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2018 DIGILAW 4415 (MAD)

Mohammed Sherif v. Chellammal (Died)

2018-12-03

T.RAVINDRAN

body2018
JUDGMENT : 1. The civil revision petition is directed against the Judgment and Decree, dated 29.07.2005, passed in O.S.No.58 of 1999, on the file of the Principal Subordinate Court - Wakf Tribunal, Tirunelveli. 2. The parties are referred to as per the rankings in the Trial Court for the sake of convenience 3. Shorn of unnecessary details, it is seen that the plaintiff has put-forth its case that the suit property belongs to it and according to the plaintiff-wakf, the suit property had been acquired by Hasarath Moulong Karimsha Tharvash, by way of the sale deeds, dated 14.12.1975 and since then, the suit property had been under the control and enjoyment of the plaintiff's wakf and accordingly, the Muthavalli of the plaintiff's wakf has been in the control of the suit property and while so, the defendants 1 to 3, who have no right, title or interest in the suit property, interfered with the plaintiff's possession and enjoyment of the suit property by creating documents and thereby, trespassed into the suit property illegally and accordingly, the plaintiff–wakf has been necessitated to lay the suit for recovery of the possession of the suit property. 4. 4. Per contra, the contesting defendants have resisted the plaintiff's case on the footing that the suit property had been alienated in favour of the first defendant by the plaintiff's father on 13.10.1946 and since then, it is only the first defendant, who had been in possession and enjoyment of the suit property and thereafter, the first defendant had alienated a portion of the suit property in favour of the third defendant, measuring an extent of 7.7 Cents and furthermore, it is pleaded by the fifth defendant that the first defendant had alienated an extent of 5.5 Cents in the suit survey number in his favour and the sixth defendant had pleaded that an extent of 63 Cents had been alienated in its favour and accordingly, it is the case of the defendants that they had been in the enjoyment of the suit property by putting the house construction and enjoying the same by obtaining water connection, electricity service connection etc., and further, it is also pleaded by the defendants that the plaintiff's wakf had preferred the suit for recovery of the possession of the suit property against the first defendant as well as his father in O.S.No.79 of 1964, on the file of the Subordinate Court, Tirunelveli and after contest, the said suit had been dismissed as regards the suit property and therefore, according to the contesting defendants, the suit laid by the plaintiff's wakf for recovery of possession of the suit property is barred by res judicata and therefore, the plaintiff is not entitled to obtain the relief as prayed for. 5. Based on the materials placed on record by the respective parties, namely, the plaintiff having been examined as P.W.1 in support of its case and marked Exs.A1 to A16 to buttress its case and the third defendant having been examined as D.W.1 in proof of the defendants' case and also marked Exs.B1 to B5 and furthermore, Exs.C1 to C3 having been marked, the Wakf Tribunal, on a consideration of the abovesaid materials, deemed it fit to dismiss the plaintiff's suit. Impugning the same, the present civil revision petition has been preferred. 6. As above-noted, the plaintiff's wakf claims title to the suit property, based on the sale deeds, dated 14.12.1975, which documents had come to be marked as Exs.A1 and A2. Impugning the same, the present civil revision petition has been preferred. 6. As above-noted, the plaintiff's wakf claims title to the suit property, based on the sale deeds, dated 14.12.1975, which documents had come to be marked as Exs.A1 and A2. Now, according to the plaintiff's wakf, the contesting defendants had encroached the suit property unlawfully and thereby, the plaintiff's wakf had been necessitated to lay the suit for the appropriate relief. 7. Per contra, according the defendants, the plaintiff's father himself had alienated the suit property in favour of the first defendant by way of the sale deed, dated 13.10.1946 and thereafter, the first defendant had alienated the suit property in moieties, as recited in the written statement, in favour of the defendants 3, 5 and 6 and furthermore, it is also contended on their behalf that the suit laid by the plaintiff for recovery of the possession of the suit property, in O.S.No.79 of 1964, ended in failure and in such view of the matter, the present suit laid by the plaintiff's wakf for the same relief is barred by res judicata. The institution of the suit in O.S.No.79 of 1964 by the plaintiff against his father as well as the first defendant, who had been arrayed as the defendants 1 and 21 in the abovesaid suit, is found to be rejected insofar as the suit property comprised in Survey No.32. The same had been admitted by the plaintiff examined as P.W.1 during the course of his evidence. Therefore, when the plaintiff's endeavour to recover the suit property by instituting civil action in O.S.No.79 of 1964 had ended in vain and when from the materials placed on record, it is noted that the plaintiff's father himself had alienated the suit property in favour of the first defendant and thereupon, the first defendant had alienated the suit property in moieties in favour of the defendants 3, 5 and 6, the Wakf Tribunal, on an appreciation of the materials placed on record, has rightly held that the plaintiff's suit is barred by res judicata and therefore, the plaintiff is not entitled to recover the possession of the suit property from the defendants. 8. The plaintiff had instituted the suit, through its Muthavalli examined as P.W.1. 