Madras High Court
State Of Tamil Nadu Rep. Through vs –
Author: M.Dhandapani
Bench: M.Dhandapani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on Pronounced on
20.08.2025 16.09.2025
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
C.R.P. (MD) NO. 2161 OF 2018
AND
C.M.P. (MD) NO. 13317 OF 2025
State of Tamil Nadu rep. through
District Collector, Tirunelveli District
Kokirakulam, Tirunelveli. .. Petitioner
– Vs -
–
1. Kanmiya Pallivasal, Kandiaperi
Thro’ its Muthawalli
S.Mohammed Jaffer Khan Pani
42, Mullai Street, Pothys Nagar
K.T.C. Nagar, Tirunelveli – 2.
2. Tamil Nadu Wakf Board
Board 1, Jaffer Syrang Street
Vallal Seethakathi Nagar
Chennai – 1. .. Respondents
For Petitioner : Mr. Veera Kathiravan, AAG
Assisted by
Mr. B.Saravanan, AGP
For Respondents : Mr. V.Meenakshi Sundaram, for R-1
Mr. V.Raghavachari, SC for
Mr. G.Chandrasekar for R-2
Mr. Chevanan Mohan,
Amicus Curiae
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ORDER
A case with a chequered history, spanning few centuries, which swayed
between the Civil Court, the Settlement Officer, the Wakf Tribunal and this
Court has returned in the form of a revision petitioner before this Court, filed
by the State, aggrieved by the declaration of title and recovery of possession
granted by the Principal Sub Court, Tirunelveli (Specially constituted Wakf
Tribunal) in favour of the 1st respondent herein in O.S. No.299/2011 vide
judgment dated 18.08.2016.
2. In this judgment, for the sake of brevity, the 1st respondent will be
referred to as ‘Pallivasal’ and the 2nd respondent will be referred to as ‘Wakf
Board’.
3. A concise history of the case as is culled out from the materials
available on record is broadly stated as under :-
The 1st respondent herein, as plaintiff, laid the suit in O.S. No.299/2011
before the learned Principal Subordinate Court (Wakf Tribunal), Tirunelveli,
praying for a declaration and consequential permanent injunction to declare
that the suit scheduled properties belonged to the plaintiff/Pallivasal and to
restrain the 1st defendant/revision petitioner from in any manner interfering
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with the peaceful possession and enjoyment of the same and in case the
Tribunal felt the suit property is in possession of the 1st defendant/State, order
recovery of possession of the suit property in favour of the plaintiff.
4. It is the further averment of the plaintiff/1 st respondent herein, viz.,
the Pallivasal, that the suit property belonged to the Wakf based on the
gift/inam given to the Pallivasal during Salivahana 1634 (A.D. 1712) by the
then Ruler of Madurai and subsequently proforma of Wakf u/s 3 and 4 of the
Wakf Act was drawn, which gave the title to the suit property to the wakf and,
which has subsequently been gazetted in the official gazette on 13.05.1959
and that the Pallivasal relied on the judgment and decree passed by the
learned Subordinate Judge, Tirunelveli in O.S. No.49/1952 dated 8.3.1955.
5. It is the further averment of the revision petitioner that the suit in
O.S. No.49 of 1952 was filed by one Misir Khan Pani Sahib against the State
and six other private defendants seeking declaration that the villages set out in
the schedule to the plaint are not estates under the Madras Estates Land Act,
that all the lands in the villages are absolute iruwaram pannai lands and not
‘ryoti’ lands, or in the alternative that the lands held are service tenure lands
coming within the definition of Section 3 (16)(c) of the Estates Land Act and
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therefore not ryoti lands and that the Estates Land (Reduction of Rent) Act (for
short ‘Act 30/1947’) is not applicable to the lands in the villages and for an
injunction restraining the 1st defendant from collecting rents or taking any
action under Madras Act XXX of 1947 and restraining the 1st defendant from
interfering with the plaintiffs’ collection of income, profits, rent, etc., from the
tenants of the villages and for costs of suit.
6. It is the further averment of the revision petitioner that the trial court
decreed the suit vide judgment dated 8.3.1955 declaring that the village of
Islapuram with its hamlets of Lakshmipuram, Anaikkarai and Andhiradhi
Kudiyiruppu and Rahmatpuram in Nanguneri Taluk, Tirunelveli District are not
‘estates’ under the Madras Estates Land Act and that all the lands are absolute
‘iruwaram pannai lands’ and not ryoti lands and thus restrained the State from
collecting rents and interfering with the plaintiff’s/Pallivasal’s collection of
income from the tenants of the villages.
7. It is the further averment of the revision petitioner that the suit was
decreed by the trial court based on the decree passed in O.S. No.49/1952 in
which reliance has been placed on Ex.A-1 – Copper Plate, alleged to have been
granted by the ancient native ruler in favour of Kanmiya Pallivasal in respect of
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nanja and punja lands in Vijiapati territory attached to Madura Samasthanam
as free gift and the grant also included sarvamanyam for the maintenance of
the mosque. It is the further averment of the revision petitioner that the
entire case of the Pallivasal is based on the judgment and decree passed in
O.S. No.49/1952 dated 8.3.1955 and as per the proforma given by the Wakf
u/s 3 and 4 of the Wakf Act.
8. It is the further averment of the revision petitioner that the suit in
O.S. No.299/2011 is not maintainable in view of the pleading by the State
before the Wakf Tribunal that the lands were notified under the Tamil Nadu
Inam (Abolition & Conversion into Ryotwari) Act, 1963 (for short ‘Act, 1963’)
and during the settlement proceedings, the Government had declared the said
properties as ryotwari lands and excluded the right of the Wakf, which has
been incorporated in Settlement ‘A’ Register in the year 1970 itself.
9. It is the further averment of the revision petitioner that in respect of
taking over of lands under the aforesaid Tamil Nadu Inam (Abolition &
Conversion into Ryotwari) Act, 1963, the Government issued G.O. Ms. No.1388
dated 20.10.1966 and aggrieved by the same, the Pallivasal preferred an
application before the Settlement Tahsildar No.1, Kovilpatti, seeking patta and
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the said authority, vide order dated 29.5.1970 negatived the claim of patta
sought for by the Pallivasal and the Revenue Appeal filed in R.A. No.158/1971
filed by the Pallivasal against the order of the Settlement Tahsildar before the
Inams Abolition Tribunal (Subordinate Judge), Tirunelveli, was taken up along
with R.A. Nos.58 to 67 of 1971, etc., and vide common judgment dated
9.12.1974, the appeals were dismissed confirming the order of the Settlement
Tahsildar holding that unless the conditions laid down u/s 9 of Act, 1963 are
satisfied, the Pallivasal is not entitled to get patta though the Pallivasal claimed
that most of the lands were leased on Kattukuthagai and there are accounts to
show about the same. It is further averred that no such accounts were
produced either before the Settlement Tahsildar or the Tribunal.
10. It is the further averment of the revision petitioner that as against
the order in appeal by the Tribunal, the Pallivasal had not filed any appeal and,
thereby, the order in the Revenue Appeal became final and, therefore, the
Wakf Tribunal has no power or authority to declare the subject lands as inam
lands, which were given to the Pallivasal by the erstwhile rulers of Madurai
and, therefore, the judgment and decree passed in O.S. No.299 of 2011 dated
18.8.2016 is bad in law and aggrieved by the same, the present revision has
been filed.
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11. Learned Addl. Advocate General appearing for the revision
petitioner submitted that the power of the High Court is not curtailed with
regard to an order passed by the Wakf Tribunal, as it stands protected u/s 83
(9) of the Wakf Act. It is the further submission of the learned Addl. Advocate
General that the High Court, may on its own motion or on the application of
any aggrieved person call for and examine the records for satisfying itself as to
the correctness of the findings arrived at and in such circumstances, may
confirm, reverse or modify such determination.
12. It is the submission of the learned Addl. Advocate General that the
order passed by the Wakf Tribunal is wholly unacceptable and perverse as the
Wakf Tribunal has not taken into consideration the exclusion of the Tamil Nadu
Estates Land Act, 1908 (for short ‘Act, 1908’) and Act 30/1947 and had
erroneously declared the title in favour of the Pallivasal, without considering
the fact that Act 1963 has subsequently been enacted. It is the further
submission of the learned Addl. Advocate General that the findings of the
Wakf Tribunal that the Pallivasal is entitled to the property on the basis of
Ex.A-1 – Copper Plate is against law as the said finding is manifestly erroneous
and incorrect and not substantiated by proper materials by the Pallivasal.
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13. It is therefore the submission of the learned counsel that when
there is a flagrant abuse of fundamental principle of law, the High Court can
very well invoke its jurisdiction under Article 227 of the Constitution to set
right the wrong, moreso, when the Tribunal had acted outside its jurisdiction
and failed to follow procedural fairness. On this issue, learned Addl. Advocate
General placed reliance on the following decisions :-
3. Shalini Shyam Shetty – Vs – Rajendra Shankar Patil (2010
(8) SCC 329);
4. Jai Singh – Vs – MCD (2010 (9) SCC 385);
5. L.Chandrakumar – Vs – Union of India (1997 (3) SCC 261);
6. T.C.Basappa – Vs – T.Nagappa (AIR 1954 SC 440); and
7. Shivkumar – Vs – State of Haryana (1994 (2) SCC 318)
14. It is the further submission of the learned Addl. Advocate General
that the findings of the Wakf Tribunal holding that the earlier decree in O.S.
No.49/1952 is conclusive to declare that the property belongs to the wakf is
wholly erroneous inasmuch as the District Collector, Tirunelveli has filed a
written statement in the suit in O.S. No.49/1952 stating that the said Inam
Villages became ‘Estates’ within the meaning of Section 3 (2)(d) of Act, 1908
by virtue of Amending Act XVIII of 1936. It is the further submission of the
learned Addl. Advocate General that once it is established that the plaint
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villages come within the meaning of Act XVIII of 1936, all the other contentions
of the Pallivasal do not arise and the exclusion of Act 30/1947 does not arise.
It is further submitted that no cultivating tenant appeared before the
settlement officer and claimed any occupancy right.
15. It is the further submission of the learned Addl. Advocate General
that the claim in suit in O.S. No.49/1952 is that the suit lands are not ryoti
lands covered under Act, 1908 and, therefore, there cannot be any levy under
Act, 30/1947. In this regard, in the said suit in O.S. No.49/1952, the trial court
concluded that the villages of Rahamatpuram and Adhirathikudiyiruppu are
not ‘estates’ coming under Act 30/1947 and the said Act 30/1947 is not
attracted to these villages and that Section 3 (16)(c) of Act, 1908 is also not
attracted and that the defendants 2 to 7 in the said suit are not entitled to
kudiwaram right since both the warams belong to the Pallivasal and there are
no ryoti lands in the villages. It is the submission of the learned Addl.
Advocate General that the said conclusions have a bearing on the subsequent
enactment, viz., Act, 1963, more particularly Section 3 (a) and (b).
