Judgment :- 1. 6th defendant in O.S. No. 1057 of 1976, on the file of District Munsifs Court, Tiruchirappalli, is the appellant. 2. After the suit was filed, second defendant Syed Edulla Sahib died, and his legal representatives were impleaded as defendants 5 to 9 as per Order in I.A. 83 of 1978 dated 25-4-1978 before the trial Court. Originally there were only four defendants. 3. Suit was filed by plaintiff in his capacity as Secretary of the Muslim Jamath of Eachampatti, under Order 1, Rule 8, C.P.C. It is said that the Secretary is looking after the affairs of the Jamath with the other elected members of the Jamath, which contains the Muslim residents of Eachampatti village. The suit property is a burial ground of the Muslims of Eachampatti, and the same is being enjoyed from time immemorial. It is said that there are about 150 palmyrah trees and 105 tamarind trees, besides other trees in the property, and the Jamath has been realising the income from the trees therefrom. The income so derived is used for the upkeep of the mosque and other religious and charitable activities of Muslims during festival times. It is said that the property has been in effective possession and enjoyment of the Muslim Jamath from time immemorial. The settlement Tahsildar has also abolished the inam tenure and held the property as communal property of the Muslims of Eachampatti and no patta was issued to any of the applicants. Plaintiff alone is in possession and management of the ‘Kaharsthan’ and the trees standing thereon. Defendants 1 and 2 tried to interfere with the peaceful possession and enjoyment of the trees on 26-2-1974 and, therefore, plaintiff filed O.S. 295 of 1974 against defendants 1 and 2 and others. An interim injunction was passed in that case which was made absolute as per Order dated 2-7-1974. Second defendant also filed a suit against the Jamath as O.S. 187 of 1974. When that suit came for trial, he moved an application that he is not pressing the suit. That suit was, therefore, dismissed. The suit filed by Jamath as O.S. 295 of 1974 was also withdrawn by plaintiff since there was a formal defect. The Government not being a party therein, an application was filed to withdraw the suit with liberty to file a fresh suit on the same cause of action. That suit was, therefore, dismissed. The suit filed by Jamath as O.S. 295 of 1974 was also withdrawn by plaintiff since there was a formal defect. The Government not being a party therein, an application was filed to withdraw the suit with liberty to file a fresh suit on the same cause of action. It is said that the same was allowed on 7-7-1976. It is further said that thereafter it issued notice under S. 80, C.P.C. The Government, though accepted the notice, did not send any reply. It is also said that first defendant is O.S. 295 of 1974 is only a henchman of defendants 1 and 2 in the present suit and, therefore, he is not impleaded as a party in the present case. It is further said that the third defendant Wakf Board has no jurisdiction over the property of this kind, since it is managed by the Jamath. Defendants 1 and 2 have no manner of right or title whatsoever over the property. As they threatened to interfere and remove the usufructs from the trees on 26-2-1974 and as they continued to do so even as on the date of suit, the suit was filed for the reliefs of declaration and injunction. The reliefs prayed for are: (1) Declaration that the Muslim Jamath of Eachampatti is alone entitled to the management of the kaharsthan and the usufructs of the trees of standing thereon; (2) Consequential relief of permanent injunction restraining defendants 1 and 2 and their men and agents from in any way interfering with the possession and enjoyment of the suit property with fruit bearing trees by plaintiff; (3) for costs of suit and to grant such further or other reliefs as the Court may deem fit and proper in the circumstances of the case. 4. In the description of property, it is said that an extent of 7-88 Hectares of land with 105 tamarind trees and 150 palymrah trees and also other trees standing thereon, in Old Survey No. 82 in New Survey No. 173 of Eachampatti Village, is the Muslim burial ground (Kaharsthan). 5. In the written statement filed by defendants 1 and 2, i.e., the predecessor of appellant herein, they contended that plaintiff has no possession, and the Muslim Jamath has no right over the burial ground. Even the existence of the Jamath is disputed. 5. In the written statement filed by defendants 1 and 2, i.e., the predecessor of appellant herein, they contended that plaintiff has no possession, and the Muslim Jamath has no right over the burial ground. Even the existence of the Jamath is disputed. It is further said that the order of the Tahsildar regarding the abolition of inam has no bearing to the present set of facts and it has no binding force. It is said that the withdrawal of O.S. 295 of 1974 filed by plaintiff herein was not due to any formal defect as alleged, but due to the fact that the Jamath was unable to substantiate its case. It is said that the Wakf Board has jurisdiction over the wakf properties, and, so far as the plaint schedule property is concerned, the Wakf Board, namely, the third defendant, has got supervisory control. After denying the right and possession of plaintiff over the property, appellant further contended that the suit property forms part of Rahmathullah Sha Shutteri Wakf, a Sunni Wakf. The property was in management of the then Muthavalli Syed Mohammed Ghouse Shutteri. The properties were endowed under T.D. 831. They were enjoyed and income