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2017 DIGILAW 2591 (MAD)

Ameerjan v. P. Narayanan

2017-08-10

T.RAVINDRAN

body2017
JUDGMENT : In this civil revision petition, the Judgment and Decree, dated 17.01.2006, passed in O.S.No.68 of 1999, on the file of the Principal Sub Court/Wakf Tribunal, Tirunelveli, are challenged by the plaintiff. 2. The suit has been laid by the plaintiff for declaration and possession of the first item of the suit properties as against the first defendant, after removing the encroachments put up by him and for declaration and permanent injunction in respect of the second item of the suit properties as against the second defendant and for mesne profits. 3. Briefly stated, according to the plaintiff's case, the suit properties belonged to the plaintiff - Mosque and the Muthavalli of the plaintiff – Mosque is managing the suit properties by obtaining a Patta and paying taxes etc. While so, according to the Muthavalli of the plaintiff – Mosque, the suit properties had been leased out to the defendants 1 and 2 by Gulam Gousekhan and Atteshkhan without any basis and against law and also without obtaining permission from the third defendant/Tamil Nadu Wakf Board and in this connection, the plaintiff – Mosque has already instituted a suit, in O.S.No.436 of 1993, and obtained injunction, on 07.10.1994, as against them not to encumber the suit properties and now, according to the plaintiff, the defendants 1 and 2 are attempting to encroach into the suit properties by putting up superstructure in the suit properties and therefore, according to the plaintiff – Mosque, it has been necessitated to lay the suit against the defendants 1 and 2 for the appropriate reliefs. 4. 4. The case of the defendants 1 and 2 in brief is that the suit properties no doubt belonged to the plaintiff – Mosque and however, it is false to state that the Muthavalli of the plaintiff – Mosque has been enjoying the suit properties by obtaining a Patta and paying taxes etc., and it is also false to state that the Muthavalli of the plaintiff – Mosque has laid the suit against Gulam Gousekhan and Atteshkhan in O.S.No.436 of 1993 and obtained injunction against them with reference to the encumbrance of the suit properties and it is false to state that Gulam Gousekhan and Atteshkhan had leased out the suit properties to the defendants 1 and 2 and also without obtaining permission from the Tamil Nadu Wakf Board as per law and on the other hand, according to the defendants 1 and 2, the suit properties had been leased out to one Mookkan by Gulam Gousekhan and Atteshkhan for fetching more income and Mookkan in turn had leased out the suit properties in favour of the defendants 1 and 2 and thereby, the defendants 1 and 2 are in possession and enjoyment of the suit properties as lessees and therefore, the plaintiff is not entitled to seek and obtain the reliefs sought for in the suit and the suit is also bad for non-joinder of necessary parties, namely, Mookkan and the erstwhile Muthavallies, namely Gulam Gousekhan and Atteshkhan and the Muthavalli, who has laid the suit is not entitled to file the suit on behalf of the plaintiff – Mosque and hence, the suit is liable to be dismissed. 5. The case of the third defendant/Wakf Board in brief is that the suit properties are the wakf properties and they had been surveyed and published and they are under the control of the Wakf Board and that the defendants 1 and 2 have no right over the suit properties. The wakf properties have to be leased out by the Muthavalli of the Mosque only after getting necessary sanction from the Wakf Board and if any lease is made out against the provisions of the Wakf Act, such lease is not valid and not binding upon the Wakf Board, hence, the suit may be decreed as prayed for. 6. The wakf properties have to be leased out by the Muthavalli of the Mosque only after getting necessary sanction from the Wakf Board and if any lease is made out against the provisions of the Wakf Act, such lease is not valid and not binding upon the Wakf Board, hence, the suit may be decreed as prayed for. 6. On the basis of the above pleadings set out, the following issues were framed by the Court below for determination: i. Whether the case of the defendants 1 and 2 that they had taken the lease of the suit properties from the erstwhile Muthavallies of the plaintiff – Mosque, namely, Gulam Gousekhan and Atteshkhan, is true? ii. Whether the plaintiff is entitled to seek and obtain the reliefs of declaration and possession as prayed for? iii. Whether the plaintiff is entitled to seek and obtain the relief of permanent injunction as prayed for? iv. To what relief the plaintiff is entitled to? and v. Whether plaintiff is entitled to seek and obtain the relief of mesne profits? 