16. It is the submission of the learned Addl. Advocate General that
Section 3 (a) of Act, 1963, except insofar as reduction of rents and collection of
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arrears of rent in the existing inam estates in which the rate of rent has been
determined before the notified date under Act 30/1947, the same shall be
deemed to have been repealed in their application to the inam estate. It is
further submitted that on and from the enactment of Act, 1963, by virtue of
Section 3 (b), the entire inam estate shall stand transferred to the Government
and vest in them free of all encumbrances and the Tamil Nadu Revenue
Recovery Act and the Tamil Nadu Irrigation Cess Act and all other enactments
applicable to ryotwari areas shall apply to the inam estate.
17. In the backdrop of the aforesaid legal provisions contained in Act,
1963, it is the submission of the learned Addl. Advocate General that the
finding rendered in O.S. No.49/1952, which is based on Act, 1908 and Act
30/1947 would not have any binding effect once Act, 1963 came into force. It
is the further submission of the learned Addl. Advocate General that the
findings relating to the lands coming within the purview of Act, 1908 are
wholly unsustainable as the decisions taken as per Act, 1908 and Act 30/1947
stood repealed as per Section 3 (a) of Act, 1963. Therefore, reliance placed on
the judgment in O.S. No.49/1952 by the Wakf Tribunal while passing orders in
O.S. No.299/2011 is wholly against law.
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18. It is the further submission of the learned Addl. Advocate General
that the lands in question were notified by the Government in G.O. Ms. No.
3082, Revenue Department dated 20.10.1966 and published in the
Government Gazette wherein the names of three inam estates including its
hamlets were notified under Act, 1963 and during the settlement proceedings,
the present plaintiff/1st respondent has not claimed any right whatsoever
under the Act claiming that they are iruwaram pannai lands and no claim
having been made during the settlement proceedings by the 1st respondent,
the repealing of Act, 1908 and Act 30/1947 u/s 3 (a) and (b) of Act, 1963,
would operate against the 1st respondent from claiming rights over the said
lands.
19. It is the further submission of the learned Addl. Advocate General
that the patta sought for by the Pallivasal before the Settlement Officer upon
inclusion of the said lands in the Settlement ‘A’ Register was rejected after
conduct of enquiry u/s 12 (2) of Act, 1963 and the appeal filed against the said
rejection in R.A. No.158/1971 was also dismissed. In this backdrop, the
present claim made before the Wakf Tribunal is only against the rejection of
patta by the Settlement Tahsildar, which stood confirmed in appeal, by the
Pallivasal and the Pallivasal having gone before the Settlement Officer for grant
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of patta, the decree granted in O.S. No.49/1952, much prior to Act, 1963,
cannot have any binding effect on the revision petitioner, as could be
discerned from the fact that the 1st respondent/Pallivasal itself had gone
before the Settlement Tahsildar and sought for patta, which clearly shows that
the Pallivasal had accepted the application of not only Act, 1963, but also the
power of the revision petitioner to take over the lands of the Pallivasal under
Act, 1963. It is further submitted that no appeal or revision was filed against
the Inam Tribunal’s decision and the order has since attained finality u/s 71 of
Act, 1963 and it cannot be questioned except as provided under Act, 1963.
20. It is the further submission of the learned Addl. Advocate General
that the 1st respondent/Pallivasal has not filed any document to show that the
proforma, which has been marked as Ex.A-1 in O.S. No.299/2011 was
published in the Government Gazette as mandated u/s 5 (2) of the Wakf Act.
In the absence of such notification, the Wakf Tribunal ought not have accepted
the proforma report as a document against the revision petitioner as no
reliance can be placed on the said report. Therefore, the findings and
conclusions based on the proforma report to hold that the lands belong to the
Wakf is not in accordance with law and the same has not been properly
appreciated by the Wakf Tribunal.
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21. It is the further submission of the learned Addl. Advocate General
that the writ petitions in W.P. Nos.7541 and 7542 of 2007 filed by the alleged
legal heirs of the deceased Muthavalli of the Pallivasal seeking the relief of
mandamus forbearing the respondents therein from interfering with their
peaceful possession and enjoyment of the suit properties or for assigning the
same to third parties were dismissed by this Court vide order dated
25.11.2021 holding that the issues involved therein ought to be examined only
by the Civil Court.
22. Similarly, the request for issuance of patta sought for in W.P. (MD)
No.11745/2008 by considering the representation of the petitioner therein,
which was directed to be considered by the District Collector, was also
considered and the request was rejected vide order dated 6.2.2009 on the
ground that as per the Village/Revenue Accounts, the subject properties were
shown as Government Tharisu Land.
23. It is further submitted that the writ petition in W.P. (MD) No.
7341/2010 filed for direction to the Commissioner for Land Administration to
consider the representation dated 1.5.2010 of the petitioner as against the
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aforesaid order dated 6.2.2009 passed by the District Collector was also
rejected vide proceedings dated 25.1.2011 by holding that the claim has been
made on a fabricated ‘A’ Register.
24. Similarly the writ petition in W.P. (MD) No.16852/2013 filed by the
petitioners therein praying to consider their representation by the
Commissioner of Land Administration, Chennai, for grant of ryotwari patta in
respect of lands in S. Nos.723/1 to 897 of Urumangulam Village of
Radhapuram Taluk was disposed of in which the 1st respondent herein, viz.,
S.Mohamed Kader Khan is the 5th petitioner and on the basis of the said
direction the representation was considered and rejected by holding that the
claim is made on fabricated document and the Tahsildar concerned was
directed to file an appeal as against the judgment and decree passed by the
Wakf Tribunal, Tirunelveli in O.S. No.299/2011.
25. It is further submitted that the order dated 25.1.2011 of the
Commissioner of Land Administration was challenged by the legal heirs of the
Muthavalli in W.P. (MD) No.360/2012 and vide order dated 20.7.2022, the said
writ petition was dismissed holding that the petitioners have not established
their legal status and character of the property. It is therefore submitted that
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the intention of the petitioners in W.P. (MD) No.360/2012 is clearly to grab the
property by submitting a counterfeit ‘A’ Register, which has been rightly
rejected by the Commissioner of Land Administration.
26. It is therefore submitted by the learned Addl. Advocate General that
the series of writ petitions and the order passed thereon clearly shows the
conduct of the 1st respondent and the other petitioners in the writ petitions
and that the order passed in the writ petitions is binding on the parties and
the Wakf Tribunal, without considering all the aforesaid aspects, has wrongly
decreed the suit in favour of the Pallivasal.
27. It is the further submission of the learned Addl. Advocate General
that the subject lands are around 1100 acres falling in three hamlets in the
revenue village of Urumankulam and during patta proceedings, several parcels
of lands were given on assignment to landless poor and 362 persons are doing
agricultural operations based on assignment pattas and, therefore, the claim
of the 1st respondent for issuance of ryotwari patta is not acceptable, moreso,
on the basis of the declaratory decree passed in O.S. No.299/2011 which is not
based on proper appreciation of materials and, therefore, the said judgment
and decree requires interference at the hands of this Court.
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28. It is the further submission of the learned Addl. Advocate General
that even as on date, the 1st respondent has not produced any document to
show that it is ‘iruwaram pannai lands of the wakf’ and the claim of the 1st
respondent is based on a copper plate, the original of which is admittedly not
in possession of the 1st respondent. The other document relied on by the 1st
respondent is the proforma, which has no legal validity in view of non-
fulfilment of the provisions of Section 5 (2) of the Wakf Act and, therefore, the
judgment and decree passed in O.S. No.49 of 1952 dated 8.3.1955 cannot be
pressed into service, as the lands were taken over by the Government
consequent upon the enactment of Act, 1963. Accordingly, for the reasons
and contentions aforesaid, learned Addl. Advocate General prays this Court to
set aside the judgment and decree passed in O.S. No.299/2011.
29. In support of the aforesaid submissions, learned Addl. Advocate
General placed reliance on the following decisions :-
S. No. Date Description of Documents
1 09.04.1952 Copy of the plaint in OS No.49/1952
2 08.03.1955 Copy of judgment & Decree in OS No.49/1952
3 05.10.1964 Copy of Judgment in OS No.65/1961
4 21.10.1966 Copy of G.O. 3082 dated 20.10.1966 published in
State Gazette No.152
5 14.06.1970 Copy of the Settlement A Register
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6 09.12.1974 Copy of Revenue Order in Rev. Appeal Nos.58 to
67, 73 to 75, 96, 120 to 124, 126, 127 & 158 of
1971 – Inams Abolition Tirunelveli – Fair Order
7 09.12.1974 Copy of the Revenue Order (Decree) in Revenue
Appeal (I.A.T.) Nos.58/1971 Inam Abolition
Tribunal (Subordinate Judge, Tirunelveli) Decree
Order
8 19.12.2008 Copy of the order in WP (MD) No.11745/2008
9 06.02.2009 Copy of the Endorsement in Na.Ka.
No.B2/54678/2007
10 09.06.2010 Copy of the order in WP (MD) No.7341/2010
11 25.01.2011 Copy of the proceedings of the Principal
Secretary & Commissioner of Land
Administration, Chennai.
12 25.08.2015 Copy of the order in WP (MD) No.16852/2013
13 01.12.2016 Copy of proceedings in Na.Ka. No.A1/1961/2016
14 25.11.2021 Copy of the order in WP (MD) Nos.7541 &
7542/2007
15 20.07.2022 Copy of the order in WP (MD) No.360/2012
30. Learned counsel appearing for the 1st respondent submitted that
the proforma report, the Revenue Register and the judgments in O.S. Nos.
49/1952 and 65/1961 clearly prove that the suit properties belong to the
mosque. It is further submitted that the plaint schedule properties are in
possession of the mosque and in the revenue records, the plaint schedule
properties have wrongly been classified as poramboke land. It is the further
submission of the learned counsel that even in the application filed under the
Right to Information Act, the Tahsildar had stated that the suit schedule
properties are poramboke lands and to the notice issued by the 1st
respondent, no reply has been forthcoming from the defendant.
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31. It is the further submission of the learned counsel that pre-existing
right, title and interest of the Pallivasal in the suit schedule properties is clearly
settled by the decisions of this Court in State of Tamil Nadu – Vs – Ramalinga
Samigal Mutt (1985 (4) SCC 10) and Manicka Naicker – Vs – Elumalai Naicker
(1995 (1) LW 731 :: 1995 (4) SCC 156), in and by which it is clearly evident that
the orders passed in the settlement proceedings by the authorities under Act,
1963 will not extinguish the title of the Pallivasal and that the Wakf Tribunal is
having all jurisdiction to go into the right derived by the Pallivasal on the
copper plate grant. In the light of the above settled legal position, it is the
submission of the learned counsel that the contentions of the revision
petitioner that in view of the orders passed in settlement proceedings, the
decree for declaration granted by the civil court is liable to be set aside is
fundamentally flawed and erroneous.
