Santosh Duggal, J.
(1) The respondent, Abdul Hakim, claiming himself to be Mutawalli of property known as Chhoti Masjid, Bara Hindu Rao, Delhi, (for short 'the Masjid'), and as such vested with the powers of superintendence and control over the said Masjid and properties appurtenant thereto, on the basis that the said Masjid was a wakf property, instituted a suit against the appellant for recovery of possession of the roof of premises No. 4964 66 and 496', Chhoti Masjid, as delineated in the plan, annexed with the plaint. The allegation in the suit was that the defendant, (appellant herein), was a tenant only in a shop bearing No. 4967 and that neither the roof of this shop nor of any other adjacent shop or passage were under her tenancy, but some time back, approximately three years two months from the institution of the suit, she had illegally encroached upon the said roof and had raised some unauthorised construction in the shape of tinshed, without any permission of the plaintiff. Alleging that the super-structures put up on the roof were illegal, and the defendant a trespasser in respect to the roof portion of the shop, a decree was sought for a direction to her to hand over vacant possession of the roof after removing or demolishing the super-structures put up by her unauthorisedly. A notice calling upon the defendant to remove the allegedly unauthorised structure we also stated to have been served before filing the suit but without any result.
(2) The suit was contested on a number of preliminary objections. One which is the most relevant for the purpose of this regular record appeal was as to the locus standi of the plaintiff to institute this suit. The defendant contended in the written statement that he was not a duly authorised person for the purpose of signing and verifying the plaint or filing the suit, and the suit was liable to be dismissed on this short ground. It was also pleaded that there was a relationship of landlord and tenant between the Masjid and the defendant in respect to the shop premises No. 4967, including its roof as well as the roofs of the main gate of the Masjid bearing municipal No. 4966, and the two shops bearing No. 4964 and 4965 under tenancy of a meat-seller and a barber respectively. It was Contended that by virtue of this relationship of landlord and tenant, the civil suit was barred under the provisions of Section 50 of the Delhi Right Control Act. The suit prayer was resisted alleging that the structure in the form of wooden khokha with tin shed over the roof of shop No. 4967 and main gate of the Masjid bearing No 4966 had been in existence since 1955-56 and had been put up with the consent and approval of the then Mutawalli and that a door had been left in the said khokha for access to the roof of shop Nos. 4964 and 4965. The defendant alleged that the present suit had been brought mala fide and without any authority, and that the roofs of the three shops and the main gate bad been under use of the defendant since inception of the tenancy and two walls of the height of 7 had also been put up her on the eastern side as well as southern side of the roof.
(3) The parties went to trial on these pleadings. The trial Court gave judgment in favor of the plaintiff decreeing the suit, as prayed for, holding that it had been proved on record by the plaintiff that he had been managing this property, collecting rents him tenants including the defendant and also paying house-tax bills in respect of the properties, and as such he was a person very much connected with the affairs of the Masjid in question. Reliance was also placed on a letter Ex. Public Witness 4/1 addressed by one Major SK.. Hussain, as Secretary of the Delhi Wakf Board, to one Mohd. Naqi Kaprewala, General Secretary of the Masjid, approving names of the President, Secretary and other office bearers of the managing committee of the Masjid, where name of Abdul Hakim plaintiff figured as president. The Court accordingly held that the plaintiff was a Person, who has to be taken to be the Mutawalli of the Masjid, and was thus a competent person to institute the suit, and sign and verify the plaint for recovery of the wakf property.
