appeal
should always lie to a higher forum. Since
the amending act is silent about the forum
of appeal in cases where the suit had been
786 INDIAN LAW REPORTS ALLAHABAD SERIES
decided by the competent civil court before
the incorporation of the amendment in the
Waqf Act, therefore, the First Appellate
Court was the competent court to decide
the
appeal,
and
the
objection
of
jurisdiction raised in the appeal was held to
be devoid of merit. (44, 45)

Dismissed. (E-5)

List of Cases cited:

1. Executive Officer, Arulmigu Chokkanatha
Swamy Koil Trust, Virudhunagar Vs Chandran &
ors. (2017) 3 SCC 702

2. Kashi Nath (Dead) Through LRS. Vs Jaganath
(2003) 8 SCC 740

3. Bhagwati Prasad Vs Chandramaul 1966 AIR
(SC) 735

4. Ram Sarup Gupta (Dead) by L.Rs. Vs Bishun
Narain Inter College & ors. 1987 (2) SCC 555.

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Ajay Kumar Sharma,
learned counsel for the appellants and Sri
Utpal Chatterji, learned counsel for the
respondents.

2. The present appeal has been
preferred by the defendants/appellants
challenging the judgement and decree dated
03.02.2024 passed by the First Appellate
Court i.e. Additional District Judge, Court
No.20 Meerut in Civil Appeal No.163 of
2011 whereby he has allowed the civil
appeal
preferred
by
the
plaintiffs/respondents.

3. The brief facts of the case are that
plaintiff no.1 is the waqf in the name of
Waqful Aulad Kayam Karda of which
plaintiff no.2-Shamim Ahmad is the
Mutawalli.
As
per
the
plaint
case,
defendants/appellants (hereinafter referred
to as "defendants") are the tenants of a land
of about 100 yards described at the foot of
the plaint. The rent of the land was Rs.5 per
month and the registered rent deed dated
18.05.1972 was executed between the
plaintiff and defendant no.1 through
Mutawalli Suleman (as he then was), who
was the elder brother of plaintiff no.2.

4. It is further pleaded that defendant
no.1 stopped paying the rent Since July
2002, and he sublet the suit property to
Naseem
(defendant
no.4),
Saleem
(defendant no.3) and Anees (defendant no.2)
without the consent of plaintiff, and
subletting of the suit property by defendant
no.1 to defendant nos.2 to 4 violated terms
and conditions of the rent deed dated
18.05.1972.

5. The plaintiff gave a registered notice
dated 25.08.2008 under Section 106 of the
Transfer of Property Act to the defendants
through the registered post which was
served upon them. Another notice dated
25.08.2008
was
separately
given
to
defendant nos.2 to 4 asking them to vacate
the suit property. The aforesaid notice was
replied to by the defendants by stating false
and incorrect facts in their reply.

6. In the aforesaid backdrop, the
plaintiff prayed for the following relief:-

"14- यह मक वादीगण अदालत मजाज से दजट जैल
दादरसी पाने के अमधकारी हैः-

अ- यह मक बसदूरे मडग्री अदालत हाजा दखल वाकई
वव काममल बाद बेदखली प्रमतवादीगण 1 ता 4 आराजी जेरे मलवा
हाल नं०-46 व सामबका नम्बर 89 वाके मौहल्ला चोक बजरया,
मकबरा अब्बू धोसीयान, मेरठ मजसका हदूदबाट वाद पत् के अन्त में दे
रखा है महदूदा जैल का कब्जा बजररये अमीन अदालत वादीगण को
मदलाया जावे।

ब- यह मक मुबमलग 178/-रूपये बावत मकराया
वादीगण की प्रमतवादी नं०-1 से मदलाया जावे।
5 All. Kammo Since Deceased & Ors. Vs. Shahmim Ahmad & Anr.
787

स- यह मक वासलात मुबमलग 1140/-रूपये मदनांक
26-9-08 से 2-11-08 तक तीस रूपया योममया प्रमतवादीगण से
मदलाया जावे।

द- यह मक वाद का कुल खचाट वादीगण को प्रमतवादी
नं०-1 से मदलाया जावे।

ध- यह मक अदालत की राय में जो भी अन्य प्रमतकार
बेहतर हो वह वादीगण को मवरुद्ध प्रमतवादीगण मदलाये जावे।"

7. The suit was contested by the
defendants denying the averments of the
plaint contending inter-alia that they have
attempted to pay rent by sending the rent to
plaintiff, but the plaintiff refused to accept
it. It is also pleaded that there is no breach of
the terms and conditions of the rent deed.
Accordingly, the defendants pleaded that the
suit was based on incorrect facts and
deserved to be dismissed.