32. It is the further submission of the learned counsel that the power
u/s 83 (9) of the Wakf Act with regard to the power of the High Court to
confirm, reverse or modify the verdict of the Wakf Tribunal is only to off-set
the necessity for a revisional jurisdiction with the High Court, as an appeal
against the order of the Wakf Tribunal has not been provided. It is the further
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submission of the learned counsel that only to safeguard the litigant from any
sufferance by the order of the Wakf Tribunal, provision is made u/s 83 (9) of
the Wakf Act by clothing powers on the High Court to interfere with the order
of the Wakf Tribunal where the order is perverse. However, in the present
case, it is not the case of the revision petitioner that there is any perversity
either in the judgment and decree passed in O.S. No.49/1952 or in the
judgment and decree in O.S. No.299/2011, which is impugned herein, in which
the judgment and decree in O.s. No.49/1952 has been relied upon. Further,
the revision petitioner itself not having challenged the findings rendered in
O.S. No.49/1952, the mere enactment of Act, 1963, would in no way protect
the State from enforcing its alleged rights over the suit schedule properties by
terming it to be ryotwari lands.
33. It is the further submission of the learned counsel that the scope of
revision u/s 83 (9) of the Wakf Act is in pari materia to Section 25 of the Tamil
Nadu Buildings (Lease & Rent Control) Act, 1960 and the scope of this Court
being limited to testing the perversity of the order, reappreciation of the entire
materials is wholly impermissible.
34. It is the further submission of the learned counsel that the
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fundamental principle of Islamic law is that once a wakf always a wakf and
when the dedication is of permanent nature, the same cannot be changed nor
could there be any revocation of wakf. It is the submission of the learned
counsel that centuries ago, the title had vested with the Lord Almighty with
the 1st respondent institution holding rights by way of grant of copper place in
the year AD 1712, the transcription of which was done in the year 1925, which
has been marked as Ex.A-1 in O.S. No.49/1952. Further, in the year 1954,
survey of the wakf was undertaken and publication was made u/s 5 (2) of the
Wakf Act on 13.5.1959 and the photocopy of the gazette publication also
clearly shows that gazette publication has also been made, which clearly
thrashes the submission of the revision petitioner that no publication u/s 5 of
the Act has been made and, therefore, the proforma cannot be relied upon.
35. It is the further submission of the learned counsel that the
judgment and decree in O.S. No.49/1952 has since attained finality without it
being put to test before the appellate forum. The said judgment and decree
was marked as Exs.A-5 and A-6 in the subsequent suit in O.S. No.299/2011 and
these findings have not been dislodged by the revision petitioner by placing
any contra evidence and, therefore, the judgment and decree passed in O.S.
No.49/1952, which has been followed in O.S. No.299/2011 is binding on the
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revision petitioner/State of Tamil Nadu.
36. To substantiate the aforesaid submissions and also to establish that
the suit schedule properties belongs to the Pallivasal, learned counsel for the
1st respondent placed the following documents for the perusal and acceptance
of this Court :-
8. Copy of Gazette publication made u/s 5 of the Wakf Act,
1954 (No.19-A), Madras, Wesnesday, May 13, 1959
(Vaisakha 23, 1981);
9. Copy of the translated from the Original (In Telegu) Copper
Plate inscription testament touching and concerning the
Khanumiah Pallivasal Mosque at Tirunelveli Town;
10. Copy of the Inam Register No.72 of Kandiaperi Village.
11. Copy of the register of Inams in Islapuram Village.
37. It is the further submission of the learned counsel that the absolute
grant of property has been mentioned as “Sarva Manyam for Masjid
Dharmam” and that it will carry on from son to grandson so long as the sun
and moon last and is with respect to the areas mentioned in the copper plate.
It is the further submission of the learned counsel that the grants were not of
a whole village as no village name has been mentioned and that the property
contained a ruined tank, which had to be renovated and that the grantee was
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to bring people, get ground rent and apply the income for the maintenance of
the mosque and conduct religious ceremonies and other beneficial charities.
It is the further submission of the learned counsel that the predecessor-in-title
of the Pallivasal had the ownership and enjoyed the benefits of the surplus
income out of the said grant after meeting the Masjid charities and that they
had expended much money and labour in reclaiming the property and making
it cultivable tracts and inhabited by people.
38. It is the further submission of the learned counsel that at the time
of Inam Commission Enquiry, the title to the said grants were confirmed on the
mosque by two separate title deeds by the Inam Commissioner on 2.6.1866
and 26.8.1865, which were in two distinct portions and were absolute tax free
grants.
39. It is the further submission of the learned counsel that title deed
No.149 was issued for three minor hamlets of nanja lands attached to it to an
extent of 80 Kottahs 8 marakkals and 2 padis of which 40 kottahs only are
cultivable. Punja lands to the extent of 133 and 37/64 sangilies. Title Deed
No.213 was issued for the remaining portion of Islapuram and
Rahamathpuram for punja land to an extent of 193 and 46/64 sangilies.
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Columns 8 and 10 of the Inam Fair Register would show that the inams were
granted for the purpose of Masjid Dharman and for performance of Urus,
Ramzan, Bara, Mould, etc., and for lighting of lamps and in column 10 it is
marked as “hereditary or conditional for life or lives” and further it is
mentioned that “so long as the mosque is kept up and the religious services
are duly kept up”.
40. It is the further submission of the learned counsel that Islapuram
having been confirmed under two different title deed Nos.149 and 223, the
grant and confirmation being not of a whole village, it is not an estate under
Act, 1908 or its subsequent amendment in the year 1936 and 1945. Further,
Rahmathpuram, a hamlet of Islapuram, which is confirmed under title deed
223 along with Islapuram have been granted in two distinct parts on two
different occasions as confirmed in two title deeds and as both the grants are
by means of a distinct deed, it will not fall under the term ‘estate’ as provided
under Act, 1908 and amended subsequently.
41. It is the further submission of the learned counsel that all the lands
in the aforesaid villages, including the villages of Lakshmipuram, Andiradhi
Kudiyiruppu and Anaikkarai are iruwaram pannai lands and have remained
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throughout as such and it is in absolute and uninterrupted enjoyment of the
Pallivasal. It is further submitted that there are no ryoti lands in the village
and that there have been no exchange of pattas and muchilikas at any time
between the Pallivasal and the cultivating tenants and, therefore, the title to
the suit schedule properties are fully with the Pallivasal and the same cannot
be diluted merely by settlement proceedings under Act, 1963 and, therefore,
no interference is warranted with the judgment and decree passed in O.S. No.
299/2011.
42. Insofar as the memo filed by the revision petitioner pertaining to
taking on record certain documentary evidence in support of their submission,
it is the submission of the learned counsel that the present memo is not only
incomplete but also against Order 41 Rule 27 of the Code of Civil Procedure. It
is further submitted that additional documents/evidence cannot be
received/marked without following the procedure contemplated under Order
41 Rule 27 CPC and it is mandatory to file a petition to receive additional
evidence and also provide the opposite parties to counter the pleadings in the
petitioner with regard to additional evidence.
43. It is the further submission of the learned counsel that evidence can
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be let in only by a party by swearing to an affidavit and it cannot be filed by the
advocate appearing for the party. An advocate cannot lead evidence either
before the court of first instance, the appellate court or the revisional court
and if any additional evidence is sought to be introduced, it should adhere to
the mandate under Order 41 Rule 27 CPC.
44. It is the further submission of the learned counsel that out of the 15
documents sought to be introduced as documentary evidence, 7 of the
documents, viz., Doc. Nos.4, 5, 6, 7, 9, 11 and 13 are Xerox copies of revenue
orders and records and the custody of the original/certified copies have not
been spelt out. It is the further submission of the learned counsel that the
copy of the plaint in O.S. No.49/1952 is inadmissible in evidence and insofar as
the veracity of the other 8 additional documents, viz., Doc. Nos.2, 3, 8, 10, 12,
14 and 20, the 1st respondent reserves its right to object to the introduction of
the same as documentary evidence.
45. In support of the aforesaid submission, learned counsel placed
reliance on the following decisions :-
12. Vatticherukuri Village Panchayat – Vs – Nori
Venkatarama Deekshithulu & Ors. (1991 Supp. SCC
228);
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13. Nawab Wallajah Sahib Pallivasal rep. By its Secretary,
Tirunelveli – Vs – The Commissioner of Land
Administration/Board of Revenue, Chennai & Ors.
(2019 (3) CTC 625);
14. Subramania Gurukkal (Dead) Thru’ Muthusubramania
Gurukkal & Ors. – Vs – Shri Patteswaraswami
Devasthanam, Perur by its Executive Officer & Ors.
(1993 Supp (4) SCC 519);
15. Srinivasan – Vs – Madhyarjuneswaraswami (1998 (2)
LW 189);
16. State of Madras – Vs – Kasthuri Ammal (1974 (2) MLJ
139);
17. T.K.Ramanujam Kavirayar – Vs – Sri-La-Sri Sivaprakasa
Pandara Sannadhi Avargal (1984 SCC OnLine Mad 201);
18. Mumtaz Yarud Dowla Wakf – Vs – M/s.Badam
Balakrishna Hotel Pvt. Ltd. (2023 SCC OnLine SC 1378);
and
19. State of Tamil Nadu – Vs – Ramalinga Samigal Madam
(1985 (4) SCC 10)
46. Learned senior counsel appearing for the 2nd respondent, viz., Wakf
Board submitted that the 1st respondent is a notified wakf and that the 2nd
respondent had surveyed the Wakf as per Section 4 of the Wakf Act and the
wakf was notified as per Section 5 of the Wakf Act as early as in the year 1959
in the official gazette. Such being the case, the revision petitioner is not
clothed with any power to declare the said lands as Inam estates under Act,
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1963.
47. It is the further submission of the learned senior counsel that the
grant by the then Ruler of Madurai Samasthanam to the Wakf has been
admitted by the revision petitioner in the suit in O.S. No.49/1952 and,
therefore, once a wakf, always a wakf and, therefore, the lands cannot be
classified as ‘Government Poramboke’ and any classification made by the
revision petitioner is wholly without jurisdiction, as the property belonging to
the wakf cannot be classified as Government Poramboke without putting the
wakf on notice and hearing and even the said notice would not have any legal
sanctity in view of the judgment and decree passed in O.S. No.49/1952, which
has already attained finality.
48. It is the further submission of the learned senior counsel that there
is an internal dispute with regard to the management of the wakf by various
persons, with a view to usurp the property and, therefore, the 2 nd respondent,
after due enquiry u/s 65 of the Wakf Act had passed a resolution as early as on
6.10.2012 to assume direct management over the wakf and based on the said
resolution, the Superintendent of Wakfs, Tirunelveli was appointed as the
Executive Officer of the Wakf and the said authority has also assumed charge
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of the said wakf. In such circumstances, the property, which has been granted
religious purposes cannot be classified by the Government as a poramboke to
be given over to any person, which would defeat the purposes for which the
property was given as grant. The judgment and decree passed in O.S. No.
49/1952 is binding on all parties and without the said decree being interfered
with in any manner known to law, any other order passed by any
administrative or quasi-judicial authority cannot have any bearing so long as
the decree in O.S. 49/1952 survives. Accordingly, he prays for dismissal of the
revision petition.
