Madras High Court
Tamil Nadu Wakf Board Represented By Its ... vs S.A. Syed Masood And Ors. on 15 February, 1995
Equivalent citations: (1995)2MLJ514, 1995 A I H C 6317, (1995) 2 MAD LJ 514 (1995) 2 MAD LW 308, (1995) 2 MAD LW 308
JUDGMENT S.S. Subramani, J.
1. Plaintiff in O.S.No. 9 of 1983, on the file of the Subordinate Judge's Court, Tenkasi, is the appellant in this appeal. The appellant is the Tamil Nadu Wakf Board represented by its Secretary.
2. The reliefs sought for in the plaint are: (1) Recovery of possession of the properties mentioned in the plaint as 2nd Schedule; (2) for a direction to the defendants 3 to 35 to put the plaintiff in possession of the schedule properties; (3) for costs of suit and (4) for such other reliefs.
3. The material averments as given in the plaint are: The plaint mentioned properties belonged to Kalvathanayagam Taluk at Kalvathayagam Street, Kadayanallur, Tenkasi. The said Wakf was surveyed and the same was published in the Fort St. George Gazette, dated 13.5.1959. The said Wakf is managed by a Committee elected by the disciples of Kalvathanayagam, and, on the date of suit, the first respondent herein (1st defendant in the suit) was the elected Muthawalli of the Wakf. On 12.10.1977, the Thaikka passed a Resolution seeking permission to dispose of the properties, and the Wakf Board, who is the plaintiff in the suit, on 28.12.1978, directed the Superintendent of Wakfs, Kanyakumari, to submit a lay out plan along with a valuation report. Accordingly, the Superintendent of Wakfs, Kanyakumari, submitted a lay out plan and also a valuation report on 9.3.1980. As per the lay out, the properties were divided into 57 plots, providing all amenities. As per resolution dated 30.9.1980 of the appellant, the lay out was published in one of the issues in Daily "Dhina Malar' dated 29.12.1981, calling for highest offer for the purchase of the plots. The intending bidders have to deposit a sum of Rs. 10,000 as earnest money, on. or before 17.4.1982 and have to present their offers before the plaintiff Board on 22.4.1982. The period was extended till 26.5.1982. The upset price was fixed at Rs. 6 lakhs. The second defendant and one Janab Gulam Mohaideen sent their tenders to the plaintiff- Board. In the meeting held on 26.5.1982, the tenders were opened and the offer of the second defendant for Rs. 6,03,000 being the highest of the bids, was knocked off. The plaintiff thereafter passed a resolution accepting the tendor of the second defendant and directed him to deposit the balance sale price within 15 days so as to enable it (Board) to direct the Muthawalli to execute the necessary sale deed in favour of the second defendant. The balance amount has to be deposited with the plaintiff.
4. The second defendant did not deposit the amount within the stipulated time. Instead, the second defendant, in his letter dated 12.9.1982, expressed his inability to remit the balance and wanted his right to be sold or assigned in favour of the other tenderer namely, Janab A.S. Gulab Mohaideen, and also wanted the balance amount to be collected from him. But, when he (Second defendant) appeared before the Board on 20.10.1982, requested for time to deposit the balance sale price. As per the resolution dated 20.10.1982, the appellant granted time to the second respondent.(in the appeal) till 24.11.1982. In between, i.e., on 29.10.1982, the second respondent sought a clarification regarding the mode of payment. The plaintiff, as per letter dated 11.11.1982, intimated the second defendant to deposit the balance sale consideration before 24.11.1982, which was also not complied with by him.
5. In the Board Meeting of the plaintiff held on 24.11.1982, an advocate appeared on behalf of the second defendant and produced a photo copy of a demand draft for Rs. 5,93,000 dated 20.11.1982 drawn on the South Indian Bank Limited, George Town Branch. He wanted a week's time to produce the original. He attained from producing the same on the ground that he was ill. The plaintiff- Board extended the time for production of the original draft till 4.00 p.m. on 27.11.1982. It was also decided in that meeting that in case the original draft is not produced before the appellant, Board before the stipulation time and date, the tender of the second respondent will be cancelled and the earnest money deposited by him will be forfeited. The second respondent did not deposit the draft, nor did he pay the balance sale price in any other mode.
6. In between 22.11.1982 and 24.11.1982, respondents 1 and 2 colluded together and fraudulently created sale deeds in favour of the other defendants in the suit. The documents are invalid and are bogus; and no consideration passed. The appellant also seeks to invalidate the documents in favour of the defendants 3 to 35 on the ground that they violate Section 36-A of the Wakf Act, 1954. The plaintiff wanted the defendants 3 to 35 to be restrained by an order of injunction from trespassing into the property or putting up any construction. In the alternative, it is prayed that in case the defendants 3 to 35 are found to be in possession, for recovery. It is on these allegations, the appellant filed the above suit for aforementioned reliefs.
7. Defendants 1, 2, 31 and 33 alone filed written statements in the case.
8. The first defendant, in his written statement, admitted that the plaint schedule properties are Wakf properties, and that he is a Muthawalli. According to him, the proceeds of the sale have to be deposited with him, he being the Muthawalli of the Wakf, and not with the plaintiff. According to him, the plaintiff has no right over the proceeds. He also admitted that on 22.11.1982, 23.11.1982 and 24.11.1982, various sale deeds have been executed in favour of defendants 3 to 35. He said that on 24.3.1984, he has deposited a sum of Rs. 6,15,000 in the State Bank of India Main Branch, Madras, and since the deposit has been made, the plaintiff cannot have any right to sue for possession. In the written statement, it is also stated that the second defendant was not well on 24.11.1982, and hence he could not produce the original draft before the Board.