8. The plaintiff had instituted the suit, through its Muthavalli examined as P.W.1. The materials placed on record would go to show that at one stage of the matter, P.W.1 had been removed from the office of Muthavalli and the Wakf Board had taken the direct management of the plaintiff – wakf and when there is no material worth acceptance to evidence that after P.W.1 had demitted the office of Muthavalli in 1997, as to thereupon his appointment and continuance of Muthavalli of the plaintiff-Wakf having not been established by placing acceptable and reliable materials, the Wakf Tribunal had correctly determined the above said issue by holding that P.W.1 has failed to establish that he is the present Muthavalli of the plaintiff's Wakf. 9. Furthermore, the case of the plaintiff that the suit property is the wakf property and the same had been notified by the Wakf Board is also not buttressed by the plaintiff by placing acceptable and reliable materials with reference to the same, such as proforma report of the Wakf Board, to conclude safely that the suit property has been notified as the wakf property by the Wakf Board and when with reference to the same, the Wakf Board, who had been impleaded as a party in the proceeding as the fourth defendant, having not placed any material pointing to the same, it is seen that as rightly determined by the Wakf Tribunal, the plaintiff having failed to establish that the suit property had been declared as wakf property by the Wakf Board, through reliable materials, the Wakf Tribunal is wholly justified in rejecting the plaintiff's case on the above said aspect of the matter. 10. It is seen that when the plaintiff's father had alienated the suit property in favour of the first defendant way back on 13.10.1946 and thereafter, the first defendant, in exercise of his indipendent right over the suit property, had been enjoying the same as the full and absolute owner thereof and also had alienated the suit property in moieties to the defendants 3, 5 and 6 as put-forth by them and the same could also be gathered from Ex.B2 and furthermore, when it is seen that the contesting defendants are in the possession and enjoyment of the suit property by putting up the house construction and had obtained water connection, service connection etc. for enjoying the same, the case of the plaintiff that the defendants had trespassed into the suit property unlawfully does not merit acceptance and the same had been rightly rejected by the Wakf Tribunal. Furthermore, considering the continuous possession and enjoyment of the suit property by the first defendant and the other defendants right from 1946 onwards and when there is no material placed on record by the plaintiff to establish that thereafter, the plaintiff had been in the possession and enjoyment of the suit property and on the other hand, when it is seen that since 1946 onwards, it is only the contesting defendants, who had been in the possession and enjoyment of the suit property by exercising absolute ownership over the same to the knowledge of one and all, including the plaintiff, beyond the statutory period by exercising hostile attitude and animus possidendi, the Wakf Tribunal is also justified in holding that the contesting defendants had perfected their title to the suit property by way of adverse possession and thereby, the suit laid by the plaintiff is also hit by limitation. 11. It is mainly argued by the plaintiff's counsel that the suit property has been used as a burial ground for burying the dead bodies of the plaintiff's ancestors over a long period of time and the said usage of the suit property by the plaintiff and their ancestors could not be deprived by the defendants in any manner as it would hurt the religious sentiments of the plaintiff's community and on that score alone, the plaintiff should be granted the relief as prayed for. When the plaintiff has failed to establish that the suit property is the wakf property as projected in the plaint and on the other hand, when the plaintiff's father had alienated the suit property way back in 1946 to the first defendant and furthermore, when the plaintiff has not placed materials worth acceptance to show that the suit property had been enjoyed as wakf property and notified as wakf property by the Wakf Board and furthermore, when the plaintiff's endeavour to challenge the alienations made by his father and recover the possession of the suit property from the first defendant and others having ended in vain in O.S.No.79 of 1964, the copy of the Judgment marked as Ex.A16 and the copy of the decree marked as Ex.B5 and when from the Commissioner's report and plan it is noted that there is no feature pointing to the usage of the suit property as the burial ground at any point of time and on the other hand, when it is seen that the suit property had been in the possession and enjoyment of the contesting defendants by putting up the house construction and obtaining electricity service connection, water connection etc., and in such view of the matter, when there is no material at all placed by the plaintiff to evidence that at any point of time, the suit property had been used as the burial ground for burying the dead bodies of their ancestors, the Wakf Tribunal had rightly discountenanced the abovesaid case of the plaintiff and in such view of the matter, it is seen that the plaintiff has miserably failed to establish that the suit property had been used as the burial ground as projected. 12. 12. In the light of the above discussions, the Wakf Tribunal had analyzed the materials placed on record by the respective parties in the correct perspective and on a proper understanding of the materials placed, both factually as well as legally, rightly determined that the plaintiff has failed to establish that the suit property is a wakf property and the plaintiff's suit is barred by res judicata and the suit property had not been used as the burial ground and that the suit property is in the possession and enjoyment of the contesting defendants and that the contesting defendants had also perfected their title to the suit property by adverse possession and thereby, the suit laid by the plaintiff is hit by the law of limitation and thereby, rightly dismissed the plaintiff's suit, when such being the position, the Judgment and Decree of the Wakf Tribunal do not warrant any interference. 13. In conclusion, the civil revision petition fails and it is, accordingly, dismissed with costs.