Madras High Court
Rahmathullah (Died) ... 1St vs Kannan (Died) ... 1St on 30 January, 2012
Equivalent citations: AIR 2012 (NOC) 241 (MAD.)
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :30.01.2012 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.201 of 1995 1.Rahmathullah (died) ... 1st Appellant/Respondent/Plaintiff 2.Tmt.Baragath Jhan 3.Suhail Batsh 4.Shah Nawas Batsh 5.Nahima 6.Doulath Nawas ... Appellants 2 to 6 [Appellants 2 to 6 are brought on record as LRs of the deceased sole appellant vide order dated 03.12.2007 in CMP.No.1809/2007) Vs. 1.Kannan (died) ... 1st Respondent/1st Appellant/1st Defendant 2.Devendran Chettiar ... 2nd Respondent/2nd Appellant/2nd Defendant 3.Santhana Gopal ... 3rd Respondent/3rd Appellant/3rd Defendant (RR 1 to 3 are Trustees of Ramar Bajanai Koil, Polur.) 4.Maheswari Kannan 5.Vasavi K.Ganesh 6.Vasavi K.Karthik 7.Sumeetha ... Respondents 4 to 7 (Respondents 4 to 7 are brought on record as LRs of the deceased 1st Respondent vide order 13.02.2008 in CMP.No.3594/2006) Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree 24.11.1994 in A.S.No.35 of 1990 on the file of the Learned Subordinate Judge, Thiruvannamalai against the Judgment and Decree dated 30.04.1990 in O.S.No.415 of 1987 on the file of the Learned District Munsif Court, Polur, N.A. District. For Appellants : Mr.A.J.Abdul Razak For 1st Respondent : Died For 2nd Respondent : M/s.Ravindranath A.Tamilrasan For Respondents 3 to 6 : (Served) No appearance For 7th Respondent : Given Up J U D G M E N T
The Appellant/Plaintiff (during his life time) has preferred this instant Second Appeal as against the Judgment and Decree dated 24.11.1994 in A.S.No.35 of 1990 passed by the Learned Subordinate Judge, Thiruvannamalai, in reversing the Judgment and Decree dated 30.04.1990 in O.S.No.415 of 1987 passed by the Learned District Munsif, Polur.
2.The Appellants 2 to 6, consequent to the death of the Appellant/Plaintiff, have been brought on record as his Legal Representatives as per order dated 03.12.2007 in C.M.P.No.1809 of 2007.
3.During the pendency of the Second Appeal, the 1st Respondent /1st Defendant has expired and hence, Respondents 4 to 7 have been brought on record as his Legal Representatives as per order dated 13.02.2008 in C.M.P.No.3594 of 2006.
4.The First Appellate Court viz., the Learned Subordinate Judge, Thiruvannamalai, while passing Judgment in A.S.No.35 of 1990 filed by the Respondents 1 to 3/Defendants 1 to 3, has, inter alia, observed that the concerned persons pertaining to Takia has not been examined to establish that the suit property is situated in the survey number belonging to Takia [a resting place/a religious institution] and further, the Plaintiff has not produced any receipt to show that he has paid the rent and therefore, he is not entitled to obtain the relief of permanent injunction as prayed for by him and accordingly, allowed the Appeal with costs, thereby setting aside the Judgment and Decree of the trial Court in granting the relief of permanent injunction.
5.Before the trial Court, in the main suit during trial, 1 to 8 issues have been framed for adjudication. On behalf of the Appellant/ Plaintiff (later deceased), witness P.W.1 has been examined and Exs.A.1 to A.12 have been marked. On the side of Respondents/ Defendants, witness D.W.1 has been examined and Exs.B.1 to B.11 have been marked.
6.The trial Court, on an appreciation of oral and documentary evidence available on record, has come to a clear conclusion that 'as per Ex.A.1 to A.12 and also considering the evidence of P.W.1, the suit property house bearing Door No.42 is in enjoyment of the Plaintiff and the same has been established and accordingly, granted the relief of permanent injunction and decreed the suit leaving the parties to bear their own costs.
7.The deceased Appellant/Plaintiff has preferred this Second Appeal before this Court, being an aggrieved person, against the reversal Judgment and Decree of the First Appellate Court in A.S.No.35 of 1990 dated 24.11.1994.
8.At the time of admission of the Second Appeal, this Court has formulated the following Substantial Question of Law for consideration:
"Whether the judgment and decree of the lower appellate Court, without going into the question of possession of the suit property by the plaintiff on the date of the suit in a suit for permanent injunction, basing its decision on the title to the suit property is sustainable in law?"
The Contentions, Discussions and Findings on Substantial Question of Law:
9.The Learned Counsel for the Appellants submits that the First Appellate Court viz., the Learned Sub Judge has failed to take into account of the fact that primary consideration in the suit for permanent injunction is whether the Plaintiff is in possession of the suit property on the date of the suit.
10.It is the further contention of the Learned Counsel for the Appellants that D.W.1 himself has clearly admitted in his evidence that the suit property bearing Door No.42 in Survey No.217/5 admittedly belongs to Takia wherein the Plaintiff has been residing.