9. In the written statement of the second defendant, it is contended that he has submitted a sealed tender, agreeing to buy the First Schedule properties in plots for Rs. 6,03,000 and also deposited a sum of Rs. 10,000 as earnest money. The appellant having confirmed the second defendant's bid for Rs. 6,03,000 there is a concluded contract, and the claim of the plaintiff can be only over the money and not on the properties. It is further contended by him that the appellant has only supervisory control over the Wakf property, and once there is an accepted contract, the appellant cannot got back from it or cancel it. The sale proceeds belong to Kalvathnayagam Thaikka and the plaintiff has no right whatsoever over the same. It is further contended that he arranged with one Mathew M. Thomas of Mathoot Finance Corporation, Kozhencherry to draw a draft in favour of the plaintiff on 20.11.1982 from the South Indian Bank, Kozhencherry, payable at its George Town Branch, Madras. It was communicated to the appellant (plaintiff) by a telegram on that date itself. He challenges the jurisdiction and the right of the appellant to claim that the amount should be deposited with it, when the properties belong to the "Thaikka'. It is also contended by the second defendant that once the draft was obtained for the balance bid amount, his bid become irrevocable. The permission of the appellant to execute a sale deed in favour of this defendant is purely a formality. On that ground, the first defendant, along with this (second) defendant, executed various sale deeds in favour of defendants 3 to 35, so as to avoid unnecessary expenditure on stamps. The second defendant also challenges the resolution dated 24.10.1982, stating that it is void, illegal and not binding on him. The appellant's right to direct payment of the sale proceeds is questioned. It is also stated by the second defendant that on 22.11.1982, he (second defendant) entrusted the draft with the first defendant, and since time has been granted to him till 28.11.1982, the appellant has no right to cancel it when once the bid is accepted. He challenges the advertisement that appeared in the Dhina Malar' dated 28.11.1982 at the instance of the appellant as a void ab initio. It is further stated that in view of the advertisement in 'Dhina Malar', the appellant began to threaten his financier, i.e., Mathew M. Thomas of Mathoot Finance Corporation, Kozhencherry, who was in custody of the draft. The first defendant returned the draft to him which was later handed over to the financier for safe custody. Certain police complaints were filed by the plaintiff which only made it impossible to complete the transaction. The plaintiff has no right to cancel the bid, nor has it the right to call for fresh tenders. The plaintiff has no right to sue in view of Section 15(2)(h) of the Wakf Act. According to the second defendant, it is not correct to say that the sales in favour of defendants 3 to 35 are not valid under Section 36-A of the Wakf Act. The suit is also not maintainable since the Wakf has sold the properties through its Muthawalli. The second defendant prayed for the dismissal of the suit.
10. Defendants 31 and 33 filed separate written statements stating that they are not aware of the sale deeds in their favour, and that they have been unnecessarily impleaded. They also prayed for the dismissal of the suit.
11. The court below, after taking evidence, as per judgment dated 21.8.1986, dismissed the suit.
12. As per the said judgment, the court below was of the view that a civil suit is not maintainable under Section 36-B of the Wakf Act. It also held that once sanction has been given to auction the properties, there is a concluded contract, and the plaintiff cannot withdraw or cancel the same subsequently. It also found that the Muthawalli has deposited the amount in the Indian Overseas Bank, and hence none of the documents executed in favour of defendants 3 to 35 is liable to be set aside, especially when the plaintiff has accepted the tender of the second defendant. It also found that since the properties belonged to the Wakf, i.e., Kalvathnayagam Thaikka, the plaintiff cannot insist that sale consideration must be paid to it. The court below was of the view that the suit itself was speculative, and the plaintiff is not entitled to any relief. The suit was dismissed accordingly. The court below directed the parties to bear their respective costs. It is against the said decision, the plaintiff has preferred this appeal.
13. The writ petition, namely, W.P. No. 4765 of 1985 is filed by four individuals for the issue of a writ of mandamus or any other appropriate writ, order or direction, directing the first respondent therein (i.e., the plaintiff in O.S. No. 9 of 1983) from proceeding with the application of the 7th respondent therein (i.e., the second defendant in the suit) seeking permission to pay the balance price under the defunct deed of 1982 and to ratify the bogus and fraudulent registered sale deeds relating to the sale of 3 acres and 42 1/2 cents of lands comprised in the suit. Along with the writ petition, a W.M.P. was also filed, for the grant of an ad interim injunction restraining the, Wakf Board from proceeding with the application of the second defendant in the suit seeking permission to pay the balance sale price under the defunct deed of 1982 and to ratify the bogus and fraudulent registered sale deeds.
14. The writ petition was admitted on 4.5.1985, and, on the same date, a learned Judge of this Court passed an order of interim injunction on the W.M.P., and the same is even now in force. The order of injunction was also communicated to the counter-petitioners in the W.M.P.
15. When the writ petition came up for hearing on 5.10.1994 before a learned Judge of this Court, the tendency of the appeal, namely, Appeal No. 216 of 1987, was brought to the notice of the court. The learned Judge directed that the appeal also will be heard along with the writ petition, by the appropriate Bench. It is thereafter, these two matters have come up before us for hearing.
16. The court below hold that the suit is not maintainable, and the remedy of the appellant is provided under Section 36-B of the Wakf Act. Section 36-B was inserted as per amendment of the Act in 1964 (Act 34 of 1964). Section 36-B of the Act reads as follows:
36-B. (1) If the Board is satisfied after making an inquiry in such manner as may be prescribed, that any immovable property of a wakf entered as such in the register of Wakfs maintained under Section 26, has been transferred without the previous sanction of the Board incontravention of the provisions of Section 36-A, it may send a requisition to the Collector within whose jurisdiction the property is situate to obtain and deliver possession of the property to it.
(2) On receipt of a requisition under Sub-section (1) the Collector shall pass an order directing the person in possession of the property to deliver the property to the Board within a period of thirty days from the date of the service of the order.
(3) Every order passed under Sub-section(2) shall be served -
(a) by giving or tendering the order or by sending it by post to the person for whom it is intended: or
(b) if such person cannot be found, by affixing the order on some conspicuous part of his last known place of abode or business, or by giving or tendering the order to same adult male member or servant of his family or by causing it to be affixed on some conspicuous part of the property to which it relates:
Provided that where the person on whom the order is to be served is a minor, service upon his guardian or upon any adult male member or servant of his family shall be deemed to be service upon the minor.
(4) Any person aggrieved by the order of the Collector under Sub-section(2) may, within a period of thirty days from the date of the service of the order, prefer an appeal to the district court within whose jurisdiction the property is situated and the decision of the district court on such appeal shall be final.
Explanation: In this sub-section, "district court" means, in any area for which there is a city civil court, that court, and, in any other area, the principal civil court of original jurisdiction.
(5) Where an order passed under Sub-section(2) has not been complied with and the time for appealing against such order has expired without an appeal having been preferred or the appeal, if any, preferred within that time has been dismissed, the Collector shall obtain possession of the property in respect of which the order has been made, using such force, if any, as may be necessary for the purpose and deliver it to the Board.
(6) In exercising the functions under this section, the Collector shall be guided by such rules as may be made in this behalf by the state Government.