8. The Trial Court framed as many as
eight issues. Issue no.1 on which the finding
has been assailed by the appellant is relevant
and is reproduced below:

"1. क्या मववामदत मालवा नंबर 46 हाल व सामबका
नंबर 89 घोसीयान मकबरा अब्बू चौक मेरठ वादी सं०1 की संपमत्त
है तथा वादी सं० 2 वादी सं०1 का मुतवल्ली, मुन्तमजम एवं
मुनाफाखोर है?"

9. The Trial Court considered the waqf
deed and after analysing the stipulations in
the waqf deed, it concluded that according
to the waqf deed, the male lenient
descendant shall be appointed as Mutawalli.
It found that the waqf was created by Dr.
Gulam Haidar and after the death of Dr.
Gulam Haidar, his eldest son Suleman, the
next male lenient descendant was appointed
as Mutawalli. The Trial Court further
recorded a finding that plaintiff no. 2Shamim Ahmad was the youngest brother
among the three sons of Dr Gulam Haidar
namely, Suleman, Usman and Shamim
Ahmad, and Usman was next in line being
younger to Suleman and elder to plaintiff
no.2-Shamim Ahmad after the death of
Suleman should have been appointed as
Mutawalli, therefore, plaintiff no.2 could
not have been appointed as Mutawalli. Thus,
plaintiff no.2 as Mutawalli of plaintiff no.1
was not competent to institute the suit for
eviction. Consequently, the Trial Court
dismissed the suit.

10. The plaintiff/respondent being
aggrieved by the order of the Trial Court
preferred civil appeal before the First
Appellate Court which was allowed by the
First Appellate Court and the suit of the
plaintiff was decreed.

11. The First Appellate Court held that
the finding of the Trial Court that plaintiff
no.2 could not have been appointed as
Mutawalli as after the death of Suleman,
Usman being younger to Suleman and elder
to plaintiff no.2 should have been appointed
as Mutawalli is erroneous and illegal.

12. In recording the aforesaid
finding, the First Appellate Court noticed
that Usman was present during the recording
of the testimony of plaintiff no.2-Shamim
Ahmad, and he did not raise any objection to
the appointment of plaintiff no.2 as
Mutawalli.

13. The First Appellate Court after
considering and appreciating in detail the
testimony of plaintiff no.2 and considering
the fact that Usman was present at the time
of recording the testimony of plaintiff no.2
and he did not raise any objection about the
appointment of plaintiff no.2 as Mutawalli
of the waqf held that the Trial Court erred in
law and committed manifest illegality in
holding that plaintiff no.2 could not have
been appointed as Mutawalli, and he was not
788 INDIAN LAW REPORTS ALLAHABAD SERIES
competent to institute the suit. The First
Appellate Court also considered the other
issue and found substance in the submission
of the plaintiff and consequently, it allowed
the appeal and decreed the suit.

14. Challenging the judgement and
decree passed by the First Appellate Court,
learned counsel for the appellant has raised
twofold submissions; he submits that
finding of the First Appellate Court that
plaintiff no.2 was Mutawalli of the waqf and
he was competent to institute the suit is
perverse and illegal inasmuch as the First
Appellate Court has misinterpreted the waqf
deed in concluding that plaintiff no.2 could
be appointed as Mutawalli. He submits that
as per the waqf deed, the male lenient
descendant shall be appointed as Mutawalli
and it is admitted on record that Usman was
next in line after Suleman inasmuch as
Usman was younger to Suleman and elder to
plaintiff no.2, therefore, Usman could only
be appointed as Mutawalli, and appointment
of plaintiff no.2 as Mutawalli was illegal and
in violation of the waqf deed.

15. He further contends that it is
evident from the resolution of the Waqf
Board dated 27.04.2010 appointing plaintiff
no.2 as Mutawalli, that plaintiff no.2 was not
the Mutawalli on the date of institution of
suit, and therefore, he was not competent to
institute the suit. Accordingly, it is
contended that the finding of the First
Appellate Court in this regard is erroneous,
and the question of law which arises for
consideration in the present case is "whether
the First Appellate Court has committed
manifest illegality in reversing the finding of
the Trial Court with regard to the fact that
plaintiff no.2 could not be appointed as
Mutawalli and was not competent to
institute the suit."