49. Though a petition has been filed by one Mohammed Abubackker @
Shameer, seeking to implead himself as a respondent to canvass the plea by
countering the stand of the revision petitioner by submitting that he is a
regular visitor and is working for the welfare and protection of the properties
of the Wakf Board, as also the properties, which have been given in grant to
the 1st respondent, however, this Court is of the considered view that it would
not be necessary to implead the said petitioner as party respondent to the
revision petition. However, it would be suffice, in the interest of justice and
considering the importance of the matter, the petitioner in CMP (MD) No.
13317/2025 could be permitted to canvass his plea before this Court and
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based on the said direction, the said individual has submitted his written
arguments.
50. Learned counsel appearing for the Mohammed Abubackker, who
seeks impleadment as a respondent in the present petition submitted that the
grant was made for mosque charity at Tirunelveli of Khanumiya Sahib Mosque
in the Salivahana Era 1684 (AD 1712) for ‘Sarvamanyam for Masjid Dharma’,
which clearly shows that the properties were dedicated for the 2nd
respondent/Wakf Board and that the wakf is permanent in nature.
51. It is the further submission of the learned counsel that the Inam
Register of Nanguneri, Tirunelveli for the years 1865 and 1866 would clearly
reveal that the title deeds and records clearly establish that the properties
belong to wakf and that it is a Devadayam and no sanad for the wakf. It is the
further submission of the learned counsel that the proforma of the wakf
clearly show that the land is a land inam devadayam for the support of the
Pallivasal and that the grant is permanent and not hereditary and shows that
the donor is not known. It is therefore the submission of the learned counsel
that the title deed for the wakf is in existence from the year 1865 itself and,
therefore, the wakf has got title to the properties.
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52. It is the further submission of the learned counsel that the as per
the Wakf Proforma, the petition properties belong to the wakf and it has got
pre-existing title over the properties even before independence. Further, the
findings in O.S. No.49 of 1952 clearly show that the Ex.A-1 was prepared much
prior to the enactment of Act 30/1947 as there was no contemplation of
enactment of Act 30/1947. A further finding has also been recorded therein
that the State had accepted in the written statement that the grant to the
Pallivasal was by an ancient native ruler, which formed the basis for
affirmation of the authenticity of the copper plate. It is the further submission
of the learned counsel that at the time of inam enquiry, the authenticity of the
copper plate was recognized and confirmed so as to establish that the title to
the property stood vested in the Pallivasal. Therefore, unless the said findings
are dislodged in a manner known to law, the copper plate grant establishes
that the properties belonged to the wakf and it cannot be termed to be fake.
53. It is the further submission of the learned counsel that in O.S. No.
49/1952, there is a clear finding that even before the year 1818, viz., before
the inam settlement came into being, it has been the case of the trustees of
the mosque that there was a grant, which endowed the properties on the
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mosque and also governed in terms of succession of trusteeship. Further,
there is also a clear recording in the inam settlement enquiry that in the Fair
Inam Register no Sanad was produced. Further, it has been held in the
judgment in O.S. No.49/1952 that inam settlement was in the year 1865 and
that the printed papers reveal that litigation was going on for succession to the
trusteeship as early as from 1850 and, therefore, nobody would have cared to
appear before the settlement officer. In this backdrop, it is the submission of
the learned counsel that the inam settlement register ought to have been
given more credence by the settlement officer before rejecting the patta for
the Pallivasal and the error committed by the Settlement Tahsildar as
confirmed by the Appellate Tribunal was rightly taken note of by the Wakf
Tribunal while dealing with O.S. No.299/2011 which has resulted in the
judgment and decree, which is perfectly in order.
54. It is the further submission of the learned counsel that the State had
contended that the suit properties were taken over by the Government in the
year 1951 under the Inam Abolition Act vide G.O. No.2839 dated 31.10.1951,
whereinafter, according to the revision petitioner, the lands vest with the
Government. It is the submission of the learned counsel that in the written
statement, the State had submitted that the lands were notified under the
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Tamil Nadu Inam Estates (Abolition & Conversion into Ryotwari) Act, 1963.
However, the said Act, 1963 came into force only in the year 1964 and such
being the case, on the basis of Act, 1963, there could be no Government Order
preceding in point of time. Further, it is the submission of the learned counsel
that though the State had submitted that the lands vested with the
Government based on G.O. No.2839 dated 31.10.1951, however, the said
Government Order has not been placed before the Court and that the
provision of law under which the lands vested with the Government has also
not been clearly spelt out. In this backdrop, it is the submission of the learned
counsel that Act, 1963 having come into force only in the year 1964, there was
no possibility for the Government to take over the suit property under Act,
1963 even in the year 1951.
55. It is the further submission of the learned counsel that though the
Deputy Tahsildar, who was examined as D.W.1 in the suit, during cross-
examination has deposed that in the year 1951 Inam Abolition Act was known
as Madras Estate Act and that the Government Order has been issued under
the said Act, however, there is no material filed evidencing the said in the form
of Government Order and further the 1951 Act is an amendment Act to the
Tamil Nadu Estates (Abolition & Conversion into Ryotwari) Act, 1948 and it
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does not pertain to inam estates and further the lands granted to the Pallivasal
are not inam estates as held under O.S. No.49/1952 and, therefore, the said
deposition has been rightly negatived by the Wakf Tribunal.
56. It is the further submission of the learned counsel that inam lands
given for any religious charity is not covered under the purview of the
Settlement Act and the lands in the nature of ryots alone falls under the
purview of the Settlement Act. Further, it is submitted that once a Wakf
always a Waks and, therefore, the grant made becomes the properties of the
wakf and the character of the wakf does not change irrespective of the person
manning the wakf and all the aforesaid aspects have been rightly appreciated
by the Wakf Tribunal while passing the impugned judgment and decree which
does not require any interference at the hands of this Court.
57. In support of the aforesaid submissions, learned counsel placed
reliance on the following decisions :-
20. Sayyed Ali & Ors. – Vs - A.P. Wakf Board, Hyderabad & Ors.
(AIR 1998 SC 972);
21. Narayan Bhagwantrao Gosavi Balajiwale – Vs – Gopal
vinayak Gosavi & Ors. (AIR 1960 SC 100);
22. Roman Catholic Mission & Anr. – Vs – State of Madras &
Ors. (CDJ 1966 SC 104);
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23. C.Periaswami Goundan & Ors. – Vs – Sundaresa Iyer & Ors.
(CDJ 1964 SC 052);
24. Ayyankutty Gounder (died) & Ors. – Vs – Revenue Divisional
Officer, Collector’s Office, Salem & Ors. (2009 (7) MLJ 335);
25. The Addl. Chief Secretary/Commissioner, Land
Administration (I/c), Chennai & Ors. – Vs – S.Mariammal &
Ors. (CDJ 2018 MHC 416)
58. Learned Amicus, who was appointed by this Court to assist this
Court in forming an opinion with regard to the manner in which the
contentions put forth by the parties have to be looked at, while took this Court
through the various provisions of law also placed the following decisions
before this Court covering the fact situation, as arising in the present case :-
26. State of Tamil Nadu – Vs – Ramalinga Swamigal
Madam (1985 (4) SCC 10);
27. Aliyathammuda Beethathebiyyappura Pookoya & Anr. –
Vs – Pattakal Cheriyakoya & Ors. (2019 (16) SCC 1);
28. KSL Industries Ltd. – Vs – Arihant Threads Ltd. & Ors.
(2015 (1) SCC 166);
29. Mumtaz Yarud Dowla Wakf – Vs – Badam Balakrishna
Hotel Pvt. Ltd. & Ors. (2023 SCC OnLine SC 1378);
30. Raghubhushana Tirthaswami & Anr. – Vs – Vidiavaridhi
Tirthaswami & Anr. (1916 SCC OnLine Mad 495 :: AIR
1917 Mad 809)
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59. This Court gave its careful consideration to the submissions
advanced, in vehemence, by the learned counsel appearing on either side and
perused the materials available on record as also the decisions relied on, on
behalf of the parties, including the decisions relied on by the learned Amicus.
60. Before this Court proceeds to analyse the materials placed before it,
it would be trite to reiterate the power of this Court under its revisional
jurisdiction by referring to the decision of the Apex Court in Pattakal
Cheriyakoya case (supra), wherein the Apex Court has reiterated the principles
with regard to the power of the High Court under its revisional jurisdiction as
under :-
“12. It is well settled that ordinarily, while revisional
jurisdiction does not entitle the High Court to interfere with
all findings of fact recorded by lower Courts, the High Court
may correct a finding of fact if it has been arrived at
without consideration of material evidence, is based on
misreading of evidence, is grossly erroneous such that it
would result in miscarriage of justice, or is otherwise not
according to law (see the decision of the Constitution
Bench of this Court in Hindustan Petroleum Corporation Ltd
v. Dilbahar Singh, (2014) 9 SCC 78). Importantly, the scope
of such revisional jurisdiction is wider when the High Court
is vested with the power to examine the legality or
propriety of the lower Court’s order under the statute from
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which the revisional power arises. In such a situation, the
High Court may also examine the correctness of findings of
fact, and reappraise the evidence (see Ram Dass v. Ishwar
Chander, (1988) 3 SCC 131). It is in this perspective that the
argument of the appellants must be considered.”
61. A suit in O.S. No.49/1952 came to be filed by the Pallivasal seeking
the relief of declaration that the villages set out in the schedule to the plaint
are not estates under the Madras Estates Land Act, that all the lands in the
villages are absolute iruwaram pannai lands and not ‘ryoti’ lands, or in the
alternative that the lands held are service tenure lands coming within the
definition of Section 3 (16)(c) of the Estates Land Act and therefore not ryoti
lands and that the Estates Land (Reduction of Rent) Act (Act XXX of 1947) is not
applicable to the lands in the villages and for an injunction restraining the 1st
defendant from collecting rents or taking any action under Madras Act XXX of
1947 and restraining the 1st defendant from interfering with the plaintiffs’
collection of income, profits, rent, etc., from the tenants of the villages and for
costs of suit.
62. The aforesaid suit was the off-shoot of a dispute between the
Pallivasal and the petitioner herein pertaining to large tracts of land, which
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were the subject matter of the said suit, which were, according to the
Pallivasal, lands granted under a Copper plate by Viswanatha Naicker
Vijayaranga Chockanatha Naicker son of Rang Krishna Muthu Virappa Naicker
and grandson of Chockanatha Naicker of the Kashyapa Gotra for the purpose
of mosque charity for Khanumiya Sahib Pallivasal, Tinnevelly. The said copper
plate was given in the month of Karthigai of the year Nandana, Salivahana Era
1684 during the reign at Ganagiri of Srimad Rajadhiraja Raja Sri Virapratapa
Sri Vira Venkata Deva Maharaya.
63. Upon considering the submissions and appreciating the oral and
documentary evidences placed before it, the trial court decreed the suit as
prayed for with costs to be paid by the petitioner herein. Against the said
judgment and decree, which was passed on 8.3.1955, no appeal has been
preferred by the State/revision petitioner herein and the findings recorded
therein, thus, attained finality.