11.The Learned Counsel for the Appellants urges before this Court that the First Appellate Court has committed an error in discarding Ex.A.1-Rental Agreement dated 01.04.1987 entered into between the deceased 1st Appellant/Plaintiff and the Superintendent of Wakfs on the ground that no one on behalf of Takia has been examined.
12.The stand of the Appellants is that the Commissioner [appointed by the First Appellate Court] has clearly found the existence of suit property bearing Door No.42 with electric connection bearing No.1243 which exactly tallies with Ex.A.7-Electricity Card produced by the Plaintiff (since deceased).
13.According to the Learned Counsel for the Appellants, the First Appellate Court has overlooked the Commissioner's Report mainly on the basis that no Surveyor has been made available to find out the exact survey number of the suit property and also that the First Appellate Court has misdirected itself in going into the title of the property in a suit for permanent injunction.
14.The Learned Counsel for the Appellants submits that the First Appellate Court has failed to peruse the evidence of D.W.1 who has clearly admitted the deceased Plaintiff has been in possession of the suit property.
15.Lastly, it is the contention of the Learned Counsel for the Appellants that the First Appellate Court ought to have seen the Ex.A.6-Sale Deed is dated 15.04.1965, whereas the documents produced by the Plaintiff (since deceased) clearly go to show about the existence of premises No.42 in his possession.
16.Conversely, it is the contention of the Learned Counsel for the 2nd Respondent (2nd Defendant) that the First Appellate Court viz., the Learned Subordinate Judge, Tiruvannamalai, after scrutinising the oral and documentary evidence available on record, has come to a definite conclusion that on the side of the Plaintiff persons concerned with Takia have not been examined and that it is not established that the suit property is situated in the survey number belonging to Takia and further, the receipt has also not been filed to show that the Plaintiff has continuously paid the rent and consequently, held that the Plaintiff is not entitled to claim the relief of permanent injunction and allowed the Appeal with costs, thereby setting aside the Judgment and Decree passed by the trial Court in O.S.No.415 of 1987 dated 30.04.1990 and resultantly, dismissed the suit with costs.
17.In the Plaint, the Plaintiff (since deceased) has averred that the Plaint schedule property belongs to Hussain Sha Takia managed by the Wakf Board and prior to him, his father and later himself have been residing in the suit property as tenants for about 40 years. After the death of the father in the year 1980, he has been residing in the suit house.
18.It is the case of the Plaintiff (since deceased) that he has entered into a tenancy agreement with the Wakf Board and he has been paying a monthly rent of Rs.75/- and the house tax for the said house. Earlier, his father Basha Saheb has been residing in the said house and he has been paying the house tax due to the panchayat regularly. In the present tenancy agreement is dated 1.4.1987 and the extract of house tax registers in respect of the years 1972-1973 to 1986-1987 are filed. The Defendants are the trustees of Ramar Bajanai Koil, who lay a false claim over the suit property. The Defendants have not raised their little fingers till 1.8.1987. On 1.8.1987, the Defendants along with 30 to 40 of their caste members and 20 hired elements trespassed into the Wakf property and demolished the Plaintiff's house situated adjacent to the suit property. The Defendants along with the hired elements attempted to demolish the suit property also. The Plaintiff with great difficulty thwarted the Defendants from succeeding in their attempt. They are letting out that somehow or the other they would forcibly evict the Plaintiff in the suit property. Unless the Defendants are restrained by means of a permanent injunction from interfering with the Plaintiff's peaceful possession and enjoyment of the suit property, he will be put to irreparable loss and damage. Hence, the suit has been filed by the Plaintiff seeking the relief of permanent injunction restraining the Defendants, their men, agents and servants from in any manner interfering with his peaceful possession and enjoyment of the suit property.
19.In the Written Statement filed by the 1st Defendant [adopted by Defendants 2 and 3], it is denied that the Plaint schedule property belongs to the Hussain Takia managed by the Wakf Board. The Defendants are not aware of the tenancy agreement entered into between the Plaintiff and the Wakf Board. In fact, there has been a house in Door No.42 which has been alienated by the Basha Saheb as early as on 15.04.1965 in favour of one Alagappa Chettiar and the registration copy of Sale Deed is filed to that effect. Thereafter, the said Alagappa Chettiar dismantled the house and he has annexed it to his Mill and enjoying the same.
20.The Plaintiff (since deceased) wanted to put up a house in the property belonging to the Defendant, which is a strange thing. For the Plaint schedule property T.S. Number has been given in the Plaint. Serial No.267 is originally of an extent of 97 cents. Out of said 97 cents, the Takia has been granted 41 cents. In O.S.No.289/47 between the predecessors-in-title of the Defendants as well as the persons who are managing the Wakf and others, the suit costs have been awarded. For realisation of the costs, the property comprised in Survey No.267 has been brought to sale in E.P.No.327/54 in O.S.No.289/47 on the file of the Learned District Munsif Court, Vellore. In the said E.P., the property measuring an extent of 20 cents in S.No.267 has been sold. Out of the 20 cents, the Defendant's Sangam sold 8 cents to Alagappa Chettiar and retained 12 cents in S.No.267. One cent of land is now comprised in S.No.267/3 and 11 cents of land is comprised in S.No.267/4. The Takia owns 21 cents in S.No.267/5.
