ARUN KUMAR MITRA ( 1 ) THIS second appeal has arisen out of a suit for permanent injunction. The case as made out in the plaint is inter alia as follows :the suit property is a "pirothan" property of Pir Gorachand Saheb and the predecessor of the plaintiffs Ahid was the shebait of the suit property. The lands in the suit khatian were divided amongst the shebaits and all the shebaits were possessing those lands by demarcating boundaries. Ahid was possessing the suit property by demarcating boundaries within the knowledge of other shebaits. The plaintiffs have also been possessing the suit property since the time of deceased Ahid. The suit plot is homestead land There are three huts upon. 03 decimals of land in the suit plot and Ahid used to live there with his family. The said. 03 decimals of land have been recorded in the name of the plaintiffs in present L. R. Khatian. The plaintiffs have been possessing the remaining. 12 decimals of land in the suit plot since the time of their predecessor. The suit plot was never possessed by any other persons except Ahid and the present plaintiffs. Besides that the plaintiffs have two dwelling huts, one cow-shed and one kitchen in the suit plot. There are some coconut and baha trees on the suit land and the plaintiffs are enjoying the usufruct of those trees since the time of their predecessor. The defendants are residing in R. S. Plot no. 59, Khatian No. 309 and they have no right and title in the suit plot No. 59. The defendants are trying to trespass into the suit land and trying to cut trees from the suit plot and are also trying to change the nature and character of the suit property. The cause of action arose on 1-3-1985 when the plaintiffs came to know about doing of illegal acts of the defendants. Accordingly the plaintiffs filed the instant suit for permanent injunction. ( 2 ) THE defendant No. 2 contested the suit by filing written statement and denied material allegations made out in the plaint contending inter alia that the suit is not maintainable and the suit is barred by limitation under Section 34 of the Specific Relief Act. The defence in brief is that the "pirothan" property are not personal properties of the shebaits. The defence in brief is that the "pirothan" property are not personal properties of the shebaits. The pirothan property was recorded in Khatian No. 1 in C. S. R. O. R. and r. S. R. O. R. The plaintiffs can't file this suit on personal capacity. In R. S. R. O. R. 12 decimals of land out of 15 decimals of land in the suit Plot No. 59, Khatian No. 309 were recorded and the remaining. 03 decimal of land were recorded in separate Khatian No. 271. The suit property is not properly described in the plaint as well as in the petition for temporary inunction. There was only 1 hut to the southern side of the suit plot upon. 03 decimals of land. Ahid never possessed 12 decimals of land in the suit plot excepting that. 03 decimals of land. The defendants hae been possessing 12 decimals of land in the suit plot since the time of their predecessor. Hebaludding possessed the entire 15 decimals of land in the suit plot and his name was recorded in C. S. R. O. R. Hebaluddin gave. 03 decimals of land to Ahid to live in there when Ahid came from another place and requested Hebaluddin to give some land to live in there. There was demarcating fencing between. 03 decimals and. 12 decimals of land in the suit plot but the plaintiffs removed those fencing made of kacha plants. The defendants are enjoying fruits of trees in the suit plot. The defendants are possessing lands in plot No. 60 adjacent to the suit plot and the defendants are possessing lands in plot No. 60 and 12 decimals of land in the suit plot by walling those lands or complex area without any demarcating line and the defendants are cultivating turmeric in those lands. The demarcated. 03 decimals of land in the suit plot has been recorded in R. S. R. O. R. in the name of Ahid in Khatian No. 271 and the remaining. 12 decimals of land were recorded in khanda Khatian No. 309 but in column No. 23 due to mistake the names of all shebaits were mentioned as shebaits in lieu of Hebaluddin. 12 decimals of land were recorded in khanda Khatian No. 309 but in column No. 23 due to mistake the names of all shebaits were mentioned as shebaits in lieu of Hebaluddin. Hebaluddin gave 12 decimal of land in the suit plot along with other properties to his son's wife Arjumanara by executing a deed of gift and Arjumanara gave 54 decimals of land including 12 decimals of land in the suit plot to this defendant by executing a deed of gift on 3-10-1985 and they are living there. A case u/s. 144, Cr. P. C. was filed by the plaintiffs against the defendants but after the enquiry the case was dismissed. The case is filed on false allegations and it is liable to be dismissed with costs. ( 3 ) ON the above pleadings made by the parties the learned trial Judge framed the following issues :1) Have the plaintiffs any cause of action for this suit ? 2) Is the suit maintainable in its present form ? 3) Are the plaintiffs entitled to the injunction as prayed for ? 4) Are the plaintiffs entitled to get decrees as prayed for ? 5) To what other decree if any, are the plaintiffs entitled. ( 4 ) AFTER hearing, the learned trial Judge decreed the suit on contest against defendant no. 2 and ex parte against the rest without costs. The learned trial Judge also re-strained the defendants permanently from creating any disturbance in the peaceful possession of the plaintiffs' in respect of the suit land. The learned trial Judge further directed the defendant No. 2 to remove the construction of house if any, from the, suit land within one month from the date of this order and in default the plaintiffs, were granted liberty to proceed according to law to execute the same. ( 5 ) THE defendant preferred appeal being title Appeal No. 91 of 1991 challenging the said judgment and decree passed by the learned trial Judge. The said appeal was also contested and it was dismissed on contest by the learned 2nd Additional District Judge, north 24 Parganas, Barasat. ( 5 ) THE defendant preferred appeal being title Appeal No. 91 of 1991 challenging the said judgment and decree passed by the learned trial Judge. The said appeal was also contested and it was dismissed on contest by the learned 2nd Additional District Judge, north 24 Parganas, Barasat. ( 6 ) IN fact challenging the judgment and decree dated 28-11-1995 and 9-12-1995 passed by the 2nd Additional District and Sessions judge, North 24 Parganas, Barasat affirming the judgment and decree dated 10-3-1991 and 16-5-1991 passed by the learned Munsif, 2nd Court at Barasat in Title suit No. 38 of 1985 this appellant preferred this instant second appeal. ( 7 ) WHEN the instant second appeal came up for hearing under Order XLI, Rule 11 of the code of Civil Procedure on 7-6-1998 the hon'ble Division Bench directed that the appeal