were derived by Muthavalli Syed Ghouse Plaintiff tried to trespass into the suit property, but the same was resisted successfully. Thereafter the plaintiff sent various petitions the Wakf Board, admitting the wakf nature of the property. The Wakf Board, on the death of the Muthavalli Syed Ghouse Shutteri, appointed defendants 1 and 2 herein as Muthavallis and permitted them to auction the usufructs and sell the tamarind trees. Only after getting permission from the Wakf Board, the usufructurs were sold. The Authorities of the Wakf Board were present at the time of auction. They admit that the second defendant filed an earlier suit as O.S. 187 of 1974. But the same was allowed to be withdrawn, in view of the pendency of O.S. 295 of 1974 filed by plaintiff and the withdrawal was without prejudice to contest the claim of the plaintiff therein. It is said that in this suit, even though plaintiff sought for injunction, it was claimed that they were not in possession. It is contended that they are only persons in possession, managing the affairs. 6. It is said that in this suit, even though plaintiff sought for injunction, it was claimed that they were not in possession. It is contended that they are only persons in possession, managing the affairs. 6. In the written statement filed by third defendant-Tamil Nadu Wakf Board, it is said that there was no such Jamath, nor is there any Secretary as contended. According to them, the suit property is a wakf wherein Syed Sha Rahmathullah Mosque and Darga are situated. The Title Deed for the same is 831. It is admitted that there are tamarind trees and palymrah trees in the suit property. But they are in the possession of defendants 1 and 2, as Muthavallis. Regarding the decision of the Tahsildar, it is alleged that since the third defendant is not a party, it is not binding on it. Ancestors of defendants 1 and 2 have been buried in a portion of the suit property, and even now the properties are in the management of defendants 1 and 2. They are also paying contribution to the wakf. 7. The 4th defendant State has filed a written statement stating that it is an unnecessary party to the suit, and they are not aware of the details stated in the plaint. At the time of abolition Inam, suo motu enquiry was conducted by Settlement Tahsildar. No one claimed patta for the suit property. The lands were set apart only for communal use. Patta was not granted to any one, and the suit property is classified as Natham Poramboke, and Muslim burial grounds. Therefore, no one has any right over the suit property. The 4th defendant prayed for dismissal of the suit. 8. Trial Court, as per judgment dated 5-2-1983, passed a decree in favour of plaintiff. Trial Court, during trial, marked Exs. A-1 to A-29 and examined three witnesses on the side of plaintiff. P.W. 1 is the so called Secretary of the Jamath, who has signed the plaint. P.Ws. 2 and 3 are independent witnesses. D.W. 1 is the appellant. On the side of the appellant, Exs. B-1 to B-53 documents were marked. 9. Trial Court found that the Jamath is competent to file the suit. It also found that necessary application was filed by plaintiff under Order 1, Rule 8, C.P.C. Notice was ordered on that application. Thereafter, the suit was restored on the application of the plaintiff. On the side of the appellant, Exs. B-1 to B-53 documents were marked. 9. Trial Court found that the Jamath is competent to file the suit. It also found that necessary application was filed by plaintiff under Order 1, Rule 8, C.P.C. Notice was ordered on that application. Thereafter, the suit was restored on the application of the plaintiff. Trial Court was of the view that since the suit is restored, and since notice was ordered on the petition filed by plaintiff to get leave of the Court to file the suit, the suit was maintainable as a representative suit. On Issue Nos. 3, 4 and 6, trial Court was of the view that plaintiff has proved his possession, the only reason being that it is a property used by the members of the entire Muslim community. Reliance was placed on Ex. A-25, certified copy of the order passed by Settlement Tahsildar, Trichy, on 30-6-1970. In that proceeding, the Tahsildar retained the property for common use, but refused to grant patta to any one. Trial court drew an inference that if the defendants or the Wakf Board were the owners, they would have shown interest in getting patta. Trial court said that ‘When it is a Muslim burial ground, no one is entitled to patta for the suit property. It is not fair on the part of the defendants to claim any right or interest over the suit property ’. (Emphasis). The trial court also relied on Exs. A-12 to A-21 to come to the conclusion that the plaintiffs are paying electricity charges to the property and the mosque therein, and the above documents amply prove that plaintiff is in management of the same. Exs. A6 to A8 were also relied on to show that the suit property was used as a burial ground. In paragraph 19, the trial court further went on and said that ‘there is no document for the defendants to show that the plaintiff was evicted from the suit property and the Government came into possession of the suit property after the Inam Act came into force. A cursory glance of the documents filed by the plaintiff and the evidence let in thereon, I hold that the plaintiff is in possession and enjoyment of the suit property from time immemorial, and the plaintiff is in possession and enjoyment of the suit property. A cursory glance of the documents filed by the plaintiff and the evidence let in thereon, I hold that the plaintiff is in possession and enjoyment of the suit property from time immemorial, and the plaintiff is in possession and enjoyment of the suit property. I am unable to accept the case of the defendants that they were in possession of the suit property and enjoying the same as an inamdhar of Eachampatti Village’. The suit was decreed as prayed for with costs. 