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2017 DIGILAW 2545 (MAD)

Muthammal v. Abubucker

2017-08-09

T.RAVINDRAN

body2017
ORDER : The first defendant aggrieved over the Judgment and Decree, dated 02.09.2010, made in O.S.No.22 of 2007, on the file of the Principal Sub Court, Wakf Tribunal, Tirunelveli, has preferred this civil revision petition. 2. The said suit has been laid by the plaintiffs for declaration and possession. 3. Briefly stated, according to the plaintiffs, the suit property belonged to the plaintiffs- Mosque and the plaintiffs and the second defendant are appointed as Committee Members for the administration of the plaintiffs-Mosque and the first defendant has put up a thatched shed in the suit property in the year 2000 with the permission of the previous Muthavalli and now attempting to put up a pucca superstructure in the suit property and endeavouring to do further acts to accomplish the same and inasmuch as the plaintiffs-Mosque are the owners of the suit property and the first defendant is not entitled to put up a pucca superstructure in the suit property, according to the plaintiffs-Mosque, it had been necessitated to lay the suit for the appropriate reliefs. 4. Briefly stated, according to the first defendant, it is false to state that she has put up a thatched shed in the suit property with the permission of the previous Muthavalli, on the other hand, it is her case that her husband along with his brother were residing in the property situated to the west of the suit property by putting up a thatched shed and after the marriage, she and her husband had been residing in the suit property for several years and due to heavy rain, the thatched shed put up by them had been destroyed and therefore, with the permission of the revenue authorities, steps have been taken to put a construction with the hallow block cement and accordingly, a pucca superstructure had been put up in the property and the first defendant is residing in the same. While so, without having any right over the suit property and with a view to dispossess the first defendant illegally from the suit property, the plaintiffs-Mosque have come forward with the case and hence, the suit is liable to be dismissed. 5. While so, without having any right over the suit property and with a view to dispossess the first defendant illegally from the suit property, the plaintiffs-Mosque have come forward with the case and hence, the suit is liable to be dismissed. 5. The third defendant has pleaded that the suit property belonged to the plaintiffs- Mosque and the plaintiffs and the second defendant are the Committee Members and the suit property being the wakf property, the first defendant is not entitled to lay any claim over the same and the permanent superstructure has not been put up by the first defendant with the permission of the Wakf Board or the plaintiffs-Mosque and hence, she is liable to handover the possession and hence, the suit is liable to be decreed as prayed for. 6. On the basis of the pleadings set out by the respective parties, the Court below had framed the following issues for determination: i. Whether the suit property belonged to the wakf as claimed by the third defendant? ii. Whether the plaintiffs-Mosque are entitled to obtain the relief of declaration as prayed for in the suit? iii. Whether the plaintiffs-Mosque are entitled to recover the possession of the suit property from the first defendant as prayed for? and iv. To what relief the plaintiffs-Mosque are entitled to? 7. In support of the plaintiffs' case, P.Ws.1 and 2 were examined and Exs.P1 to P8 were marked and on the side of the defendants, D.Ws.1 to 3 were examined and Exs.R1 to R5 were marked and in addition to that Ex.C1 was marked. 8. On a consideration of the oral and documentary evidence projected, the Court below was pleased to decree the suit as prayed for. Aggrieved over the same, the first defendant has preferred this civil revision petition. 9. The following points arise for consideration in this civil revision petition: i. Whether the suit property belonged to the plaintiffs-Mosque ? ii. Whether the plaintiffs-Mosque are entitled to seek and obtain the reliefs of declaration and possession of the suit property as prayed for? iii. Whether the first defendant is in lawful possession and enjoyment of the suit property as claimed by her? and iv. To what relief the revision petitioner is entitled to? POINT NOS.1 TO III: 10. ii. Whether the plaintiffs-Mosque are entitled to seek and obtain the reliefs of declaration and possession of the suit property as prayed for? iii. Whether the first defendant is in lawful possession and enjoyment of the suit property as claimed by her? and iv. To what relief the revision petitioner is entitled to? POINT NOS.1 TO III: 10. The plaintiffs-Mosque have laid the suit through its Committee Members against the first defendant, in particular, stating that the suit property belonging to the plaintiffs-Mosque and the first defendant, without any legal basis, attempting to put up a pucca superstructure in the suit property, which she is not entitled to do so legally and therefore, according to the plaintiffs-Mosque, it had necessitated to lay the suit for the appropriate reliefs. The first defendant has raised a plea that she and her husband had put up a thatched shed in the suit property and living there for several years and due to heavy rain, the thatched shed was destroyed and thereafter, with the assistance from the revenue authorities, she had taken steps to put up a pucca superstructure in the suit property and therefore, it is the case of the first defendant that the plaintiffs-Mosque, without any title to the suit property, cannot institute the suit against her and hence, the suit is liable to be dismissed. 