21.It is the stand of the Defendants 1 to 3 that the house bearing Door No.42 has been in the land belonging to Takia and it has been alienated by Basha Saheb as early as on 15.04.1965. The said item purchased by Alagappa Chettiar from Basha Saheb has been dismantled. However, the door number still continues to be there. The Plaintiff (since deceased) wanted to put up a thatched shed in the property in Survey Nos.267/3 and 267/4 and it has been prevented. The Plaintiff (since deceased) has put up a thatched shed in his own land in Survey No.267/1 and 5 and he now wants to show that it is the same house which has already been sold by Basha Saheb to Alagappa Chettiar. They are in different places. Taking advantage of the door number, the Plaintiff (since deceased) wants to show that the property in question belongs to the Wakf Board. The Plaintiff (since deceased) and one Pasrulla have executed an agreement in favour of T.N.Subramaniam to the effect that they will dismantle the house which they have put up in the land belonging to the Defendants and deliver the possession of the same to the 1st Defendant before 15.08.1987. Having executed such an agreement, the Plaintiff (since deceased) has suppressed the same and has rushed immediately with the present suit. In the agreement dated 01.08.1987 the title of the Defendant to suit property has been admitted by the Plaintiff (since deceased) and further fact is that he has put up a thatched shed recently in the property belonging to the Defendants.
22.It is the evidence of P.W.1 (deceased Plaintiff) that the suit property belongs to Hussain Sha Takia and the said Takia has been managed by the Wakf Board and that he is residing in the suit property and earlier his father has resided in the suit property and his father and himself have been residing in the suit property approximately for the past 40 years and that his father died during the year 1980 and thereafter, at the time of inspection of the Wakf Board he has entered into Ex.A.1-Agreement dated 01.04.1987 and he has paid the house tax and Ex.A.2 is the true copy of the House Tax Register in respect of house Door No.42 for the period beginning from 1972-73 till 1987-1988 and on 01.08.1987 Saturday morning the Defendants have brought henchmen and they have dismantled the thatched roof constructed by him.
23.P.W.1 (in his cross examination) has deposed that he has not filed any document to show there has been an agreement prior to Ex.A.1-Agreement dated 01.04.1987 and the Wakf Board prior to Ex.A.1-Agreement has collected the rent for his house and has given him the receipts, but those receipts have not been filed by him and in Ex.A.1-Agreement, the property details have not been mentioned and also either in Ex.A.1-Agreement or in his Plaint survey number of his house has not been made mention of.
24.Added further, P.W.1 has also deposed that he and Nasrulla have executed an agreement dated 01.08.1987 to and in favour of Subramaniam and in that he has stated that he will vacate from the suit property on 15.08.1987 and the Defendants in all hundred persons have threatened him and also created trouble and further, since they demolished his house, he has executed the agreement and that he does not know that Basha Saheb has executed a Sale Deed dated 15.04.1965 to and in favour of Alagappa Chettiar and that in Survey No.267 the extent is 97 cents in which 21 cents belonging to the mosque and in the available 21 cents he is residing and also that the house is in S.No.267/5.
25.D.W.1 (1st Defendant), in his evidence, has deposed that in S.No.267, the total extent is 97 cents and 20 cents originally belonged to Bajanai Temple and Ex.B.1 is the Suit Extract certified copy in O.S.No.289/47 on the file of District Munsif Court and the said suit has been filed by the Bajanai Koil Trustees Gopal Chettiar and Shanmuga Chettiar against Hussain Takia Muthavalli families and the said suit has ended in favour of Bajanai Temple and the Decree in O.S.No.289/47 is Ex.B.2 and the Judgment in the said suit is Ex.B.3 and as against O.S.No.289/47, A.S.No.51/52 has been filed by the Defendants in the said suit and Ex.B.5 is the Judgment in Appeal A.S.No.51/52 and that the said Appeal is ended in favour of the Bajanai Temple.
26.Continuing further, it is the evidence of D.W.1 that on 15.04.1965 Basha Saheb (one of the Muthavallies) has sold his own house bearing Door No.42 to Alagappa Chettiar for Rs.2,000/- and the Sale Deed is Ex.B.6 and the said Alagappa Chettiar after purchasing the house has annexed the said house along with the mill and has used the same as 'Kalam' and that Alagappa Chettiar has demolished the house and since the house has been demolished and used as a Kalam, there is no door number for the said house.
27.D.W.1 (in his cross examination) has deposed that in the 21 cents belonging to Takia the suit property is situated and in Ex.B.1-Suit Register Extract in O.S.No.259/47, there is no mention that it has been filed by Mutavalli.