17. The finding of the trial Judge that the suit is not maintainable, is supported by the learned Counsel for the respondents, and the arguments may be summarised thus:
The Wakf Board, who is the plaintiff in the suit, is a statutory Corporation, which came into existence by virtue of the Act and Section 36-B of the Act is a right created by the Act. Since the appellant is also a creature of and the right is also created by the same statute, the argument is that the appellant can only proceed in accordance with the procedure laid down under Section 36-B of the Act. According to him, Section 9 of the Civil Procedure Code applies to the facts of this case, and there is an implied bar of a civil suit. The remedy of the appellant is only to move the Collector by sending a requisition and obtain delivery of possession through the Collector, and if any person is aggrieved by the order of the Collector, he may file an appeal before the competent District Court, and the decision of the District Court in such appeal shall be final. According to the learned counsel, since the procedure is prescribed under the Act, it must be found that there cannot be any other recourse to recover the property than to move the Collector for the same.
18. It is not disputed that the procedure prescribed under Section 36-B of the Act is a summary procedure. It also says, "it may send a requisition to the Collector within whose jurisdiction the property is situate to obtain and deliver possession of the property to it."
[Italics supplied]
19. The jurisdiction of the civil Court to try a suit of civil nature is provided under Section 9 of the Civil Procedure Code. It reads thus:
The courts shall (subjects to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
20. In one of the earliest decisions reported in Shankarsahai v. Din Dial and Anr. I.L.R. 12 All 309, five Judges of that court had occasion to decide question in a suit for damages in respect of a property covered by the North Western Provinces Rent Act, 1881. In Section 93(f) of that Act, it is stated:
...(no courts other than courts of revenue shall take cognizance of any dispute or matter in which any suit of the nature mentioned in this section might be brought. One of the classes of suits mentioned is suits for contesting the exercise of the powers of distress conferred on landholders and others by this Act, or anything purporting to be done in the exercise of the said power, or for compensation for wrongful act or omissions of he distrainer.
Interpreting the section, their Lordships said that when the two remedies are available, one summary and the other by common law suit, there is no reason to think that one bars the other, and both the remedies must be understood to remain open. It was held that the remedy before a tribunal as well as a civil court are available. One of the Judges who concurred with the opinion, stated that unless the suit is prohibited by any positive statutory provision, the civil court must take cognizance of it, and a suit for damages is maintainable before a civil court.
21. In Mohideen Pichai v. Tinnevelly Mills Company A.I.R. 1928 Mad. 571, it was held as follows:
In a new enactment is such that certain new rights unknown previously to law are created by the new statute and certain remedies are provided for the infringement of such rights, it must logically follow that it was the clear intention of the legislature, that such remedies should be enforced - only in the manner and by following the procedure, indicated. No doubt it is open to the legislature, even in other cases to take away any subsisting general right of suit and provide special remedy instead, but it must be done by express provision and such a general right is incapable of being taken away merely by implication.
[Emphasis supplied] That decision was in respect of interpretation of Section 38 of Companies Act, 1913, corresponding to Section 155 of the Companies Act, 1956. The question was, whether a civil suit is maintainable regarding the rectification of Register when a summary procedure is provided under the Companies Act. Ananthakrishna Ayyar, J., who wrote a concurring judgment, held thus:
... Thus it is clear that the transferee's remedy is not limited to making an application to the District Court under Section 38, Companies Act, and that right of suit is open to him that the present suits before the District Munsif were maintainable more especially as complicated questions are involved in the suits, and also because the contentions put forward by defendants 2 to 4 with reference to the validity of the decree and execution proceedings in O.S. No. 391 of 1919 have to be finally adjudicated in order to ascertain the exact rights of the parties, which could be done only in a regular suit.
[Italics supplied] That decision also makes it clear that the enactment must be provide for a new right unknown to law previously and the remedy must also be provided by that enactment. In such a case, a civil suit is barred. It is this principle that has been accepted by various Courts of this country in the subsequent decisions.
22. In Mahadeo Lal v. New Darjeeling Union Tea Company A.I.R. 1952 Clause 58, the above decision was followed. It was held that the remedy of the transferee of a share is not limited to an application under Section 38 of the Companies Act, but he has also a right to bring a suit to get his name registered. But, if the case is a complicated one, action may be brought.
23. In Tirukoilur Sri Viratteswarar Devasthanam by its Trustees v. Ramanathan Chettiar, (1953)1 M.L.J. 682, the question of jurisdiction of the civil court to deal with matters arising under the Madras Hindu Religious and Charitable Endowments Act, 1951, came up for consideration by this Court. The argument was based on Section 93 of that Act. The learned Judge held thus:
Neither Section 57 nor Section 93 of the Madras Hindu Religious and Charitable Endowments Act, 1951, would on a reasonable construction of the language employed therein, amount to an ouster of the jurisdiction of the civil court. Merely because a provision is made giving power to the Deputy Commissioner to enquire into disputes of the nature described in Section 57 it is too much to say that the civil court has lost its jurisdiction to try suits in which such dispute arise.
24. In Rao Sahib Manilal Gangaram, Sindore v. Western India Theatres Limited , a similar question arose under Section 155 of the Companies Act, 1956, wherein it was held thus:
The provisions made in Section 155 for a procedure by way of an application is only a provision for a summary procedure. The provision does not whittle down or abrogate the provision by way of a suit for getting the relief contemplated by that section. It is open to the aggrieved party to avail of the procedure laid down by that section and proceed by way of an application or by such proceeding as may be laid down by the Supreme Court in the rules made by it. The court, however, is not bound to give the relief under that section in that proceeding if it finds that complicated questions of facts and law are involved. It has got the power to direct the party concerned to a civil court and to file a proper action for the purpose of securing the relief which he seeks in the summary proceeding. This direction is given by the Court in exercise of its discretion because it is the civil court which has got the jurisdiction to decide all such matters in the first instance and it is only by way of a summary remedy that a party can proceed by an application or a petition under Section 155 of the Companies Act, 1956. Pichai v. Tinnevelly Mills Company A.I.R. 1928 Mad. 571 and Glan Chandra Hirday Mohan v. Prem Narain Mohinder Mohan , relied on.
As a summary proceeding by way of an application or a petition under Section 155 the High Court can well be approached for the purpose of the necessary relief, but for the purpose of getting the same relief in a regular suit which can by no stretch of imagination be said to be a summary proceeding, the relevant provisions of the Civil Procedure Code and the questions both the territorial as well as pecuniary jurisdiction of the court in which the suit is filed have got to be considered. If the subject matter of the suit is valued at more than Rs. 25,000 the High Court would have jurisdiction to entertain it, but it would not entertain it as a court exercising its jurisdiction under the Companies Act, but as a court in exercise of its Ordinary Original Civil Jurisdiction....