(4) The plea of the defendant that the roof of the shop as well as the adjoining shop and covered passage constituted part of the tenancy premises, and as such she was in legal occupation of the roof portion was rejected of the ground that the receipt of rent placed on record by the plaintiff as Ex. Public Witness 5/4 to Ex. Public Witness 5/6 established beyond any doubt that the defendant was a tenant only in respect of shop bearing municipal No. 4967, and of no hing el e. A judgment of the Delhi High Court, (1976 Rcr 145), to the effect that in respect of single storeyed premises, the presumption was that root formed part of the tenancy premises, was held to be distinguishable on ihe reasoning that this presumption will apply only to residential premises and not to shop premises. The Court further observed that even assuming that the defendant had a right to use the roof of the shop in her possession, she had no right to build up a khokha thereon or the adjoining roof of shops No. 4964 and 4965 as well as passage No. 4966. which are not under her tenancy, and to that extent she was trespasser on the roof portion having built the khokha without the consent and, permission of the Mutawali of the premises, and she had failed to prove that the structure had been put up with the consent or approval of the then Mutawalli. A decree was accordingly passed directing removal of the super-structure raised by the defendant, and for handing over possession of the roofs to the plaintiff.
(5) On appeal, the first appellate Court confirmed the findings of the trial Court, both in respect of the plaintiff having a locus standi to institute the suit and seeking recovery of wakf properly as mutawalli, and also about defendant being a trespasser in respect to the roof portions, which were subject matter of the suit.
(6) The Court on its own took note of definition of the term 'Mutawalli' as given in Section 2 of the Mussalman Wakf Act, 1923, which reads as under Mutawalli means any person appointed either verbally or under any deed or instrument by which a wakf has been created or by a Court of competent jurisdiction to be the mutawalli of a wakf, and includes a naib-mutawalli or other person appointed by a mutawalli to perform the duties of the mutawalli, and, save as otherwise provided in this Act, any person who is for the time being administering any wakf property.
(7) The appellate Court held that a close scrutiny of this definition revealed that the word 'mutawalli' is wide enough to include within its domain any person who at the relevant time was administering the wakf property.
(8) The finding of the trial Court that the roofs could not form part of the tenancy of the defendant was also endorsed and further that since the defendant had failed to prove by any evidence that the super structure had been put up by her on the roof with the consent or approval of the then mutawalli; these had been rightly taken as unauthorised structures. The view of the trial Court that the roof of the tenanted shop could not be presumed, in the absence of any documentary evidence, to be part of the tenancy premises, for the reason that this presumption would not arise in the case of a shop even though it was a single storeyed building. The appeal was accordingly dismissed.
8(A)This regular second appeal, assailing judgments of both the Courts below, raises questions of law, in respect to 'he findings as to locus standi of the plaintiff (Abdul Hakim, respondent herein) to institute the suit, and also in regard to the case of proposition, propounded by both the Courts that in the case of roof of a shop, though single storeyed, there can be no presumption that it forms part of the tenancy premises.
(9) Since, the first question of locus standi has been approached from various angles, it would be expedient to extract the questions, which were formulated, as involving substantial law, at the time of admission of this appeal. These are:
(I)Whether the Mussalman Wakf Act of 1923 or the Wakf Act of 1954 is applicable to this case ?
(II)Whether the definition of 'Mutawalli' in either of the said Acts is relevant for the purpose of deciding whether the respondent had locus standi to institute the suit ?
(III)Whether on the evidence on record it was possible in law to hold that the respondent had been validly appointed a Mutawalli and was competent to take legal proceedings ?
(IV)Whether the lower appellate Court was right in thinking that since the staircase leading to the roof was situated in a shop, and not a residence, it could not be inferred that the roof formed a part of the tenancy agreement ?
(10) Mr. Ishwar Sahai appearing for the appellant argued in the first instance that the first appellate Court had erred in taking note of the definition of the word "mutawalli" as given in the Mussalman Wakf Act, 1923 for the short reason that the said Act stood repealed by coming into force of The Wakf Act, 1954. He contended that the defintion, as contained in this repealed Act, could not be pressed into aid, and the finding that the plaintiff in the suit could be treated as mutawalli by virtue of the said definition, suffered from gross error and thus liable to be set aside, A bare reading of Section 69(5) of the Wakf Act, 1954 makes it clear that the contention raised by Mr. Ishwar Sahai is fully justified The impugned judgment indicates that the learned Additional District Judge was not even aware of the repeal, effected by the 1954 Act. Confronted with this position, respondent's counsel could not offer any comments. Question No. 10 therefore, has to be answered in favor of the appellant, as it is the Wakf Act of 1954 which would be applicable to this case. and not the 1923 Act, that stood repealed when the suit was filed.