11. The Wakf Board has concurred with the case of the plaintiffs-Mosque and prayed for the decreeing of the suit. 12. As regards the ownership of the suit property, that it belonged to the plaintiffs- Mosque, it is found that the plaintiffs have produced the proforma report marked as Ex.P5, from which it is found that the suit property belonged to the plaintiffs-Mosque as pleaded by them. The Court below has also accepted the proforma report and found that the plaintiffs-Mosque have title to the suit property. However, it is the contention of the learned counsel for the revision petitioner that the proforma report of its own could not confer the title to the plaintiffs in respect of the suit property and it is his contention that the enclosures found along with the proforma report are not established to be true or authenticated enclosures and therefore, on that basis, it is argued that the plaintiffs-Mosque have no title to the suit property. However, a reading of Ex.P5 wholly would go to show that the suit property has been surveyed and accordingly, brought under the control of the Wakf Board in accordance with the provisions of the Wakf Act and it is found that the suit property has been included in the proforma report as the property belonging to the plaintiffs-Mosque and therefore, when the plaintiffs have produced the proforma report marked as Ex.P5 for upholding the title to the suit property and when there is no contra material produced by the first defendant to hold otherwise, as determined by the Court below, it is only the plaintiffs-Mosque, which have title to the suit property. 13. The first defendant has pleaded that she and her husband are residing in the suit property by putting up a thatched shed for several years and after the same had been demolished due to heavy rain, she had endeavoured to put up a pucca superstructure in the suit property by getting assistance from the revenue authorities and therefore, her possession should not be disturbed. However, the first defendant has not established as to from whom, she had taken the suit property and living therein. When it has not been established by the first defendant that she or her husband has title to the suit property as such and when it has not been established that she has taken the property and enjoying the same by way of some arrangement with the owner of the property, her possession without any basis that she and her husband had been living in the property for several years as such cannot be construed as the legal possession of the suit property. Further, as rightly put forth by the learned counsel for the plaintiffs, it is found that only with the permission of the erstwhile Muthavalli, the first defendant seems to be in possession of the suit property and the first defendant, it is found that, taking advantage of the same attempting to put up a pucca superstructure in the suit property, which she is not legally entitled to do so, therefore, according to the learned counsel for the plaintiffs, the first defendant's possession in respect of the suit property not having been clearly stated by her and on the other hand, when it is the specific case of the plaintiffs that the first defendant has been in the suit property only with the permission of the erstwhile Muthavalli and when the subsequent conduct of the first defendant in attempting to put up a pucca superstructure is found to be is not in accordance with law and when it is also found that her induction into the suit property by the erstwhile Muthavalli is also not in conformity with the provisions of the Wakf Act i.e., it has not been established by the first defendant that she had been inducted into the suit property with the sanction of the Wakf Board and in accordance with the provisions of the Wakf Act, it is found that her possession of the suit property is against the provisions of the Wakf Act. In this connection, the learned counsel for the plaintiffs placed reliance upon the decision reported in (2007) 2 MLJ 1034 [H.Idayathulla and others vs. Larabsha Dharga, Panruti] and from the said decision, it is found that when the lease arrangement by which the party had been inducted in the possession of the suit property is found to be perpetual, it is against the statutory bar provided under Section 56 of the Wakf Act and so viewed, it is seen that the possession of the suit property by the first defendant cannot be termed as legal. 14. 14. It is however argued by the learned counsel for the first defendant that the plaintiffs cannot be allowed to take advantage of the weakness of the defendant's case and thereby attempt to succeed in its case and in this connection, the learned counsel for the first defendant placed reliance upon the decision reported in (2014) 2 SCC 269 [Union of India and others vs. Vasavi Cooperative Housing Society Limited and others]. The above proposition of law is not in dispute. As seen above, when the plaintiffs have established that it has title to the suit property based upon the acceptable and reliable material and when there is no contra evidence on the side of the first defendant to establish her legal possession of the suit property, it is found that the plaintiffs-Mosque being the owners of the suit property are entitled to recover the possession of the suit property from the first defendant. 15. In the light of the above discussions, I hold that the suit property belonged to the plaintiffs-Mosque and I further hold that the possession of the first defendant in respect of the suit property is not legal and I therefore hold that the plaintiffs are entitled to the reliefs of declaration and recovery of possession from the first defendant as prayed for. Accordingly, Point Nos.I to III are answered in favour of the plaintiffs. POINT NO.IV: 16. 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.