16. He further submits that an
amendment in Section 83 of the Waqf Act,
1995 has been incorporated by Act No.27 of
2013 and sub-section 1 of Section 83 has
been substituted by the said Act, and after
this amendment, the civil appeal preferred
by the plaintiff stood abated, and the remedy
of the plaintiff was to file a fresh suit before
the Waqf Tribunal.

17. In rebuttal to the aforesaid
submission, Sri Utpal Chatterji, learned
counsel for the respondents has contended
that there is no pleading in the written
statement
about
the
fact
that
the
appointment of plaintiff no.2 as Mutawalli
was in contravention of the waqf deed. It is
submitted that the appointment of plaintiff
no.2 as Mutawalli has not been assailed by
the defendants in the written statement, and
no specific plea has been set up in this
regard, therefore, in the absence of any
pleading challenging the appointment of
plaintiff no.2 as Mutawalli, the Trial Court
could not have gone into the question of the
validity of appointment of plaintiff no.2 as
Mutawalli nor any evidence could have been
led on the said point in absence of any
pleading challenging the appointment of
plaintiff no.2 as Mutawalli in the written
statement, therefore, the Trial Court has
committed manifest illegality in holding
that plaintiff no.2 could not have been
appointed as Mutawalli. He submits that
the law is settled that in the absence of any
pleading, the evidence cannot be read and
in this respect, he has relied upon the two
judgments of Apex Court in the cases of
Executive
Officer,
Arulmigu
Chokkanatha
Swamy
Koil
Trust,
Virudhunagar Vs. Chandran and Others
(2017) 3 SCC 702 & Kashi Nath (Dead)
Through LRS. Vs. Jaganath (2003) 8 SCC
740.
5 All. Kammo Since Deceased & Ors. Vs. Shahmim Ahmad & Anr.
789
18. He further submits that the First
Appellate Court has recorded a categorical
finding that Usman was present during the
recording of the testimony of plaintiff no.2,
and he did not raise any objection nor
appeared as a witness disputing the
appointment of plaintiff no.2 as Mutawalli.
He submits that the said finding has not been
assailed by the defendants in the present
appeal and in such view of the fact, no
substantial question of law arises in the
appeal calling upon the Court to invoke the
power under Section 100 of C.P.C.

19. It is also submitted by Sri Utpal
Chatterji,
learned
counsel
for
the
respondents that the plaintiff/respondent has
not disputed the validity of the appointment
of plaintiff no.2 as Mutawalli even in their
reply to the notice of the plaintiff.

20. So far as the question whether
the First Appellate Court has jurisdiction to
hear the appeal after amendment in Section
83(1) of the Waqf Act, he submits that the
said issue was not raised by the plaintiff
before the Trial Court as well as First
Appellate Court and no issue was framed on
this point, and therefore, the same cannot be
raised the for the first time in the second
appeal.

21. In the alternative, he submits
that amendment in Section 83(1) of the
Waqf Act was incorporated by Act No.27 of
2013 w.e.f. 01.11.2013 whereas the suit was
decided by the Trial Court on 06.08.2011,
therefore, lis between the parties has been
decided by the competent civil court before
the amendment was incorporated in Section
83(1) of the Waqf Act, and the appeal shall
lie to a higher forum against the judgement
and decree of the Trial Court, therefore, the
submission of learned counsel for the
appellant in respect of the competence of
First Appellate Court in deciding the appeal
is devoid of merit. He submits that the First
Appeal before the First Appellate Court was
maintainable being the higher court and the
Waqf Act is silent in respect of the cases
which have already been decided by the
competent civil court before amendment in
Section 83(1), and in such view of the fact,
the First Appellate Court was competent to
hear the appeal.

22. He has placed reliance upon the
Preamble of the amending act which states
that the Waqf (Amendment) Act, 2013 shall
come into force on the date it was notified
by the Central Government, and the
amending act does not specify that it shall
come
into
operation
retrospectively,
therefore,
the
act
would
operate
prospectively, and proceeding pending
before the competent Civil Court before
amendment shall continue with the Civil
Court and thus, for this reason also, the
submission of learned counsel for the
appellant with regard to jurisdiction of First
Appellate Court is misconceived.