28.It is to be noted that the term 'Takia' in literal manner refers to a rest place. Therefore, a burial ground is sometimes described as 'Takia'. A Takia is recognised as a religious institution under Muslim Law. Indeed, in Sain Maule Shah V. Ghane Shah and others, AIR 1938 Privy Council 202, it is laid down as follows:
"A takia is a place where a fakir or dervish (a person who abjures the world and becomes an humble servitor of God), resides, before his pious life and teachings attract public notice, and before disciples gather round him, and a place is constructed for their lodgement. A takia is recognized by law as a religious institution, and a grant or endowment to it is a valid wakf or public trust for a religious purpose. The sajjadanashin (literally meaning a person who sits on the sajjada or prayer mat) is the spiritual preceptor or a religious institution. He has the privilege of imparting to his disciples spiritual knowledge. He has charge of the spiritual affairs of a religious institution, while mutwalli has charge of its temporal affairs. In some cases the office of sajjadanashin and the office of the mutwalli are combined in one and the same person. The succession to the office of the sajjadanashin depends on the rules, if any, made by the found: 20 Cal 810, Rel. on."
28.Ex.A.1 is the House Rental Agreement dated 01.04.1987 between the Superintendent of Wakf, Vellore Division and the Plaintiff (since deceased) [for a period of 11 months beginning from 01.04.1987] in respect of house bearing Door No.42, Bajar Street. A reading of the recitals of Ex.A.1-Rental Agreement shows that it is mentioned that house Door No.42, Bajar Street belonging to Hussain Takia has been requested to be let out to the deceased Plaintiff and based on the said request made by the deceased Plaintiff to the Vellore Division Wakf Superintending, the monthly rent has been agreed to be fixed at Rs.25/- has to be paid 5th of every month and a receipt has to be obtained etc. As a matter of fact, in Ex.A.1-Rental Agreement, the Superintendent of Wakf, Vellore Division and the deceased Plaintiff have signed in front of two witnesses viz., B.Barkathualla and Mohamed Ismail.
29.In Ex.A.2-True Extract of House Tax for the years 1972-73 to 1981-1988 the name of the occupier for the year 1972-73 in respect of Door No.42 is mentioned as Basha Saheb viz., the father of the deceased Plaintiff . From the year 1972-73 till 1987-1988 in House Tax True Extract Copy in respect of Door No.42 the name of the deceased Plaintiff's father Basha Saheb is mentioned as occupier.
30.Exs.A.5 and A.6 are the Private Scavenging Fee Receipts issued in favour of the deceased Plaintiff's father for September, 1981 and December, 1986 by the Executive Officer, Town Panchayat, Polur and Executive Officer, Selection Grade Town Panchayat, Polur. Ex.A.7 is the Electricity Card in the name of deceased Plaintiff in respect of 42, Bajar Street for service connection 3439/01243.
31.In Ex.A.8-Complaint Petition dated 03.08.1987 addressed to the District Collector of North Arcot, the deceased Plaintiff's father and others have inter alia mentioned that the place where they are residing at Survey No.267 Hussain Takia belongs to Tamil Nadu Wakf Board and from the year 1956, Basha Saheb has been appointed as Trustee to look after the place and they are paying house tax to the Wakf Board and also paying the Panchayat tax for the past 30 years and that the Ramar Bajanai Temple Truestees have said that the place where they are residing belongs to them as per decision of Court and with force, they have trespassed into the property and demolished the house where Muslim Purdah women have been there and they have prayed for protection for there permanent residence.
32.Ex.A.11 is the Cultivation Accounts certified copy for fasli 1397 in respect of Survey No.267/5, an extent of 00.85 and the name of the occupier is mentioned as Hussain Sha Takia. Ex.A.12-Chitta dated 19.03.1990 in respect of Survey No.267/5 an extent of 0.21 cents, which stands in the name of Temporary Trustee of Hussain Sha Takia.
33.Ex.B.1 is the Certified Copy of Suit Register Extract in O.S.No.289/1947 on the file of Learned District Munsif, Vellore. The said suit O.S.No.289/1947 is between M.K.Gopal Chettiar (Plaintiff) and another and one Shukur Sahib (Defendant) and 17 others wherein a relief of declaration that the suit properties belong to Vaisya Community of Polur and for restraining the Defendants through permanent injunction from interfering with the lawful and peaceful enjoyment of the properties by the Plaintiffs. The suit has been amended for recovery of possession of the property. The schedule of the property in O.S.No.289/1947 relates to a vacant site in Chinna Majeeth Street, measuring Polur Town North to South 40' and East to West 12'. Ex.B.2 is the Certified Copy of Decree dated 15.09.1949 in O.S.No.289 of 1947 passed by the Learned District Munsif, Vellore wherein the declaratory relief that the members of the Vaiysa Community of Polur Town are entitled to a possessory right in the suit property marked G in Ex.A.14 has been granted and also the Defendants have been directed to surrender possession of the suit property to Plaintiffs as representatives of the Vaisya community of Polur Town.