will be heard on the following substantial questions of law : (i) Whether in the facts and circumstances of the case the learned Courts below erred in law in not taking into consideration the fact that in view of the rival contentions of the parties a mere suit for permanment injunction was maintainable ? ( 8 ) ON perusal of documents on records and judgmetns and decrees passed by both the Courts below this Court thinks that another substantial question of law need be decided which is as follows : (ii) Whether judgments of both the Courts below suffer from perversity or not ? ( 9 ) THE learned counsel for the appellant submitted that admittedly it is a pirothan property and if it is admittedly pirothan property, this cannot be a personal property of anybody. The learned counsel submitted that function in a pirothan property of a Shebait is like the function of a mutawalli inasmuch as there is no concept of Shebaits either in Mohamadan Law or in wakf Act. ( 10 ) THE learned counsel then submitted that one cannot ask for permanent injunction unless he establishes his right and title in the suit plot. ( 10 ) THE learned counsel then submitted that one cannot ask for permanent injunction unless he establishes his right and title in the suit plot. ( 11 ) THE learned counsel for the appellant submitted that suit for permanent injunction is governed by the provisions of specific Relief Act, 1963 and the learned counsel in this regard referred to the provisions of S. 38 (1) and (3) of the said Act and submitted that the prayer of the plaintiffs is not coming within the four corners of the said provisions of the said Act and in absence of any right they are not entitled to perpetual injunction. ( 12 ) THE learned counsel further submitted that no relief can be claimed by the plaintiffs on the basis of the said prayer without having any legal right and none of the criteria embodied in Section 38 of the Specific relief Act has been fulfilled by the plaintiffs for the purpose of coming within the! scope of Section 38 of the said Act. ( 13 ) THE learned counsel relied on a decision of Hon'ble Division Bench of this High court reported in AIR 1952 Cal 364 (Sm. Parul Bala Roy v. Srinibash Chowmal ). The learned counsel laid stress on the observations of the Hon'ble Division Bench made in paragraphs 14, 17 and 18 of this judgment which are quoted hereinbelow :" (14 ). The third para deals with the breach of obligations other than obligations arising under a contract. In order to entitle the plaintiff to obtain an injunction, there must be an invasion or threatened invasion of the pltfs. right to, or enjoyment of property. The wqrd "invade" indicates the breach of an obligation on the part of the deft. , that is to say of a duty on the part of the deft. Which is recognised by law, not merely a moral or religious duty. Where the breach or the threatened breach of an obligation other than a contractual obligation to the pltf. is made the subject-matter for a suit for perpetual injunction, the pltf. can only get an injunction not merely by proving the legal duty on the part of the deft. towards the pltf. Which has been broken or threatened with breach but also by proving any one of the conditions mentioned in cls. (a) to (c) to exist. is made the subject-matter for a suit for perpetual injunction, the pltf. can only get an injunction not merely by proving the legal duty on the part of the deft. towards the pltf. Which has been broken or threatened with breach but also by proving any one of the conditions mentioned in cls. (a) to (c) to exist. In this case, therefore, the first question which will have to be considered is what is the nature of the legal duty which the appellant owned to the pltfs. "" (17 ). It is quite apparent that the appellant knew that the pltffs. were making the purchase for the purpose of bulding a house there. The fact is patent, because the land which was purchased had been developed by the Improvement Trust for the purposes of providing building sites. The area so purchased was small, 2 cottas and odd. In fact, it has been admitted before us by the learned advocate appearing for the appellant that there cannot be any question that the plffs. made the purchase from the deft. for the purpose of having a dwelling house there and that purpose was known to the deft. at the date of the sale. Secondly, having regard to the fact that the appellant had made her plan in that manner and got it sanctioned, she had a legal duty to disclose to the plft. at the time when she offered the property to sale that she had shown and utilised a portion of the property proposed to be sold by her as the back space of her proposed building. It was thus a case where the vendor knew that there was a latent defect in the property to be sold which was shown to the vendor but not known to the purchasers, and the finding is that the purchasers could not with due diligence discover the defect. That being the position, as we have said, there was a legal duty on the part of the appellant to disclose to the purchasers/respondents, the fact that she had shown a portion of the land, which she proposed to sell, at the back space of her proposed building the plan of which she submitted to the Municipality and which had been sanctioned. Coupled with this fact, the covenant in the conveyance given by the vendor, that the purchasers were to enjoy the land conveyed to them, except with the restriction specifically imposed upon them, would lead to the inference that a representation was made, though not in express terms, but by implication, that the purchasers would be free to build upon their land in such manner as the other Municipal Building Regulations might allow them to do otherwise, and that she had not done any act which would put them undr an extraordinary burden, or special disability in respect of the building. "" (18 ). That being the position, in law there was a duty on the part of the appellant to make good that representation to the plffs. and a failure to do so on her part, or acting contrary to that representation would, in our opinion, be the breach of a legal duty which the appellant owed to the plffs. and which can, therefore, be made the foundation for a prayer for injunction. The innunction can be granted provided that the case comes within any of the cls. (a) to (c) mentioned in s. 54, Specific Relief Act. This is the principle on which the case of Piggott v. Stratton, (1859) 1 DF and J 33, proceeds, a case which has been referred to in the judgment of the learned Additional Dist. J. Although Knight bruce L. J. went upon another ground in supporting the perpetual injunction given in that case, Lord Campbell L. C. put the case clearly on the principle that a representation made by a vendor or a lessor creates a legal duty on his part to make good that representation and that if he acts or threatens to act contrary to that representation, he breaks