10. When the matter was taken in appeal as A.S. 117 of 1983, the lower appellate court also came to the same conclusion. It also found that the plaintiff is representing the entire Muslim Jamath of Eachampatti, and P.W. 1 was elected as the present secretary and, therefore, he has got the right to sue. The suit was, therefore, found to be maintainable. Regarding possession, in paragraph 12 of the judgment, it is said. “The defendants 1 and 2 have also not filed any documents to show that they are in possession and enjoyment of the suit property.” Thereafter, the lower appellate court relied on Ex. A-22, an Interim Order, to come to the conclusion that the plaintiff is in possession. Ex. A-22 is the certified copy of petition and order in I.A. 210 of in O.S. 187 of 1974, on the file of Sub Court, Tiruchirappalli. i.e., the suit filed by the second defendant. In that suit, he moved an injunction application and it was dismissed. The lower appellate Court was of the view that since it is a Government property, and no one has obtained patta for the same, defendants 1 and 2 cannot claim any right over the same. It was further found that no evidence was available to show that they are in possession of the same. Since the property has been set apart for communal use and the Jamat is managing the suit property, possession of the plaintiff as found by trial Court was confirmed. The lower appellate Court further said thus:— “Exs. A-2 to A-5, Exs. A-9 to A-21 virtually prove this.” The Appeal was dismissed with costs. 11. It is the concurrent judgment that is challenged in this Second Appeal, by one of the legal representatives of second defendant. 12. The lower appellate Court further said thus:— “Exs. A-2 to A-5, Exs. A-9 to A-21 virtually prove this.” The Appeal was dismissed with costs. 11. It is the concurrent judgment that is challenged in this Second Appeal, by one of the legal representatives of second defendant. 12. At the time of admission of the Second Appeal, the following substantial question of law was rated for consideration:— “Whether the plaintiff which has filed the suit for bare injunction has proved its possession of the suit properties on the date of suit and whether the Courts below have erred in not considering the relevant evidence such as Ex. B6 and Ex. B-8 which are petition and affidavit filed by the plaintiff itself in the earlier proceedings admitting possession of the suit properties by the second defendant, predecessor-in-interest of the 5th defendant.” 13. Under normal circumstances, and that too in a suit for injunction, when two Courts have found that plaintiff is in possession, this Court is not expected to interfere under Sec. 100 of the Code of Civil Procedure. The question as to who is in possession is purely a finding of fact, out of which no question of law much less substantial question of law arises. But in this case, I find that the Courts below have violated all the norms of judicial procedure. They have not taken into consideration the evidence let in by the appellant. Both the courts below have proceeded as if the defendants have not let in any evidence. Even though numerous documents have been filed and oral evidence has also been let in by defendants to prove the same, there is not even one sentence in the judgments of both the Courts below about the evidence let in by them. Both the courts below have held in their judgments that the defendants have not produced any document to prove their possession. It is further seen from the various exhibits produced on the side of the plaintiff that they are inadmissible in evidence or they do not relate to the suit property. In fact, they have misrepresented to Court that the documents pertain to the suit property, though, in fact, they know that the said statement is not correct. It is further seen from the various exhibits produced on the side of the plaintiff that they are inadmissible in evidence or they do not relate to the suit property. In fact, they have misrepresented to Court that the documents pertain to the suit property, though, in fact, they know that the said statement is not correct. There is also evidence in this case to show that the very plaintiff as Secretary and his predecessor who claims to be the Secretary of the Jamath, has admitted the possession of the appellant and his predecessor. They have also admitted the wakf nature of the property. It has not been taken into consideration by the courts below. The main argument advanced by learned Senior Counsel for appellant was that if only the courts below had taken into consideration the documents produced by them and had applied their mind in taking the decision, such a decision would not have been rendered. Learned Senior counsel for appellant accused the lower appellate court, it being a final court of fact, for not taking into consideration the various documents in spite of the fact that there is a ground taken in the Grounds of Appeal before that court. It has only summarised the judgment of the trial court and has not taken pains to consider the documents or at least the relevancy of the documents produced by plaintiff. According to him, the lower Appellate court has taken it for granted that whatever documents that the plaintiff produced, pertain only to the suit property. According to learned Senior Counsel, the judgments of the courts below have caused grave miscarriage of justice. He would further submit that reliance placed on an Interim Order passed in an interlocutory application in a suit was given much importance to arrive at a final decision. This, according to him, is against the procedure. 