34.As per Ex.B.3-Judgment in O.S.No.289 of 1947 dated 15.09.1949 it is, inter alia, held that the suit property is not part of Survey No.267. Ex.B.4 is the certified copy of Judgment in A.S.No.51 of 1952 passed by the Learned Principal Subordinate Judge, Vellore on 30.01.1953 [arising out of Judgment and Decree in O.S.No.289 of 1949] wherein it was observed that the Commissioner with the help of the Surveyor fixed the boundary of Survey No.267 as its southern end and found that it stopped with the points FED in the sketch Ex.A.14. Also, it was found that the suit plot lay outside the limits of S.No.267. Moreover, the First Appellate Court has also held that the admissions of D.W.1 to D.W.3 would clearly go to show that they put up thatched sheds at or about the time when Plaintiffs filed the suit, only to cause trouble to them and opined that it has been satisfactorily established that the suit property belonged to Rangayya Chetti and that he gifted it to the Bajanai koil belonging to the members of the Vaisya Community and that the Vaisya Community has been in possession for over 30 years when the thatched shed fell down etc.
35.As per Ex.B.6-Sale Deed dated 15.04.1965 executed by the father of the Plaintiff in favour of Alagappa Chettiar an extent of east-east 56' north south 36 = feet has been sold in punja Survey No.267 out of 0.97 cents together with demolished thatched house and the related vacant site together with well in the garden and the drumstic tree and the Polur Union door number for the house is 42.
36.Ex.B.7 is the Judgment passed by the Minor Inams Abolition Tribunal of North Arcot, Vellore in M.I.A.T.No.14 of 1972 and I.A.No.75 of 1972 dated 20.01.1973. The said appeal has been preferred by the Hussain Sha Takia, represented by the present Trustee Abdul Jabbar as Appellant against the Sri Rama Bajanai Temple represented by its present Trustees K.A.Dharmalinga Chettiar, Alagappa Chettiar and the Settlement Tahsildar IV, Branch Settlement Office, Chinglepet and the Ex.B.7-M.I.A.T. Appeal Judgment No.14 of 1972 and I.A.No.75 of 1972. The Tribunal, in para 7 of its Judgment, has, inter alia, observed and held hereunder:
"7.The case of the respondents 2 and 3 is that in execution of the decree in O.S.No.289 of 1947 obtained by the 1st respondent Bajanai temple against the appellant-Takkiah a portion of S.No.267 had been purchased by the 1st respondent Bajanai temple and out of it an extent of 8 cents had been sold away in favour of the 2nd respondent and the rent of the portion is still in possession and enjoyment of the 1st respondent Bajanai temple and the appellante Takkiah is not entitled to claim any ryotwari patta for the extent of S.No.267 sold away in court auction. Exhibit P-1 is the court auction sale certificate issued in favour of the 1st respondent Bajanai temple on 18.11.1965 in respect of a portion measuring 25 yards north to south and 40 yards east to west in the southern portion of S.No.267. Exhibit P-2 is the certified copy of the possession receipt dated 11.1.1956 which shows that the said plot purchased by the 1st respondent Bajanai temple in S.No.267 under Exhibit P-1 had been taken possession of by it. Exhibits P-4 and P-5 are claimed to be the tax receipts and demand notices relating to this plot in S.No.267 purchased in the court auction. But Exhibits P-4 and P-5 do not at all indicate to which property they relate. Therefore, in my opinion, Exhibits P-4 and P-5 may not be of any use for the respondents 1 and 2 to substantiate their claim for the respondents 1 and 2 to substantiate their claim for the portion of S.No.267 by reason of the alleged court auction purchase. But the fact that in execution of the decree in O.S.No.289 of 1957 the 1st respondent Bajanai temple had purchased the southern portion of S.No.267 and taken possession of it cannot be disputed in the face of Exhibits P-1 and P-2. As a matter of fact, to that suit the present trustee of the appellant-Takkiah was a party. It is no doubt true that Exhibits P-1 and P-2 do not show that any decree was obtained by the 1st respondent Bajanai temple against the appellant Thakkiah as such. But, however, Exhibits P-1 and P-2 evidently go to prove that the 1st respondent Bajanai temple in execution of its decree in O.S.289 of 1947 obtained against the present trustee of the appellant Takkiah and others had purchased the southern portion of S.No.267 measuring 25 yards north to south and 40 yards east to west and the said plot had been taken possession of by it under the original of Exhibit P-2 dated 11.1.1956. The 1st respondent Bajanai temple claims that it had been in possession and enjoyment of this plot ever since, the date on which it had taken possession of under the original of Exhibit P-2. Out of the said extent the 1st respondent Bajanai temple claims to have sold away 8 cents in favour of the 2nd respondent and the 2nd respondent would accordingly contend that he is in possession and enjoyment of this extent of 8 cents ever since the date of the said purchase. The appellant Takkiah is not in a position to place before court any record to show that it is in possession and enjoyment of this plot of land also sold away in court auction under Exhibit P-1 in S.No.267. In I.A.No.75 of 1972 the 1st respondent Bajanai temple seeks to produce its accounts under order 41 rule 