64. In the backdrop of the aforesaid factual position, a careful perusal of
the entire matrix reveals that the issue revolves around the copper plate grant,
which is alleged to have been given by the then Ruler of Madurai to
Khanumiya Sahib Mosque in Salivahana 1634 (A.D. 1712). The grant,
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according to the 1st respondent is an absolute grant of the property mentioned
as “Sarvamanyam for Masjid Dharmam”. It is the case of the 1st respondent
that since the day of grant, the 1st respondent/Pallivasal is in possession of the
said lands and it is used for the carrying out the religious activities as outlined
in the copper plate grant.
65. According to the Pallivasal, their title and possession was put under
a cloud, which prompted the filing of the suit in O.S. No.49/1952 before the
Subordinate Court, Tirunelveli. The main relief sought for in the said suit,
which is relevant for the issue on hand, is extracted hereunder :-
“Suit for a declaration that the villages set out in the
schedule to the plaint are not estates under the Madras
Estates Land Act, that ll the lands in the villages are
absolute iruwaram pannai lands and not ‘ryoti’ lands, or in
the alternative that the lands held are service tenure lands
coming within the definition of Section 3 (16)(c) of the
Estates Land Act and therefore not ryoti lands and that the
Estates Land (Reduction of Rent) Act XXX of 1947 is not
applicable to the lands in the villages and for an injunction
restraining the 1st defendant from collecting rents or taking
any action under Madras Act XXX of 1947 and restraining
the 1st defendant from interfering with the plaintiff’s
collection of income, profits, rent, etc., from the tenants of
the villages and for costs of suit.”
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66. It is to be noted that the suit was laid against the State, who was the
first defendant and defendants 2 to 7, who were alleged to be tenants under
the Pallivasal. In the suit, the trial court while framed as many as 13 issues,
four issues were of main concern, which related to whether Rahmathpuram
with its hamlet Anthirathikudiyiruppu and Islapuram with its hamlet
Lakshmipuram and Anakarai are estate under the Estates Land Act; (ii) whether
the grant was of the whole village; (iii) whether both the warams belong to the
plaintiff in all the lands of the said village; and (iv) whether the said lands in
the village are ryoti lands.
67. Answering the said questions, the trial court held that the lands
given to the Pallivasal does not come within the meaning of the term ‘estate’
as defined under the Estates Land Act and that the grant made was of certain
parcels of land and it does not pertain to the whole named villages and that
both the warams belong to the Pallivasal and that the lands for which grant
was given are not ryoti lands. To arrive at the said finding, reliance was placed
on Ex.A-1, the printed copy of the Telegu Copper Plate granted to the Pallivasal
by the then ruler of Madurai Samasthanam. The recitals in Ex.A-1 are very
material for considering the claim made herein, the relevant portion of which
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is culled out in the judgment in O.S. No.49/1952 and the said portion is quoted
hereunder :-
“9. Ex.A-1 shows that the nanja and punja lands were
grnted as free gift in Vijiapati territory held by ryots in
Tinnevelly attached to Madura Samasthanam, ruled over
by and on behalf of Rayar Avergal. The boundaries of the
Kalladi nanja land and Maravupasi punja land of 25
kottahs are : West of tirugulam north of perungulam Water
spread.
10. Another 50 kottahs of seed land of Kusakkulam
Punja with boundaries : East of river, south of
Urumangulam Kalluppani and the boundary stone of that
tank, west of Viramangalam boundary Urumangulam
alternate channel Pulimangulam western alternate channel
and the big Palmyra trees of that place and east of
Kusundampatti and Pudupatti and north of the western
road had been granted. The grantee was directed to
reconstruct the lake and allow people to settle there.
11. The grant included nanja and punja lands within the
above said boundaries together with Palmyra topes,
proprietory income miscellaneous topes, wells and all other
appurtenances relating thereto. The grant also includes
sarvamanyam for the mosque as also the taxes, etc.,
payable by the weavers and other ryots whom the grantee
may allow to settle to the south of the mosque and to the
west of old Shandi Road and the South tope at Tirunevelly.
It was further enjoined in the grant that the grantee has to
live happily holding and enjoying the said properties as
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long as the sun and moon last and from generation to
generation.”
(Emphasis Supplied)
68. From the above, it is evident that the lands have been granted for
the purpose of charity to the mosque for doing Masjid Dharmam and that it is
to be passed on from generation to generation till the sun and the moon last.
Elaborating on the same, the court below had held that Ex.A-1, the transcript
of the copper plate was prepared in the year 1925, which is much prior to the
enactment of Act 30/1947 and, therefore, there would not have been any
contemplation that Ex.A-1 was prepared to meet the contingency as would
befall under the provisions of Act 30/1947. A further finding has also been
rendered that the State of Madras, in their written statement had clearly
accepted that the grant was by an ancient native ruler for the support of the
Pallivasal. As already stated above, the said findings have not been put to test
in appeal.
69. From the aforesaid finding in O.S. No.49/1952, it is categorically
held that the grant was true and genuine and Ex.A-1, the extract of the copper
plate is a genuine document through which the Pallivasal was granted the
lands for the purpose of charity. Even for a passing moment, this Court is not
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venturing into the genuineness of Ex.A-1, the copper plate grant, or the finding
recorded therein, as no challenge has been made to the said finding, but only
pointing out that the findings recorded in O.S. No.49/1952 are based on sound
and cogent reasoning and does not leave much to be doubted with regard to
the veracity of the copper plate grant.
70. At the risk of repetition, it is to be pointed out that the judgment
and decree in O.S. No.49/1952, dated 8.3.1955 was not put to test in appeal
by the State and, therefore, the judgment and decree in O.S. No.49/1952
attained finality. The whole case of the revision petitioner is predicated upon
the Government Order in G.O. No.3082 dated 20.10.1966 published in the
State Gazette No.52, in and by which the State, in exercise of powers conferred
by sub-section (4) of Section 1 of the Madras Inam Estates (Abolition &
Conversion into Ryotwari) Act, 1963, had taken over the lands in the inam
estates of Islapuram (including hamlets Lakshmipuram and Anaikarai),
Rahmatpuram (including hamlet Anthrathikudiyiruppu and Tnirujeermadam.
Only on the basis of the said vesting of lands through the aforesaid
Government Order, the revision petitioner herein claims that the lands are
ryoti lands and that the Pallivasal has no right over the said property, as they
are poramboke lands and that they do not belong to the wakf and, therefore,
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they cannot claim patta under Act, 1963. It is further contended that the
vesting of the lands with the Government under Act, 1963 had been accepted
by the Pallivasal and they have moved the Settlement Tahsildar for ryotwari
patta, which has been rejected, would fortify the stand of the revision
petitioner that the said lands are ryoti lands and would squarely stand
attracted under Act, 1963.
71. The said contention is countered by the respondents contending
that the title to the property by way of grant stood established as early as on
8.3.1955 by means of the judgment and decree passed in O.S. No.49/1952 and
the said judgment and decree having attained finality, the same not being
challenged by the State, the State is bound by the said judgment and decree.
Further, it is contended that Act, 1963 is applicable only to inam estates and
the lands, which have been granted under the copper plate being held to be
‘Sarvamanyam for Masjid Dharmam’ and given by the then ruler of Madurai
Samasthanam to the wakf, the lands would always be the property of the wakf
and that the said grant having been held to be not an estate under Estates
Land Act, as they are not of the entire village, but only relating to parcels of
land, the said grant cannot fall within the purview of Estates Land Act or for
that matter under the subsequent enactment, viz., Act, 1963. It is further
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contended by the respondents that G.O. No.2839 dated 31.10.1951 under
which the suit properties were alleged to have been taken over by the
Government under Act, 1963 cannot survive the test of reasonableness for the
reason that Act, 1963 came into force during 1964 and, therefore, G.O. No.
2839 dated 31.10.1951 cannot rely on Act, 1963, which came into force later in
point of time to claim vesting of the lands with the Government. Further, the
said Government Order has also not been placed before the Court to
substantiate the contention.
72. ‘A’ Register dated 14.6.1970 is placed before the Court by the
revision petitioner to contend that the suit lands are poramboke lands, as
entered in the said register. However, the Inam Fair Register of the year 1865
& 1866, which has been placed by the 1st respondent reveals that the lands
were given for Masjid Dharmam as Sarvamanyam tax free.
73. Insofar as the character of the lands, whether they are ryoti lands or
that it falls within the meaning of inam village, this Court is not venturing into
considering the same for the reason that a finding has been rendered by the
trial court in O.S. No.49/1952, which finding, till date, has not been challenged
by the petitioner herein and the present revision petition not being against the
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said finding, this Court under its revisional jurisdiction cannot go beyond its
jurisdiction to give any finding on the same.
74. In this scenario the question that falls for determination is whether
Act, 1963, in and by which the lands were alleged to have been taken over by
vesting by issuance of a Government Order, though the said order not having
been placed before the Court, is sustainable.
75. A copy of Government Order in G.O. No.3082 dated 20.10.1966 is
placed before the Court by the revision petitioner in which the Inam Estates of
Islapuram (including hamlets Lakshmipuram and Anaikarai) and Rahmatpuram
(including hamlet Anthrathikudiyiruppu) are vested with the Government
under Act, 1963. Prior to the said Government Order, there are no materials
evidencing that the lands are poramboke lands and stood vested with the
Government, though a Government Order in G.O. No.2839 dated 31.10.1951
has been relied upon by the revision petitioner in O.S. No.49/1952. Further, a
Government Order in G.O. Ms. No.1388 dated 20.10.1966 is also alleged to
have been issued by the Government taking over the subject lands, which,
according to the revision petitioner, prompted the 1st respondent/Pallivasal to
file an application before the Settlement Tahsildar No.1, Kovilpatti, seeking
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issuance of patta. But even the said Government Order is not annexed in the
typed set of documents.
76. It is to be pointed out that a judgment and decree had come to be
passed in O.S. No.49/1952 on 8.3.1955 in which the State, who is the revision
petitioner herein, is a party. The decree was in favour of the 1st
respondent/Pallivasal wherein a categorical finding has been rendered that
the lands, which have been given as ‘Sarvamanyam for Masjid Dharmam’ by
the then rulers of Madurai Samsathanam are not inam estates but only parcels
of lands and, therefore, the said lands cannot be held to be inam estates
within the meaning of Act, 1908. On the date when the judgment and decree
came to be passed, Act, 1908 covered the field insofar as estate lands are
concerned, though Tamil Nadu Estates (Abolition & Conversion into Ryotwari)
Act, 1948 was in force, but there is no whisper that the lands stood vested
under the Tamil Nadu Estates (Abolition & Conversion into Ryotwari) Act,
1948. Further, Act, 1948 covered only the estates and not inam estates and
only in the year 1963 the Tamil Nadu Inam Estates (Abolition & Conversion into
Ryotwari) Act, 1963 came to be enacted in and by which the inam estates, that
were notified in the official gazette, stood vested with the Government on and
from the date of the said notification. In such a backdrop, neither G.O. No.