23. In rebuttal to the contention of
learned counsel for the respondents that no
specific plea has been raised by the
defendants
in
the
written
statement
disputing the appointment of plaintiff no.2
as Mutawalli, learned counsel for the
appellant
has
placed
reliance
upon
paragraph no.1 of the written statement of
the
defendants
to
contend
that
the
appointment of plaintiff no.2 as Mutawalli
has been denied by the defendants
specifically, and the Trial Court framed the
issue on this point, and no objection was
raised by the plaintiff in respect to framing
of such issue by the Trial Court and thus, the
plaintiff was aware of the issue involved in
the suit and object of the pleading is to
communicate the other side to know the case
790 INDIAN LAW REPORTS ALLAHABAD SERIES
of the party so that he or she may be in a
position to reply the same, therefore, the
submission of learned counsel for the
respondents that no specific plea has been
raised by the defendants disputing the
appointment of plaintiff no.2 as Mutawalli is
without substance. In this respect, he has
placed reliance upon two judgments of the
Apex Court in the cases of Bhagwati Prasad
Vs. Chandramaul 1966 AIR (SC) 735 &
Ram Sarup Gupta (Dead) by L.Rs. Vs,
Bishun Narain Inter College and Others
1987 (2) SCC 555.

24. I have considered the rival
submissions of the parties and perused the
record.

25. The specific case of the plaintiff
was that plaintiff no.1 is the waqf and
plaintiff no.2 is the Mutawalli. It is not
disputed that the defendants are the tenants.
The only issue which is being raised and
contented by the learned counsel for the
appellant is that the suit was not instituted by
a competent person inasmuch as plaintiff
no.2 was not appointed Mutawalli as per the
waqf deed inasmuch as the male lenient
descendent shall be appointed as Mutawalli
as per the waqf deed. Thus, after the death
of Suleman (the then Mutawalli), his next
brother Usman could have been appointed
as Mutawalli and not the youngest brother
plaintiff no.2.

26. The reading of the waqf deed
discloses that it provides that only male
lenient descendent shall be appointed as
Mutawalli, and there is no stipulation in the
waqf deed which expressly or impliedly
stipulates that the next male lenient
descendant in line shall be appointed as
Mutawalli. The waqf deed is silent in this
regard, and learned counsel for the appellant
could not place any stipulation in the waqf
deed which expressly or impliedly discloses
the intention of the creator of the waqf that
after the death of Mutawalli, the next male
lenient descendant in line shall be appointed
as Mutawalli.

27. In the present case, the First
Appellate Court has recorded a categorical
finding that Usman, who was the next male
lenient descendant after Suleman, was
present in the court at the time of recording
of the testimony of plaintiff no.2 and he did
not raise any objection with regard to the
appointment of plaintiff no.2 as Mutawalli.
The relevant finding of the First Appellate
Court is reproduced herein below:-

 "सुलेमान और शमीम अहमद के बीच का भाई उस्मन
है। इस मजरह से यह भी स्पि हो जाता है मक उस्मान ने प्रत्यथी कम्मू
से मकराये की मांग नहीं मकया। यहां तक उस्मान भी मजरह के समय
न्यायालय में उपमस्थत था। सुलेमान का देहान्त 2003 में हो गया है।
पत्ावली पर उपलब्ध साक्ष्य से यह स्पि नहीं हो पा रहा है मक
खलीलउरटहमान का सुलेमान से क्या संबंध है। वक्फनामा के अनुसार
ज्येष्ठ की मृत्यु के बाद उससे छोटा मुतवल्ली होगा, इस प्रकार सुलेमान
की मृत्यु के बाद वक्फ की संपमत्त का मुतवल्ली उस्मान को होना
चामहए। उस्मान ने वादी संख्या 2 के मुतवल्ली होने के दावे को प्रश्नगत
मकया हो ऐसा कोई साक्ष्य नहीं आया है। इस वाद में प्रमतपरीक्षा के
समय उस्मान की उपमस्थमत और शमीम के मुतवल्ली होने के कथन
को आक्षेमपत न करना, उस्मान की ओर से शमीम अहमद की
मुतवल्ली होने के बावत मौनानुकूलता दमशटत करता है।"