14. Learned Senior counsel for respondent No. 1 reminded this Court of its limitations under Section 100, C.P.C. He submitted that even though the documents relied on by the appellant might show that one Ghouse was in possession, are not corrected with Ghouse. This, according to him, is against the procedure. 14. Learned Senior counsel for respondent No. 1 reminded this Court of its limitations under Section 100, C.P.C. He submitted that even though the documents relied on by the appellant might show that one Ghouse was in possession, are not corrected with Ghouse. Learned Senior Counsel further submitted that when evidence had been let in to show payment of electric charges, and accounts regarding the income are all before Court, it cannot be said that the decision arrived at by the Courts below are perverse, which alone gives jurisdiction to this court in Second Appeal. 15. According to learned counsel, there is no question of law much less substantial question of law which required consideration. 16. After hearing learned counsel for all the parties, I feel that this is a fit case where this Court has to interfere under Section 100, C.P.C. One of the main reasons which prompts me to interfere is the way in which the Courts below have disposed of the suit. Even though the appellant has produced numerous documents as evidence in this case, not even one document has been taken into consideration. All the documents have been marked either through plaintiff when he was examined as P.W. 1 or through the sixth defendant when he was examined as D.W. 1. Both the trial court and the lower Appellate Court seem to be of the view that the appellant is not serious in his contention, and as produced as if the defendants have not adduced any evidence. The other ground which also compels me to interfere is the way in which the various documents produced by plaintiff have been interpreted. Trial court as well as lower Appellate Court has found that the documents produced by plaintiff show that they are taking the income, they pertain to the suit property, etc. If only the Courts below had taken pains to look into the contents of the documents, such a decision would not have been arrived. Court below have also given importance to the Order of the Tahsildar (Ex. A-25). It has no evidentiary value in a suit for injunction, for, the Inam Abolition Tahsildar has only held that none of the parties is entitled to patta for the property, and that the property has been reserved for communal use. Court below have also given importance to the Order of the Tahsildar (Ex. A-25). It has no evidentiary value in a suit for injunction, for, the Inam Abolition Tahsildar has only held that none of the parties is entitled to patta for the property, and that the property has been reserved for communal use. That will not prove that the plaintiff is in possession or is in management of the affairs. Whether Jamath was exercising right over the property was never considered in Ex. A-25, nor was it necessary for consideration in that case. At any rate, Ex. A-25 will not prove the possession on the part of the plaintiff. No reliance should have been placed on the same. 17. Both the Courts below have relied on Exs. A-2 to A-5 and A-9 to A-11. P.W. 1 who is the present Secretary of the Jamath has admitted that he became the Secretary only in the year 1976. He also admitted that he does not know anything about the contents of those exhibits.. Exx. A-4 and A-5 are of the years 1980 and 1981, i.e. , after institution of the suit. Ex. A-9 is regarding the accounts from 1971 to 1974, and Ex. A-10 are the accounts for the years 1974 to 1980. Ex. A-11 are for the years 1980 to 1982. Regarding the accounts, even for the period during which P.W. 1 was in office, he does not say which particular item of income or expenditure relates to the plaint schedule property. Regarding proof of accounts for which reliance has been placed by the Courts below, I feel their action is illegal. S. 34 of the Evidence Ac t deals with relevancy of accounts. Regarding mode of proof of accounts, in ‘Sarkar on Evidence 10th Edition (1993), at page 672, the learned Author has said on the basis of decision of Supreme Court and various High Courts:— “There is no presumption of correctness attaching to the entries in books. Where a witness merely said that the books were in his custody; no question was put as to who wrote them, nor was there any evidence as to who collected rents or when or by whom the entries were made, the books are inadmissible. Where a witness merely said that the books were in his custody; no question was put as to who wrote them, nor was there any evidence as to who collected rents or when or by whom the entries were made, the books are inadmissible. Where all that was proved was that the books were in the handwriting of his father and the books were not even examined in details, and the particular entries upon which the plaintiff relied were not selected and exhibited, it was held that the entries “ought to have been printed out and proved and evidence should also have been given in detail as to the character of the books themselves, Mookerjee, J. observed:— “The proper procedure to follow, therefore, is