25. In Mana v. Ujal Bisi , a relevant question arose regarding the bar of jurisdiction of civil court for redemption of possessory mortgage, under Section 17(2) of the Orissa Money Lenders Act, 1939. It was held in that decision that the redemption of possessory mortgage is a common law remedy, and the procedure contemplated under the Money Lenders Act is a summary procedure, that both remedies can co-exist, and the provision of Section 17(2) of the Orissa Money Lenders Act will not take away the jurisdiction of a civil court. In that case, the learned Judge followed the English decision in Wolverhamption New Water Works Company v. Hawkesford, (1959)6 C.B. (N.S.)336, wherein it was held thus:
There are three classes of cases in which a liability may be established founded upon statute. One is where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there unless the statute contains words which expressly or by necessary implication excludes the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is where the statute gives the right to sue merely, but provides no particular form of remedy; there the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course available to cases of the second class.
26. In Hooghly Chinsurah Municipality v. Nanilal Ghose and Ors. A.I.R. 1984 Clause 197, the question that arose for consideration was, whether a municipality can take the recourse of filing a suit in a civil court, when a summary procedure is prescribed by the Municipal Act. In that case, Section 156 of the Bengal Municipal Act did not say that the amount due along with interest and cost shall have to be recovered by only mode of levy by distress and sale of movable property belonging to the defaulter. Interpreting that section the learned Judge held that if a summary remedy is resorted to, the procedure prescribed under that Act has to be follows, but the common law right of the municipality is not taken away by filing a regular suit in the civil court. Paragraphs 10 and 11 of the judgment which are relevant in this respect read as follows:
Under Section 167 of the Bengal Municipal Act, the sum due on account of any Municipal rate from any person in respect of any holding has been made first charge upon the said holding. The Commissioners of the Municipality will have to elect whether they will approach the civil court first under the general law as provided in Civil Procedure Code without adopting the summary remedy, as prescribed in the Bengal Municipal Act for recovery of the arrear tax, or they could take recourse to the summary remedy procedure as provided in Sections 156 to 162 of the said Act, and once the summary remedy procedure is adopted, then the said summary remedy procedure including the certificate procedure will have to be exhausted before coming to the civil court for recovery of the claim or any part thereof under the summary remedy procedure.
Section 162-A has made the institution of civil suit conditional upon the compliance of the summary remedy procedure including the certificate procedure in respect of the arrear tax for which the summary remedy procedure as provided in Sections 156 to 162 has already been started, but it has not made the institution of civil suit conditional upon the compliance of the summary procedure as provided in Sections 156 to 162 where the Commissioners elect to file the suit under general law for recovery of the arrear tax without taking recourse to the summary remedy procedure.
27. In Raja Jagdish Pratap Sahi v. State of Uttar Pradesh A.I.R. 1973 S.C. 1079, the question that came up for consideration was, whether the State is competent to file a civil suit when there is a summary procedure provided under the Uttar Pradesh Agricultural Income-tax Act. In that decision, their Lordships held that a suit by the State of Uttar Pradesh for recovery of Agricultural income-tax from an assessee under the Uttar Pradesh Agricultural Income tax Act is maintainable, and that the summary remedy as provided in Section 32 of the U.P. Act is not the only remedy for recovery for the aforesaid tax. The learned Judges further held that the failure of the assessee to make payment of tax within time on receipt of notice of demand creates a debt in favour of the State, and that this debt can be recovered by the State in any of the modes under the general law.
28. The Apex Court has declared the law regarding the principles of exclusion of the jurisdiction of civil court in Dhulabhai v. State of M.P. , their Lordships cautioned that exclusion of jurisdiction of civil court is not readily to be inferred unless the conditions set out in that judgment are satisfied. The conditions are:
(1) Where the statute gives a finality to the orders of the special tribunals the civil courts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been composed with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy of the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendent becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claims is clearly within the time prescribed by the Limitation Act, but it is not a compulsory to replace suit.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is relevant enquiry.
29. In Firm Radha Kishan v. Ludhiana Municipality , the question was, whether jurisdiction of civil court is barred under the Punjab Municipal Act. There, a summary remedy was provided with a right of appeal. It also provided that the decision in the appeal will be final. Considering the same, it was held as follows:
Under Section 9 of the Code of Civil Procedure the court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of civil courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts: even if there was no such specific exclusion, if it creates liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had.
[Italics supplied] From that decision, it is clear that merely because a tribunal or a forum is created, exclusion of jurisdiction of civil court cannot be inferred unless rights or liabilities are also created by the Statute.
30. In Premier Automobiles v. K.S. Wadke , the jurisdiction of civil court in respect of industrial disputes was considered. While dealing with that point, the Apex Court declared the principles applicable to the jurisdiction of the civil court and how far the civil court's jurisdiction is ousted. The relevant portion in the said decision reads as follows:
(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court.
(2) If the dispute is an industrial dispute arising out of a right of liability under the general common law and not under the Act, the jurisdiction of the civil court is alternative, leaving it to the election of the suit or concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.
(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suit or is to get an adjudication under the Act.
(4) If the right which is sought to be enforced is a right created under the Act such as Chapter VA. then the remedy for its enforcement is either Section 33-C or the raising of an industrial dispute, as the case may be.
31. In Raja Ram Kumar v. Union of India , it was held thus:
Generally speaking, the broad guiding consideration for determining whether civil court jurisdiction is excluded are that wherever a right, not pre-existing in common law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then even in the absence of an exclusionary provision the civil court's jurisdiction is impliedly barred. If, however, a right preexisting in common law is recognised by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the civil court's jurisdiction, then both the common-law and the statutory remedies might become -concurrent remedies leaving open an element of election to the persons of inherence.
32. In Abdulla Bin Ali and Ors. v. Galappa and Ors. 1985 S.C.C. 54, their Lordships held that the question of jurisdiction of a civil court depends upon the allegations in the plaint. It was that decision as follows:
Allegations made in the plaint decide the forum. The jurisdiction does not depend on the defence taken by the defendants in the written statement.
In that case, the defendant took on leave a plot of land under the East Punjab Rent Restrictions Act, 1949. The defendant, in a previous proceeding, had denied the title of the plaintiff. Hence, the plaintiff filed a suit alleging that the defendant is tenant, but since the defendant had denied title, he must be deemed as a trespasser and is liable to be ejected. The defendant questioned the jurisdiction of the civil court to decide the matter. It was under such circumstances, their Lordships held that the allegation made in the plaint alone will decide the question of jurisdiction.