7. In support of the case of the plaintiff, P.Ws.1 to 3 were examined and Exs.P1 to P4 were marked and on the side of the defendants, D.W.1 was examined and Exs.D1 to D4 were marked. 8. On a consideration of the oral and documentary evidence put forth by the respective parties, the Trial Court was pleased to dismiss the suit. Aggrieved over the same, the present civil revision petition has been preferred by the plaintiff. 9. The following points arise for consideration: i. Whether the plaintiff – Mosque is the owner of the suit properties? ii. Whether the plaintiff – Mosque is entitled to seek and obtain the reliefs of declaration, possession and permanent injunction in respect of the suit properties as prayed for? iii. Whether the suit laid by the Muthavalli on behalf of the plaintiff – Mosque is maintainable? iv. Whether the suit is bad for non-joinder of necessary parties as put forth by the defendants 1 and 2 in their written statement? and v. To what relief the plaintiff/revision petitioner is entitled to? POINT NO.I: 10. iii. Whether the suit laid by the Muthavalli on behalf of the plaintiff – Mosque is maintainable? iv. Whether the suit is bad for non-joinder of necessary parties as put forth by the defendants 1 and 2 in their written statement? and v. To what relief the plaintiff/revision petitioner is entitled to? POINT NO.I: 10. Asfar as the claim of the plaintiff - Mosque that the suit properties belonged to it, it is found that even the Court below has held that the defendants 1 and 2 as such have not seriously repudiated the title of the plaintiff – Mosque in respect of the suit properties and accordingly, found that the plaintiff – Mosque is the owner of the suit properties. Even in this civil revision petition, the same has not been controverted by the defendants 1 and 2 and in fact, it is found that the defendants 1 and 2 have not contested the civil revision petition preferred by the plaintiff - Mosque and remained absent. Therefore, considering the above position, I hold that, as determined by the Court below, the suit properties are belonging to the plaintiff – Mosque and accordingly, Point No.I is answered in favour of the plaintiff – Mosque. POINT NO.II: 11. As the suit properties belonging to the plaintiff – Mosque, it could be seen that the suit properties could be alienated/encumbered only in accordance with the provisions of the Wakf Act. Now, according to the plaintiff – Mosque, without any legal basis, the erstwhile Muthavallies of the plaintiff – Mosque, namely, Gulam Gousekhan and Atteshkhan had leased out the properties to the defendants 1 and 2 and the said lease is effected to without any sanction from the Wakf Board and also not in accordance with the provisions of the Wakf Act and hence, the defendants 1 and 2, on the basis of the said illegal lease, cannot be allowed to squat on the suit properties or interfere with the possession and enjoyment of the plaintiff – Mosque in respect of the suit properties and hence, according to the plaintiff – Mosque, it has been necessitated to lay the suit as against the defendants 1 and 2 for the appropriate reliefs. The third defendant/Wakf Board is wholly supporting the case of the plaintiff – Mosque. 12. The third defendant/Wakf Board is wholly supporting the case of the plaintiff – Mosque. 12. It is the case of the defendants 1 and 2 that the suit properties had been leased out by the erstwhile Muthavallies of the plaintiff – Mosque, namely, Gulam Gousekhan and Atteshkhan in favour of one Mookkan, who in turn had leased out the same to the defendants 1 and 2 and thus, they are in possession and enjoyment of the suit properties and hence, their possession of the suit properties could not be disturbed by the plaintiff in any manner and therefore, according to them, the plaintiff is not entitled to seek and obtain the reliefs sought for. With reference to the case of the lease set out by the defendants 1 and 2, they had placed reliance upon the documents marked as Exs.D3 and D4 and also the lease receipts marked as Exs.D1 and D2. Therefore, from the defence put forth by the defendants 1 and 2, it could be seen that they had taken the sub-lease of the suit properties from one Mookkan, who according to them had taken the lease of the suit properties from the erstwhile Muthavallies. However, on a reading of the defence put forth by the defendants 1 and 2 wholly and also the documents projected by them, it could be seen that there is no material forthcoming to hold that the lease had been effected by the erstwhile Muthavallies in favour of