as laid down by their Lordships of the Judicial Committee in Dwarka Dass v. Janki Dass , 6 MIA 88, 98 to call the clerk who has kept the accounts or some person competent to speak to their genuineness, to prove that the books have been regularly kept and that they are generally accurate. But this is not all that is necessary: S. 34 makes the entries relevant if they are entries in a book of account regularly kept in the course of business. It is, therefore, not sufficient merely to prove the correctness of the book, the entries themselves have to be proved unless indeed the necessity for such proof is removed by the admission of the opposite party.” Mere proof of the existence of certain entries in books is not sufficient. The law requires proof not only of account books generally, but of each item. Where the transactions are numerous and extend over many years it is not necessary to prove each item, but only specific disputed entries. It is essential to establish that the books have been regularly kept in the course of business and it is not sufficient to prove the correctness of the books; the entries themselves have to be proved. Not even one question has been put to P.W. 1 regarding the entries in the account books. In cross-examination he said that the previous Secretary Razool has written these accounts and that he is also present in Court. But no explanation has been given as to why Razool was not examined. Not even one question has been put to P.W. 1 regarding the entries in the account books. In cross-examination he said that the previous Secretary Razool has written these accounts and that he is also present in Court. But no explanation has been given as to why Razool was not examined. Regarding the plaint schedule property, which is admittedly included in Survey No. 82, this is what P.W. 1 has said:— Tamil It is this evidence that has been taken as evidence of possession by the Courts below. P.W. 1 does not even identify the plaint property. Even regarding the other exhibits, the finding of the Courts below is based on no evidence. Much reliance was placed on Exs. A-12 to A-21, which all relate to payment of electricity consumption charges. Ex B-45 shows that Exx A12 to A21 are in respect of 3 cents of land, pertaining to some other mosque, and the same has nothing to do with the plaint schedule property. Again, the payment has not been made in the name of Jamath, but in the name of some individuals who have not been identified by P.W. 1 or any other witness. Merely because these documents are marked through P.W. 1, it does not mean that they relate to the plaint property. Regarding Exs. A-12 to A-21, what P.W. 1 has stated in his deposition is this:— Tamil Even he has no case that the mosque is situated in the plaint property. Exx. A-9 to A-11 contain so many entries. Which entry relates to the plaint schedule is not spoken to by P.W. 1. The entire account book has been marked. It is on the basis of this evidence, Courts below have held that the plaintiff has proved possession, and at the same time, they have not considered the documents produced by the appellant. Learned Senior Counsel also brought to my notice the illegality committed by the Courts below in placing reliance on Ex. A-22, an interim order in a suit filed by the appellant. As I said earlier, second defendant filed a suit and moved for an injunction against the plaintiff. The application was dismissed as evidenced by Ex. A-22. The suit was subsequently withdrawn is not disputed. The lower Appellate Court has held that Ex. A-22, an interim order in a suit filed by the appellant. As I said earlier, second defendant filed a suit and moved for an injunction against the plaintiff. The application was dismissed as evidenced by Ex. A-22. The suit was subsequently withdrawn is not disputed. The lower Appellate Court has held that Ex. A-22 also proves possession of the plaintiff without considering as to what is the effect of the interim order and the purpose of passing the interim order. In this connection, it is useful to refer to the decision reported in 1987 (Supp) S.C.C. 58 (P. Govindaswamy and another v. S. Narayanan and others) wherein, in paragraph 5, their Lordships have said thus:— “We do not consider it necessary to reiterate that the views expressed in the course of the judgment in the inter locutory proceedings are tentative by the very nature of things. The matter will doubtless be disposed of finally in accordance with law on the basis of the material placed before the Court in the light of the submissions advanced by the parties uninhibited one way or the other by what has been said whilst disposing of the interlocutory applications..” In the same Volume at page 72 (Jaikishan Jagwani & others v. Britomatics Enterprises Pvt. Ltd. and others), the Supreme Court again reiterated the principles thus:— “Counsel for the petitioners expresses an apprehension that the observations made by the City Civil Court and the High Court in the course of the orders in question might create prejudice. We think that the apprehension is not well founded because by the very nature of things such observations are tentative observations made for the limited purposes of the interlocutory proceedings. When the question of deciding the matter on merits ultimately arises the matter would of course be disposed of with an open mind uninfluenced or uninhibited by any observations made in the course of these orders, on the basis of the evidence on record and in the light of submissions then made in accordance with law.” 18. Without considering the scope and effect of the interlocutory order, and without considering the documentary evidence adduced by the defendants, a decree has been granted in favour of the respondent. The Courts below acted illegally in placing reliance on Ex. A-22. 