an obligation, that is to say, a legal duty towards the purchaser to whom he had made that representation, and a perpetual injunction can be granted. " ( 14 ) THE learned counsel then submitted that insofar as the possession is concerned, both the learned Courts below proceeded on the basis of presumption and any finding on the basis of any presumption is perverse. " ( 14 ) THE learned counsel then submitted that insofar as the possession is concerned, both the learned Courts below proceeded on the basis of presumption and any finding on the basis of any presumption is perverse. ( 15 ) THE learned counsel then referred to the provisions of Sections 202 and 203 of mohomedan Law and submitted that in absence of any right of any person appointed as Mutawalli in terms of the provisions of 203 of Mohomedan Law no one can claim any right for obtaining injunction. Only mutuwalli appointed in terms of Section 203 can ask for possession. ( 16 ) THE learned counsel also submitted that Commissioner of Wakf should have been made party and in absence, the suit is not maintainable and notice should have been given to the learned Wakf Commissioner in terms, of the provisions of Wakf Act. The learned counsel in this regard relied on a decision reported in AIR 1966 Cal 68 (The commissioner of Wakfs, West Bengal v. Sm. Ayesa Bibi ). ( 17 ) THE learned counsel mainly relied on paragraphs 12, 14 and 19 of this judgment which are quoted hereinbelow :"12. The learned Subordinate Judge apparently took the view that Section 70 (1) of the Act does not apply to the case where the commissioner of Wakf is himself a party defendant. I am inclined to accept that view. 1 am of the opinion that where the Commissioner of Wakf is himself a party defendant, in a suit in respect of a Wakf property, notice under S. 70 (1) to the Commissioner need not be given, for the simple reason that being himself a party defendant the notice of the suit is given to him through the summons that is served on him notifying the filing of the suit and the contents of the plaint. Notice under S. 70 (1) of the Bengal Wakf Act ensures that a suit or a proceeding in respect of any Wakf property must be with notice and knowledge of the Commissioner. The idea is clear. The Commissioner is a guardian of the Wakfs in this State. Once that view is taken the consequence stated in sub-s. (4) of the section is clear. Any decree or order which is made without such notice as contemplated under Section 70 (1)of the Act shall be declared void by the Court. The idea is clear. The Commissioner is a guardian of the Wakfs in this State. Once that view is taken the consequence stated in sub-s. (4) of the section is clear. Any decree or order which is made without such notice as contemplated under Section 70 (1)of the Act shall be declared void by the Court. The Court has no other option. ""14. On an interpretation of the whole of section 70 of the Bengal Wakf Act and its five different sub-sections it is plain that the notice to the Commissioner of Wakf is mandatory in the cases mentioned in the different sub-sections of Section 70. Section 71 of the Act provides for the cases when the commissioner may be made a party to a suit or proceeding regarding a Wakf on his own application. The language used in Section 71 of the Act is that the Commissioner in the cases mentioned there may intervene and shall on the application be added as a party and shall be entitled to conduct or defend such suit or proceeding on behalf of and in the interest of the Wakf. It has been argued by Mr. Chakravarty for the opposite parties that even after the name of the Commissioner was struck out from the cause title of the defendants he could have claimed his right of intervention. That seems to me to be an unsound argument having regard to the language of Section 71. This right to intervention appears along with the right to make the applicant to be added as a party. Having himself agreed not to be continued as a party defendant, it would be insensible for the Commissioner in such circumstances to have applied under S. 71 of the Act to intervene and make an application to be added as a party. That will be clearly illogical. ""19. It is noteworthy that Section 70 (1) of the Act does not specify when the notice is to be given. Normally when the suit is instituted it will be an appropriate time to give such notice to the Commissioner but then no specific time is fixed. All that it says is that such notice shall issue at the cost of the party instituting the suit or proceeding. Normally when the suit is instituted it will be an appropriate time to give such notice to the Commissioner but then no specific time is fixed. All that it says is that such notice shall issue at the cost of the party instituting the suit or proceeding. On the interpretation I hold that no notice is necessary under S. 70 (1) of the Act so long as the defendant Commissioner remains a party to the suit. Notice becomes essential when he ceases to be a party for any step taken by the Court subsequent to his ceasing to be a party. That notice is a statutory mandate upon the Court. The language of section 70 (1) of this Act is imperative and it says "the Court shall issue notice to the commissioner" i. e. the statutory obligation of the Court and the Court cannot be exonerated from that obligation on the facts of this case specially because the record of the order sheet does not state that when the decre on compromise was passed on the 22nd May, 1958 by the Court it was so done in the presence of the Commissioner defendant or his lawyer. " ( 18 ) THE learned counsel then submitted that the plaintiffs should have deposited court-fees for the purpose of recovery of khas possession inasmuch as the defendants are already there in possession. ( 19 ) MR. Banerjee, the learned, senior counsel for the appellant submitted that local inspection was made on 31-7-1985 which also does not say about the possession of the plaintiffs. ( 20 ) THE learned counsel then submitted that the plaintiffs are claiming title through hebaluddin but since it was a pirothan property admittedly, no transfer can be made by any personin his individual capacity and as hebaluddin had no title in and over the suit property the plaintiffs can't derive a better title. ( 21 ) THE learned counsel submitted that total land is 15 decimals and out of the same. 03 decimals was recorded in R. S. record in the name of Ahid, the predecessor-in interest of the plaintiffs and 12 decimals was wrongly recorded. ( 21 ) THE learned counsel submitted that total land is 15 decimals and out of the same. 03 decimals was recorded in R. S. record in the name of Ahid, the predecessor-in interest of the plaintiffs and 12 decimals was wrongly recorded. ( 22 ) THE learned counsel then submitted that the lower appellate Court observed that there was an order of status quo in respect of possession and the defendant in violation