Mookkan or as the case may be in favour of the defendants 1 and 2 in accordance with law. At the foremost, it has not been established that at the time of effecting the lease by the erstwhile Muthavallies of the plaintiff – Mosque, namely, Gulam Gousekhan and Atteshkhan, they were in the Office and exercising the duties in the capacity of the Muthavallies so as to enable them to lease out the suit properties in favour of Mookkan or as the case may be in favour of the defendants 1 and 2 and with reference to the same, there is no material forthcoming on the part of the defendants 1 and 2. Further, it has also not been established by the defendants 1 and 2 that the suit properties have been leased out by the erstwhile Muthavallies in accordance with law i.e., after obtaining sanction from the Wakf Board and also that the lease effected by them is in accordance with the provisions of the Wakf Act. As regards the sanction as contemplated by law for the lease said to have been effected by the erstwhile Muthavallies, there is no material forthcoming on the part of the defendants 1 and 2. Further, it is also found that the lease effected by the erstwhile Muthavallies in favour of Mookkan or as the case may be in favour of the defendants 1 and 2 is found to be against the provisions of the Wakf Act, particularly, Section 56 of the Wakf Act. A reading of the provision of Section of 56 of the Wakf Act would go to show that only for a limited purpose and period, the wakf properties could be leased out and if the lease has been made out in violation of the above provision, such lease transaction is void and of no effect. Further, it is found that such lease should have sanction of the Wakf Board. As regards the case of the lease put forth by the defendants 1 and 2, it appears and also seen that the attempt of the defendants 1 and 2 to squat on the suit properties based upon the alleged lease deed said to have been executed by the erstwhile Muthavallies is nothing but a perpetual lease with a view to enable them to squat on the wakf properties endlessly and thereby continue to be the permanent lessees of the suit properties. The contention of the defendants 1 and 2 claiming possession of the wakf properties on the basis of the sub-lease from Mookkan is nothing but an attempt to continue to squat on the suit properties as permanent lessees, which having been barred under Section 56 of the Wakf Act, it could be seen that the case of the defendants 1 and 2 is un-sustainable in the eyes of law. In this connection, the learned counsel for the plaintiff placed reliance upon the decision reported in (2007) 2 MLJ 1034 [H.Idayathulla and others vs. Larabsha Dharga, Panruti, rep. In this connection, the learned counsel for the plaintiff placed reliance upon the decision reported in (2007) 2 MLJ 1034 [H.Idayathulla and others vs. Larabsha Dharga, Panruti, rep. by its Muthavallis] and a reading of the same would go to show that any lease made as against the provision of Section 56 of the Wakf Act with an intention to continue as a permanent lessee is un-sustainable in view of the statutory bar provided under the above said Section. However, to further establish that the erstwhile Muthavallies had the legal competency to lease out the suit properties in favour of Mookkan or as the case may be in favour of the defendants 1 and 2 and also establish as to the true import of the documents marked as Ex.D1 to D4, the defendants 1 and 2 have not cared to examine either the erstwhile Muthavallies or Mookkan as the case may be. Therefore, it is found that the defendants 1 and 2 cannot be termed as the lawful lessees in respect of the suit properties and the lease projected by them for claiming to be in possession of the suit properties being found to be void and could not be given effect to in view of the statutory bar, it is found that the defendants 1 and 2 have put forth a false theory to stifle the case of the plaintiff in claiming the possession of the suit properties. 