19. Without considering the scope and effect of the interlocutory order, and without considering the documentary evidence adduced by the defendants, a decree has been granted in favour of the respondent. The Courts below acted illegally in placing reliance on Ex. A-22. 19. Learned Senior Counsel for the appellant brought to my notice various documents produced on the side of the appellant and contended that even in admitted documents written or sent by the very same Secretary or his predecessor to the Wakf Board, they have admitted that the appellant is in possession of the property. When the plaintiff-Jamath itself accepts that appellant is in possession, non-consideration of the material evidence, and at the same time passing a decree in favour of plaintiff is perverse. Learned Senior Counsel submitted that under Sec. 103, C.P.C., this Court is empowered to take into consideration that part of the evidence also to come to a different conclusion though it is based on appreciation of evidence. It is admitted by learned Senior Counsel for first respondent also that the Courts below have not taken into consideration the evidence adduced by the defendants. He also admitted that there is not even one sentence in the entire judgment of both the Courts below, discussing the evidence adduced by the appellant. 20. Learned Senior counsel for respondent No. 11, therefore, submitted that since there is defect in the judgment by not considering the evidence of the appellant, it may be set aside and the trial court may by directed to consider the evidence afresh, and he also pointed out that this Court should not enter a finding based on appreciation of evidence. The suit was filed in the year 1976, and for the last 21 years, parties have been agitating the matter in one Court or the other. Even before 1976 there were litigations. Even before litigations began, parties had been corresponding with the Wakf Board regarding the right of management and put forward their claim for possession. In such circumstances, I do not think I should remit the case once again and permit the parties to prolong the litigation. If I remit the case, I am sure, the litigation will have to continue atleast for another 25 years. Further, the documents on which reliance is placed by appellant are not something new so far as the respondents are concerned. If I remit the case, I am sure, the litigation will have to continue atleast for another 25 years. Further, the documents on which reliance is placed by appellant are not something new so far as the respondents are concerned. They are their own letters written by them to the Wakf Board, etc. Before considering those documents, it is better to take into consideration the scope of Sec. 103 of the Civil Procedure Code, as amended by Act 104 of 1976. Sec. 103 of the Code reads as follows:— “In any Second Appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,— (a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or (b) which has been wrongly determined by such Court or Court by reason of a decision on such question of law as is referred to in Section 100.” Sub-section (b) of that Section empowers this Court to take into consideration the evidence on record if the Courts below have entered a finding on that issue wrongly, provided the condition of Sec. 100, C.P.C. is also complied with. If material piece of evidence has been omitted to be considered and a decision has been arrived at by the Courts below, then, it is a substantial question of law. That question could be decided under Sec. 103, C.P.C. if evidence on record is sufficient to decide that issue. In ‘Sarkars Law of Civil Procedure’ -8th Edition (1992) at page 360, the learned Author has said thus:— “If a finding of fact is arrived at ignoring important relevant evidence, the finding is one bad in law. Omission to consider material evidence amounts to error of law. Failure to appreciate and determine the real question of fact to be tried is a question of law. Finding based on misreading of evidence amounts to error of law. The findings of the lower Appellate Court which are based on misreading of evidence, misapplication of law and connections and surmises, cannot be sustained.” 21. From the above discussion, it is clear that omission to consider the evidence adduced by the defendants is a substantial question of law. Finding based on misreading of evidence amounts to error of law. The findings of the lower Appellate Court which are based on misreading of evidence, misapplication of law and connections and surmises, cannot be sustained.” 21. From the above discussion, it is clear that omission to consider the evidence adduced by the defendants is a substantial question of law. Before amendment of the Civil Procedure Code also, this omission to consider a material piece of evidence has been considered to be a ground for interference under Sec. 100 read with Sec. 103 of the Code. In A.I.R. 1954 Patna 326 (Kanhaiya Singh v. Bhagwat Singh), it was held thus:— “Where a final Court of fact has come to a finding of fact without considering material evidence on the record the High Court is competent in second appeal to decide the question of fact on consideration of such evidence under S. 103.” 