Madras High Court
The State Of Tamil Nadu vs M.H.Mohamed Abuthahir on 20 April, 1987
S.A.No.936 of 1998
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 02.02.2022
JUDGMENT PRONOUNDED ON : 08.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.No.936 of 1998
The State of Tamil Nadu
represented by
The District Collector
Ramnad at Madurai ....Appellant/Appellant
/Defendant
Vs
1.M.H.Mohamed Abuthahir
2.N.A.Abdul Lateef
3.K.S.Mohamed Yousuf
4.N.S.R.Abudhahir
5.A.A.Sheik Dawood
6.S.N.Ismail
7.S.N.Hameed Sulthan
8.K.P.S.Kadery Ibrahim
9.Haji M.N.Ibrahim Ali
10.S.A.Mohamed Ibrahim
11.K.K.Abbas ...Respondents/Respondents
/Plaintiffs
1/14
https://www.mhc.tn.gov.in/judis
S.A.No.936 of 1998
PRAYER : Second Appeal is filed under Section 100 of
C.P.C, against the judgment and decree made in A.S.No.
203 of 1984 dated 20.04.1987 on the file of the
Additional District Court, Ramanathapuram at Madurai
confirming the judgment and decree made in O.S.No.9 of
1983 on the file of the Subordinate Court
Ramanathapuram.
For Appellant : Mr.A.Sivanu Pandian
Government Advocate
For R8 : Mr.A.Arumugam
For R1 to 7 &
9 t0 11 : No Appearance
JUDGMENT
The defendant is the appellant.
2.The plaintiffs filed O.S.No.9 of 1983 before the Subordinate Court, Ramanathapuram for declaration of title and permanent injunction. The suit was decreed by the trial Court. The defendant filed A.S.No.203 of 1984 before the Additional District Court, Ramanathapuram. The learned District Judge was pleased to dismiss the 2/14 https://www.mhc.tn.gov.in/judis S.A.No.936 of 1998 appeal. As against which the present second appeal has been filed by the defendant.
3.The plaintiffs had contended that the suit property having an extent of 5.55 acres in Survey No. 10/1 in Illayangudy Village belongs to Illayangudy Mela Pallivasal Trust. The said property is used as a burial ground and the plaintiffs are the present trustees of the said Pallivasal. The plaintiffs had further contended that the suit property is a wakf property and the same has been published in Tamil Nadu Government Gazette. The plaintiffs further contended that the said property was purchased in the name of the trustees by Pallivasal under Exhibit A3 on 10.10.1890. The plaintiffs further contended that the property being a wakf property is also governed by a scheme decree dated 07.04.1937 by the Sub Court, Ramanathapuram in O.S.No. 64 of 1936. The plaintiffs further contended that the entire suit schedule property has been fenced on all the four sides and it is under lock and key of the Pallivasal. The plaintiffs further contended that 3/14 https://www.mhc.tn.gov.in/judis S.A.No.936 of 1998 raised platforms have been constructed in the year 1922 to offer private prayers for the sake of dead bodies during rainy season. The plaintiffs further contended that Illayangudy Village is a Zamin Village which was taken over by the Government and thereafter, it was wrongly classified as a Government Poromboke. The plaintiffs approached the District Revenue Officer, Ramanathapuram for getting patta and he recommended for granting patta under Exhibit A5. However, the Revenue Divisional Officer, Sivagangai and the Additional Collector, Ramanathapuram have refused to grant patta. The orders of the authority have created cloud over the title of the plaintiffs. Hence, the suit has been filed by the plaintiffs.
4.The defendant filed a written statement disputing the fact that the Pallivasal is the owner of the suit schedule property. According to the Government, the land was taken over under the Estate Abolition Act. During the settlement proceedings, the suit property was classified as a poromboke property. 4/14 https://www.mhc.tn.gov.in/judis S.A.No.936 of 1998 The attempts made by the plaintiffs to get patta in the said property have remained unsuccessful.The plaintiffs have not challenged the order passed by the Additional Collector of Ramanathapuram. The defendant also disputed the fact that the property cannot be a wakf property.
5.The trial Court after considering the sale deed in favour of the plaintiff under Exhibit A3, the scheme decree of Ramanathapuram Sub Court under Exhibit A1 and the proforma report issued by the wakf board under Exhibit A2 and also the commissioner's report, to arrive at a finding that the plaintiffs are the owners of the suit schedule properties. The defendant has erroneously classified the said property as a Government property during the settlement proceedings. Hence, the civil suit for declaration of title is maintainable. The trial Court also arrived at a finding that the plaintiffs have established their possession over the suit schedule property. Even DW1 has admitted that the trustees of the Mela Pallivasal are in 5/14 https://www.mhc.tn.gov.in/judis S.A.No.936 of 1998 possession of the suit schedule property. Based on the said findings, the suit was decreed by the trial Court.
6.The First Appellate Court also concurred with the findings of the trial Court and it relied upon the admission made by DW1 in his deposition and also Exhibit B3, Adangal account which shows the possession of the plaintiffs over the suit schedule property. Based on the said findings, the First Appellate Court dismissed the appeal. As against the concurrent findings, the present second appeal has been filed by the defendant.
7.The second appeal has been admitted on the following substantial question of law:
(a)Whether the question of adverse
possession is maintainable in respect of
poramboke land especially when conversion to
poramboke is only 1949?