28. So far as the contention of learned
counsel for the appellant that plaintiff no.2
was not competent to institute the suit as he
was appointed Mutawalli by the Board of
plaintiff no.1 in the year 2010 is concerned,
the resolution dated 27.04.2010 of Waqf
Board of the plaintiff no.1 establishes the
fact that plaintiff-waqf had no objection to
the appointment of plaintiff no.2 as
Mutawalli, and the said letter implies that
the Board of plaintiff no.1 has ratified the
action of the plaintiff no.2 in instituting the
suit.
5 All. Kammo Since Deceased & Ors. Vs. Shahmim Ahmad & Anr.
791

29. At this stage, it is also relevant to
consider the submission of learned counsel
for the respondents that no specific denial
has been made by the defendants in the
written statement disputing the validity of
the appointment of plaintiff no.2 as
Mutawalli.

30. The learned counsel for the
appellant
has
placed
reliance
upon
paragraph no.1 of the written statement to
contend that in paragraph no.1 of the written
statement, defendants have denied the
contents of paragraph no.1 of the plaint. To
appreciate the said argument, it would be
useful to have a glance at paragraph no.1 of
the plaint and paragraph no.1 of the written
statement of defendant nos.1 to 4 which are
reproduced herein below:-

Paragraph no.1 of the plaint:-

"1-यह मक आराजी मुतादावीया मजसकी तफसील
अजी दावे के आमखर में दी है वादी नं०-1 की सम्पमत्त है और वादी
नं०-2 वादी नं०-1 का मुत्तावल्ली, मुनतमजम व मुनाफा खोर है। वादी
नं०-2 वादी नं०-1 की जायदाद की देखभाल व इन्तजाम करता है
और वादी नं०-2 को कानूनी तोर पर और वक्फ नामे में दी गई शराईत
की रोशनी में वादी नं०-1 की जामनब से दावा दायर करने का पूरा हक
है।

Paragraph no.1 of the written
statement of defendant nos.1 to 4:-

1- यह की बात पत् की धारा 1 का कथन ज्ञान न
होने के कारण स्वीकार नहीं है। वादी अपने कथन को कठोर साक्ष्य से
प्रमाणमत करे।"

31. It is stated in paragraph no.1 of the
plaint that plaintiff no.2 is Mutawalli of
plaintiff no.1.

32. In reply to the aforesaid
assertion in the plaint, defendants in
paragraph no.1 of the written statement have
made a bald denial. There is no specific
denial in the written statement with regard to
the fact that plaintiff no.2 has not been
appointed as Mutawalli as per the waqf deed
and his appointment was dehors the waqf
deed.

33. This Court is of the view that such
denial does not come within the periphery of
denial as contemplated under Order 8 Rule
4 of C.P.C. which mandates that defendants
must make specific denial. Order 8 Rule 5 of
C.P.C. mandates that every allegation of the
fact in the plaint should be denied
specifically or by necessary implication, and
if it is not done so, the said allegation shall
be treated to be admitted.

34. If paragraph no.1 of the written
statement, reproduced above, is read in the
light of the mandate of Order 8 Rule 4 and
Order 8 Rule 5 of C.P.C., the Court is of the
view that denial about the appointment of
plaintiff no.2 as Mutawalli is only an
evasive denial inasmuch as if the defendants
were
disputing
the
appointment
and
competence of plaintiff no.2 to act as
Mutawalli of plaintiff no.1, the defendants
should have specifically pleaded the
grounds on which they alleged that the
plaintiff no.2 could not be appointed as
Mutawalli.

35. Though it is true that in the present
case, the Trial Court has framed the issue in
respect to appointment of plaintiff no.2 as
Mutawalli, but in the absence of any specific
denial in the written statement, the Trial
Court did not need to frame an issue
regarding the validity of the appointment of
plaintiff no.2 as Mutawalli. The Trial Court
also could not consider the evidence of the
plaintiff in respect of the appointment of
plaintiff no.2 as Mutawalli in the absence of
any specific pleading by the defendants in
the written statement denying the fact that
the appointment of plaintiff no.2 as
Mutawalli is in contravention to the waqf
792 INDIAN LAW REPORTS ALLAHABAD SERIES
deed. On the aforesaid proposition of law, it
would be useful to have a glance at the
judgements
of
Apex
Court
namely,
Executive Officer (supra) & Kashi Nath
(supra) relied upon by the learned counsel
for the respondents.