of the order had come to possession in respect of the suit land and in that event the plaint should have been amended and the plaintiffs should have deposited additional court-fees for the purpose of recovery of possession. ( 23 ) MR. Banerjee submitted further that in view of his aforesaid submissions the suit should be dismissed and the judgments and decrees passed by the Courts below should be set aside. ( 24 ) THE learned counsel appearing for the respondents submitted that the suit was filed on 11th March, 1985, order of status quo was granted by the learned Court on 13th March, 1985. On 31st July, 1985 local inspection was made and on 3rd October, 1985 one Anjumanara Bibi transferred 15 cents of land in favour of the appellant by executing a hebabeelewaz. ( 25 ) THE learned counsel for the respondents ms. Nandy submitted that mainly four points have been taken by Mr. Banerjee, the learned counsel for the appellant, (1) the suit is not maintainable in view of the provisions of Section 38 of the Specific Relief Act, (2)there is no concept of Shebait in Mahomedan law, (3) notice on the Wakf Commissioner is mandatory and the Commissioner of Wakf should have been made party in view of the act that this is a Wakf property, (4) since the defendant is in possession the suit should have been amended and recovery of possession should have been prayed for and accordingly the Court-fees of higher value i. e. the Court-fees for recovery of possession should have been deposited and in absence the suit is not maintainable. ( 26 ) MS. NANDY specifically submitted that she is going to answer all the four questions posed by Mr. Banerjee. ( 27 ) MS. Nandy submitted that interpretation of Section 38 of the Specific Relief Act made by Mr. Banerjee is not at all correct. ( 26 ) MS. NANDY specifically submitted that she is going to answer all the four questions posed by Mr. Banerjee. ( 27 ) MS. Nandy submitted that interpretation of Section 38 of the Specific Relief Act made by Mr. Banerjee is not at all correct. A suit for permanent injunction is very much maintainable under Section 38 of Specific relief Act. Ms. Nandi in this context relied on a decision reported in AIR 1972 SC 2299 (M. Kallappa Setty v. V. Lakshminarayana rao ). Ms. Nandy relied on paragraph 3 of this Apex Court judgment which is quoted hereinbelow :"3. The suit property is a building site measuring 80 x 40 feet situate within the municipal limits of Birur. The plaintiff claims to have purchased the same from one banavarada Abdulla Saheb for a sum of Rs. 100/-, on January 11, 1947. His case is that ever since the purchase he was in possession of the suit property and before the sale in his favour, his vendor was in possession of the suit property. The property sold to the plaintiff is described in the sale deed both by Survey No. as well as by boundaries. The survey No. of the property as shown in the sale deed in favour of the plaintiff was 1711 whereas it is now established that its correct survey No. is 1719. It is not disputed that according to the boundaries shown in the sale deed in favour of the plaintiff, it is a suit site that had been sold to him. Sometime after the purchase made by him, the plaintiff came to know that the survey No. of the property sold to him was not correctly mentioned in the sale deed in his favour. But by that time his vendor had died. Therefore he got a rectification deed from the son of the vendor on Dec. 24,1950. The sale deed as rectified shows the survey no. of the plot sold as survey No. 1719 (its old survey No. is 1726 ). After obtaining the rectification deed, the plaintiff had the revenue records changed to his name. Before changing the registry in the name of the plaintiff the municipality had notified to d. W. 5. On December 1, 1953, the defendant purported to purchase the suit property from D. W. 5. Thereafter he got the registry re-changed to his name without notice to the plaintiff. Before changing the registry in the name of the plaintiff the municipality had notified to d. W. 5. On December 1, 1953, the defendant purported to purchase the suit property from D. W. 5. Thereafter he got the registry re-changed to his name without notice to the plaintiff. " ( 28 ) MS. Nandy submitted that here the hon'ble Apex Court partly decreed the suit where permanent injunction was prayed for and Ms. Nandy submitted that this is correct proposition of law as held by the Hon'ble apex Court and in view of the provisions of section 38 (3) (c) the suit for permanent injunction is very much maintainable. ( 29 ) MS. Nandy thereafter, submitted that this is not a Wakf property, so question of acting by Mutwalli or question of filing suit by the Mutwalli or secondly serving of notice on the Wakf Commissioner by the mutwalli does not arise. Here, the appellant has no right in and over the land in view of the fact that during the pendency of the suit and dependency of the order to maintain status quo, the suit land was transferred and naturally, it is an illegal transfer in favour of Mr. Banerjee's client and if the transfer is illegal, question of the right, title or possession of the appellant herein also does not arise. ( 30 ) NEXTLY, Ms. Nandy relied on serveral decisions of the Hon'ble Apex Corut regarding scope of second appeal in view of the provisions of Section 100 of C. P. C. when concurrent findings of both the Courts bellow as regards possession is there. 1) Ms. Nandy relied on the decisions reported in 1989 (3) SCC 145 : AIR 1989 SC 1602 . 2) 1989 (3) SCC 287 . 3) 1989 (3) SCC 612 : AIR 1989 SC 1809 . ( 31 ) MS. Nandy relied on three other decisions on the self-same point i. e. on the scope of second appeal. The three other decisions are 1998 (6) SCC 423 (Satya Gupta (Smt.) Alias Madhu Gupta v. Brijesh Kumar ). Ms. Nandi relied on the observations made in pargraph 16 of this judgment which is quoted hereinbelow :"16. ( 31 ) MS. Nandy relied on three other decisions on the self-same point i. e. on the scope of second appeal. The three other decisions are 1998 (6) SCC 423 (Satya Gupta (Smt.) Alias Madhu Gupta v. Brijesh Kumar ). Ms. Nandi relied on the observations made in pargraph 16 of this judgment which is quoted hereinbelow :"16. At the outset, we would like to point out that the findings on facts by the lower appellate Court as a final Court of facts, are based on appreciation of evidence and the same cannot be treated as perverse or based on no evidence. That being the position, we are of the view that the High Court, after reappreciating the evidence and without finding that the conclusions reached by the lower appellate Court were not based on the evidence, reversed the conclusions on facts on the ground that the view taken by it was also a possible view on the facts. The High court, it is well settled, while exercising jurisdiction under Section 100, C. P. C. cannot reverse the findings of the lower appellate court on facts merely