33. In Shiv Kumar Chadha v. Municipal Corporation of Delhi and Ors. (1993)3 J.T. 238, their Lordships summarised the entire case-law on the point. The question that came up for consideration in that case was, whether a civil court can interfere and pass an order of injunction when a notice was issued under the Municipalities Act for demolition of unauthorised construction. Their Lordships held that putting up a construction is a common law right, and that the Municipal Act only regulates the construction. Paragraphs 10 to 13 of the Judgment are relevant in this aspect. They read as follows:
Section 9 of the Code of Civil Procedure (hereinafter referred to as "the Code") says that Courts shall have jurisdiction to try all suits of civil nature "except suits of which their cognizance is either expressly or impliedly barred. According to the Corporation once the jurisdiction of the Court to try a suit in which the validity of any order passed under the provisions of the Corporation Act or the notice issued thereunder has been specifically barred and an internal remedy has been provided for redressal of the grievances of the persons concerned, there is no scope for Court to entertain in a suit.
In the olden days the source of most so the rights and liabilities could be traced to the common law. Then statutory enactments were few. Even such enactments only created rights or liabilities but seldom provided forums for remedies. The result was that any person having a grievance that he had been wronged or his right was being affected could approach the ordinary civil court on the principle of law that where there is a right there is a remedy - ubi jus ibi remedium. As no internal remedy had been provided in the different statutes creating rights or liabilities, the ordinary civil courts had to examine the grievances in the light of different statutes. With the concept of the Welfare State, it was realised that enactments creating liabilities in respect of payment of taxes, obligations after vesting of estates and conferring rights on a class of citizens, should be complete codes by themselves. With that object in view forums were created under the Acts themselves where grievances could be entertained on behalf of the persons aggrieved. Provisions were also made for appeals and revision to higher authorities.
Then a question arose as to where a particular Act had created a right or liability and had also provided a forum for enforcement of such right or for protection from enforcement of a liability without any authority in law, whether a citizen could approach a court. It may be pointed out that many statutes have created certain rights or liabilities and have also provided the remedial measures in respect thereof. But such statutes have not touched the common law rights of the citizens. But there are some statutes, which in public interest affect even the common law rights or liabilities of the citizen, which were in the nature of existing rights. The distinction between the two types of rights or liabilities is subtle in nature but at the same time very vital.
In one of the earliest case of Wolverhampton New Waterworks Co. v. Hawkesford, (1859} 6 C.B. (N.S.) 336, Willes, J. said:
There are three classes of cases in which a liability may be established founded upon a statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed common law: there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, and the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by statute which at the same time gives a special and particular remedy for enforcing it. The present case falls within this latter class, if any liability at all exists. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class.
The abovesaid decision was followed by the Apex Court against in Saraswati and Ors. v. Lachanna (dead) through L.Rs. , wherein it was held thus:
Where a particular Act creates a right and also provides a forum for enforcement of such right and bars the jurisdiction of the civil court then ouster of the civil court jurisdiction has to be upheld. But the situation will be different where the statute neither creates the right in question nor provides any remedy or having created any right or liability no forum for adjudication of any dispute arising out of such right of liability is provided in such a situation, the ouster of the civil court's jurisdiction is not to be easily inferred.
34. It is on the above settled principles of law, this Court has to decide whether the suit filed by the appellant was maintainable. Section 36-B of the Wakf Act was duly incorporated in the Wakf Act in 1964. There is no provision in the enactment which bars the jurisdiction of civil court from entertaining a civil suit. Again, Section 36-B of the Wakf Act gives only an option to the Board to make a requisition to the Collector for getting possession. It is not compulsory that the Board should exercise the option for getting the possession. The right to recover the property, either trespassed or unauthorisedly alienated, is a common-law right. That right is not conferred for the first time or taken away by any of the provisions of the Statute. In this connection, Section 15(2)(h) and (i) of the Wakf Act is also relevant. The Board is given the power to take measures to recover lost properties and also to institute and defend suits and proceedings in a court of law relating to wakfs. The Preamble of the Act also is only to provide better management and supervision of the Wakfs. In matters regarding administration and supervision, filing of suit is also one of the powers to be exercised, which is specifically provided under the Act. In this connection, it is also worthwhile to note that Section 59 of the Act enables the Board to appear and plead in a suit filed by another person regarding Wakf property. If in a suit filed by a stranger, the Wakf Board can appear and plead as a party to the suit, there is no reason why the same right cannot be exercised by the Board itself in a civil suit filed by itself. The right to recover property is not for the first time created by the Statute. It is a common-law right. Section 36-B of the Wakf Act is only a summary procedure. Complicated questions of law and fact cannot be agitated before the Collector. The exhaustive remedy through a civil court is not taken away by virtue of Section 36-B of the Wakf Act.
35. In Radhakrishnan and Anr. v. State of Rajasthan , the scope of Section 36-B, of the Wakf Act came for interpretation. It was held that Section 36-B of the Wakf Act would come into play only if the property is transferred by a person over whom the Board exercised control and also obtained before such transfer, for example, a Muthawalli, or some other person who had been entrusted with the management of the property of the Board. It was further held that the said section cannot apply in the case of a property which is in the hands of a stranger over whom the Board had no control under the Act, simply because the Board happens to enter the property in its Register. It was also held that simply entering the property in the Register of Wakf or registering in the Register of Wakf, the Board of Wakf cannot bind the stranger, and the Board has to file a suit to establish their title to recover possession. It cannot seek to dispossess the stranger from the property by resorting to Section 36-B of the Act.
36. The said decision was followed by the Karnataka High Court in Mysore State of Wakfs v. Dr. M. Channabasvaiah and Ors. A.I.R. 1973 Mys. 312, wherein a Bench of that court held thus:
This section (Section 36-B of the Wakf Act) cannot apply in the case of a property which is in the hands of a stranger over whom the Board has no control under the Act. That such property is entered in list as wakf property by the Board does not give power to the Board.
The jurisdiction of the Board is limited to the administration of Wakfs and the person claiming under Wakfs. Hence it has no jurisdiction over a stranger and it cannot seek to dispossess him from the property by having recourse to Section 36-B of the Wakf Act.
In this case, it has come out in evidence that the second defendant has sold portions of the property to strangers as if the property belonged to him. The second defendant is not a person over whom the plaintiff has got any control. The second defendant has allowed strangers to be in possession of the property. In view of the decisions cited, Section 36-B of the Wakf Act cannot be invoked against them, or against the second defendant who has put in rival claim over portions of the property. In that view also, Section 36-B of the Wakfs Act cannot be a bar for instituting the suit.
37. The learned Counsel for the respondents relied on the decision reported in N.P. Ponnuswami v. Returning Officer, Namakkal . He relied on paragraph 12 of the said judgment at page 69. That decision is of no assistance to the respondents. In that case, the question raised was under the Representation of the People Act, 1951, regarding rejection or acceptance of a nomination paper. The Representation of the People Act is more or less a self-contained Code by itself. Rights and liabilities are created under that Act, and the remedy is also provided under that Act.
