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2017 DIGILAW 2543 (MAD)

Mohammed Yusuf v. Kariyullah Sha

2017-08-09

T.RAVINDRAN

body2017
ORDER : In this civil revision petition, the defendants 1 to 11 in O.S.No.175 of 2004, on the file of the Principal Subordinate Judge, Wakf Tribunal, Tirunelveli, have impugned the Judgment and Decree, dated 21.12.2005, passed in the said suit. 2. The said suit has been laid by the plaintiffs-Mosque for declaration and possession. 3. In brief, the case of the plaintiffs-Mosque is that, the suit property belonged to it. The first plaintiff is the Muthavalli and the plaintiffs 2 and 3 and the defendants 11 and 12 are the Executive Committee Members appointed by the Wakf Board and while so, the suit property had been leased out by the defendants 11 and 12 in favour of the defendants 1 to 10 without obtaining the sanction of the Wakf Board and also against the provisions of the Wakf Act and hence, the said lease is void and could not be given effect to and inasmuch as the defendants 1 to 10 are squatting upon the suit property belonging to the plaintiffs-Mosque illegally, according to the plaintiffs-Mosque, it had been necessitated to lay the suit for the appropriate reliefs. 4. 4. The case of the defendants 1 to 11 in brief is that the tenure of the first plaintiff as the Muthavalli of the plaintiffs-Mosque had ended on 07.01.2001 and therefore, the institution of the suit by the first plaintiff claiming to be the Muthavalli is not sustainable and it is not in dispute that the Wakf Board has nominated the first plaintiff as Muthavalli and the plaintiffs 2 and 3 and the defendants 11 and 12 as the Executive Committee Members and thereafter, according to the defendants, the said committee had continued to function even after the period of the Office and thereby, it is stated that the first plaintiff had demitted his Office and the lease in question had been effected in favour of the defendants 1 to 10 only to augment the income of the plaintiffs-Mosque by the eleventh defendant while discharging his duties as the Muthavalli in the absence of the first plaintiff and said lease has been effected only with the concurrence of the first plaintiff and the other Executive Committee Members and further, it is stated that the lease had been effected only for eleven months and therefore, the lease effected need not have the sanction of the Wakf Board and the lease is effected only in accordance with the provisions of the Wakf Act and therefore, the plaintiffs-Mosque are not entitled to obtain the reliefs sought for. 5. The Court below, on the basis of the pleadings set out by the respective parties, had framed the following issues for determination: i. Whether the suit laid by the first plaintiff claiming to be the Muthavalli of the plaintiffs-Mosque is maintainable? ii. Whether the lease of the suit property obtained by the defendants 1 to 10 from the defendants 11 and 12 is valid? iii. Whether the plaintiffs-Mosque are entitled to obtain the reliefs of declaration and possession as prayed for? and iv. To what relief, the plaintiffs-Mosque are entitled to? 6. In support of the plaintiffs's case, P.W.1 was examined and Ex.P1 was marked and on the defendants' side, D.Ws.1 and 2 were examined and Exs.R1 to R16 were marked. 7. On a consideration of the materials placed, it is found that the suit has been decreed by the Court below. Aggrieved over the same, the present civil revision petition as been preferred by the defendants 1 to 11. 8. 7. On a consideration of the materials placed, it is found that the suit has been decreed by the Court below. Aggrieved over the same, the present civil revision petition as been preferred by the defendants 1 to 11. 8. The following points arise for consideration in this civil revision petition: i. Whether the suit property belonged to the plaintiffs-Mosque? ii. Whether the lease arrangements projected by the defendants is valid and binding upon the plaintiffs-Mosque? iii. Whether the plaintiffs-Mosque are entitled to seek and obtain the reliefs sought for? iv. Whether the suit laid by the first plaintiff as the Muthavalli of the plaintiffs-Mosque is maintainable? and v. To what relief the revision petitioners are entitled to? POINT NO.I: 9. As regards the ownership of the suit property claimed by the plaintiffs-Mosque, as seen from the pleadings set out by the respective parties, it is found that the ownership of the plaintiffs-Mosque in respect of the suit property is not in issue. That apart, even the Court below has held that it is only the plaintiffs-Mosque, who are the owners of the suit property. In this civil revision petition also, the revision petitioners/defendants 1 to 11 have not disputed the title of the plaintiffs-Mosque in respect of the suit property. In the light of the above position, I hold that the plaintiffs-Mosque are the owner of the suit property. Accordingly, Point No.I is answered in favour of the plaintiffs-Mosque. POINT NOS.II & III: 