on the ground that on the facts found by the lower appellate court another view was possible. " ( 32 ) THEN Ms. Nandy referred to the other decision reported in AIR 1999 SC 3325 (Harisingh v. Kanhaiya Lal ). Ms. Nandy laid stress on the observations made in paragraphs 16 and 18 of this judgment which are quoted hereinbelow :"16. Thus within the said periphery the question arises, whether the High Court in the present case has rightly exercised its jurisdiction in setting aside the findings recorded by both the Courts below ? So far the question of sub-letting the finding was based on the deposition of the witnesses to whom the disputed premises was sub-let. Their testimony was rejected by the High court mainly on the basis that there is no detail pleading pertaining to the period of sub-tenancy and even the witnesses have not produced any receipt of payment of rent. It is not in dispute that there is pleading that the disputed premises was sub-let. The detail, if any, can be supplemented through evidence. More lack of details in the pleading cannot be reason to set aside concurrent finding of facts. It is not in dispute that there is pleading that the disputed premises was sub-let. The detail, if any, can be supplemented through evidence. More lack of details in the pleading cannot be reason to set aside concurrent finding of facts. Similarly, the High court interfered with the concurrent findings of facts that nuisance was created by the respondent by obstructing the passage leading to the appellant's house by keeping onion bags leaving out of space of 11 feet to 3 feet only. The fact of this obstruction is also supported by the Commissioner report submitted in the present proceedings. The finding recorded on sub-letting and nuisance by both the Courts below being based on evidence on record its setting aside by reappraisal of evidence, and in any case without framing any substantial question of law by the High Court cannot be sustained and further we also do not find any substantial question of law arising therein. Learned counsel for the respondent tried to submit with force by attempting to take us to the evidence of the witnesses to show their un-worthiness for reliance. It is neither a case of evidence nor perverse finding. All these submissions are within the realm of appreciation of evidence which should not have been interfered by the High Court far less for us to examine. ""18. Though the submission on this question of default was stretched, both by learned counsel for the appellant and the respondent at great length but we do not propose to go into this question, when we have upheld the concurrent findings of both the courts below of sub-letting and creating nuisance, which by itself is sufficient for a decree for eviction. The submission, since it raises question of interpretation of various sub-sections of Section 13 and Section 7, it is not necessary to go into it for the said reason in the present proceedings. This apart, as we have held that the High Court committed error in the exercise of its jurisdiction in setting aside the concurrent findings of fact on sub-letting and nuisance without formulating and there being any substantial question of law. the same also equally applies so far this third point, namely, the default of the tenant. This apart, as we have held that the High Court committed error in the exercise of its jurisdiction in setting aside the concurrent findings of fact on sub-letting and nuisance without formulating and there being any substantial question of law. the same also equally applies so far this third point, namely, the default of the tenant. Once the appellate Court recorded the finding that there is no default that became final and if the High Court did not interfere with this finding We do not find, it committed any such error which require our interference. We do not find any substantial question arising out of the decision on this point. " ( 33 ) MS. Nandy then relied on a decision reported in AIR 2001 SC 2282 (Hamida v. Md. Khalil ). Ms. Nandy relied on paragraph 6 of this decision which is quoted hereinbelow :"6. The High Court has upset the finding of fact recorded by the first appellate Court, taking a different view merely on re-appreciation of evidence in the absence of valid and acceptable reasons to say that the findings recorded by the first appellate Court could not be sustained either they being perverse or unreasonable or could not be supported by any evidence. The High Court neither framed a substantial question of law nor any such question is indicated in the impugned judgment as required under Section 100 of the Code of Civil Procedure. The approach of the High Court, in our view, is clearly and manifestly erroneous and unsustainable in law. Para 10 of the impugnedjudgment reads :-"the appellate Court although has decided the issue of personal necessity but from the judgment it appears that the appellate court has not decided this issue in its correct perspective. Since the trial Court has not recorded any finding on the issue of personal necessity, the finding recorded by the appellate Court cannot be said to a concurrent finding of fact. I am, therefore, of the definite view that in such circumstance, this Court ean reappreciate the evidence and scrutinize the findings recorded by the appellate Court under Section 100, c. P. C. when admittedly; this issue was not decided by the trial Court. . . . The sons of the plaintiff for whose requirement the plaintiff sought eviction. have not been examined. . . . The sons of the plaintiff for whose requirement the plaintiff sought eviction. have not been examined. The nephew of the plaintiff was examined as a witness who supported the case of the plaintiff. The plaintiff has also not led any evidence to the effect that the house property where the plaintiff resides, is not sufficient for their own use and occupation. There is also no evidence to the effect that suitable alternative accommodation is not available to the plaintiff for meeting the requirement. 