(11) The question nevertheless remains as to whether the plaintiff could be treated on the evidence on record, and under law, to be a validly appointed mutawalli and as such competent to take legal proceedings for recovery of the wakf properties This determination is to be made in the light of propositions reflected in questions 2 and 3, extracted above.
(12) Having held that definition, as contained in the Act of 1923 is inapplicable the question that requires examination is, as to whether the definition of the word 'mutawalli, in the existing Act is of any assistance in determining the question whether the respondent in this appeal has locus standi to institute the suit. It is to be noted that despite repeal of Mussalman Wakf Act. 1923, as noticed above, more or less identical definition of the term 'mutawalli' appears in the Act of i954 vide Section 3(f). The relevant portion reads as under:
"MUTAWALLI'means any person appointed either verbally or under any deed or instrument by which a wakf has been created or by a competent authority to be the mutawalli of a wakf and including "any person or Committee for the time being managing or administering any wakf property as such."
(13) The respondent asserted locus standi to institute the suit as mutawalli on a number of pleas. In the first instance, he stated that he had been appointed orally to be mutawalli by the former mutawalli Abdul Tariq during his life time some lime in the year 1971. The Courts below have not gone by oral evidence in this respect but returned the finding in favor of the respondent as a person competent to institute the suit, on the basis of the fact that it had been proved by him that he was collecting rent from the defendant herself, and had been paying house-tax in respect to Masjid properties to the Municipal Corporation of Delhi, and as such he was a person who had been managing and administering the properties of the Masjid. The Courts have also taken into consideration letter Ex. Public Witness 4/1 purported to have been addressed to Janab Mohd. Naqi Kaprewala, which is in the nature of a confirmation letter from Delhi Wakf Board, approving the constitution of the managing committee, wherein the respondent was mentioned as its President. This finding of fact has been arrived at by the two Courts below on appreciation of evidence.
(14) Faced with this situation, Mr. Ishwar Sahai argued that nevertheless the appellant can challenge this finding by showing that there has been error in appreciation of evidence and wrong conclusion had been reached by the Courts below, on the basis of that erroneous approach. There can be no disputing the proposition that in a given case, the question as to whether a right conclusion has been drawn from the evidence, also becomes a question of law.
(15) The correctness of the judgments of the Courts below has thus to be appraised in this perspective. It 1s to be seen as to whether they have construed the documents correctly and whether conclusion reached by them on the basis of evidence both documentary and oral is correct or not ?
(16) It is to be noted that the respondent's locus standi to institute the suit has been upheld without any conclusive finding, that he was a mutawalli appointed by the Wakf Board. The only relevant provisions under which this appointment could be made was Section 42 or Section 15(2)(g) of the Act, which contemplate appointment of a mutawalli by the Board in the event of a vacancy occurring in the office of the mutawalli of a wakf. In view of the fact that it was respondent's own case that the former mutawalli Abdul Tariq died in 1971, it had to be shown from the record of the Wakf Board that thereafter he was appointed, as mutawalli, on the occurring of that vacancy. This evidence could be available from the records maintained by the Wakf Board under Section 26 of the Act' No attempt was made even to summon that record even though an official of the Board was examined as Public Witness 4. He was thus not a mutawalli, appointed under the Act, and the Courts below definitely erred in treating him so.
(17) , The question remaining to be examined is as to whether the respondent could be deemed to be a mutawalli with in the meaning of Section 3(f) of the Act Without entering in to the controversy as to whether the genuineness of letter Ex. Public Witness 4/1 purported to have been written by the Secretary of the Wakf Board regarding confirmation of a committee of management of the Masjid was correctly recorded or not, and accepting the position that even the fact that the respondent had been paying house-tax and collecting rent from the tenants of the properties attached to the Masjid, including the defendant, would make him a person who was for the time being managing or administering the wakf properties, and as such a person included in the definition of a 'mutawalli', even then the question still remains as to whether this entitled him to institute a suit for recovery of the wakf property. On a cumulative reading of all the relevant provisions of the Act, the answer, I am afraid, has to bo in tbe negative.