36. In the case of Executive Officer
(supra), the Apex Court affirmed the finding
of the Trial Court where the Trial Court
discarded the sale deed dated 29.07.1974 in
respect of the title of one Padmanabhan in
the absence of any pleading claiming title
based on sale deed dated 29.07.1974. The
Apex Court held "The evidence, with regard
to which there is no pleading, has rightly
been discarded by the trial court. Unless
there is a pleading, especially with regard to
the source of title, the defendant of a suit has
no opportunity to rebut such pleading. Thus,
evidence with regard to which there is no
pleading cannot be relied upon by the
plaintiff for setting up his title in a suit."

37. The Apex Court in the case of
Kashi Nath (supra) in paragraph no.17 has
held as under:-

"17. From the judgments of the
trial court, first appellate court and the High
Court it is clear that there was no
consistency so far as the claim regarding the
adoption is concerned, particularly as to
who and at what point of time it was made.
The High Court has taken great pains to
extract the relevant variations to indicate as
to how it cut at the very root of plaintiff's
claim. As noted by the Privy Council in
Siddik Mohd. Shah v. Saran AIR 1930 PC 57
(1) and Trojan and Co. v. Rm. N.N. Nagappa
Chetiar AIR 1953 SC 235 when the evidence
is not in line with the pleadings and is at
variance with it and as in this case, in virtual
self-contradiction, adverse inference has to
be drawn and the evidence cannot be looked
into or relied upon. Additionally, as rightly
submitted, the conclusion whether there was
adoption is essentially one of fact merely
depending upon pure appreciation of the
evidence on record. This position has been
stated in several decisions of this Court;
e.g., Rajendra Kumar v. Kalyan (2000) 8
SCC 99 and Raushan Devi v. Ramji Sah
(2002 10 SCC 205. Consequently, no
exception could be taken to the well-merited
findings concurrently recorded by the courts
below, with which the High Court also
rightly declined to interfere on the facts and
circumstances of this case."

38. So far as the judgements relied
upon by the learned counsel for the appellant
are concerned, though, it is no doubt true
that the law is settled that the object of the
pleading is to communicate the other party
the case set up by a party and the Court
should be liberal in interpreting the
pleadings, and considerations of form
cannot override the considerations of
substance while ascertaining whether the
pleadings though may not be happily
worded but are sufficient and communicates
the case of parties to other party. To
ascertain the said issue, the Court has to
apply a test whether, in the facts, the parties
did not know what matter was in issue at the
trial and had no opportunity to lead evidence
in respect of it.

39. If the Court applies the aforesaid
principles in the present case in finding out
whether paragraph no.1 of the written
statement communicates the case of the
defendants
about
the
challenge
of
appointment of plaintiff no.2 as Mutawalli,
this Court is of the view that the answer is
'No' for the reasons given below.

40. The challenge has been laid by the
defendants to the appointment of plaintiff
5 All. Kammo Since Deceased & Ors. Vs. Shahmim Ahmad & Anr.
793
no.2 on the ground that under the waqf deed,
only the next in line male lenient descendant
shall be appointed as Mutawalli. The written
statement is bereft of the basic and essential
pleadings of the fact as to which clause of
the waqf deed was violated in appointing
plaintiff no.2 as Mutawalli, and the most
essential fact which ought to have been
pleaded by the defendants that it is only
Usman being next male lenient descendant
in line after Suleman (the then Mutawalli)
could have been appointed as Mutawalli and
not the plaintiff no.2 who is younger to
Usman.

41. In such view of the fact, this Court
is of the view that judgements relied upon by
the learned counsel for the appellant are not
applicable in the facts of the present case
inasmuch as if the principles laid down in
those judgements are applied in the facts of
the present case, it cannot be said by any
stretch of imagination that the pleading in
the written statement in paragraph no.1 are
sufficient and communicate the grounds on
which the appointment of plaintiff no.2 as
Mutawalli has been assailed.

42. During the argument, learned
counsel for the respondents has produced a
copy of notice paper no.13Ka/1, and perusal
of the same reveals that the defendant has
not challenged the appointment of plaintiff
no.2 as Mutawalli in reply to the notice of
the plaintiff. The defendant has admitted
the fact that the suit property was taken on
rent by a registered rent note dated
18.05.1972. It is stated that construction
was raised by defendants from their
sources and the lease in favour of the
defendant was perpetual. The reply of the
defendant to the notice of the plaintiff
reflects that the defendant did not raise any
objection to the appointment of plaintiff
no.2 as Mutawalli and the competence of
plaintiff no.2 to serve such notice upon the
defendant.