8.The learned counsel for the appellant contended that the suit schedule property is a Mayanam poromboke 6/14 https://www.mhc.tn.gov.in/judis S.A.No.936 of 1998 which is being used by Muslims of the area as a burial ground. Hence, the revenue authorities have rightly classified the same as a Government poromboke. He further contended that the classification were effected in the year 1949 and hence, the present suit filed in the year 1983 is not maintainable. He further contended that the plaintiffs have not established that the Pallivasal is the owner of the suit schedule property.
9.Per contra, the learned counsel for the respondents contended that the plaintiffs have established their title by filing Exhibit A3 sale deed dated 10.10.1890. He further contended that the suit schedule property being used as a burial by Ilayangudy Mela Pallivasal has been declared to be a wakf property under the proforma issued by Wakf Board in Exhibit A2 dated 28.09.1965. He further contended that even before the said proforma, a scheme decree has been framed for the administration of the wakf in O.S.No.64 of 1936 on the file of the Sub Court, Ramanathapuram under Exhibit A1 dated 07.04.1937. He further contended that any 7/14 https://www.mhc.tn.gov.in/judis S.A.No.936 of 1998 wrong classification during the settlement proceedings will not convert the land as a Government poromboke. He further contended that the plaintiffs have filed the present suit for declaration of title based upon the pre-existing title prior to taking over the land under the Estate Abolition Act. He further contended that the plaintiffs have established their possession over the suit schedule property. Even Exhibit B3 filed on the side of the defendants will indicate that the plaintiffs are in possession of the suit schedule property. He further contended that the suit schedule property is compounded on two sides and fenced on other two directions as reflected in the Advocate Commissioner's report. Moreover, DW1 has deposed that the trustees of the Mela Pallivasal are in possession of the suit schedule property. Hence, he prayed for dismissal of the second appeal.
10.I have considered the submissions on either side.
8/14 https://www.mhc.tn.gov.in/judis S.A.No.936 of 1998
11. The suit schedule properties have been purchased by Ilayangudi Mela Pallivasal under Exhibit A3 dated 10.10.1890. The said property has been dedicated to wakf. Hence, a scheme suit was filed in O.S.No.64 of 1936 before the Sub Court, Ramanathapuram and a scheme decree has been passed on 07.04.1937 under Exhibit A1.
12.After coming into force of the Wakf Act, the property has been declared to be a wakf property and published in the Government Gazette. The proforma issued by the Tamil Nadu Wakf Board on 28.09.1965 has been marked as Exhibit A2. A perusal of Exhibit A2 will show that the present suit schedule property is enumerated as item No. 15. In the said proforma there is an indication that the same is registered before Sub Registrar Office, Ilayangudi referring to Exhibit A3 sale deed.
13.The plaintiffs have specifically contended that they are in possession of the suit schedule property 9/14 https://www.mhc.tn.gov.in/judis S.A.No.936 of 1998 and they have put up certain constructions in the suit schedule property for offering private prayers for the dead body during the rainy season. This has not been disputed in the written statement filed by the defendant. In fact, the defendant had feigned ignorance about the scheme decree marked as Exhibit A1. Exhibit B3 adangal account filed on the side of the defendants will also establish that the plaintiff is in possession of the suit schedule property. The plaintiffs' pleadings regarding compound in the suit schedule property by Mela Pallivasal has been confirmed by the Commissioner's report under Exhibit C1 and the plan marked as Exhibit C2. In fact DW1 who was examined on the side of the defendant has admitted that the plaintiffs' Pallivasal is in possession of the suit schedule property.
14.If really the suit schedule properties are the Government poromboke properties as classified in the year 1949, the Government would have taken steps either to issue B memo or to vacate the Pallivasal from the 10/14 https://www.mhc.tn.gov.in/judis S.A.No.936 of 1998 suit schedule properties. Even in the written statement, the defendant had admitted that the suit schedule properties are being used as burial ground. The suit schedule properties have been specifically referred to as a wakf property under Exhibit A2 proforma. When the properties are wakf properties, the Government cannot make a claim over the said property alleging it to be a Government poromboke based on erroneous classification. Any classification made by the Government in the revenue records on its own, will only be a self serving document, when the other side produces registered title deeds, the scheme decree and the proforma issued by the Wakf Board to establish their title.
15.Hence, in view of the said discussions, the substantial question of law is answered as follows:
16.The Courts below rightly granted a decree for declaration of title based upon the title deeds under Exhibit A3, a scheme decree under Exhibit A1 and the 11/14 https://www.mhc.tn.gov.in/judis S.A.No.936 of 1998 proforma issued by the wakf board under Exhibit A2. Hence, the findings of the Courts below with regard to adverse possession are only incidental. Any classification made by the Government in the year 1949 will not affect the pre-existence title of the plaintiffs, in view of Exhibits A1 and A3. Hence, the substantial question of law is answered as against the appellant. The second appeal stands dismissed. No costs.
08.02.2022
Index : Yes / No
Internet : Yes / No
msa
Note :
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.
12/14 https://www.mhc.tn.gov.in/judis S.A.No.936 of 1998 To
1. The Additional District Judge, Ramanathapuram
2.The Subordinate Judge Ramanathapuram.
3.The Section Officer V.R.Section Madurai Bench of Madras High Court Madurai 13/14 https://www.mhc.tn.gov.in/judis S.A.No.936 of 1998 R.VIJAYAKUMAR,J.
msa Pre-delivery Judgment made in S.A.No.936 of 1998 08.02.2022 14/14 https://www.mhc.tn.gov.in/judis