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1388 dated 20.10.1966, which is relied on by the revision petitioner in their
written statement in and by which the lands were alleged to have been taken
over, nor G.O. No.3082 dated 20.10.1966 which is the gazette notification
relating to the vesting of Islapuram and Rahmatpuram including the hamlets
associated with it could have any force with regard to taking over the said
lands as inam estates, when there is a clear finding in O.S. No.49/1952 that the
lands, which have been granted as sarvamanyam does not fall within the
ambit of Inam Estates as provided for under Act, 1908. In the absence of any
appeal against the judgment and decree in O.S. No.49/1952, the revision
petitioner has no legs to claim that the lands, which have been granted by the
then ruler of Madurai Samasthanam to the Pallivasal could be taken over
under Act, 1963 as inam estates. Further, it is to be pointed out that when the
grant has not been held to be inam estates under Act, 1908 unless the said
finding is set aside in a manner known to law, the vesting claimed by the
revision petitioner is wholly arbitrary and unjust.
77. It is the further contention of the revision petitioner that once Act,
1963 came into existence, any finding and decision based on Act, 1908 or Act
30/1947 would not have any legal validity as by application of Section 3 (a) and
(b) of Act, 1963, all the decisions taken under Act, 1908 and Act 30/1947 are
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repealed and, therefore, the reliance placed by the Wakf Tribunal in its
judgment and decree in O.S. No.299/2011 upon Act, 1908 and Act 30/1947 to
hold that the 1st respondent/Pallivasal would have conclusive title is grossly
erroneous.
78. The said contention, even on the face of it is not sustainable as both
sub-sections (a) and (b) of Section 3 of Act, 1963 uses the expression ‘inam
estate’ and only such of those enactments, which are applicable to inam estate
have been deemed to have been repealed. In the present case, as held above,
even as early as in O.S. No.49/1952, there is a categorical finding that the
lands, which have been granted to the Pallivasal do not come within the ambit
of inam estate as the entire village has not been given as grant, but only
parcels of land and, therefore, the application of Act, 1908 and Act 30/1947
have been held to be not applicable. The said finding having not been
challenged in the manner known to law and having attained finality, the repeal
sought to be made u/s 3 (a) and (b) of Act, 1963 would only be in relation to
inam estate and operation of the provisions of law from the said date would
not be relatable to any other lands, which fall outside the realm of inam
estates. In the present case, the lands, which have been granted to the
Pallivasal having held to be not falling within the ambit of inam estate, the
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repeal sought to be introduced through the above provision under Section 3
(a) and (b) of Act, 1963, would not be attracted to the case on hand, moreso,
the judgment and decree in O.S. No.49/1952 having already attained finality
and no challenge has been made to the findings rendered therein. Therefore,
the contention advanced in this behalf does not merit consideration and
deserves to be rejected.
79. Furthermore, it is to be pointed out that the stand of the State that
the decree in O.S. No.49/1952 would not be binding on the State as by the
subsequent enactment, viz., Act, 1963, the lands were taken over by the
Government and declared as non-inam lands also does not merit
consideration. When a finding has been rendered that the lands were grants
by the ruler of Madurai Samasthanam to the Wakf and the said stand has also
been accepted by the State in the suit in O.S. No.49/1952, under what
provision of law the State claims a judgment and decree to be not binding on
the State is not spelt out. If by application of the provisions of Act, 1963, any
order passed anterior in point of time is held to be not binding on the State,
then the sanctity of the judgment and decree passed in any matter anterior in
point of time could be made a nullity by a State by enacting a new law and
only for that purpose, it has been consistently held, in general, that a new law
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would only have prospective operation and not retrospective operation. Such
being the case, Act, 1963, would only have prospective operation and it cannot
be applied retrospectively to make a judgment and decree a nullity as any such
finding given would result in unsettling the issues in many cases, which have
been finalised.
80. In this regard, reference can be had to the decision of the Apex
Court in Mumtaz Yarud Dowla case (supra), wherein, the Apex Court has held
thus :-
“20. Neena Aneja and Another v. Jai Prakash Associates
Ltd., (2022) 2 SCC 161, “58. SEBI argued before this Court
that a change of the forum for trial was a matter of mere
procedure and would, therefore, be retrospective, there
being no express or implied intent either in the 2002 and
2014 Amendments that the amendments were intended to
be of prospective effect. J.S. Khehar, J. speaking for the
two-Judge Bench of this Court adverted to the decisions
inter alia in New India Assurance [New India Assurance Co.
Ltd. v. Shanti Misra, (1975) 2 SCC 840] , Ramesh Kumar
Soni [Ramesh Kumar Soni v. State of M.P., (2013) 14 SCC
696 : (2014) 4 SCC (Cri) 340] and Hitendra Vishnu Thakur
[Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4
SCC 602 : 1994 SCC (Cri) 1087] , and observed in that
context : (Classic Credit case [SEBI v. Classic Credit Ltd.,
(2018) 13 SCC 1 : (2019) 1 SCC (Cri) 431] , SCC pp. 67-68,
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para 49)
“49. … In our considered view, the legal position
expounded by this Court in a large number of
judgments including New India Assurance Co. Ltd. v.
Shanti Misra [(1975) 2 SCC 840] ; SEBI v. Ajay
Agarwal [(2010) 3 SCC 765 : (2010) 2 SCC (Cri) 491]
and Ramesh Kumar Soni v. State of M.P. [(2013) 14
SCC 696 : (2014) 4 SCC (Cri) 340] , is clear and
unambiguous, namely, that procedural
amendments are presumed to be retrospective in
nature, unless the amending statute expressly or
impliedly provides otherwise. And also, that
generally change of “forum” of trial is procedural,
and normally following the above proposition, it is
presumed to be retrospective in nature unless the
amending statute provides otherwise. This
determination emerges from the decision of this
Court in Hitendra Vishnu Thakur v. State of
Maharashtra [(1994) 4 SCC 602 : 1994 SCC (Cri)
1087] ; Ranbir Yadav v. State of Bihar [(1995) 4 SCC
392 : 1995 SCC (Cri) 728] and Kamlesh Kumar v.
State of Jharkhand [(2013) 15 SCC 460 : (2014) 6
SCC (Cri) 489] , as well as, a number of further
judgments noted above.”
59. The above observations indicate the clear
view of this Court that:
59.1. In the absence of a contrary intent express
or implied, procedural amendments are presumed
to be retrospective.
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59.2. A change in the forum of a trial is a
procedural matter.
59.3. Since a change of forum is procedural, a
statute which brings about the change is presumed
to be retrospective in the absence of a contrary
intent.
* * * * * *
*
EFFECT OF REMOVING THE BASIS OF JUDGMENT
30. On the question of the effect of removal of the
basis of the judgment, once again, the distinction between
a procedural and substantial law has to be kept in mind. An
adjudicating forum being a product of a procedural right
has to come under retrospective operation when an
amendment is introduced to cure a defect which paved the
way for a decision of the Court in holding
otherwise. Madras Bar Association v. Union of India and
Another, (2022) 12 SCC 455,
“50. The permissibility of a legislative override
in this country should be in accordance with the
principles laid down by this Court in the
aforementioned as well as other judgments, which
have been culled out as under:
50.1. The effect of the judgments of the Court
can be nullified by a legislative act removing the
basis of the judgment. Such law can be
retrospective. Retrospective amendment should be
reasonable and not arbitrary and must not be
violative of the fundamental rights guaranteed
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under the Constitution. (Lohia Machines Ltd.
v. Union of India [Lohia Machines Ltd. v. Union of
India, (1985) 2 SCC 197 : 1985 SCC (Tax) 245] ).
50.2. The test for determining the validity of a
validating legislation is that the judgment pointing
out the defect would not have been passed, if the
altered position as sought to be brought in by the
validating statute existed before the Court at the
time of rendering its judgment. In other words, the
defect pointed out should have been cured such
that the basis of the judgment pointing out the
defect is removed.
50.3. Nullification of mandamus by an
enactment would be impermissible legislative
exercise (see S.R. Bhagwat v. State of
Mysore [(1995) 6 SCC 16 : 1995 SCC (L&S)
1334] ). Even interim directions cannot be reversed
by a legislative veto (see Cauvery Water Disputes
Tribunal [Cauvery Water Disputes Tribunal, In re,
1993 Supp (1) SCC 96 (2)] ) and Medical Council of
India v. State of Kerala [(2019) 13 SCC 185] .
50.4. Transgression of constitutional limitations
and intrusion into the judicial power by the
legislature is violative of the principle of separation
of powers, the rule of law and of Article 14 of the
Constitution of India.” (emphasis supplied) RASHID
WALI BEG (SUPRA)”
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81. Further, when the lands having been held to be grants for religious
purposes, which has been granted to the Pallivasal, the State Government
cannot take over the said lands by declaring them as non-inam lands, as
Sections 3 to 6 of the Wakf Act with relation to preparing a proforma and
gazetting the same have been fulfilled as early as on 13.5.1959. Therefore, the
contention raised in this behalf deserves rejection.
82. Curiously, one other contention is advanced by the revision
petitioners to the effect that the Inam Tribunal’s decision with regard to patta
sought for by the Pallivasal has been rejected and no appeal or revision was
filed by the Pallivasal and the said order attained finality u/s 71 of Act, 1963
and, therefore, the same cannot be questioned by filing a fresh suit.
83. The revision petitioner is blowing hot and cold over the above an
issue which is pari materia to their claim as well. A judgment and decree had
come to be passed in O.S. No.49/1952, which was against the State and the
State did not think it fit to challenge the findings rendered therein and the said
findings attained finality. Thereafter, Act, 1963 had come to be passed more
than eight years after the said judgment and decree and, thereafter, the
Settlement Tahsildar was seized of the matter on the basis of the petition by
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the Pallivasal seeking patta, which having been rejected resulted in the appeal,
which has also been rejected. The findings therein are only based on the
provisions of law under Act, 1963, which, as already held, are not applicable to
the case on hand, as the issue is covered only under Act, 1908 and Act
30/1947. The issue was answered in favour of the Pallivasal in O.S. No.
49/1952 and the said findings attained finality as no challenge was made to
the said findings. When the State had not thought it fit enough to challenge
the said findings and had allowed it to attain finality, it cannot turn back and
claim that the Inam Tribunal’s decision cannot be questioned as it attained
finality u/s 71 of Act, 1963 as no appeal or revision was filed. What is
applicable to the Pallivasal is equally applicable to the State as well and the
State cannot tie the Pallivasal under a scenario, which is identically similar to
the State by virtue of the earlier decree in O.S. No.49/1952.
84. Further, it is also to be pointed out that Act, 1963 came into force in
the year 1964 and G.O. No.1388 dated 20.10.1966 and the Gazette publication
vide G.O. No.3082 dated 20.10.1966 are posterior in point of time to the
findings recorded in O.S. No.49/1952 and unless the said findings are set aside
in the manner known to law, the said Government Order will have no legs to
stand, as once the revision petitioner, as a party in the suit in O.S. No.49/1952
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had accepted that the lands were given in grant to the wakf, the revision
petitioner cannot now turn back and claim that the said lands are Government
poramboke lands and the entry in the ‘A’ Register has to be taken as the gospel
truth.