22. In A.I.R. 1960 Calcutta 264 (Kishan Prasad v. Union of India), in paragraph 14, it was held thus:— “.When in arriving at a finding the final Court of fact refuses to look into the evidence on the record, its finding is in my judgment vitiated by an error of law and it becomes necessary and proper for this Court even in second appeal to look into the evidence itself to examine whether that finding is correct, except where it decides to send the matter back to the Court of Appeal below for a proper conclusion on facts.” 23. In A.I.R. 1960 Mysore 231 (Helava v. Sesigowda), it was held that, “if the lower appellate Court has failed to consider the evidence on record in arriving at the finding, the finding is vitiated and the High Court may in exercise of its powers under S. 103 consider the evidence and arrive at a fresh finding.” 24. Now I will consider, what is the effect of the various documents produced by the appellant and how far the non-consideration of the same has materially affected the decision. Ex. B-2 is a letter addressed to the third defendant-Wakf Board, sent by the Members of the Jamath. The fact that it was sent by the Members of the Jamath is not disputed by the plaintiffs. Ex. B-2 is a letter addressed to the third defendant-Wakf Board, sent by the Members of the Jamath. The fact that it was sent by the Members of the Jamath is not disputed by the plaintiffs. It is a complaint against the defendants on the ground that they have allowed an arrack shop to be run in the schedule premises, and if that is allowed, that will be against the tenets of their Religion, and the Members also will be put to difficulty. Ex. B-3 is another letter dated 10-10-1972. More than 50 Members of the Jampath have sent a complaint, and one of these persons is the present Secretary of the plaintiff himself. There also mention has been about number of various trees. In Ex. B-3, it is written that the predecessor of the defendant, namely, Late Saif Mohammed Ghouse Sahib is taking the yield from 105 tamarind trees, 200 palymrah trees and also collecting rent from 30 buildings put up by him. It is also said that income from the other trees is also taken by him, and Ghouse Sahib has permitted an arrack shop to be conducted in one such building. In this letter dated 10-10-1972, the Jamath or any other number has no case that they were in possession. Ex. B-4 dated 20-10-1972 is another letter addressed to the Wakf Board and signed by the erstwhile Secretary Abdul Razool. The same allegations as in Ex. B-2 are repeated with an assertion that Ghouse Sahib is appropriating the income. Ex. B-6 is another letter to the Wakf Board by the Jamath Committee and signed by the present Secretary as well as the erstwhile Secretary Abdul Razool. In that letter, they have requested the Authorities of the Wakf Board to personally inspect the property and they wanted redressal of the grievances mentioned by them in their previous petitions. Ex. B-8 is dated 7-1-1974. That is an affidavit filed by the erstwhile Secretary Abdul Razool, in regard to a complaint against the very same defendants. i.e., defendants 1 and 2 in this case. In paragraph 4 of the affidavit, how far the defendants are related to deceased Ghouse Sahib is stated. It is stated in paragraph 4 that Syed Mohammed Ghouse Sahib became the Manager and was looking after the Wakf property till his death on 12-7-1973. i.e., defendants 1 and 2 in this case. In paragraph 4 of the affidavit, how far the defendants are related to deceased Ghouse Sahib is stated. It is stated in paragraph 4 that Syed Mohammed Ghouse Sahib became the Manager and was looking after the Wakf property till his death on 12-7-1973. It is further said that Ghouse Sahib during his office as Manager, was mismanaging the Wakf by utilising the entire income derived from the properties. He left the Durgah and Mosque in a dilapidated condition. He did not pay salary to Peish Imam and Muazzin. It is further alleged therein that Mohammed Ghouse was turning a deaf ear, and was not yielding to various demands of the Jamath. In regard to the second defendant in this case, in paragraph 6 of the affidavit, it was said that they were taking the entire income from the property. It issaid that the present wakf properties consist of 10 and odd acres of land comprised in S.F. 82 situated in Eachampatti village. Within that land, there is a mosque, Durgah, Khabristhan and some houses of the villagers and residences of late Abdul Latheefs family: there are also 105 fruit bearing tamarind trees, 100 palymrah trees and also number of other varieties of trees, etc. In paragraph 7, it is further said that these persons along with others, published a news item in ‘Dina Malar’ on 9-12-1972 that the respondents therein intend to take auction the property for a period of one year. They wanted, i.e. , the erstwhile Secretary of the Jamath and others wanted the Wakf Board to restrain the auction. On the basis of this representation, the Wakf Board, initially prevented the defendants 1 land 2 from conducting any public auction. The Application was filed under Sec. 44 of the Wakf Act. Ex. B-10 is another Application filed by them. They wanted the appointment of a Committee to safeguard the rights of the Wakf Board, especially the schedule property in this case. Ex. B-12 is another representation in which they wanted the Wakf Board itself to directly lease out the trees in public auction. Even though initially the Wakf Board prevented the defendants 1 and 2, finally, after enquiry, they came to know that the Jamath has no right over the property and the same was all along managed by defendants 1 and 2. Ex. Even though initially the Wakf Board prevented the defendants 1 and 2, finally, after enquiry, they came to