10. The defendants claimed that the lease in question had been made out by the erstwhile Muthavallies/Committee Members i.e., defendants 11 and 12 in favour of the defendants 1 to 10 to augment the income of the plaintiffs-Mosque and therefore, according to them, their possession and enjoyment of the suit property is perfect and legal and considering the period of lease effected in favour of the defendants 1 to 10, there is no need for obtaining the sanction of the Wakf Board and that the lease is also in accordance with the provisions of the Wakf Act and therefore, the possession of the defendants 1 to 10 should not be disturbed. Per contra, it is the specific case of the plaintiffs-Mosque that the lease arrangement projected by the defendants is illegal and void and the defendants 11 and 12 are not entitled to effect the lease in favour of the defendants 1 to 10 without the sanction of the Wakf Board and against the provisions of the Wakf Act and hence, the plaintiffs-Mosque are entitled to recover the possession of the suit property from the defendants as prayed for. 11. It is not in dispute that the first plaintiff was appointed as the Muthavalli and the plaintiffs 2 and 3 and the defendants 11 and 12 were appointed as the Executive Committee Members of the plaintiffs-Mosque, this could be seen from Ex.P1. It is also not in dispute that the tenure of the above said office bearers ended on 07.01.2001. Therefore, it is found that thereafter, there is no material as such to hold that they have been continued to discharge the functions of the Muthavallies or the Executive Committee Members as the case may be on behalf of the plaintiffs-Mosque. Be that as it may, now according to the defendants, the first plaintiff had resigned from his post and entrusted his duties to the eleventh defendant and in this connection, the documents marked as Exs.R13 to R15 are pressed into service. However, it has not been established that Exs.R13 to R15 have the approval of the Wakf Board and the same had come into force as such. When it is found that even according to the contesting defendants the tenure of the office bearers, who had been nominated under Ex.P1 has come to an end on 07.01.2001 and when there is no material to hold that even thereafter, they had been continuing to discharge their duties as Muthavallies, it is seen that the above said documents marked as Exs.R13 to R15 would not hold any ground to sustain the case of the defendants as such. 12. However, the defendants would contend that even after 07.01.2001, the office bearers nominated under Ex.P1 had been continuing to discharge their duties. But, as adverted above, there is no proof to establish the same. 12. However, the defendants would contend that even after 07.01.2001, the office bearers nominated under Ex.P1 had been continuing to discharge their duties. But, as adverted above, there is no proof to establish the same. In such view of the matter, when according to the defendants' case the lease arrangement in question had been effected in favour of the defendants 1 to 10 on 10.08.2004 under the unregistered lease agreements, marked as Exs.R3 to R12, when at that point of time it has not been established that the defendants 11 and 12 are competent to effect the lease agreements in question, it is seen that the lease arrangements projected by the defendants are invalid and could not be accepted. Further, as per the enclosures found along with the documents marked as marked as Exs.R3 to R12, it is found that even prior to the lease arrangement, the defendants 1 to 10 were paying some amounts to the defendants 11 and 12 and therefore, it is found that as rightly put forth by the plaintiffs-Mosque, the defendants 1 to 10 had been inducted into the possession of the property belonging to the plaintiffs-Mosque even prior to the projected lease arrangements and therefore, according to the plaintiffs-Mosque, the lease agreements, marked as Exs.R3 to R12 had been created only for the purpose of this case. As rightly contended by the plaintiffs-Mosque and considering the materials placed, it is found that the defendants 1 to 10 had been inducted into the possession of the property even prior to the lease arrangements projected and therefore, it is found that the defendants 11 and 12 had admitted the defendants 1 to 10 and inducted them into the possession of the suit property against law and in order to give a legal colour to the same, had created the lease agreements marked as Exs.R3 to R12 as if the said arrangements are only made for eleven months. 13. However, considering the materials placed and also as rightly determined by the Court below, it is found that the lease had been effected by the defendants 11 and 12 in favour of the defendants 1 to 10 for effecting perpetual lease and thereby, it is found that the defendants 1 to 10 are squatting in the property without any basis whatsoever. 14. 