(18) As pointed out by Mr, Ishwar Sahai, a bare reading of Section 15, which lays down the statutory functions to be carried out by the Board, reveals that one of such functions in terms of sub Section 2(i) of the said Section, is "to institute and defend suits and proceedings ia a Court of law relating to wakfs " The learned counsel rightly contended that even if there is a validly appointed mutawalli. he is not in a position, better than that of a manager of a property. and except under express authority from the Board, he cannot in his own name institute suits for recovery of wakf properties. Even the administration of wakf properties is to be carried out by a mutawalli under directions of the Board, as is clear from Section 15(2)(c) of the Act.
(19) I find justification in what Mr. Sahai has argued, as a reference to different provisions of the Act of 1954 makes the legislative intent as to the scope of the authority of a 'mutawalli' manifest itself in a way that the inference is inescapable to the effect that the authority to institute suits in respect to wakf property has been vested in the Board and in no event exercisable by a mutawalli.
(20) It is to be noted in the first instance that under Section 9(2) of the Act, the Board shall be a body corporate having perpetual succession and a common seal with power to acquire and hold property and to transfer any such property subject to such conditions and restrictions as may be prescribed and shall by the said name sue and be sued.
(21) It is abundantly clear from this provision alone that it is only the Board, which is a body corporate capable of acquiring and holding property, that has been enjoined upon to sue in the said name in relation to the wakf property- The intention, as already noted, is further clear from Section 15(2)(i) where one of the statutory functions of the Board is to institute and defend suits. The Act contains one full chapter, (chapter V) dealing with Mutawallis and Wakf Accounts, but no where the power of a mutawalli to institute suits in respect to properties of the wakf is recognised. Section 36 deals specially with the duties of a mutawalli. Institution of suits for recovery of wakf properties is certainly not one of those statutory duties Even Section 41, dealing with penalties if a mutawalli fails to perform his duties, no where mentions as taking steps much less institution of suits for recovery of wakf properties, as one of those duties. There are some Sections in this chapter, such as Sections 32 and 37 which contemplate maintenance of accounts by the mutawalli in respect to certain expenses to be incurred on account of wakf and its properties. Curiously enough, expenses spent on litigation in filling suits or defending such suits is not one of those recognised expenses.
(22) From a reading of these provisions, the only inference that commenced itself is that even a mutawalli, who has been duly appointed under the Act, has no authority to institute suits for recovery of wakf property, and that power lies with the Board only and in fact it is its statutory duty to do so. A person who is to be deemed to be a mutawalli by virtue of the deeming definition of Section 3(f), like the respondent will certainly by the person least empowered to do so.
(23) Mr. Sahai rightly contended that there may be cases where this could be done under specifies directions of the Board in exercise of its power under Section 15(2)(c) of the Act, but no such direction has been proved on record of this case The letter Ex. Public Witness 4/1, even if assumed to be genuine document, speaks clearly of some rules and regulations which were submitted by the addressee of that letter Mohd. Naqi Kaprewala in respect of the management of this wakf property. the latter revenls that those rules and regulations after approval .were returned, means that if there contained, inter alia, a general authority to the President of the Managing committee,the respondent, to institute suits on behalf of the .Masjid. that evidence was in possession, either of the respondent, as President of the Managing committee or Mohd. Naqi Kaprewala, to whom the letter was addressed. The respondent has not placed on record said rules and regulations nor produced Shri Mohd, Naqi Kaprewala who is admittedly alive,to depose about them. The inference thus cannot be avoided that there was no authority delegated by the Board to the so called Managing Committee or its Presedent.
