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2019 DIGILAW 2751 (MAD)

Mohideen Bashir Ouliya Thaika v. Thakadi Ekiya

2019-10-04

N.ANAND VENKATESH

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ORDER : N. Anand Venkatesh, J. 1. The revision Petition has been filed under Section 83(9) of the Wakf Act, 1995 r/w. Article 227 of the Constitution of India against the judgment and decree passed by the Wakf Tribunal (Principal Sub-Court), Tirunelveli, in O.S. No. 378 of 2010, dated 21.10.2011. 2. The Petitioner is the plaintiff in the suit. The Petitioner filed the suit before the Court below against the respondent claiming for the relief of permanent injunction. It is the case of the Petitioner that the suit properties belong to the Petitioner Thaika and that the right and title of the Petitioner has already been upheld by this Court in S.A. No. 1758 of 1968 by judgment and decree, dated 23.09.1970 and that the respondent without any right over the property in his individual capacity, is attempting to interfere with the possession and enjoyment of the property. 3. The respondent took a plea that the Petitioner does not have any right over the suit property and the earlier judgment that was passed in the Second Appeal has categorically held that the Thaika does not have the right over the vacant land and therefore the Petitioner is bound by the said judgment. The respondent has taken a further plea that the Petitioner has never been in enjoyment of the suit property and the property absolutely belongs to the Pallivasal and it is being used by the worshippers, who come to the Pallivasal. 4. The Petitioner examined himself as P.W. 1 and one Hussain was examined as P.W. 2 and Ex. A1 to Ex. A12 were marked on the side of the Petitioner. The respondent examined himself as D.W. 1 and marked Ex. B1 to Ex. B5. 5. The Tribunal on consideration of the facts and circumstances of the case and also after considering the earlier judgment passed by this Court in S.A. No. 1758 of 1969 held that the Thaika does not have any right over the suit property. Based on this finding, the Court below held that the Petitioner is bound by the earlier judgment and there is a clear cloud over the title of the Petitioner and the suit itself is not maintainable without claiming the relief of declaration of title. 6. The learned counsel for the Petitioner submitted that there were three Second Appeals that are involved in this case. 6. The learned counsel for the Petitioner submitted that there were three Second Appeals that are involved in this case. Earlier, it was S.A. No. 497 of 1951 and thereafter, the same issue cropped up in S.A. No. 604 of 1960 and finally, it ended up with S.A. No. 1758 of 1969. By bringing to the notice of this Court the judgment in S.A. No. 1758 of 1969 which was marked as Ex. A2, the learned counsel submitted that the vacant site that is situated east of the Thaika building, the suit property and the pathway leading to the Pallivasal situated in the northern side of the suit property, are not one and the same properties and they are different properties. The earlier judgment in S.A. No. 1758 of 1969 has categorically held that the Thaika and its Hukdar are entitled to the suit property. The only condition that was imposed was that the pathway which leads from Asad Road on east to the Pallivasal on the west should not be disturbed. This has not been properly appreciated by the Court below. The Court below completely misdirected itself in wrongly understanding the earlier judgment passed in S.A. No. 1758 of 1969. 7. Per contra, the learned counsel appearing on behalf of the respondent submitted that the Court below has given a factual finding and the same cannot be reversed by this Court exercising its revisional jurisdiction unless the finding is found to be perverse and illegal. The learned counsel submitted that this Court has got a very limited jurisdiction and it cannot treat this Civil Revision Petition as a regular appeal. The learned counsel further submitted that a careful reading of the judgment in S.A. No. 1758 of 1969 clearly shows that the suit property does not belong to the Thaika and only the building belongs to the Thaika. The learned counsel by pointing out the same, submitted that there is clearly a cloud in the title of the Petitioner and the suit itself is not maintainable without the Petitioner claiming for the relief of declaration of title. Accordingly, the learned counsel submitted that the present Civil Revision Petition is liable to be dismissed. 8. Before going into the merits of the case, it is necessary for this Court to remind itself the jurisdiction which can be exercised in this Civil Revision Petition. Accordingly, the learned counsel submitted that the present Civil Revision Petition is liable to be dismissed. 8. Before going into the merits of the case, it is necessary for this Court to remind itself the jurisdiction which can be exercised in this Civil Revision Petition. The position of law is no more res-integra and the latest judgment of the Honourable Supreme Court clearly explains the position. 9. The Honourable Supreme Court in the case of Aliyathammuda Pookaya and another vs. Pattakal Cheriyakoya and others, (2019) 6 MLJ 464 (SC) has held as follows: "11. Regarding the appellants' argument on the scope of the revisional jurisdiction of the High Court against an order of the Wakf Tribunal, it is pertinent to note Section 83(9) of the Waqf Act, 1995 which provides that: "No appeal shall i.e. against any decision or order whether interim or otherwise, given or made by the Tribunal: Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination any may confirm, reverse or modify such determination or pass such other order as it may think fit. (Emphasis supplied) 12. It is well settled that ordinarily, while revisional jurisdiction does not entitle the High Court to interfere with all findings of fact recorded by lower Courts, the High Court may correct a finding of fact if it has been arrived at without consideration of material evidence, is based on misreading of evidence, is grossly erroneous such that it would result in miscarriage of justice, or is otherwise not according to law (see the decision of the Constitution Bench of this Court in Hindustan Petroleum Corporation Limited .vs. Dilbahar Singh, AIR 2014 SC 3708 : (2014) 9 SCC 78 : LNIND 2014 SC 765: (2014) 6 MLJ 597 . Importantly, the scope of such revisional jurisdiction is wider when the High Court is vested with the power to examine the legality or propriety of the lower Court's order under the statute from which the revisional power arises. Importantly, the scope of such revisional jurisdiction is wider when the High Court is vested with the power to examine the legality or propriety of the lower Court's order under the statute from which the revisional power arises. In such a situation, the High Court may also examine the correctness of findings of fact, and reappraise the evidence (see Ram Dass .vs. Ishwar Chander, AIR 1988 SC 1422 : (1988) 3 SCC 131 : LNIND 1988 SC 304. It is in this perspective that the argument of the appellants must be considered." 