85. The entries in the ‘A’ Register are of the year 1974, whereas the
entries in the Fair Inam Register dates back to the year 1865 and 1866 in which
the grant to the Pallivasal is recorded. The grants have been noted as grants
for the wakf and the said grants have also been fairly admitted by the State in
O.S. No.49/1952 and, therefore, the lands, which have been given in grants to
the wakf cannot be taken over by the Government by issuance of a
Government Order, as it is clear that the said lands are grants to the wakf and
are not inam estates coming within the provisions of Act, 1908 or Act, 1963.
86. The sanctity of Inam Fair Register could be derived from the
decision of the Apex Court in Subramania Gurukkal case (supra), wherein the
Apex Court, relying on its earlier decisions, held thus :-
“39. With this, we proceed to the entries in the Inam
Fair Register. It cannot be gainsaid that great value must
be attached to the entries contained therein. [1991] Supp.
11 SCC 228 (supra) observed at page 242 para 13 as under;
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“Therefore, the entries in the IFR are great acts
of the State and coupled with the entries in the
survey and settlement record furnish
unimpeachable evidence.”
40. Similarly in , Jammi Raja Rao v. Sri Anjaneyaswami
Temple Valu etc., at page 1117 in paragraph 19 it was held:
“We are unable to hold that the High Court was
not justified in preferring to place reliance on the
entries in the Inam Register (Exs.B-1, B-2, B-4 and
Bo) as compared to Ex.A-4 and Ex.A-6 which are
documents executed by the members of the
appellant's family and Ex.A-9, the register prepared
by Turanga Rao, the father of the appellant after
his appointment as a trustee under the 1927 Act.
Laying stress on the importance of the entries in the
Inam Roisters, the Judicial Committee of the Privy
Council, in Arunachellam Chetty v.
Venkatachalapathi Guruswamigal (1919) 46 Ind
App 204: AIR 1919 PC 62 has observed:
It is true that the making of this Register as for
the ultimate purpose of determining whether or not
the lands were tax free. But it must not be
forgotten that the preparation of the Inam Register
was a great act of State, and its preparation and
contents were the subject of much consideration
under elaborately detailed reports and minutes. It is
to be remembered that the Inam Commissioners
through their officials made inquiry on the spot,
heard evidence and examined documents, and with
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regard to each individual property the Government
was put in possession not only of the conclusion
come to as to whether the land was tax free, out of
a statement of the history and tenure of the
property itself.' (pp. 217-218) (of 1A): (at p.65 of
AIR).”
87. True it is that the Pallivasal had gone before the Settlement
Tahsildar No.1, Kovilpatti seeking issuance of patta, which has been rejected
and the appeal filed against the said rejection has also been upheld by the
Appellate Tribunal. However, the approach of the Pallivasal seeking grant of
patta before the Settlement Tahsildar cannot be put against the Pallivasal as
also the judgment and decree in O.S. No.49/1952 to claim that even the
Pallivasal had accepted the nature and character of the lands which alone
prompted the Pallivasal to approach the Settlement Tahsildar seeking patta.
When the lands have been granted as ‘Sarvamanyam for Masjid Dharmam’
there was no need for the Pallivasal to have approached the Settlement
Tahsildar seeking patta and ignorance of the Pallivasal in approaching the
Settlement Tahsildar cannot be put against the Pallivasal to claim that the
Pallivasal was very much aware that the lands were ryoti lands falling within
the inam estate. The orders of the Settlement Tahsildar and the Appellate
Tribunal, which formed the basis for the rejection of very many
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representations submitted by the Pallivasal seeking issuance of patta do not
cast a legal embargo so as to tie the hands of this Court from granting any
particular relief to the Pallivasal in respect of the grant given to the Pallivasal
by the then ruler of Madurai Samasthanam.
88. In this regard, useful reference can be had to the decision of the
Apex Court in Ramalinga Swamigal Mutt case (supra) with regard to the
jurisdiction of the Civil Court vis-a-vis orders passed in revenue proceedings on
the basis of inquiry, the relevant portion of which is as under :-
“13. Secondly, the principle indicated in the second
proposition enunciated in Dhulabhai's case (supra) requires
that the statute, when it creates a special right or liability
and provides for its determination, should also lay down
that all questions about the said right or liability shall be
determined by the Tribunal or authority constituted by it,
suggesting thereby that if there is no such provision it will
be difficult to infer ouster of the Civil Court's jurisdiction to
adjudicate all other questions pertaining to such right or
liability. Since from the notified date all the estate vests in
the Government free from encumbrances) it must be held
that (all the lands lying in such estate including private
land of land-holder and ryoti land cultivated by a ryot
would vest in the Government and the Act could be said to
be creating a new right in favour of a land-holder (re: his
private lands) and a ryot (re: ryoti land) by granting a
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ryotwari patta to them under ss. 12 to 15 and s. 11
respectively, and the Act provides for determination of such
right by the Settlement Officer. Question is whether the Act
also provides for determination of all questions about such
right by the Settlement Officer ? On this aspect, as has
been indicated earlier (unlike in the case of an application
for a ryotwari patta by a land- holder under s. 12, 13 or 14
where an inquiry into the nature or character of the land
and the history thereof is expressly directed to be
undertaken by virtue of s. 15 in the case of an application
for a ryotwari patta by a ryot under s. 11 there is no
express provision for any inquiry into the nature or
character of the land before granting or refusing to grant
such patta to the applicant. It is true that some inquiry is
contemplated if s. 11 is read with proviso to cl. (d) of s.
3 but even then there is no provision directing inquiry for
the ascertainment of the nature of the land, namely,
whether it is a ryoti land or communal land but it is obvious
that impliedly a decision on this aspect of the matter must
be arrived at the Settlement Officer before he passes his
order on either granting or refusing to grant such patta.
Obviously such decision rendered impliedly on this aspect
of the matter will be an incidental one and arrived at in the
summary manner only for the purpose of granting or
refusing to grant the patta. A summary decision of this
type in an inquiry conducted for revenue purposes cannot
be regarded as final or conclusive so as to constitute a bar
to a Civil Court's jurisdiction adjudicating upon the same
issue arising in a suit for injunction filed by a ryot on the
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basis of title and/or long and uninterrupted
possession. Since a fullfedged inquiry on the nature or
character of land is provided for under s. 15 in the case of
an application by a land-holder the character of the
Settlement Officer's decision on such issue may be different
but that question is not before us.
Thirdly, having regard to the principle stated by this
Court while enunciating the first proposition in Dhulabhai's
case (supra) it is clear that even where the statute has
given finality to the orders of the special tribunal the civil
court's jurisdiction can be regarded as having been
excluded if there is adequate remedy to do what the civil
court would normally do in a suit. In other words, even
where finality is accorded to the orders passed by the
special tribunal one will have to see whether such special
tribunal has powers to grant reliefs which Civil Court would
normally grant in a suit and if the answer is in the negative
it would be difficult to imply or infer exclusion of Civil
Court's jurisdiction. Now take the case of an applicant who
has applied for a ryotwari patta under s. 11 staking his
claim thereto on the basis of his long and uninterrupted
possession of the ryoti land but the Settlement Officer on
materials before him is not satisfied that the land in
question is ryoti land; in that case he will refuse the patta
to the applicant. But can he, even after the refusal of the
patta, protect the applicant's long and uninterrupted
possession against the Government's interference ?
Obviously, he cannot, for it lies within his power and
jurisdiction merely to grant or refuse to grant the patta on
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the basis of materials placed before him. But such a person
even after the refusal of the ryotwari patta would be
entitled to protect his possessory title and long enjoyment
of the land and seek an injunction preventing
Government's interference otherwise than in due course of
law and surely before granting such relief the Civil Court
may have to adjudicate upon the real nature of character
of the land if the same is put in issue. In other words since
the Settlement Officer has no power to do what Civil Court
would normally do in a suit it is difficult to imply ouster of
Civil Court's jurisdiction simply because finality has been
accorded to the Settlement Officer's order under s. 64- C of
the Act.”
89. Therefore, from the aforesaid decision, it is clear beyond a pale of
doubt that the civil court’s jurisdiction is not outsed merely because of the fact
that the issue has been dealt with by the Settlement Tahsildar or the appellate
authority and, therefore, the mere fact that an order has been passed by the
Settlement Tahsildar, which has been confirmed by the appellate authority
would not oust the jurisdiction of the civil court and the suit laid by the 1st
respondent in O.S. No.299/2011 cannot be said to be not maintainable.
90. Further, it is also to be placed on record that the revision petitioner
heavily relies on the decision of this Court in W.P. (MD) No.360/2012 in and by
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which the Madurai Bench of this Court, vide order dated 20.07.2022 had
rejected the claim of the petitioners therein for issuance of patta for the lands
in S.No.723/1 to 897, Urumankulam Village, Radhapuram Taluk, Tirunelveli
District. However, the said order will not in any way aid the case of the
revision petitioners for the simple reason that the legal status of the petitioner
therein with the Mutawalli was doubted, which prompted the Court to reject
their claim for grant of patta. Further, reliance was also placed on the two
judgments in O.S. Nos.49/1952 and 65/1961 with regard to the legal status of
the petitioners therein. Therefore, the said decision would be of no avail to
the revision petitioner.
91. The revision petitioner contends that the proforma of the wakf with
regard to the grant made has not been gazetted u/s 5 of the Wakf Act and,
therefore, the proforma could not be acted upon and that the said proforma
would not be binding on the State. Though such a contention is advanced,
notification has been issued in the gazette on 13.5.1959, a copy of which has
been placed before this Court and such being the resultant position, the
contention raised to the contra in this regard by the revision petitioner does
not merit consideration, though the validity of the proforma insofar as the
extent of the lands, which have been given in grant to the Pallivasal would be a
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point in issue, which requires consideration.
92. The only issue that remains for the consideration of this Court is the
extent of grant that was given to the Pallivasal by the ruler of Madurai
Samasthanam on the basis of the copper plate, which had prevailed upon the
court in decreeing the suit in O.S. No.49/1952 in favour of the Pallivasal.
93. Two suits, viz., O.S. No.49/1952, for the relief stated supra and O.S.
No.65/1961, for a declaration that the plaintiff is the Muthawalli of Khanmiya
Pallivasal and for recovery of possession of the suit properties from the
defendant therein with mesne profits were filed. While the suit in O.S. No.
49/1952 was filed by the Pallivasal, the suit in O.S. No.65/1961 was filed by a
third party claiming the rights of Muthawalli over the property belonging to
the Pallivasal.