43. Now coming to the question of
jurisdiction in the present case. It is not in
dispute that the question of jurisdiction
was not raised by the defendants before
the court below. However, since the
question of jurisdiction raised by the
appellant is a pure question of law,
therefore, this Court proceeds to consider
the same.

44. In the present case, the
amendment has been incorporated by Act
No.27
of
2013
w.e.f
01.11.2003.
Admittedly, the civil court decided the lis
between the parties on 06..08.2011 by
dismissing the suit. So before the
amending act came into force, the Trial
Court had already concluded the suit and
an appeal had been filed by the
plaintiff/respondents. The parties have
participated in the suit voluntarily and the
suit has been decided by the competent
court. The appeal is the continuation of the
suit, but the appeal should always lie to a
higher forum.

45. Since the amending act is silent
about the forum of appeal in cases where
the suit had been decided by the competent
civil
court
before
incorporation
of
amendment in the Waqf Act , therefore,
the First Appellate Court was competent
court to decide the appeal, and the
objection of jurisdiction raised in the
appeal is devoid of merit.

46. Thus, for the reasons given
above, no substantial question of law
arises in the present appeal which needs to
be answered by this Court. Consequently,
the appeal lacks merit and is hereby
dismissed with no order as to costs.
794 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2024) 5 ILRA 794
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2024

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Second Appeal No. 350 of 2024

Dinesh Chandra ...Appellant
Versus
Santosh Kumar @ Hari Prakash & Ors.
 ...Respondents

Counsel for the Appellant:
Pankaj Agarwal, Vishakha Pande

Counsel for the Respondents:
Rama Shanker Mishra

A. Specific Relief Act, 1963 -Section 19
(1)(b) - Transfer of Property Act, 1882, S. 3
"a person is said to have notice" - S. 3,
Explanation I.-Where any transaction
relating to immovable property is required
by law to be and has been effected by a
registered
instrument,
any
person
acquiring such property shall be deemed to
have notice of such instrument as from the
date of registration, provided that - (1) the
instrument has been registered and its
registration completed in the manner
prescribed by the Indian Registration Act,
1908, (2) the instrument has been duly
entered in books kept u/s 51 of that Act,
and (3) the particulars regarding the
transaction to which the instrument relates
have been correctly entered in the indexes
kept under section 55 of that Act. Unless
the three conditions enumerated in the
first proviso to Explanation-I are complied
with and established on record, so that
after
the
due
registration
of
the
instrument, the entries have been made as
contemplated under Sections 51 and 55 of
the Registration Act, no benefit of the
expression "a person is said to have notice"
in the interpretation clause defined in
Section 3 of the Act, 1882, can be extended
to a party, that on registration of an
instrument, a person is supposed to have
notice about such fact. (Para 28)

B. The Plaintiff/Appellant instituted a suit
for specific performance of contract with
regard to three registered agreements to
sell. It was pleaded that the defendant 1st
set illegally executed a sale deed in favour
of the defendant 2nd set in respect of the
suit property. Defendant 2nd set pleaded
that they are bona fide purchasers of the
suit property for value and that they had no
knowledge about the execution of any
agreement to sell. Held: Pleading in the
plaint is silent in respect of the compliance
of condition nos. 2 and 3 enumerated in the
First Proviso to Explanation-I. Fulfilment of
the above three conditions is necessary to
seek the benefit of Explanation-I to the
expression "a person is said to have
notice". (Para 27)

C. Transfer of Property Act, 1882, S. 3 "a
person is said to have notice" - S. 3
Explanation II - Any person acquiring any
immovable property shall be deemed to
have notice of the title, if any, of any
person who is, for the time being, in actual
possession thereof. Held: To claim the
benefit of Explanation II, the plaintiff must
demonstrate that he is in possession of the
suit property. In the present case, the
Subordinate Courts have returned a finding
that the plaintiff is not in possession of the
suit property. Therefore, the plaintiff
cannot claim the benefit of Explanation II.
(Para 31)

Dismissed. (E-5)

List of Cases cited:

Ram Niwas (Dead) through LRS. Vs Bano (Smt.)
& ors., (2000) 6 SCC 685

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard learned counsel for the
appellant and the learned counsel for the
respondents.