10. It is clear from the above judgment that this Court while exercising its revisional jurisdiction, has a wider scope and this Court can examine the correctness of the finding of fact and reappraise the evidence. This is more so, because, there is no regular appellate remedy available against the order passed by the Wakf Tribunal and therefore, the traditional approach with regard to the revisional jurisdiction cannot be applied while exercising the revisional jurisdiction against the order of the Wakf Tribunal. This position has been reiterated by the Honourable Supreme Court in the above judgment. 11. Now coming to the facts of the present case, it is enough if this Court focuses on the earlier judgment that was passed by this Court in S.A. No. 1758 of 1969. This will enable this Court to come to a finding regarding the right, title and interest over the property. 12. The relevant portion of the judgment passed in S.A. No. 1758 of 1969 is extracted hereunder: "A perusal of the judgment Ex. B10 also shows that the portion referred to as Thaikka portion was held not to belong to the Pallivcasal and at the same time, the right of the management of the Hugdar to the Thaikka was upheld. This, it will be seen that the judgments Ex. A3 and B10 in clear and unambiguous terms recognized the fact that the mosque has no right whatever over the thaikka property and that the thaikka property is totally distinct from the mosque and the management of that property was throughout for several generations with the Hugdar which office, was hereditary, I do not see how in the face of these decisions in the prior litigations it could at all be held that either the mosque has got any right over the thaikka portion or even right of management or control. On the other hand, the two decisions are quite clear to the effect that the portion occupied by thaikka beside the land portion of it belongs to the thaikka totally disassociated from the mosque and the thaikka was in the exclusive management of the hugdar. If so much is clear, there can be no controversy whatever that the hugdar defendant would be entitled to take necessary steps either by way of renovation or repair, even putting up new walls and new construction. After all, they are all for purposes of safeguarding and protecting the interests of the thaikka and for the due discharge of the duties as the hugdars thereof. What the defendant has now proposed to do is to enclose the portion where the saints are buried so that it will be adequately protected and to cover the same is a protection from the ravages of rain and sun. For all these reasons, I have no hesitation in reversing the decisions of the courts below as clearly erroneous, besides proceeding on a thorough misunderstanding of the two decisions of this Court Ex. A3 and Ex. B10. The result is that the second appeal is allowed and the plaintiff's suit is dismissed." 13. The above finding makes it clear that this Court has taken into consideration the earlier judgments that were passed in S.A. No. 497 of 1951 and S.A. No. 604 of 1960. This Court has held that the Pallivasal does not have any right over the property belonging to the Thaika and that the Thaika property is totally distinct from the mosque and the management over the property was throughout for several generations, with the Hukdars which is a hereditary office. While coming to such conclusion, this Court has held that portion occupied by the Thaika in that case was besides the land portion (which is the suit property in the present case) and all of them belong to the Thaika totally and it is disassociated with the Pallivasal. This Court does not find any ambiguity in the finding rendered by this Court in S.A. No. 1758 of 1969. 14. The Court below, while reading this judgment has misdirected itself as if the right of the Thaika is only to the building and not to the land besides it. This Court does not find any ambiguity in the finding rendered by this Court in S.A. No. 1758 of 1969. 14. The Court below, while reading this judgment has misdirected itself as if the right of the Thaika is only to the building and not to the land besides it. This, in the considered view of this Court, is a wrong reading of the earlier judgment passed by this Court. 15. This Court has already upheld on the three earlier occasions regarding the right title and interest over the suit properties of the Thaika and there is no requirement to seek for a relief of declaration in this case. The respondent claims to be the representative of the Pallivasal and it is seen that he has contested the case in his individual capacity and he has no right over the Pallivasal. The Court below failed to take note of this important aspect also. 16. In the considered view of this Court, the judgment of the Court below requires interference of this Court in exercise of its revisional jurisdiction. The finding given by the Court below is illegal and infirm and suffers from a wrong understanding of the earlier judgment passed by this Court in S.A. No. 1758 of 1969. 17. In the result, the Civil Revision Petition is allowed and the judgment and decree passed by the Wakf Tribunal/Principal Sub-Court, Tirunelveli in O.S. No. 378 of 2010 is hereby set aside and the suit filed by the Petitioner is decreed as prayed for. No costs. Consequently, connected Miscellaneous Petition is dismissed.