38. The learned Counsel also relied on the decision reported in State of Kerala v. Messrs. N. Ramaswami Iyer and Sons . That was a case where there is an express bar of jurisdiction by making Tribunals the Authorities under the Act. Their Lordships held that a reading of Section 23-A of the Travancore- Cochin General Sales Tax Act will show that an effective machinery has been provided for deciding the question of law and fact, regarding the liability imposed under that Act. [Italics supplied]. In view of the said provision, it was held that the civil court remedy is barred.
39. Balakrishna Mehta v. Corporation of Madras , cited by the learned Counsel for the respondents, was a case under the Madras Town Planning Act. The question that came up for consideration was regarding the jurisdiction of civil court to decide about the imposition of betterment tax. While considering that question, the Full Bench held thus:
An ouster of the jurisdiction of the civil court cannot be lightly inferred. Unless the legislature gives a clear expression of its intention to do so, the general presumption that established courts of law have jurisdiction will prevail. But there exists a class of cases where an inference of this kind can and must be made. Where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it, the remedy provided by the statute must be followed, and it is not competent to the party to pursue his remedy at common law.
In fact, the Full Bench decision did not support the case of the respondents. On facts, it was held that the right and liability were created by the Statute and hence civil suit was barred.
40. V. C. K. Bus Service (P) Limited v. H.B. Sethna and Ors. , relied on by the learned Counsel for the respondents, is a case under the Motor Vehicles Act. On the date of the accident, the Tribunal was not formed, but within a few months, the Tribunal was formed to decide the accident cases. The question that was raised was, since, the death was before the formation of the Tribunal, whether the civil court continued to have jurisdiction inasmuch as cause of action for claiming compensation arises on the date of death. It was held in that case that in motor accidents claims, the rights and liabilities are created by the Statute which itself is a self-contained Code, and the remedy is also provided therein. Hence, there is a bar of jurisdiction of the civil court. The said decision has nothing to do with the facts of this case.
41. On the basis of the abovesaid decisions, it can safely be held that the contention based on Section 36-B of the Wakf Act that the appellant's suit is barred under Section 9, C.P. Code has only to be rejected, and we do so.
42. Defendants 1 and 2 have taken a contention that the plaintiff is not competent to file the suit since there is no authorisation by the Wakf Board before instituting the suit. The! said contention also has no merit. As stated earlier, the Wakf Board is entitled to institute the suit under Section 15(2)(i) of the Wakf Act 0.29, Rule 1, C.P.C. enables the Secretary to verify and sign the pleadings. Further, it is brought to our notice by the learned Counsel for the appellant that immediately after the election of the office-bearers on every occasion, a resolution will be passed authorising the Secretary to institute suits on behalf of the Wakf and, in this case, the person who has signed the pleading has been so authorised. He also brought to our notice a copy of the resolution. The same could not be produced before the court below since the resolutions was filed before a criminal court. He also brought to our notice the resolution passed subsequent to the institution of the appeal whereby a new Secretary was elected. We are satisfied that the person who has verified and signed the plaint has been authorised to institute the suit and that the suit is properly filed.
43. The next question that has to be considered is, to what extent the plaintiff is entitled to the relief sought for in the plaint.
44. From the year 1975 onwards, as could be seen from the documents, we find that there was a proposal for sale of the property, and the same was recommended by the 'Thaikka'. A Special Officer was appointed to survey the property and to fix the valuation. The sale could not take place in view of the low value offered by the bidders, and finally it was decided to auction the property, and for that purpose, a notification was published in the daily 'Dhina Malar'. Pursuant to the same, the second defendant submitted a tender to purchase the property for Rs. 6,03,000 and one Janab Gulab Mohaideen filed a tender for Rs. 6,01,000. The plaintiff- Board passed a Resolution on 26.5.1982, evidenced by Ex.A-2, wherein it was resolved as follows:
Tenders called. Two sealed tenders are presented. Janab Gulam Mohaideen files a tender for Rs. 6,01,000 while Janab P.N.M. Mohammed Yusuff files a tender for Rs. 6,03,000. Resolved to accept the tender of Janab P.N.M. Mohamed Yusuff being the highest, with direction to remit the entire amount with the Tamil Nadu Wakf Board within 15 days to enable the Wakf to execute a sale deed in his favour.
It was a conditional acceptance of the offer made by the second defendant. The condition was that the second defendant should remit the entire amount to the Tamil Nadu Wakf Board within 15 days. The second defendant delayed in paying the balance, and, on 12.9.1982, he requested the Board to transfer the tender rights to Janab Gulam Mohaideen and collect Rs. 5,93,000 from him. The said request was considered by the plaintiff- Board as per resolution dated 28.10.1982. Both Janab Gulam Mohaideen and the second defendant were present at the meeting. It was resolved that the second defendant be granted time for payment till 24.11.1982, The Board wanted to get an undertaking from the second defendant that he will pay the entire balance by that time. The same is evidenced by Ex.A-3 in the suit. Even on 24.11.1982, the amount was not paid. What the second defendant did was, he sent an advocate on his behalf and handed over a photo copy of a draft alleged to have been taken in the name of the plaintiff and requested for a week's time to produce the original. The said request was considered by the Board as per Ex.A-4 resolution dated 24.11.1982. It was decided that the original demand draft should be produced before the Board by 4.00 p.m. on 27.11.1982, and in case he failed to do so, the tender of the second defendant be cancelled. It was also resolved to call for separate I tenders by publishing the sale proposal in the local daily as per proceedings enclosed.
45. It is not disputed that the second defendant-who was the highest bidder, did not pay the amount to the plaintiff at any time. Ex.A-2 which was the conditional acceptance of the offer was never complied with. Hence there is no concluded contract or agreement to sell the property to the second defendant.
46. Defendants 1 and 2 have a case that once they purchased a draft, there is a concluded contract, and the plaintiff cannot cancel the tender thereafter. The said contention is taken for the following reasons: It is the case of the second defendant that on 20.11.1982, he purchased a draft in the name of the plaintiff drawn in favour of the South Indian Bank, George Town, Madras. According to him, the amount was arranged by his financier Mathew. M. Thomas of Mathoot Finance Corporation, Kozhancherry, and the same was entrusted to the first defendant on 22.11.1982. The first defendant in turn entrusted the same draft to Mr. Mathew, the financier, for safe custody, and handed over a photo copy of the same to the first defendant and another photo copy to the Bank with the second defendant who appeared before the Board on 24.11.1982 at the time of its meeting. According to the second defendant, once a draft is purchased pursuant to the acceptance of his bid, the second defendant has acted on the representation and there is a concluded contract. Since there is a concluded contract, according to him, the subsequent action by the plaintiff either calling for a retender or cancelling the tender in favour of the second defendant is not legally valid, and the acceptance amounts to the consent contemplated under Section 36-A of the Wakf Act.