1 am. therefore, of the view that the finding recorded by the appelate court on the issue of personal necessity cannot be sustained in law for want of sufficient evidence. " ( 34 ) AS can be seen from the para extracted above the High Court thought that it could re-appreciate the evidence and scrutinize the findings recorded by the first appellate court under Section 100, C. P. C. This approach is plainly erroneous and against law. The High Court was also wrong in saying that the plaintiff did not lead sufficient evidence to establish his bona fide requirement. As observed by the first appellate court and noted above already, there is evidence of the plaintiff, his nephew and the neighbour. The finding of fact recorded by the first appellate Court based on evidence could not be interfered with by the High court, that too in the absence of any substantial question of law that arose for consideration between the parties. " ( 35 ) MS. Nandy submitted that in view of the above decisions of the Hon'ble Apex court, when there is concurrent finding of fact insofar as the possession of the property is concerned the second appellate Court has no jurisdiction to interfere with the said findings unless it is found to be perverse. ( 36 ) MS. Nandy submitted that neither the learned counsel submitted as to the perversity nor the learned counsel for the appellant could establish that the judgments and decrees passed by the Courts below are perverse. ( 37 ) MS. NANDY again at the cost of repetition of her submission submitted that a suit for permanent injunction is valid or legal even when no declaration is prayed for and in this regard Ms. Nandy relied on the decision reported in AIR 1980 Kerala 224 (Karthiyayani Amma v. Govindan ). ( 38 ) MS. ( 37 ) MS. NANDY again at the cost of repetition of her submission submitted that a suit for permanent injunction is valid or legal even when no declaration is prayed for and in this regard Ms. Nandy relied on the decision reported in AIR 1980 Kerala 224 (Karthiyayani Amma v. Govindan ). ( 38 ) MS. Nandy relied on the observations made by the Hon'ble Kerala High Court in paragraphs 4 and 7 of this judgment which are quoted hereinbelow :"4. It is on this finding of possession that the second appeal has to be disposed of, notice was issued on the following question of law by this Court :"even assuming that the plaintiffs have failed to prove title to the property, are they not entitled to an injunction on the strength of their possession ?"the question which falls to be decided in the case is whether a person in possession without lawful title can sustain an action for injunction against a person who has lawful or better title. This question was considered by Raman Nayar, J. as he then was in vasudeva Kurup v. Ammini Amma (1964 Ker lt 468 ). It was held that a person in possession could obtain protection against all invaders of his enjoyment even if the invader be the true owner. I had occasion to consider this question in S. A. No. 721 of 1978-B and 1 observed :"i am in respectful agreement with the proposition of law laid down in 1964 Ker LT 468. To hold otherwise, would be to allow owners asserting right and title over the property to take the law into their own hands and interfere with the peaceable possession of persons though trespassers. " ( 39 ) THE above judgment of Raman Nayar, j. was considered by a Division Bench of this Court in Narayanan v. Mathai (1966 Ker lt 1) : ( AIR 1966 Ker 179 ) which expressed no opinion on it, but said :"the point decided in 1964 Ker LT 468 has no direct bearing on the question to be decided in the second appeal except that possessory title is recognised as the foundation of a claim for maintaining one's possession, (para 18 ). Raman Nayar J. again spoke in 1966 Ker LT 333 (337) : ( AIR 1966 ker 179 (DB) (N. S. S. case) reiterating what he had said earlier. Raman Nayar J. again spoke in 1966 Ker LT 333 (337) : ( AIR 1966 ker 179 (DB) (N. S. S. case) reiterating what he had said earlier. Said the learned Judge:"and the several High Courts are at one in holding that a person in possession, even if he be a mere trespasser, can on the strength of his possessory title, get back possession from any person, (except the trueowner)who dispossesses him, if he brings a suit within 12 years limited by law - if he brings it within 6 months under S. 9 of the specific Relief Act, he can recover possession even from the true owner. " ( 40 ) THIS decision was confirmed by the supreme Court in N. S. S. Ltd. v. Rev. Fr. Alexander (1968 Ker LT 182) : ( AIR 1968 SC 1165 ). There was some discussion at the bar as to what exactly is the correct position of law regarding this aspect of the case in the context of the observations of the Supreme court in M, K. . . Setty v. M. V. L. Rao ( AIR 1972 SC 2299 ). In para 5 of the said judgment occurs the following sentence :"the plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, as the trial court and the first Appellate Court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is not approved to have a better title than himself of the suit property. On the findings arrived at by the fact finding Courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily. "basing on this observation, it was contended that the Supreme court should be deemed to have decided that a person in possession without title could successfully resist interference of his possession only from persons who had. no better title, suggesting thereby that a person with better title could interfere with the possession of such person. With great respect, the above sentences cannot be read to formulate such a position of law. no better title, suggesting thereby that a person with better title could interfere with the possession of such person. With great respect, the above sentences cannot be read to formulate such a position of law. There the Supreme Court was considering the dispute between two persons who put forward rival titles, but one of them alone proved possessory title. There the defendant's title was not considered by the trial Court, the appellate Court or the High Court. The High court dismissed the suit holding that the plaintiff did not satisfactorily prove his title, disregarding the concurrent findings of possession by the Courts of fact. It was in this context that the above observations were made by the High Court. It is not permissible nor is it proper to read a judgment as a statute. Sentences occurring in a judgment have to be read in the proper context. It may not be correct to say that casual observation in a Supreme Court judgment or even obiter dicta unconnected with the facts of the case under discussion and not laying down any proposition of law have binding force as law declared by the Supreme Court under Art. 141 of the Constitution. The Supreme court itself has laid down the guideline how to understand its judgments and not to tear sentences out of context in municipal Committee v. Hazara Singh ( AIR 1975 sc 1087 ) : (1975 Cri LJ 928) : (1975 Ker LT 275 ). In my view, with utmost respect, the sentences extracted above do not lay down anything different from what has been laid down by this Court in the decisions cited above. ""7. The ultimate position, therefore, reduces itself to this : Can a person in possession without title sustain a suit for injunction against the rightful owner if he proves possession? Yes. In this case, the plaintiff is found to be in possession. On the finding, he should be granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. On the finding, he should be granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of Law and pray for the equitable relief of injunction to protect his possession. " ( 41 ) IN support of the same principle Ms. Nandi relied on the decisions reported in AIR 