know that the Jamath has no right over the property and the same was all along managed by defendants 1 and 2. Ex. B-14 dated 31-1-1974 is a communication regarding stay. It is found therein that the auction was held with due public notice, by defendants 1 and 2 only at the instance of the Wakf Board, and with their permission, made a wide publicity. Ex. B-1 is a mortgage deed executed by the predecessor of the appellant on 8-9-1969 in favour of plaintiffs predecessor. The security offered is the plaint schedule property. Ex. B-21 is a registered lease in respect of the plaint property. Exs. B-25 and B-26 are also such documents. Exs. B-28 and B-29 are receipts for payment of electricity charges. Various other correspondence is also found between the Wakf Board and the appellant in regard to the management of Mosque and the Wakf property. From these documents, it is clear that the appellant is in possession and management of the plaint property. Trial Court has not taken into consideration any of these documents. It relied on some oral evidence. From the various exhibits filed by the plaintiff, we can see that most of them are long after the institution of the suit. Even though the lower Appellate Court has taken into consideration Ex. A-22 wrongly, the same principle was not adopted as against the respondents. In the very same case, plaintiff prayed for an interim injunction alleging that they were in possession. If Ex. A-22 is of any relevance, equally relevant is the interim order in this case. But I do not want to rely either on Ex. A-22 or the interim order. I am only pointing out that the same reasoning should have been adopted in the case of the appellant also. 25. I have already discussed the evidentiary value of the documents produced by plaintiff and appellant in this case. On a comparative assessment of the entire evidence, I hold that plaintiffs have miserably failed to prove that they are in possession, and finding of the trial Court as confirmed by the lower Appellate Court that plaintiffs are in possession is based on no evidence. On a comparative assessment of the entire evidence, I hold that plaintiffs have miserably failed to prove that they are in possession, and finding of the trial Court as confirmed by the lower Appellate Court that plaintiffs are in possession is based on no evidence. The non-consideration of the evidence by the Courts below has materially prejudiced the appellant and they were right in challenging the decree of the Courts below seeking interference by this Court under Sec. 100, C.P.C. Courts below have not considered the material piece of evidence and have relied on irrelevant evidence, or other pieces of evidence, which has no evidentiary value. 26. An argument was taken by learned Senior Counsel for the appellant that the plaintiff who has filed a suit in a representative capacity under Or. 1, Rule 8, C.P.C. must have obtained specific orders from Court for suing in such capacity. It was contended that in this case except that order of notice, there is no specific order granting permission. The suit was once dismissed for default and after restoration, the trial Court in its judgment held that the earlier application also is revived, being consequential of the main order. 27. The contention that there should be an express sanction permitting plaintiff to sue in a representative capacity is not correct. It is sufficient if it can be inferred from the proceedings. In this case, the finding of the trial Court has been affirmed by the lower Appellate Court. Regarding the maintainability of the suit under Order 1, Rule 8, C.P.C., it is not challenged in the grounds of Second Appeal, nor is there any question of law raised, touching that matter. When both the courts below have found that the plaintiff has filed the suit in a representative capacity, even if there is no express sanction, the finding itself is sufficient to hold that he was allowed to continue that proceeding in that capacity. It was so held in the decision reported in A.I.R. 1924 Calcutta 998 (Krishna Kumar Deb v. Atul Chandra Ghose & others), and A.I.R. 1959 Bombay 491 Mukaramdas v. Chhagan Kisan) and. In the later decision, there also, for sanction to sue in a representative capacity, only notice was ordered, and there was no formal order of sanction passed by that Court. In that case, from the judgment, an inference was drawn that the sanction was given. In the later decision, there also, for sanction to sue in a representative capacity, only notice was ordered, and there was no formal order of sanction passed by that Court. In that case, from the judgment, an inference was drawn that the sanction was given. In this case, from the trial Courts judgment, it is seen that the plaintiff has filed the suit in a representative capacity and the suit is maintainable. The said finding is confirmed by the lower Appellate Court. Therefore, an inference can be drawn that sanction has been obtained, and no express orders are necessary for the same. Therefore, the contention of the learned Senior Counsel for the appellant in that regard is rejected. 28. In the result, the second appeal is allowed. The judgments and decrees of both the Courts below are set aside. The suit in O.S. No. 1057 of 1976, on the file of District Munisifs Court, Trichy, is dismissed, holding that the sixth defendant, appellant herein, is in possession of the plaint schedule property, and plaintiff Jamath has miserably failed to prove its possession. Appellant is entitled to his costs in all the three Courts. C.M.P. Nos. 7986 of 1989 and 6957 of 1997 are dismissed.