47. How far the said contention can be accepted has to be considered.
48. Exs.A-5 to A-7 will disclose that the contentions of the second defendant are not true. Ex.A-6 was proved through D.W. 1, who is none other than the second defendant. It is an affidavit duly attested by an advocate at Thenkasi on 21.11.1982. That affidavit is filed in support of a petition requesting for a week's time for production of the demand draft for Rs. 5,93,000. Paragraph 6 of the Affidavit is exhibited as Ex.A-6 in the suit, and it reads as follows:
Since the amount is very high, the draft cannot be sent by registered post as there is a risk of it being lost in transit, nor can it be sent through someone as it requires great risk and I have no one to whom I could entrust the job. I decide that the draft has to be produced by me in person after I recover from my illness.
In the said affidavit, he has no case that he has entrusted the draft to the first defendant. He wanted the draft to be produced by him in person before the plaintiff.
49. Ex. A-9 is a notice issued by the second defendant along with other defendants in the suit. It is dated 20.12.1982. The averments in that notice have got some relevance regarding the entrustment of the draft with the first defendant. Paragraph 14 of the said notice reads as follows:
The Wakf Board further seemed to have threatened the first plaintiff's financier Thiru Mathew M. Thomas with police help and forced him to cancel the draft dated 20.11.1982 with whom the first plaintiff had entrusted the draft for safe custody after getting it back from the Muthavalli. The financier apprehending trouble from police had to yield to the threat and force exercised on him illegally and ultimately he seemed to have cancelled the draft.
The first plaintiff mentioned in that notice is the second defendant herein. He entrusted the matter to the financier who subsequently cancelled it. It is clear from the said averment that the proceeds under the draft alleged to have been taken in the name of the plaintiff never reached it and subsequently the draft was cancelled. It follows, therefore, that the conditional acceptance evidenced by Ex.A-2 was not acted upon by the defendants. If the condition is not complied with, there cannot be any acceptance of any bid.
50. It is also clear that the defendants 1 and 2 agreed to accept the conditions of tender. The conditions of tender are provided in the Notification dated 29.12.1981 published in the Tamil Daily 'Dhina Malar' exhibited as Ex.A-1 in the suit. It is seen that the entire property was divided into 57 plots with layout, and the same was published in the 'Dhina Malar' dated 29.12.1981, calling for the highest offer for purchase of the plots. The intending bidder had to deposit a sum of Rs. 10,000 as earnest money and had to present the offer on or before 23.2.1982. Thereafter, time was extended till 26.2.1982, and the same was published in the Dhina Malar dated 30.4.1982. It was pursuant to the said calling for offers, the second defendant submitted his tender. The tender was accepted subject to his depositing a sum of Rs. 5,93,000 within 15 days. It is agreeing to the said tender conditions the second defendant has submitted the tender. He cannot thereafter deny the right of the plaintiff regarding its direction to deposit the balance consideration before it. In fact, on 24.11.1982, through his advocate, the second defendant has requested for time to deposit the balance amount.
51. When the sanction is subject to conditions, and when the conditions are violated, in law there cannot be a sanction at all, which is a pre-condition for effecting the sale. Section 36-A of the Wakf Act reads thus:
36- A. Alienation of Wakf property without sanction of Board to be void:- (1) Notwithstanding anything contained in the wakf deed, any gift, sale, exchange or hypothecation of any immovable property which is wakf property, shall be void unless such gift, sale, exchange or hypothecation is effected with the prior sanction of the Board.
2. xx x xx (omitted) xxxx.
According to the learned Counsel for the appellant, once Section 36-A of the Wakf Act has not been complied with, no transaction by the first defendant is valid. Section 36-A of the Act is a statutory condition, and if the same is violated, there cannot be a valid transaction, and the plaintiff can sue for possession ignoring the documents purported to have been executed by the first defendant.
52. The second defendant sent a registered letter on 25.10.1988, seeking clarification. He wanted to ascertain whether he should deposit the entire amount of Rs. 6,03,000 or whether he should deposit only the balance after adjusting the earnest money. The same was answered by the plaintiff as per the originals of Exs.B-10 and B-11, informing him that the amount must be deposited on or before 20.11.1982, and that the amount to be deposited by him was Rs. 5,93,000. From this, it is clear that the second defendant was well aware that the amount must be deposited with the plaintiff only.
53. The first defendant seems to have offered to deposit a sum of Rs. 6,15,000 and he wanted the said amount to be accepted by the plaintiff. Since there was no contract with the first defendant, the plaintiff refused to accept the same, and the deposit made by him was directed to be refunded, as evidenced from the original of Ex.B-14. After the amount was refunded, the first defendant has deposited the same in the name of the 'Thaikka' a few months thereafter and has also availed a loan of Rs. 1,00,000 therefrom under the guise of purchasing some property for the 'Thaikka'. The same is clear from the letter of the Indian Overseas Bank, namely, Ex.B-20 dated 28.7.1986. It is seen that a sum of Rs. 6,15,000 was deposited on 25.6.1984 and the amount was deposited for a period of 36 months. In the meanwhile the first defendant has also availed a loan from the amount without the sanction of the plaintiff. That also makes it clear that the sale consideration never reached the plaintiff as stipulated in the tender.
54. The second defendant offered to purchase the property at Rs. 6,03,000. The said offer was accepted, giving a time of 15 days to deposit the balance amount with the plaintiff so as to enable the Wakf to execute the document. By accepting the offer on condition the plaintiff can be said to have entered into an agreement for sale of the property. The Statute contemplates a sanction for executing the sale deed, which has not been taken in this case. To enable the first defendant to execute the deeds, the plaintiff must authorise him, and that is absent in this case. That authorisation can be had only after the second defendant deposits the amount with the plaintiff. Without waiting for getting authorisation or sanction for the sale, the first defendant has joined the second defendant in executing the various documents in favour of defendants 3 to 35. The second defendant has also joined as one of the executants of the deed and if he has obtained some right as per the resolution Ex.A-2. If Ex.A-2 has not been complied with, the second defendant is not getting any right, and there is no legal sanction contemplated under Section 36-A of the Wakf Act, to enable the first defendant to execute any deed. Defendants 3 to 35 also, therefore will not get any right by virtue of those documents. The documents are void, and no legal consequences will follow from those transactions. The plaintiff, in its right to administer and manage the Wakf Board, as per the Act, is entitled to ignore those transactions and sue for recovery of the property which has been unauthorisedly alienated.