14. As rightly determined by the Court below, when it is found that the defendants 11 and 12 are not entitled to effect the lease in respect of the wakf property belonging to the plaintiffs-Mosque without the sanction of the Wakf Board and also against the provisions of the Wakf Act and when it is also held by the Trial Court that on the date of the execution of the alleged lease arrangements, the defendants 11 and 12 are not even competent to execute the lease agreements on behalf of the plaintiffs-Mosque and when it is found that their tenure had already come to an end on 07.01.2001 and thereafter, there is no material marked as such to hold that they continued to discharge their functions as lawful Executive Committee Members of the plaintiffs-Mosque and further, when it is found from the lease arrangement projected that the defendants 1 to 10 had already been inducted into the possession of the suit property even prior to the same would only go to show that as rightly argued by the learned counsel for the plaintiffs-Mosque, the defendants 11 and 12 in the guise of the lease arrangements projected had inducted the defendants 1 to 10 into the possession of the suit property contrary to law and also to enable them to squat on the property endlessly and in such view of the matter, it is found that the intention of the defendants 11 and 12 is only to create perpetual lease in favour of the defendants 1 to 10 and therefore, it is found that the lease arrangements projected by the defendants is invalid as per Section 56 of the Wakf Act. In this connection, strong reliance is placed by the learned counsel for the plaintiffs-Mosque upon the decision reported in (2007) 2 MLJ 1034 [H.Idayathulla and others vs. Larabsha Dharga, Panruti] and a perusal of the same would go to show that when the materials project that the intention of the parties is to effect the lease as permanent, the same is void and contrary to the statutory provisions, particularly, Section 56 of the Wakf Act. So it is seen that the defendants 1 to 10 are not entitled to remain in the possession of the suit property under the plaintiffs-Mosque and as such, it is found that the plaintiffs-Mosque is entitled to recover the possession of the suit property from the defendants. 15. In the light of the above discussions, I hold that the lease arrangements projected by the defendants are invalid and not binding upon the plaintiffs-Mosque and I further hold that the plaintiffs-Mosque are entitled to seek and obtain the reliefs of declaration and possession as prayed for. Accordingly, Point Nos.II & III are answered in favour of the plaintiffs. POINT NO.IV: 16. The defendants have raised a plea that the suit as instituted is not maintainable. It is their case that originally the suit has been laid by the first plaintiff claiming to be the Muthavalli of the plaintiffs-Mosque, however according to the defendants, inasmuch as the tenure of the first plaintiff had ended on 07.01.2001, the suit laid by him is not maintainable. However, countering the same, it is argued by the learned counsel for the plaintiffs-Mosque that the suit could be maintained even by the person interested in the wakf and the Court should construe that the suit laid by the first plaintiff is maintainable. Further, it is found that as per Sub- Sections (2) and (3) of Section 83 of the Wakf Act, the suit could be maintained by the Muthavalli or the person interested in the wakf for the appropriate reliefs in respect of the wakf property. Be that as it may, in sofar as this case is concerned, finding improper management of the wakf property i.e., suit property, it is found that the Wakf Board has intervened in the matter and accordingly, appointed its Executive Officers to continue the management of the suit property and accordingly, it is also found that the name of the plaintiffs have been substituted by way of amendment and at present, it is found that the plaintiffs-Mosque are only being represented by the Executive Officer Mr.M.M.Meeran Mohideen appointed by the Tamil Nadu Wakf Board and he is continuing the lis for obtaining the recovery of the suit property from the defendants. 17. 17. In the light of the above developments, which had taken place in toto and considering the position that the suit could be maintained even by the person interested in the wakf and further, the suit has come to be prosecuted further by the Executive Committee Member appointed by the Tamil Nadu Wakf Board, it is found that the suit is maintainable and on that score the defendants cannot be allowed to dislodge the suit so as to continue their illegal possession of the suit property. Accordingly, Point No.IV is answered. POINT NO.V: 18. In the light of the foregoing reasons, I am of the considered opinion that the impugned Judgment and Decree of the Court below are found to be in order on both factual as well as legal aspects and they do not warrant any interference from this Court and resultantly, the civil revision petition is dismissed with costs. Consequently, connected miscellaneous petition is closed.