(24) I am, therefore, of my considered view that the respondent, as plaintiff in the suit, had failed to establish his locus standi to institute the suit and sign and verify the plaint on behalf of she Board, and the Courts below erred in returning a finding in his favor. I am fortified in the view I am taking by a Division Beach judgment of the Calcutta High Court, reported as ,Debendra Nath
Mitra Majumdar v. Sheik Sefatulla, where it was held that a defec to mutawalli, and the respondent cannot claim a status better than that of a de facto mutawalli, was not a person who could be held entitled to institute suits in relation to wakf properties. The Court held in that case that Mohamedan Law did not give any such powers to a mutawalli, although the right of a person who was interested ia the wakf property and whose .personal rights were infringed by some action in relation to a wakf property was held entitled to sue in his individual capacity. That judgment took note of some decisions of other High Courts holding that although suits for declaration challenging alienation in respect to wakf property by Mohamedans interested in wakf property could be brought but not a suit for recovery of possession.
(25) Same view was expressed by a Division Bench of the Patna High Court in the case reported as , Maulvi Reza Ansari and others v. Shyamlul Sah and Others, where it was clearly held that there was no provision under the Act which empowered a mutawalli to institute a suit and defend suits or other legal proceedings relating to wakf properties on his own. This was on the view that the Mutiwalli was no score than a manager of a wakf property, and was directly under the control and superintendence of the Board and may even be removed from his office in accordance with Section 43, and beyond administering or managing the wakf properties under the direction of the Board, he has no right, particularly the right to institute suits, which right was vested in the Board under Section 15(2)(i) of the Act.
(26) Mr. Ashish Padhi appearing on behalf of the respondent for Mr. Madhan Lokur, advocate justified the judgments of the Courts bew by contending that there are other provisions under the Ac; which indicated that a Mutawalli did have a right to institute suits on behalf of the Board. He invited my attention to the provisions of Section 57 and Section 60 of the Act in this respect. So far as Section 57 is concerned, this only provides that in the event of a suit relating to title to a wakf property or a right of a Mutawalli, having been filed, the Court shall issue police tothe Board at the cost of the party instituting such suits or proceedings. There is no indication anywhere in this Section that this contemplates institution of suits by a mutawalli. There are situations, as already noted in the Calcutta judgment, that a mutawalli interested in the worship of a mosque or any other wakf property, in the event of infrigement of his personal right, can institute a suit in his own individual capacity, and it will be obviously in such like situation that Section 57 will come into operation In so far as Section 60 is cencerned. it no doubt speaks of a suits which could have been filed by a mutawalli relating to title of wakf property or his own right. But this provision has to be read in consonance with the established principles of harmonious construction, and in view of the foregoing discussion taking hote of provisions of Section 9(2), Section 15(2)(i) and Section 36 of the Act and other related provisions, the only interpretation possible is that Section 60 contemplates those situations where a mutawalli might have been directed by the Board in exercise of power under Section 15(2)(c) or had express authority conferred by the Board while approving the scheme of management or appointing him as mutawalli to institute suits, but then this Section 60 still takes the precaution to lay down that even then irrespective of a compromise in such suits it could not be done without the sanction of the Board. This Section 60 cannot be read so as to confer upon the mutawalli a power to institute suits in relation to wakf properties. That power ought to be there by specific provisions under the Act. Not only that there is no such provision but there are provisions to the contrary such as Section 9(2) and Section 15(2) providing that such powers vest only in the Board.
(27) In view of what has been discussed above, the judgment cited by the learned counsel for the respondent, namely, , Syed Mustafa peeran Sahib and another v. State Wakf Board represented by its Secy., Madras, to the effect that definition of the word 'Mutawalli' in Section 3(f) of the Act shall include a person who for the time being manages or administers the wakf properties, shall make no difference in so far as locus standi for institution of the suit is concerned. The other judgment, which the learned counsel for the respondent took from the trial Court judgment, namely , (Babu) Mahadeo
Prasad Singh and others v. Karia Bharthi related to the case of a 'math' and powers of a 'mahant' of a math The ratio of that judgment will obviously not help in determining the rights of a mutawalli, which are governed by a statute.