94. As already discussed above, O.S. No.49/1952 was decreed in favour
of the Pallivasal in which a declaration was granted as prayed for, however, the
suit in O.S. No.65/1961 was dismissed negativing the claim of the plaintiff
therein for declaring him as the Mutawalli, wherein it has been held that his
legal heirship with the Mutawalli of the Khanmiya Pallivasal has not been
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established. In O.S. No.65/1961, the grant given in favour of the Pallivasal was
not disturbed, except for holding that the relief of declaration for declaring the
plaintiff therein as the Mutawalli and recovery of possession cannot be
granted. In essence, the judgment and decree passed in O.S. No.49/1952 was
not disturbed insofar as the grant of lands by the ruler of Madurai
Samasthanam to the wakf for the purpose of doing religious and charitable
activities.
95. As has already been held by this Court, the judgment and decree
passed in O.S. No.49/1952 has since attained finality and it stands undisturbed
by the passing of Act, 1963 as also Act, 1908 and Act 30/1947. Therefore, both
the parties to the present lis are bound by the judgment and decree passed in
O.S. No.49/1952. In the light of the aforestated position, this Court has to find
out the extent of the grant given to the Pallivasal under the copper plate, more
particularly with reference to the finding rendered in O.S. No.49/1952 vis-a-vis
the claim for the extent made in O.S. No.299/2011.
96. The 1st respondent/Pallivasal claims the lands on the basis of the
copper plate issued in its favour by the ruler of Madurai Samasthanam, which,
as stated above, is not disputed by the State even in the suit in O.S. No.
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49/1952. Therefore, the authenticity and the veracity of the copper plate is
not in issue at this point and whatever is granted in the copper plate to the
Pallivasal by the then ruler of Madurai Samasthanam, which is for the wakf
would always be available to the Wakf as it is the consistent view of the courts
that once a wakf always a wakf and, therefore, the grant cannot be taken away
by the State and rightly so held in O.S. No.49/1952.
97. The grant made in the copper plate, which, for better clarity, has
already been extracted supra, show that an extent of “Kalladi nanja land and
Maravupasi punja land of 25 kottahs with marked boundaries and another 50
kottahs of seed land of Kusakkulam Punja with marked boundaries” have been
provided for ‘Masjid Dharmam’ and the said grant also included
‘Sarvamanyam’ for the mosque as also the taxes. Effectively, taxes were also
not levied on the mosque in relation to the lands, which were given as grant.
Therefore, a total extent of 75 Kottahs (25 + 50) with marked boundaries was
provided to the Pallivasal for carrying out religious and charitable activities.
The aforesaid facts have been recorded in the judgment in O.S. No.49/1952,
which is admitted by either side, which extent was decreed in O.S. No.
49/1952.
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98. When the grant in the copper plate was provided to the Pallivasal,
the Survey and Boundaries Act was not enacted, which came to be enacted
only in the year 1923. Therefore, the lands did not carry any survey numbers,
but were merely identified based on the boundaries, as shown in the copper
plate. The said fact is not disputed by either side.
99. When it is the admitted case of the Pallivasal that an extent of 75
kottahs of land was granted through the copper plate to the Pallivasal as
sarvamanyam with the specific boundaries not spelt out, but is based on a
genaralised description of the boundaries, as spelt out in the copper plate, as
was in vogue at that point of time, curiously, when the suit in O.S. No.
299/2011 has been laid, the survey numbers of the lands, which are claimed to
have been granted through the copper plate have been furnished.
100. When this Court put a query to the parties as to what is the extent
of 1 Katha/Kottah in the present day scenario so as to arrive at the extent of
grant that has been given to the Pallivasal, learned counsel for the 1 st
respondent/Pallivasal submitted that 1 Katha/Kottah is equivalent to 1.68
acres of land, which, approximately works out to about 126 acres of land for
75 Kathas/Kottahs, which has been given under the grant to the Pallivasal.
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However, to substantiate the same no material whatsoever has been placed
before this Court. No details were forthcoming from the revision petitioner as
also the 2nd respondent as to what is the equivalent of 1 Katha/Kottah in acres.
101. Therefore, this Court has no other option but to ascertain as to
what is the extent of 75 kottahs of land that was given as grant through the
copper plate, and to satisfy itself, this Court embarked on finding out the
actual extent of 1 Kottah in today’s scenario. A free search in ‘Google’
revealed that ‘Kottah’ and ‘Katha’ are used alternatively and they mean one
and the same. In Tamil Nadu, the extent of 1 Katha/Kottah in acre returned a
figure of 0.03124 acre and, therefore, the extent of 75 Kathas/Kottahs of land
would work out to an extent of 2.3430 acres (Two Acre Thirty Four Cents and
One Thirty Square Feet). It is an admitted fact, as is also revealed through the
findings in O.S. No.49/1952 that the extent of land given as grant through the
copper plate is 75 Kathas/Kottahs. Therefore, the entitlement of the Pallivasal
could only be to the extent of 75 Kottahs and not any more, as the Pallivasal,
who is the plaintiff in O.S. No.49/1952 has also accepted the findings in the
said suit, which has clearly culled out that the land given as grant to the
Pallivasal is only to the extent of 75 Kathas/Kottahs.
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102. However, it is curious to note that in the suit filed in O.S. No.
299/2011, the survey numbers of the lands, which are alleged to have been
granted as ‘Sarvamanyam’ through the copper plate has been mentioned and
a declaration of title to the said lands have been sought for along with
recovery of possession. There is no whisper in the entire plaints relating to
O.S. No.49/1952, O.S. No.65/1961 and also in O.S. No.299/2011 that any
survey of the said lands were undertaken at any point of time. In fact, even
the 2nd respondent, the Wakf Board, has not whispered about any survey
having been undertaken of the said lands, which were given as grant. Further,
the proforma filed u/s 5 of the Wakf Act with regard to the survey conducted
by the Wakf also does not disclose the survey numbers of the lands. Such
being the case, this Court is at a loss to understand as to how the survey
numbers were identified and culled out to claim declaration of title and
recovery of possession while filing O.S. No.299/2011.
103. It would not be out of context to point out here that in the grant
made through the copper plate, the boundaries only are mentioned, as at that
point of time, the concept of survey number for the lands did not exist. There
is no whisper about when the survey was undertaken and coupled with the
fact that 75 Kathas/Kottahs of land measures only to an extent of 2.3430 acres
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(Two Acre Thirty Four Cents and One Thirty Square Feet), the list of survey
numbers given and the extent of lands, which are claimed to be the lands that
were granted through the copper plate works to a vast extent of more than
1000 acres of land, this Court is at a loss to understand as to how the said
identification of the lands was made and by which authority it was made. If
really there was any demarcation of land by mentioning of survey numbers at
any point of time, the proforma prepared by the wakf during 1959, which has
since been gazetted would have shown the survey numbers, as at that point of
time, the Survey and Boundaries Act had come into force and were in
operation. It would also not be out of place to note that in the order passed in
Rc.K1/12304/2010 dated 25.01.2011, which is the subject matter of W.P. (MD)
No.360/2012, there is a passing reference that only immediately preceding the
settlement proceedings during the year 1966, the lands were surveyed and
pattas were granted. In such view of the facts and circumstances, the only
inference that could be drawn is that the survey numbers, which have been
given in O.S. No.299/2011 cannot be held to be relatable to the lands, which
were granted to the Pallivasal as grant through the copper plate as it was not
demarcated by any authority, much less the Wakf Board/2nd respondent, as the
gazette notification u/s 5 of the Wakf Act was made in the year 1959.
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104. Further, as already aforesaid, the grant is only to an extent of 75
Kathas/Kottahs which is equivalent to 2.3430 acres (Two Acre Thirty Four
Cents and One Thirty Square Feet), which is the admitted extent as per the
findings recorded in O.S. No.49/1952 and, therefore, the 1st
respondent/Pallivasal cannot seek for any extent more than 75 Kathas/Kottahs
of land, which had been granted to them.
105. In view of the above discussion, the judgment and decree passed
in O.S. No.299/2011 declaring the title to the lands as have been shown in the
suit schedule as the lands, which have been granted through the copper plate,
as held in O.S. No.49/1952 cannot be sustained as what has been decreed in
favour of the Pallivasal in O.S. No.49/1952 is only an extent of 75
Kathas/Kottahs and nothing more. Therefore, to the extent of declaration of
lands as mentioned in the decree passed in O.S. No.299/2011 by showing the
survey numbers, the said portion cannot be sustained, moreso when the said
judgment and decree had been passed on the basis of the judgment and
decree passed in O.S. No.49/1952 and, therefore, the findings in O.S. No.
49/1952 would form the basis for deciding the extent of lands, which were
given in grant to the Pallivasal.
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106. For the reasons aforesaid, the judgment and decree passed in O.S.
No.299/2011 is modified by issuing the following directions :-
31. The lands, which are the subject of grant under the
copper plate are not lands falling under the inam estate
and, therefore, would not come within the ambit of Act,
1963, the said lands would be wakf property, which had
been granted to the 1st respondent/Pallivasal by the ruler
of Madurai Samasthanam and would not be assessable to
any tax/rent.
32. However, as aforesaid, the demarcation of the lands,
which had been granted under the copper plate has not
been taken up in terms with the Survey & Boundaries Act,
1923 as the proforma prepared by the wakf, which has
resulted in the gazette notification u/s 5 of the Wakf Act is
bereft of any particulars and, therefore, the said proforma
cannot form the basis of identification of the lands so
granted under the copper plate.
33. The Wakf Board is directed to take up a fresh exercise to
identify the lands, which have been granted under the
copper plate and prepare a fresh proforma which would
be relatable only to the extent of 75 Kathas/Kottahs,
which works out to 2.3430 acres (Two Acre Thirty Four
Cents and One Thirty Square Feet) after calling for
necessary objections from persons interested in the said
lands and after considering the said objections prepare
the proforma.
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34. The Wakf Board is directed to prepare the proforma and
forward the same to the State Government along with the
objections so received and on receipt of the said
proforma and objections, the Government of Tamil Nadu
is directed to follow the procedure as contemplated u/s 5
of the Wakf Act to notify the proforma and act upon the
same in terms of the grant given under the copper plate.
35. The aforesaid exercise of identification of lands so granted
under the copper plate and forwarding of the proforma
shall be undertaken by the Wakf Board/2nd respondent
and completed as early as possible.
36. In view of the aforesaid order, there is no necessity to take
up the memo filed by the revision petitioner for receiving
additional documents.
37. This civil revision petition is allowed in part with the
aforesaid observations and directions. Consequently,
connected miscellaneous petition is closed. There shall
be no order as to costs.
107. This Court places on record its appreciation for the assistance
rendered by the learned Amicus Mr.Chevannan Mohan, for the enlightening
this Court with the erudite exposition of the legal position on the subject,
thereby enabling this Court to render its opinion on all the facets of law
relating to the issue on hand.
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16.09.2025
Index : Yes / No
GLN
To
District Collector
Tirunelveli District
Kokirakulam, Tirunelveli.
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M.DHANDAPANI, J.
GLN PRE-DELIVERY ORDER IN C.R.P. (MD) NO.2161 OF 2018 Pronounced on 16.09.2025 75/75 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 03:36:53 pm )