13. In the light of the above discussions, I hold that the plaintiff is entitled to seek and obtain the reliefs of declaration, possession and permanent injunction in respect of the suit properties as prayed for. Accordingly, Point No.II is answered in favour of the plaintiff. POINT NO.III: 14. The Trial Court though had accepted that the lease effected in favour of the defendants 1 and 2 is not valid in accordance with law, however, holding that the plaintiff has failed to establish that the suit has been instituted by a competent Muthavalli, accordingly, held that the suit is liable to be dismissed. Originally, it is found that the suit had come to be instituted by one Thaj Bi, who was the Muthavalli of the plaintiff - Mosque, after she had been removed from the Office, the suit had been continued to be prosecuted by Ameerjan, who is the present Muthavalli of the plaintiff – Mosque. Originally, it is found that the suit had come to be instituted by one Thaj Bi, who was the Muthavalli of the plaintiff - Mosque, after she had been removed from the Office, the suit had been continued to be prosecuted by Ameerjan, who is the present Muthavalli of the plaintiff – Mosque. With reference to the entitlement of the said Ameerjan to prosecute the suit on behalf of the plaintiff – Mosque, P.Ws.1 to 3 have been examined and Exs.P1 to P4 have been marked. That apart, the Wakf Board/third defendant has not controverted the status of the said Ameerjan as the Muthavalli of the plaintiff – Mosque and in fact, it has admitted that the suit is maintainable by the present plaintiff and the plaintiff – Mosque is entitled to obtain the reliefs sought for in the plaint. 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. As regards the case of the plaintiff that it is only the plaintiff - Mosque, who is the owner of the wakf properties, there is no dispute. The only issue is whether the defendants 1 and 2 are the lawful lessees in respect of the suit properties. Considering the reasons given in Point No.II, it is found that the lease theory of the defendants 1 and 2 projected is void and not valid in view of the statutory bar provided under Section 56 of the Wakf Act, therefore, it is found that the suit having been laid only for obtaining the reliefs on behalf of the plaintiff – Mosque as such and the suit having been laid by Ameerjan in the interest of the Mosque and also as the Muthavalli, it is found that the suit as laid on behalf of the plaintiff – Mosque is maintainable and as such, the plaintiff is entitled to obtain the reliefs sought for in the plaint. I, therefore, hold that the suit laid by the Muthavalli on behalf of the plaintiff – Mosque is maintainable and accordingly, Point No.III is answered. POINT NO.IV: 15. The Court below has also discountenanced the case of the plaintiff on the footing that the suit is bad for non-joinder of necessary parties. I, therefore, hold that the suit laid by the Muthavalli on behalf of the plaintiff – Mosque is maintainable and accordingly, Point No.III is answered. POINT NO.IV: 15. The Court below has also discountenanced the case of the plaintiff on the footing that the suit is bad for non-joinder of necessary parties. The defendants 1 and 2 have take a plea that the suit is bad for non-joinder of the erstwhile Muthavallies, who had given the lease to Mookkan and also Mookkan, who according to them, had subleased the suit properties in their favour. However, as rightly put forth by the learned counsel for the plaintiff, when the lease said to have been effected to by the erstwhile Muthavallies is a void transaction and the defendants 1 and 2 on that basis cannot claim any legal right in respect of the suit properties and when the plaintiff sought for the reliefs only as against the defendants 1 and 2, who now attempt to squat on the suit properties endlessly, as contended by the learned counsel for the plaintiff, it is found that the erstwhile Muthavallies or Mookkan, who are noway connected with the determination of the reliefs sought for in the suit, it is found that the suit is not bad for non-joinder of the above said persons. Further, if at all according to the defendants 1 and 2 that the erstwhile Muthavallies or Mookkan are the proper and necessary parties, as stated above, to substantiate their defence, nothing prevented the defendants 1 and 2 from examining the above said persons as witnesses in support of their case. However, the defendants 1 and 2 had not endeavoured to examine them as witnesses in support of their defence. Be that as it may, considering the reliefs sought for by the plaintiff and also the theory of lease projected by the defendants 1 and 2 being un-sustainable in the eyes of law, I hold that the erstwhile Muthavallies or Mookkan are not proper and necessary parties for the lis and therefore, I hold that the suit is not bad for non-joinder of necessary parties as put forth by the defendants 1 and 2. Accordingly, the Point No.IV is answered. POINT NO.V: 16. Accordingly, the Point No.IV is answered. POINT NO.V: 16. In view of the foregoing reasons, the Judgment and Decree, dated 17.01.2006, passed in O.S.No.68 of 1999, on the file of the Principal Sub Court/Wakf Tribunal, Tirunelveli, are set aside and the suit in O.S.No.68 of 1999 is decreed as prayed for with costs. Resultantly, the civil revision petition is allowed with costs.