1995 Kerala 157, AIR 1997 Kerala 165 and 1997 (3) SCC 503 . ( 42 ) MS. Nandy then submitted that Section 202 of the Mahomedan Law is not applicable here and it was nobody's case that the property is a Wakf property and the functioning of Mutwalli is there. In the Bengal wakf Act in Section 3 (10) the definition of wakf has been given and unless there is dedication there can't be any Wakf and here the appellant could not produce any document of endowment or any dedication. ( 43 ) MS. Nandy also referred to the provisions of Section 6 (5) of the Bengal Wakf Act and Section 6,12 and Section 44 of the said act. Ms. Nandy in this context relied on the decisions reported in AIR 1975 SC 1891 (Punjab Wakf Board v. Captain Mohar singh ). ( 44 ) MS. Nandy laid stress on the observations made in paragraph 13 of this judgment which is quoted hereiribelow :"13. The concurrent findings in the present case are these. There is no evidence that the property in question was used as wakf property. There is no dedication of the property to be wakf property. There is no evidence that the property was determined to be wakf property by the Custodian. " ( 45 ) ON the same principle Ms. Nandy relied on another decision reported in AIR 1986 Himachal Pradesh 23 (Punjab Wakf board. Ambala v. Gram Sabha, Basoli ). The learned counsel laid stress on the observations made on paragraphs 5 and 7 of this judgment which are quoted hereinbelow :"5. " ( 45 ) ON the same principle Ms. Nandy relied on another decision reported in AIR 1986 Himachal Pradesh 23 (Punjab Wakf board. Ambala v. Gram Sabha, Basoli ). The learned counsel laid stress on the observations made on paragraphs 5 and 7 of this judgment which are quoted hereinbelow :"5. The aforesaid documentary evidence suggests that where the land in dispute originally formed part of 'shamlat Deh' and subsequently came to be known as 'pirsthan' probably for the reason that some 'pir' i. e. a holy man had his abode here or some memorial was raised after his death. Keeping in view the facts that the land was originally a part of 'shamlat Deh' and the income of this place used to be divided by certain named persons, both Muslims and non-Muslims, the logical conclusion that follows is that the property in dispute was not dedicated by a person professing Islam and it has not been used for purposes recognized by Muslim Law as pious, religious or charitable. This property was also not described as 'mosque', 'idgah', 'imambara', 'dargah', 'khangah', or a 'maqbara' by which names muslim Wakfs are generally known. It is common knowledge that a holy man attracts followers of all faiths irrespective of his own religion and is worshipped by all of them. It is not surprising if on the death of such a holy man all his followers belonging to different religions joined hands in raising a suitable memorial for him and then used the same as a place of worship. In such a case, the place would not become wakf simply because the holy man belonged to a muslim family. Besides the documentary evidence, the oral evidence has also been produced on behalf of the plaintiffs. P. W. 1 barkat Ali admitted that even before 1947 both Hindus and Muslims attended the 'mela' at this place and that Hindus also worshipped this place. He also admitted that a 'gharyal' (Bell) had been installed in this place which was rung by all persons entering the place. It is a matter of common knowledge that 'ghariyals' are usually found in Hindu temples. P. W. 2 Dilip Singh has also admitted that persons of all faiths worshipped the disputed place and that at the time of marriage the Hindus used to make offerings at this place. It is a matter of common knowledge that 'ghariyals' are usually found in Hindu temples. P. W. 2 Dilip Singh has also admitted that persons of all faiths worshipped the disputed place and that at the time of marriage the Hindus used to make offerings at this place. P. W. 3 Laldin who is the nephew of P. W. 1 has stated that the doors of all Muslim religious places face West whereas the doors of the disputed place face east. He also admitted the existence of the 'ghariyal' which was rung by all persons entering this place. He further stated that on the eve of 'diwali', this place was lighted with earthen lamps. P. W. 4 Wattan Singh also stated that all Hindus and Muslims used to worship this place. P. W. 6 Prithi chand too admitted that both Muslims and hindus attended the 'mela' held at this place and that Hindus also worshipped this 'pirsthan'. Thus, as per plaintiffs own oral evidence, the place in dispute has all along been used as a place of worship both by the hindus as also by the Muslims. In face of the above evidence, the property in dispute cannot be said to have answered the definition of 'wakf' as defined under the Act. 'wakf as defined under the Wakf Act is as follows:-""wakf"" means the permanent dedication by a person professing Islam of any moveable or immovable property for any purpose recognised by the Muslim Law as pious, religious or charitable and includes- (i) a wakf by user; (ii) grants (including mashrut-ul-khidmat)for any purpose recognized by the Muslim law as pious, religious or charitable; and (iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim law as pious, religious or charitable: and "wakf means any person making such dedication. ""7. It is apparent that it is a shrine known as 'pirsthan' but the worshippers are both muslims and non-Muslims. Offerings are also made and appropriated by both the communities. There is also a 'gharyal' which is not found in the mosques but in the temples worshipped by Hindus. As such, in the totality of the circumstances, no other conclusion is possible except that it is a shrine, the worshippers of which are both hindus and Muslims. Offerings are also made and appropriated by both the communities. There is also a 'gharyal' which is not found in the mosques but in the temples worshipped by Hindus. As such, in the totality of the circumstances, no other conclusion is possible except that it is a shrine, the worshippers of which are both hindus and Muslims. There is also no evidence about the dedication of this property by any Muslim, exclusively for the benefit of the Muslim community. " ( 46 ) MS. Nandy then relied on another judgment reported in AIR 1974 Karnataka 28, (Mysore State Board of Wakf v. K. S. L. Shetty ). ( 47 ) MS. Nandy then submitted that Wakf must be a wakf by user and only by claiming wakf will not help. ( 48 ) MS. Nandy relied on AIR 2001 SC 70 (sic), (Tamil Nadu Wakf Board v. Bhajan anand ). ( 49 ) MS. Nandy then submitted that in view of the provisions of Section 70 of the bengal Wakf Act question of notice does not arise in this case. ( 50 ) MS. Nandy also submitted that provisions of Contract Act Sections 4, 5, 6, and 27 are to be satisfied. ( 51 ) MS. Nandy concludingly submitted that in view of her submissions the second appeal should be dismissed and the judgments and decrees passed by the Courts below should be upheld. ( 52 ) HEARD the learned counsel for the parties, for the shake of convenience of discussion Sections 202, 203 of the mahomedan Law and Section 38 of the Specific relief Act are quoted hereinbelow :"202. Mutwalli.- Under the Mahomedan law the moment a wakf is created all rights of property pass out of the wakf and vest in the Almighty. The mutawalli has no right in the property belonging to the wakf; the property is not vested in him, and is not a trustee in the technical sense. He is merely a superintendent or manager (z ). The admissions of a mutawalli about the nature of the trust are not binding on his successors (a ). ""203. Who may be appointed mutawalli.- (1) Subject to the provisions of sub-sec. (2), the founder of a wakf may appoint himself (1), or his children and descendants (m) or any other person, even a female (n), or a non-Mahomedan (o), to be mutawalli of wakf property. ""203. Who may be appointed mutawalli.- (1) Subject to the provisions of sub-sec. (2), the founder of a wakf may appoint himself (1), or his children and descendants (m) or any other person, even a female (n), or a non-Mahomedan (o), to be mutawalli of wakf property. ( 53 ) BUT where the mutawalli has to perform religious duties or spiritual functions which cannot be performed by a female, e. g. , the duties of a Sajjadanashin (spiritual superior) (p) (S. 220) or khalib (one who reads sermons) or mujavar of a dargah (q), or an imam in a mosque (whose function it is to lead the congregation) (r), a female is not competent to hold the office of mutawalli, and cannot be appointed as such (s ). Similar remarks apply Lo non-Mahomedans. The duties of a manager of a graveyard are secular and can be performed by a female (t ). (2) Neither a minor nor a person of unsound mind can be appointed mutawalli (u ). But where the office of mutawalli is hereditary and the person entitled to succeed to the office is a minor, or where the mode of succession to the office is defined in the deed of wakf and the person entitled to succeed to the office on the death of the first or other mutawalli to act in his place during his minority (v ). ""38. (54) (1) Subject to the other provisions contained in or referred to by this chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiffs right to, or enjoyment of property, the Court may grant a perpetual injunction in the following cases, namely :- (a) where the defendant is trustee of the property for the plaintiff: (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c) where the invasion is such that compensation in money would not afford adequate relief; (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings. ( 54 ) THE provisions of Sections 3, 10 and section 70 of the Bengal Wakf Act are also quoted hereinbelow chronologically :"3. Application.- Save as herein otherwise specifically stated this Act shall apply to all wakfs, whether created before or after the commencement of this Act, any part of the property of which is situated in (West bengal ). ""10. Term of office.- (1) Every member of the Board shall hold office for a term of five years : provided that the term of office of a member of the Board referred to in sub-section (1) of Section 8 shall be three years. (2) A member of the Board, notwithstanding the expiration of his term of office, shall continue to hold office until the vacancy caused by the expiration of the said term has been filled. (3) A person ceasing to be a member by reason of the expiration of his term of office, shall, if otherwise qualified, be eligible for re-appointment or re-election. (4) If any mutawalli as such appointed, or any member of the West Bengal Legislative assembly, as the case may be. the State government shall by notification in the official Gazette, declare his place to be vacant provided that an elected member of the board whose place is declared vacant under this sub-section shall continue as a member of the Board until his successor is elected. ""70. Notice of suits, etc. , to be given to the Commissioner.- (1) In every suit or proceeding in respect of any wakf property or of a mutawalli as such except a suit or proceeding for the recovery of rent by or on behalf of the mutawalli the Court shall issue notice to the Commissioner at the cost of the party instituting such suit or proceeding. (2) Before any wakf property is notified for sale in execution of a decree, notice shall be given by the Court to the Commissioner. (3) Before any wakf property is notified for sale for the recovery of any revenue, cess, rates or taxes due to the Government or to local authority notice shall be given to the commissioner by the Court, Collector or other person under whose order the sale is notified. (3) Before any wakf property is notified for sale for the recovery of any revenue, cess, rates or taxes due to the Government or to local authority notice shall be given to the commissioner by the Court, Collector or other person under whose order the sale is notified. (4) In the absence of a notice under subsection (1)any decree or order passed in the suit or proceeding shall be declared void, if the Commissioner, within one month of his coming to know of such suit or proceeding, applies to the Court in this behalf. (5) In the absence of a notice under subsection (2)or sub-section (3) the sale shall be declared void, if the Commissioner, within one month of his coming to know the sale, applies in this behalf to the Court, or other authority under whose order the sale was held. " ( 55 ) ON perusal of the provisions of the specific Relief Act and from the provisions of Sec. 38 (3) (c) it becomes clear that one can ask for permanent injunction when there is a threat of invasion in such a manner that compensation in money would not afford adequate relief. ( 56 ) INSOFAR as the question of serving notice is or question of suit by Mutawalli does not arise inasmuch as the appellant could not satisfy by any document or by adducing any evidence that it is a wakf property and in my view no notice as such to the wakf Commissioner is necessary since this could not be proved to be a Wakf property. ( 57 ) IN all the four points or on all substantial questions of law I, respectfully disagree with the submissions made by the learned senior counsel Mr. Banerjee and I respectfully agree with the submissions made by the learned counsel for the respondents Ms. Nandy. ( 58 ) IN view of the discussions made above this second appeal is dismissed. The judgments and decrees passed by the Courts below are upheld. ( 59 ) A decree may be drawn up accordingly. ( 60 ) THE lower Court records be sent down to the Courts below forthwith. ( 61 ) IN view of the facts and circumstances of the case parties will bear their own costs. ( 62 ) URGENT xerox certified copy, if applied, for will be given to the parties as expeditiously as possible. Appeal dismissed.