27 C.P.C. by way of additional evidence. As a matter of fact, even in M.I.A.T. Appeal 15 of 1970 filed by it, ample opportunity had been given to it to produce all necessary records and documents in support of its claim. In spite of such an opportunity having been given, it does not appear, that the 1st respondent Bajanai temple had produced the account books now put into this Tribunal at the time of the enquiry conducted by the learned settlement Tahsildar. Therefore, it is obviously clear that the 1st respondent Bajanai temple has not been diligent at all in placing before Court the documents and record in support of its contentions. I.A.No.75 of 1972 has been filed only on 18.12.1972 when this appeal had been taken up for hearing. Considering all these facts and circumstances, I see no reason to permit the 1st respondent Bajanai temple adduce any such additional evidence at this stage as prayed for in I.A.No.75 of 1972. Therefore it follows that I.A.No.75 of 1972 will have to be dismissed. The materials on record already are required sufficient to come to the conclusion that the 1st respondent Bajanai temple and purchased a plot of land measuring 25 yards north to south and 40 yards east to west in the southern portion of S.No.267 in the court auction as early as on 18.11.1955, it, had taken possession of it through court on 11.1.1956 as evidenced by Exhibit P-2 and it had been in possession and enjoyment of the same and sold away 8 cents out of it in favour of the 2nd respondent. P.W.1 Thiru Dharmalinga Chettiar who is the trustee of the 1st respondent Bajanai temple had deposed about the purchaser of the said plot under Exhibit P-1 and about taking possession of the same through court as evidenced by Exhibit P-2 and about the sale of 8 cents out of it in favour of the 2nd respondent. He had also spoken about the tax receipts and demand notices Exhibits P-4 and P-5. R.W.1 is the Muthavalli of the appellant Takkiah and he admitted that was a party in O.S.No.289 of 1947 in which the southern portion S.No.267 had been purchased by the 1st respondent Bajanai temple in the court auction. But according to him, that suit was not against the Takkiah, but was only against him and certain others in their personal capacities. Whatever it might be, it is quite evident that he was aware of such an alienation of a portion of S.No.267 in favour of the 1st respondent Bajanai temple. It does not appear from the records that the appellant Takkiah had taken any steps in respect of that court auction sale at any point of time. There is practically nothing for the appellant Takkiah to place before court that after the said court auction sale it was over in possession of the southern portion of S.No.267. C.W.1 is the settlement Inspector who had been deputed to prepare the sub division sketch for the portion sold away in court auction under Exhibit P-1 and in respect of the other portions of S.No.267. Exhibit C-2 is the sketch as prepared by him. He had shown in it S.No.267/2 pro measuring 8 cents, S.No.267/3 pro measuring 1 cent, S.No.267/2 pro measuring 11 cents and S.No.267/5 pro measuring 21 cents. After taking into account the sub division as shown by C.W.1 in Exhibit C-2, the learned Settlement Tahsildar had come to the conclusion that S.No.267/2 pro measuring 8 cents represents the portion sold by the 1st respondent Bajanai temple to the 2nd respondent and S.No.267/5 pro 21 cents represents the portion in actual possession of the appellant Takkiah and the remaining S.No.267/3 pro measuring 1 cent and S.No.267/4 pro measuring 11 cents represent the portions in actual possession of the 1st respondent Bajanai temple. In Exhibit C-2, 56 cents in respect of which ryotwari patta had already been issued in favour of the 2nd respondent under the prior decision above mentioned has been shown as S.No.267/1 pro. Therefore it is abundantly clear from the materials placed before court that the 1st respondent Bajanai temple is in possession of and entitled to the portions marked as S.No.267/3 pro measuring 1 cent and S.No.267/4 pro measuring 11 cents, the 2nd respondent is entitled to and in possession of S.No.267/2 pro measuring 8 cents and the appellant Takkiah is in possession of S.No.267/5 pro measuring 21 cents out of the 41 cents in question in S.No.267. The appellant-Takkiah has not succeeded in showing that the learned Settlement Tahsildar was wrong in any way in granting ryotwari patta under Section 13(1) of the Act as evidently in the portions in possession of the respondents 1 and 2 buildings have come into existence and the adjacent sites are enjoyed as appurtenance to those buildings. Therefore, I hold that the appellant Takkiah has not made out any case for issuing ryotwari patta under the act in respect of the entire remaining extent of 41 cents in S.No.267 in its favour. This point is accordingly answered."
37.Ex.B.9 is the Auction Sale Certificate dated 02.11.1955 issued by the Vellore District Munsif Court in E.P.No.327 of 1954 in O.S.No.289 of 1947, pertaining to approximately an extent of 25 yards North-South, East-West 40 out of 0.97 cents which has been enjoyed in S.No.267 in Polur Village by Shukoor Saheb (died) and 24 others. In Ex.B.9-Court Auction Sale Certificate dated 02.09.1955 the deceased Plaintiff's father Basha Saheb's name has been found in Serial No.4.