(28) The other case cited by respondent's counsel, as reported in 1967 (Vol. LXIX) P.L.R. 761, Bishwanth and another v. Thakur Radha Ballabhji and others, related to administration of religious and charitable trusts and arose out of a suit filed under Section 92 of the Cods of Civil Procedure, seeking declaration that the property belonged to the trust It was in relation to a Hindu temple that it was held that since an idol is a juridical person, a suit on its behalf could be filed through its shebait. All that was determined in that case was as to whether the suit fell within the four corners of Section 92 Civil Procedure Code and rights of mutawalli were nowhere within the contemplation of the Court.
(29) In the case before the Rajasthan High Court, ,
Shahi Jama Masjid, Nerta v. Kanhaiya Lal Bhagat and others, the suit was by members of the managing committee of a mosque for seeking relief of injunction against certain alleged trespassers upon apiece of land,which according to the plaintiffs. belonged to the mosque The only question which was before the Court was as to whether they could do so without complying with the provisions of Section 55 of the Act of 1954 It was held that since the plaintiffs were seeking to protect the mosque property, in which they were interested, the suit was not such a suit, as is covered by Section 92 of she Code of Civil Procedure so as to attract the provisions of Section 55 of the Wakf Act 1954. Here also the question as to whether a mutawalli on his own could Institute suit for recovery of wakf property was not in issue and not adverted by the Court.
(30) RESPONDENT'S counsel also relied upon a judgment of the Himachal Pradesh High Court, , Mohinder Singh v Mohd Ibrahim
and another. That was a case under the provisions of HP. Urban Rent Control Act, where any person covered within the definition of a landlord, could institute proceedings under the Act, and it was in that context that it was held that a person who. as mutawalli, had let out the wakf property, and was Realizing rent, is covered by the definition of a landlord as given in the said Act and had thus locus standi to institute suit for eviction under the H.P. Urban Rent Control Act. It has to be noted that right was recognised by virtue of the definition of the term landlord' under the Act, and not as a mutawalli of the wakf property.
(31) A resume of the foregoing would thus show that a person, in the position of a de facto or deemed mutawalli, like the respondent herein, could not claim locus standi to institute a suit for recovery of the wakf properties, and that right vested only with the Board. Both questions 2 and 3 are thus answered in favor of the appellant. As a result, respondent as plaintiff shall stand nonsuited on this ground, and the judgments of the Courts below, decreeing his suit are liable to be set aside.
(32) In view of the findings recorded above, last question becomes academic because the suit is liable to be dismissed for want of locus standi of the plaintiff, as held above. It is, however, recorded that even if the contention of the appellant is entertained to the effect that the shop being a single storeyed building, there ought to be a presumption of the roof farming part of the tenancy premises, even than the appellant (defendant in the suit) would have no justification for her occupation of roof of other shops and the main gate of the Masjid, which are admittedly not under her tenancy. Mr. Sahai's contention is based on certain Judgments of this Court to the effect that in case of a single storeyed building, there is a presumption, in the absence of any evidence to the contrary, that the roof also formed part of the tendency premises. Then by the same parity of reasoning, the tenants of the other shops can also claim a right to the roofs of their respective shops. Accordingly, it is my considered view that if plaintiff's suit was otherwise maintainable, then the appellant had no defense in respect to her occupation of roofs of other shops and main gate of the Masjid. This would be despite the stairs leading to the roof being situated inside the shop under her tenancy, because the tenants of other shops and owner/landlord of the property would have access to the roof through the same staircase, as there is no evidence that this right of access to the tenancy premises, which is ordinarily available to the owner/landlord was excluded by any express agreement. I am further of the view that even in respect to the roof of the appellant's shop, her only right was to use and occupation in the ordinary course, and not of putting up structures, without the consent or approval of the landlord/owner.
(33) Accordingly, in case the suit could be entertained and decreed, then the defendant would have been liable to remove the unauthorised structure because no tenant can be allowed, if the landlord objects, to have any structure on any part of the tenancy premises, and she would have been directed to restore the roof to its original position.
(34) However, in view of the findings returned in respect to questions I to 3, the appeal is allowed and judgment and decree of the Court below is set aside, with the result that the suit being Suit No. 621/75 shall stand dismissed,
(35) No order as to costs.
(36) Trial Court records be sent back immediately: