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2012 DIGILAW 4974 (MAD)

A. Murugan v. Aloor Muslim Jamath Committee

2012-12-18

G.RAJASURIA

body2012
ORDER 1. This Second Appeal is focussed against the judgment and decree dated13.07.2009 passed in A.S.No.58 of 2008 by the learned Subordinate Judge, Padmanabhapuram, in confirming the judgment and decree dated 10.06.2008 passed in O.S.No.158 of 2006 by the learned Principal District Munsif cum Judicial Magistrate, Eraniel. 2. Heard both sides. 3. The parties are referred to hereunder according to their status before the trial Court. 4. A resume of facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (i) The respondent/plaintiff filed the suit to get evicted the appellant/tenant on the ground that the defendant was a tenant in the suit property belonging to the plaintiff and his tenancy was terminated and even thereafter, he was continuing in possession. Whereas the defendant resisted the suit. The issues were framed. Up went the trial, during which, P.W.1 was examined and Exs.A.1 to A.10 were marked on the side of the plaintiff. D.W.1 and D.W.2 were examined and Exs.B.1 to B.7 were marked on the side of the defendant. Ultimately, the trial Court decreed the suit ordering eviction of the defendant/tenant. (ii) Being aggrieved by and dissatisfied with the same, the defendant/tenant preferred the appeal before the first appellate Court for nothing but to be dismissed, confirming the judgment and decree passed by the trial Court. 5. Challenging and impugning the judgments and decrees of both the Courts below, this second appeal has been focussed on various grounds and also suggesting the following substantial questions of law: "(a) When the suit property admittedly being waqf property whether the conclusion arrived at by the courts below that civil courts have jurisdiction to try the suit, despite specific bar contained in section 85 of the Waqf Act, 1995 is correct in law? (b) When only a vacant site has been leased by the respondent, whether the respondent is entitled to seek possession of building erected by the appellant with respondent's permission, without compensating the appellant?" (extracted as such) 6. My learned Predecessor while admitting the second appeal framed the following substantial question of law: "(1) Whether the courts below have committed an error in holding that the suit for ejectment is not barred by Section 85 of the Wakf Act? My learned Predecessor while admitting the second appeal framed the following substantial question of law: "(1) Whether the courts below have committed an error in holding that the suit for ejectment is not barred by Section 85 of the Wakf Act? (2) Whether the suit for recovery of possession of the suit property which is described to be inclusive of the superstructure admittedly put up by the lessee is not maintainable in the absence of any specific clause in the contract of lease to the effect that the superstructure will vest with the lessor after lapse of some time?" (extracted as such) 7. The dictum laid down by the Honourable Apex Court in the following decisions could fruitfully be referred to: (i) Hero Vinoth (Minor) v. Seshammal reported in (2006) 5 Supreme Court Cases 545. (ii) Kashmir Singh v. Harnam Singh and another reported in 2008 (4) SCALE 300 . (iii) State Bank of India and others v. S.N.Goya reported in 2009-1-L.W.1. 8. A plain reading of those precedents would reveal and demonstrate that under Section 100 of the Code of Civil Procedure, a Second Appeal cannot be entertained, unless any substantial question of law is involved. 9. The learned Counsel for the appellant/defendant would pyramid his arguments placing reliance on the grounds of the second appeal, to the effect that without exhausting the remedy as contemplated under the Wakf Act, 1995, the plaintiff straightaway filed the suit; in fact, the suit was not maintainable; if at all he had any grievance as against the tenant, the proper forum was not the civil Court but the Wakf Tribunal. 10. Whereas the learned Counsel for the respondent/plaintiff, placing reliance on the following decisions of this Court: (i) Abdul Rahim v. Asharad Syed Badesha reported in (2010) 7 MLJ 653 . (ii) K.B.Mohammed Dhajudeen v. Salem Mohammed Pura Parimala Sunnath Jamath Masjid Committee and others reported in 2012-3-L.W. 485. would put forth and set forth his arguments that the suit filed by the plaintiff as against the tenant whose tenancy was terminated by the plaintiff, was maintainable and accordingly, both the Courts below ordered eviction warranting no interference in second appeal and no question of law much less any substantial question of law is involved in this matter. 11. Both the substantial questions of law are taken together for discussion as they are inter-linked and interwoven with each other. 11. Both the substantial questions of law are taken together for discussion as they are inter-linked and interwoven with each other. Substantial Questions of Law. (i) and (ii) 12. At the outset itself, I would like to fumigate my mind with the following decisions of the Honourable Apex Court: (i) Ramesh Gobindram (Dead) through Lrs. v. Sugra Humayun Mirza Wakf reported in (2010) 8 SCC 726 . An excerpt from it, would run thus: "35. In the cases at hand, the Act does not provide for any proceedings before the Tribunal for determination of a dispute concerning the eviction of a tenant in occupation of a wakf property or the rights and obligations of the lessor and the lessees of such property. A suit seeking eviction of the tenants from what is admittedly wakf property could, therefore, be filed only before the civil court and not before the Tribunal." A mere running of the eye over the aforesaid precedent would demonstrate and display that if organisation like the plaintiff herein, wants to evict its tenant, then the proper forum would be the civil Court and not the Tribunal and for that matter, not even the authorities under the special enactment namely, the Wakf Act, 1995 could be approached. Even by phantasmagorical thoughts, the appellant/ defendant cannot be projected as a trespasser. If at all in a wakf property, there is any trespasser, then the Chief Executive Officer has got the power to proceed as against him and if such a person is aggrieved by it, he could approach the Tribunal. In this case, the status of the appellant herein was once a tenant under the wakf and the tenancy was terminated. In such a case, the respondent/plaintiff correctly approached the civil Court for eviction after effecting termination of the tenancy. Relating to sufficiency or otherwise of the termination notice of tenancy, there is no plea at all taken at the instance of the defendant. (ii) Tamil Nadu Wakf Board v. Hathija Ammal (Dead) by Lrs., reported in 2002 (1) CTC 561. Certain excerpts from it, would run thus: "5. Let us now examine the provisions of the Act. Relating to sufficiency or otherwise of the termination notice of tenancy, there is no plea at all taken at the instance of the defendant. (ii) Tamil Nadu Wakf Board v. Hathija Ammal (Dead) by Lrs., reported in 2002 (1) CTC 561. Certain excerpts from it, would run thus: "5. Let us now examine the provisions of the Act. Under Section 5(2) of the Act, after a property is notified to be wakf property, a determination is made by a Civil Court whenever any dispute arises after the notification is published by the Wakf Board as to whether a particular property specified as wakf property in a list published is a wakf property or not. Section 6 further provides that the Civil Court shall not entertain any such suit after the expiry of one year after the date of publication of the list by the Board. Such a suit cannot be at the instance of the Wakf Board. Again, the Board may itself collect information regarding any property as provided under Section 27 of the Act and decide whether a particular property is wakf property or not and that decision is final unless it is revoked or modified by a civil court. 6. In the event, any property has been omitted by inadvertence or otherwise, then it is for the Wakf Board to take action as provided under Section 27 of the Act. If the Wakf Board has reason to believe that a particular property is a wakf property then it can itself collect information and if any, question arises whether a particular property is a wakf property or not it may, after making such enquiry as it may deem fit decide the question and such decision of the Wakf board shall be final unless revoked or modified by a civil court. Such action has not been taken by the Wakf Board in this case. 7. The High Court is justified in holding that the Wakf Board had no right to institute suit for declaration that any property is a wakf property as the scheme of the Act clearly indicates. Such action has not been taken by the Wakf Board in this case. 7. The High Court is justified in holding that the Wakf Board had no right to institute suit for declaration that any property is a wakf property as the scheme of the Act clearly indicates. The High Court further found that as far as the appellant is concerned with regard to title of any property, it must comply with the requirements of Sections 4, 5 and 6 or 27 of the Act, which means that if any property is not published as wakf property as required under Section 5(2) of the Act or the Board has not invoked the special power under Section 27, the Wakf Board cannot file a suit for declaration and possession and on that basis upheld the order made by the Trial Court as affirmed by the First Appellate Court." 13. Hence, in view of the settled proposition of law as enunciated in the precedents of the Honourable Apex Court cited supra and also as per the decision of this Court in Ahale Sunnathwal Jamath Jogi Madam and Durga v. Haji Syed Irfan Hussai Sahib reported in 2010 (2) MWN (Civil) 655. An excerpt from it, would run thus: "10. The perusal of the judgement of the Honoruable Apex Court reported in Tamil Nadu Wakf Board v. Hathija Ammal (Dead) by Lrs, etc., 2002(1) CTC 561 (SC):2002 (1) LW 384, leaves no doubt that Sections 4, 5, 6 and 27 of the Wakf Act 1954 (which are in pari materia with Sections 4, 5, 6 and 40 of the Wakf Act, 1995) should necessarily be adhered to before filing a Suit for recovery of possession of the Wakf property. It is beyond doubt that the institutions like the Plaintiff could file a Suit for possession of the Wakf property, but before filing such Suit necessarily the said institution should comply with the aforesaid provisions of law as per the mandate of the Honourable Apex Court." I am of the considered view that the substantial questions of law (i) and (ii) should be decided as against the appellant and in favour of the respondent/plaintiff. 14. Wherefore, the substantial question of law (i) is answered to the effect that the Courts below have not committed an error in holding that the suit for ejectment is not barred by Section 85 of the Wakf Act. 15. 14. Wherefore, the substantial question of law (i) is answered to the effect that the Courts below have not committed an error in holding that the suit for ejectment is not barred by Section 85 of the Wakf Act. 15. Also, the substantial question of law (ii) is answered to the effect that the suit for recovery of possession of the suit property was tenable. 16. In the result, this Second Appeal is dismissed. Consequently, the connected Miscellaneous Petition is dismissed. No costs.