38.Ex.B.10 is the Certified copy of the Endorsements in I.A.No.358 of 1987 in O.S.No.148 of 1987 on the file of the Learned Subordinate Judge, Tiruvannamalai. In Ex.B.11 is the True Copy of Affidavit in I.A.No. /1990 in O.S.No.148 of 1987 on the file of Learned Subordinate Judge, Tiruvannamalai filed by the Tamil Nadu Wakf Board by its Secretary-Plaintiff against Kannan and 3 others (Defendants 1 to 3 the Trustees of Sri Ramar Bajanai Koil Temple Polur Town) under Order 23 Rule 1 of Civil Procedure Code praying permission of the Learned Subordinate Judge, Tiruvannamalai to permit the Plaintiff therein to withdraw the suit with liberty to institute a fresh suit on the same cause of action in respect of the suit property.
39.In Ex.B.11-Affidavit in I.A.No. /1990 in O.S.No.148 of 1987 on the file of Learned Subordinate Judge, Tiruvannamalai, the Secretary of the Plaintiff-Wakf Board therein in paragraphs 8 & 9, has, among other things, observed that '..... Further defendants admitted that the plaintiff is entitled to 21 cents in S.No.267/5 and has been advised to state that the suit has to be withdrawn by the plaintiff with liberty to file a fresh suit on the same cause of action, as the suit is likely to fail on some formal defect.'
40.The Commissioner, in his Report [in A.S.No.35 of 1990] before the First Appellate Court, has stated that the suit property is situated on the west of Bajar Street of Polur Town and there is a punja measuring an extent of 8 feet breadth and 8 = feet length and inside the punja on north-south the suit property is situated, as identified by the Appellant and the Respondent and on the southern side of the suit property, there is a burial ground for Muslims measuring an extent of 60 feet length and 41 feet breadth and in that there are tombs and also there are two tamarind trees and 4 drumstick trees, one small Mango tree, one big Noona tree and small Noona tree and two custard- apple trees and five Nilgiri trees are there and on the northern side of this place, a thatched house bearing Door No.42 facing an entrance of eastern side measuring an extent of 15 feet breadth and 24 feet length is seen, for which there is an electricity connection bearing No.1243 and since the Surveyor is not available, he could be found out that in which survey number this thatched house is situated etc. In another portion of his Report, the Commissioner has stated that since there is no Surveyor, it is not known about the survey number of the suit property and to the south of the suit property, there are Bajanai Koil Shops and Devendra Chettiar's place and on the western side there is Alagappa Chettiar's rice mill etc.
41.Before the trial Court in the main suit O.S.No.415 of 1987 the Wakf Inspector, Vaniyambadi has filed a statement of the Wakf Board inter alia stating that the Wakf Board has filed a suit for declaration and in respect of the suit property and other wakf property before the Sub Court, Tiruvannamalai and the same has been numbered as O.S.No.148 of 1987 and a Court is pleased to grant an order of interim injunction etc. and also that the Wakf Board has no objection for the Plaintiff to file the suit.
42.Significantly, it is to be pointed out that the Tamil Nadu Wakf Board is not a party to the proceedings in O.S.No.415 of 1987 on the file of the Learned District Munsif Court, Polur, N.A. District or in A.S.No.35 of 1987 on the file of the Learned Subordinate Judge, Thiruvannamalai.
43.As far as the instant case on hand, it is crystal clear that the Door No.42 has been sold out to Alagappa Chettiar as per Ex.B.6-Sale Deed dated 15.04.1965 by deceased Plaintiff's father. If the Door No.42 has been sold to Alagappa Chettiar as per Ex.B.6-Sale Deed dated 15.04.1965 by the deceased Plaintiff's father, then, it cannot be said by any imagination that the deceased Plaintiff has been residing in the Door No.42. As a matter of fact, for the Plaint schedule thatched house bearing Door No.42, no boundaries have been given by the deceased Plaintiff in O.S.No.415 of 1987 on the file of the trial Court. Ex.A.1-Rental Tenancy Agreement dated 01.04.1987 executed between Superintendent of Vellore Division Wakf and the Plaintiff has not been proved on the side of the Appellant to the satisfaction of this Court to show that the deceased Plaintiff has been the tenant on payment of rent in respect of house Door No.42. That apart, the suit property bearing thatched house Door No.42 has been situated in Survey No.267/5 belonging to Takia has also not been established. Added further, Ex.A.1-Rental Agreement contents have not been proved on behalf of the Appellant. Alagappa Chettiar after purchasing the demolished property bearing Door No.42 as per Ex.B.6-Sale Deed dated 15.04.1965 has annexed the said property with that of his rice mill. In short, it is not proved by sufficient oral evidence through proper competent witnesses that the suit property viz., thatched house bearing Door No.42 has been situated in survey number belonging to the Takia. To establish the version that the Plaintiff has been a tenant of the suit property belonging to Takia continuous rent receipts have not been filed.
