Judgment : The appellant herein was the defendant while the respondents were the plaintiffs in the suit. .2. The plaintiffs filed the suit in O.S.No.332 of 1985 on the file of the District Munsif, Devakottai, praying for the relief of possession with mesne profits, past and future and for costs, contending that the suit property is a public wakf, utilised as a burial ground for Muslims from time immemorial; that Kalanivasal in which the suit property-was situate was an inam estate, taken over by the Government, that in the settlement proceedings, this property had been recognised as “mayanam poramboke” resulting in the making of necessary entries therefor in the relevant records; that thereafter, patta had been granted to Muslim Jamath, Karaikudi, that the defendant, having no manner of right whatever encroached over the suit property and put up a shed thereon and had been running a cycle shop, besides a sound service, and that therefore, he is liable to pay mesne profits by way of damages calculated at the rate of Rs.120per mensem for the three years proceeding suit with future mesne profits at such rate, as may be determined in separate proceedings. 3. The defendant contested the suit inter alia contending that at no point of time, the suit property was used as a burial ground tor Muslims; that it was not recognised at any point of time as Muslim mayanam poramboke; that since in the settlement proceedings he was not a party, any decision taken thereon was not binding on him; that the suit property is a poramboke property and as such, the suit is bad for non-joinder of the Government as a necessary party; that in any event, he had prescribed title by adverse possession and that therefore, the suit is liable to be dismissed. 4. Learned District Munsif, on consideration of the materials placed on record, upholding the claims of the plaintiffs, decreed the suit as prayed for with costs, giving two months’ time to the defendant for delivery of vacant possession of the suit property to the plaintiffs. 5. The aggrieved defendant filed A.S.No.88 of 1988, on the file of the Subordinate Judge, Devakottai, who in turn, on considering the mate-.rials available on record and after hearing learned counsel for the respective parties, dismissed the appeal confirming the judgment and decree of the trial court, making no order as to costs in the appeal. 6. 5. The aggrieved defendant filed A.S.No.88 of 1988, on the file of the Subordinate Judge, Devakottai, who in turn, on considering the mate-.rials available on record and after hearing learned counsel for the respective parties, dismissed the appeal confirming the judgment and decree of the trial court, making no order as to costs in the appeal. 6. When the matter came up for admission, notice of motion had been issued by this Court on 33. 1992 returnable by two weeks and the plaintiffs entered appearance through a counsel of their choice. 7. The arguments of learned counsel for the appellant-defendant as well as the respondents-plaintiffs were heard. 8. Learned counsel for the appellant, fully realising the predicament situation in which he had been placed, in the sense of there being no chance of his making any submission as to the concurrent findings recorded by the courts below that the suit property is a ‘mayanam poramboke’ intended for Muslims and that patta has been issued to Muslim Jamath, Karaikudi, subsequent to the take-over by the Government of the inam estate in Kalani-vasal village under the Tamil Nadu Act XXVI of 1963 and there being no perverse appreciation of the materials for reaching such a conclusion, resorted to make a technical objection revolving on the question of the frame of the suit, by stating that the plaintiffs-trust should be represented by all its trustees and the suit filed by the plaintiffs, namely, the President and the Secretary of the Muslim Jamath alone, is not maintainable and though such a plea is raised for the first time, he would submit such a plea is purely a question of law and therefore it is but legitimate for him even to raise such a question during the course of the second appeal. 9. Learned counsel appearing for the respondents-plaintiffs would however repel such a submission by stating that the so-called error or defect in the frame of the suit, even assuming to be correct, but without admitting the same, will not, in the eye of law, have the effect of reversal of the decree passed by the trial court and latterly confirmed by the lower appellate court, so long as the same is not affecting the merits of the case or the jurisdiction of the court. 10. 10. Admittedly, the technical objection as to the frame of the suit had not been raised by way of a specific pleading in the written statement filed by the defendant. From the factum of such a plea not having been raised, it is rather obvious that such a plea, if raised, would meet with dismal failure and therefore, the same is not raised. The non-raising of such a plea, denied the opportunity to the plaintiffs to make it appear that the present plaintiffs were the persons in charge of the trust as Muttawallis, by making necessary application for suitable amendment. Even otherwise, on the merits of the matter, a concurrent finding had been recorded by both the courts below in favour of the plaintiffs and the action had been initiated before the competent forum having jurisdiction. .11. At this juncture, reference may profitably be made to the sanguine provisions adumbrated under Sec.99 of the Code of Civil Procedure, 1908 (as amended by Act 104 of 1976) and it prescribes: .“99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction: No decree shall be reversed or substan-tially varied, nor shall any case be remanded, in appeal on account of any mis-joinder or nonjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court. Provided that nothing in the section shall apply to non-joinder of a necessary parly.” 12. Thus, on the face of the aforequoted provisions, such a technical objection, as raised by the appellant, is of no avail, as rightly contended by learned counsel for the respondent. .13. It is also to be borne in mind that Muslim public wakf is not to be confused with the conception of trust in the ordinary sense of the term and that perhaps appear to be the reason for raising such a technical plea in the second appeal. .13. It is also to be borne in mind that Muslim public wakf is not to be confused with the conception of trust in the ordinary sense of the term and that perhaps appear to be the reason for raising such a technical plea in the second appeal. In the epoch-making decision in Vidya Varuthi v. Balusami Ayyan, A.I.R. 1922 P.C. 123, the Privy Council explained that the idea conveyed by the word ‘trust’ is foreign to the religious conception involved in the word ‘Wakf: ."When once it is declared that a particular property is wakf or any such expression is used as implies wakf the right of the wakf is extinguished and the ownership is transferred in the Almighty" says Mr.Ameer Ali in delivering judgment. ‘The manager of the wakf is the mutawalli, the governor, superintendent or curator. In the case of khankhas the head is called a sajjadanishin. ‘But neither the sajjadanishin nor the mutawalli has any right in the property belonging to the wakf, the property is not vested in him, and he is not a trustee in the technical sense. The wakfnama does not transfer property to trustees. Under the Mohammedan Law the moment a wakf is created all rights of property pass out of the wakf and vest in God Almighty. ‘The curator, whether called mutawalli or sajjadanishin, or by any other name, is merely a manager." 14. In view of what has been stated above, it goes without saying that the second appeal deserves dismissal even at the admission stage and is accordingly dismissed.