55. Learned counsel for the respondents 1 and 2 also contended that the Inspection Report of the plaintiff will show that the suit transaction has to be ratified and the suit should not be allowed to be proceeded with. The court below has also relied on some directions alleged to have been given by a Minister to ratify the transactions, and to withdraw the suit. The same is relied on by the learned Counsel to show that every transaction was done in good faith and various persons are in occupation of the property after investing huge amounts. The said contention can never be accepted. The plaintiff is authorised to manage a public trust, and it has to do its duties in accordance with law.
56. Ex.A-2 only enabled the Wakf to execute sale deed in favour of the second defendant after satisfying the condition. It never authorised the first defendant to execute the deed along with the second defendant in favour of the various strangers including defendants 3 to 35. There is no sanction given by the plaintiff for such a transaction. The argument of the learned Counsel for the respondents that the sale deeds were executed only to avoid unnecessary expenditure on stamp duty and registration fees cannot be accepted. The second defendant cannot have any right so long as he has not complied with the condition. There is no other sanction given to the second defendant to alienate the property to strangers. For that reason also, the various transactions entered into by the first defendant along with the second defendant are invalid.
57. There are other suspicious circumstances also in this case which the court is entitled to consider while dealing with the genuineness of the transactions.
58. As per the resolution of the plaintiff, the entire property was divided into 57 plots for sale. But the defendants 1 and 2 have divided them into 134 plots and conveyed the same either jointly, or by the second defendant in his own name. The consideration alleged to have been received under the transactions is also not paid to the plaintiff, nor is it accounted by the first defendant, who claims to be the owner of the property.
59. In this connection, it is worthwhile to note that defendants 31 and 33 have filed separate written statements, denying the entire transaction, and they have also stated that they are not aware of any sale deed in their favour. Party Nos. 28 and 30 in Ex.A-9 notice are defendants 31 and 33, respectively. We have already stated that as per Order dated 5.10.1994 by a learned Judge of this Court, a writ petition was also heard along with the appeal. The learned Counsel for the appellant has filed documents in the writ petitions, to substantiate the case that the entire transaction by defendants 1 and 2 are really sham and have not come into effect. He has also produced the encumbrance certificates regarding the various plots, and also supporting documents to substantiate his case. A perusal of the various documents will show that the second defendant has executed documents in respect of the very same plots even subsequent to the transactions entered into by him alongwith the first defendant. In the subsequent documents executed by him, he does not claim to be the power of attorney of the purchaser or as a person on whom the right has devolved. He simply says that he is the absolute owner of the property that has been conveyed. From the documents filed, it can be seen that the purchasers who are alleged to have purchaser from 22.11.1982 to 24.11.1982 have not conveyed their rights to the second defendant by any document. Regarding Plot Nos. 11 to 16, defendants 1 and 2 joint executed on 23.11.1982 as per Document No. 2574 of 1982 a sale deed in favour of one S. Meeran. But, in respect of plot Nos. 13 to 16, i.e., portions of the same property, we find that the second defendant has executed documents on 20.12.1993 in favour of one Mohammed Ali as per Document No. 2656 of 1993 and on 7.3.1994 in favour of one Alla Pichai as per Document No. 711 of 1994. Likewise, regarding plot Nos. 18 to 26, the first defendant has executed a sale deed in favour of the 33rd defendant on 23.11.1982 as per Document No. 2586 of 1982. Regarding the very same plot, the second defendant has executed the following documents:
Plot No. Document No. and date Purchaser's Name
18.
1403/90 27.7.1990 Hasan Fathima
19. 245/91 20.1.1991 Ismail
20. 1295/90 9.7.1990 Jamal Mohammed
21. 1296/90 9.7.1990 Abdul Majith
22. 1297/90 9.7.1990 Mohammed Mohideen
23. 1240/90 2.7.1990 Hasan Mohideen
24. 633/91 26.4.1991 Ahmed Mohideen
25. 2657/93.
20.12.1993 Udumal Sheik The documents mentioned above are only few instances, how the defendants 1 and 2 have manipulated and created documents. In respect of other plots also, defendants 1 and 2 jointly or the second defendant alone, have created various documents. So, there cannot be any assignment also of the right of the purchasers. If the second defendant was in a position to assign the property claiming as his own regarding the very same property alleged to have been conveyed earlier, it can be presumed that the transactions are only on paper, and they have not come into effect. The intention of defendants 1 and 2 was only to defraud the plaintiff and take away the valuable property belonging to the wakf. The bid amount has also not come to the plaintiff and the property is also lost. It is not for the benefit of the trust.
60. It is also worthwhile to note in this connection that on 24.11.1982, the second defendant requested for time for production of the original draft on the ground of illness. The reason of illness also cannot be true. It is only between 22.11.1982 and 2411.1982 various transactions have taken place to which the second defendant is also a party. The intention of the second defendant was only to gain time and to appropriate the property for himself. The plaintiffs, therefore, legally entitled to ignore the entire transactions and sue for recovery of the property from the persons in possession.
61. In the result, the appeal is allowed with costs throughout. A decree is passed in favour of the plaintiff allowing it to recover the property scheduled as item 2 in the plaint, from the persons in possession of the same. Defendants 1 and 2 are made personally liable for the costs, which we quantify at Rs. 10,000.
62. What remains is only the considerations of the writ petition, namely, Writ Petition No. 4769 of 1995.
63. This writ petition is filed by four persons claiming themselves to be the disciples of devotes of the Muslim Saint known as Khalwath Nayagam Syed Abdul Kader, in whose name the Wakf has been created. The writ petition is filed against the appellant in A.S. No. 216 of 1987, making the 'Muthavalli' and the second defendant along with others as parties to the proceedings. They seek a writ of mandamus in the nature of a direction against the first defendant-Wakf Board from proceeding with the application of the second defendant, dated 15.3.1983, seeking permission to pay the balance of price on a defunct deed of 1982 or to ratify the various sale deeds alleged to have been executed by defendants 1 and 2 in the suit.
64. The Wakf Board (first respondent in the writ petition) has filed counter through its Secretary, stating that it has no objection for granting the relief sought for in the writ petition. Respondents 7 and 8 in the writ petition are defendants 1 and 2 in the suit. Separate counter affidavits have been filed by them, repeating their respective contentions in the suit. Since we have already decreed the suit filed by the Wakf Board allowing it to recover the properties, ignoring the transactions, nothing survives for consideration in this writ petition. Further, by filing the suit the Wakf Board has ignored the transactions and has never attempted to ratify the same as apprehended by the petitioner herein. Hence the writ petition is disposed of as infructuous, with no order as to costs.