44.In a Civil Suit the onus is on a Plaintiff to prove his case based on pleadings. As a matter of fact, a Plaintiff in a civil suit has to stand or file on his own legs. Before the trial Court, in the instant case on hand, the deceased Plaintiff has sought a relief of permanent injunction. When he has not established to the subjective satisfaction of this Court that the suit property thatched house bearing Door No.42 is situated in Survey No.267/5, and also when no endeavour has been made to identify or locate in which survey number the suit property thatched house bearing door number is situated and all the more when concerned persons from the Wakf Board and others to speak to the effect that the suit property belongs to Takia have not been established, then, this Court is left with no option but to come to an irresistible and inescapable conclusion that the deceased Plaintiff is not entitled to obtain the relief of permanent injunction as prayed for in the Plaint.
45.The Wakf Board is empowered to collect all essential and necessary information as regards any property which it has reason to believe to be the wakf property. It can also decide whether the property is a wakf property or otherwise or whether it is a Sunni wakf or Shia wakf. Of course, the decision of the Wakf Board is final subject to the decision of the Tribunal. The Wakf Board has the power to issue any direction to mutavalli of any wakf to apply for the registration of the wakf which has not been registered with the Board or to supply any information in regard to the wakf. The Mutavalli is to follow the direction issued by the Board. Also, the Board can itself cause the wakf to be registered. Indeed, it has also the power to amend the register, which ought to have been done after proper notice to the Mutavalli or aggrieved or any affected persons.
46.Section 6 of the Wakf Act, 1995 speaks of 'Disputes regarding Wakfs'. As per the ingredients of Section 6 of the Wakf Act, the Board, the Mutavalli or in an individual interested therein to file a suit before the Tribunal for the decision of the issue whether a properties specified in the list of Wakfs is a Wakf property or not. The suit is to be filed within a year from the date of publication of the list of wakfs by the Wakf Board in the official Gazette. The limitation of one year prescribed for filing of a suit challenging the list of wakfs is not a limitation period, but a condition precedent and the ingredients of Limitation Act have no application. Sub-section (5) of Section 6 of the Wakf Act refers to a bar in filing of any suit or other legal proceedings in a Court in respect of any question referred to in Sub-section (1) viz., the list of waks after the commencement of the Act. The Wakf Act has come into operation on 01.11.1996. As per G.O.Ms.No.458 dated 24.10.1997 the Tribunals have been established in Tamil Nadu.
47.It is relevant to point out that the Wakf Act, 1995 visualises filing of suits in the competent Court of Civil Jurisdiction as per Sections 68(6), 86, 89, 90, 92 and 93 of the Act.
48.Section 83 of the Wakf Act, 1995 empowers the State Government to constitute as many Tribunals as it things fit for determination for any dispute, question or other relating to wakf or wakf property under this Act and local jurisdiction of each Tribunal.
49.Section 85 of the Wakf Act bars the filing of a suit in any civil Court in respect of any dispute, question or other matter relating to any wakf, property or other matter which is required by or under this Act to be determined by a Tribunal.
50.As per Section 7(5) of the Wakf Act, 1995 the Tribunal established under Section 83 of the Act shall not have jurisdiction to determine any matter which is the subject matter of any suit or proceeding instituted or commenced in a civil Court under sub-section (1) of section 6 before the commencement of this Act or which is the subject matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be, as per decision Sardar Khan V. Syed Najmul Hasan, 2007 (3) MLJ 366 (SC).
51.The plea of retrospective effect of Section 85 of the Wakf Act cannot be availed of in regard to suits or proceedings which have been initiated before the cut off date 01.11.1996 as per sub-section (1) of Section 6 of the Act.
52.In the instant case, O.S.No.415 of 1987 has been filed before the Constitution of Tribunals date 24.10.1997. Therefore, the jurisdiction of the Civil Court when the deceased Plaintiff filed the original suit before the trial Court is not ousted.
53.The First Appellate Court, in paragraph 8 of its Judgment, has categorically held that it is not true that the deceased Plaintiff has been a tenant continuously in respect of Door No.42. Generally, in a suit for injunction, the issue of title in respect of a suit property cannot be gone into in a detailed manner. Incidentally, the aspect of title may be gone into by a Court of Law. In the instant case on hand, it cannot be said that the First Appellate Court has passed its Judgment in Appeal A.S.No.35 of 1990 mainly on the aspect of title to the suit property. Indeed, the First Appellate Court has also held that the deceased Plaintiff has not established that the suit property thatched house bearing Door No.42 is situated in S.No.267/5 belonging to Takia. Further, he has also not established that he continues to be the tenant continuously. Moreover, based on the facts and attendant circumstances of the present case, the First Appellate Court has clearly observed that the deceased Plaintiff has taken advantage of the Door No.42 of a building which is in the place belonging to the Defendant. Accordingly, the Substantial Question of Law is answered against the Appellants and consequently, the Second Appeal fails.
54.In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. The Judgment and Decree of the First Appellate Court in A.S.No.35 of 1990 dated 24.11.1994 are hereby affirmed by this Court for the reasons assigned in this Appeal.
30.01.2012 Index : Yes Internet : Yes Sgl To
1.The Subordinate Judge, Thiruvannamalai.
2.The District Munsif Court, Polur.
M.VENUGOPAL, J.
Sgl JUDGMENT IN S.A.No.201 of 1995 30.01.2012