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2022 DIGILAW 1428 (MAD)

Samsudeen v. V. A. Salmon

2022-06-15

R.VIJAYAKUMAR

body2022
JUDGMENT (Prayer: Second Appeal is filed under Section 100 of C.P.C, to set aside the judgment and decree dated 25.02.2019 passed in A.S.No.111 of 2018 on the file of the Principal Subordinate Court, Tirunelveli, confirming the judgment and decree dated 14.11.2018 passed in O.S.No.333 of 2013 on the file of the Principal District Munsif Court, Tirunelveli by allowing the second appeal.) 1. The first defendant is the appellant. 2. The plaintiff had filed O.S.No.333 of 2013 before the Principal District Munsif Court, Tirunelveli for the relief of permanent injunction that the plaintiff is in possession of the suit schedule property as a lessee. The suit was decreed by the trial Court. The first defendant filed A.S.No.111 of 2018 before the Subordinate Court, Tiruvnelveli. The learned Subordinate Judge was pleased to dismiss the appeal. As against the concurrent findings, the present second appeal has been filed by the plaintiff. 3. The plaintiff had contended that the suit schedule property belongs to Hameem Palli Madarasa. According to the plaintiff, he has taken vacant site on lease from the Huqdar of the said Pallivasal under Exhibit A1 on 08.12.2005 at a monthly rent of Rs.5/-. According to the plaintiff, he has been regularly paying the rent. The plaintiff had further contended that the first defendant who has nothing to do with the suit schedule property, attempted to disturb the possession of the plaintiff. The plaintiff had further contended that on 14.07.2013, the first defendant had attempted to remove the fence and trespassed into the suit schedule property. Hence, he has filed the present suit for bare injunction to protect his possession. 4. The defendants filed a written statement contending that the suit schedule property admittedly belongs to Hameem Palli Madarasa which is a private wakf. As per the scheme of the wakf, a Huqdar will have a turn for every three years. The plaintiff has entered into a lease agreement with a Huqdar on 08.12.2005 which is not valid. According to the defendants, the lease yadastu dated 08.12.2005 obtained by the plaintiff is an invalid document and it was not executed by the then turned Huqdar namely V.S.T.Mohammed Abubukker The defendants had further contended that the document has been created forging the signature of V.S.T.Mohammed Abubukker. The defendants had further contended that the contention of the plaintiff that he has been regularly paying the rent is also false. The defendants had further contended that the contention of the plaintiff that he has been regularly paying the rent is also false. They have taken the suit schedule property on lease under Exhibit B2 dated 03.05.1995 from the Huqdar wakf committee and they are in enjoyment of the suit schedule property. According to them, they have been regularly paying the rent to the landlord. They are in possession of the suit schedule property for the past 18 years. However, the plaintiff has created a forged document in the year 2005 and is attempting to grab the property. Hence, the defendants had contended that the plaintiff is not entitled to a decree for permanent injunction. 5. The trial court after considering the oral and documentary evidence, arrived at a finding that the suit schedule property originally belonged to a private wakf and there are three Huqdars for the said wakf and they administer the wakf in turns. The trial Court found that the property covered under Exhibit A1 lease deed is the suit schedule property. The trial Court further found that the plaintiff has examined PW2 who was the Huqdar at that relevant point of time. The trial Court further found that the eastern boundary under Exhibit A1 lease deed is shown as a property already leased out to the first defendant and hence, the property covered under Exhibit A1 lease deed and Exhibit B2 lease deed are completely different. The trial court further found that Exhibit B2 lease deed dated 03.05.1995 has been signed by all the Huqdars. Since PW2 who was the Huqdar has admitted in his examination that he has executed Exhibit A1 lease deed, the trial Court proceeded to grant a decree in favour of the plaintiff. 6. The First Appellate Court also found that PW2 was the Huqdar at that point of time when Exhibit A1 lease deed was executed in favour of the plaintiff. The First Appellate Court also compared Exhibits A1 and B2 and arrived at a finding that both these documents relate to two different properties and hence, the lease deed in favour of the plaintiff under Exhibit A1 is genuine and the defendants cannot claim possession based upon Exhibit B2 lease deed. Based upon the said finding, the First Appellate Court dismissed the appeal. As against the concurrent findings, the present second appeal has been filed. 7. Based upon the said finding, the First Appellate Court dismissed the appeal. As against the concurrent findings, the present second appeal has been filed. 7. The second appeal has been admitted on the following substantial questions of law. “(i)When Ex.A1 lease deed executed only by one Muthavalli alone and not by all the Muthavallis of a private wakf and hence, the said lease deed is void-ab-initio. Whether the Courts below are correct in granting permanent injunction in favour of the 1st respondent, who claims possession only as a lessee in pursuance of Exhibit A1? (ii)Whether the Courts below are correct in evaluating evidence by adopting the proposition that the burden of proof lost its significance when both parties produced lease deeds to establish their possession and hence, the findings of the Court below are perverse warranting interference? (iii)Whether the Courts below are correct in relying upon the evidence of P.W.2 who is neither a attesting witness to Exhibit A1 or one of the turn trustees of the landlord wakf? Since the Courts below arrived findings relying upon the evidence of P.W.2, the findings are perverse and warrant interference? (iv)While Exhibit B1 has been marked and proved by examining D.W.3 and the plaintiff as P.W.1 admitted Ex.B.1 in cross-examination, whether the findings of the First Appellate Court that P.W.1 has denied the complaint is against the available evidence on record and so perverse?” 8. The learned counsel for the appellant had contended that Exhibit B2 lease deed is anterior in point of time and the same has not been disputed or found to be an illegal by both the Courts. When the lease deed in favour of the defendants has been legally executed by turn Huqdar in the year 1995, the subsequent lease deed in favour of the plaintiff in the year 2005 for the very same property cannot confer any right upon the plaintiff. Without terminating the lease in favour of the defendant, the turn Huqdar would not be entitled to execute another lease deed in favour of another person. He had further pointed out that Exhibit B2 has been executed by all the three Huqdars in favour of the defendant. On the other hand, Exhibit A1 lease deed has been executed in favour of the plaintiff by only one of the Huqdars. He had further pointed out that Exhibit B2 has been executed by all the three Huqdars in favour of the defendant. On the other hand, Exhibit A1 lease deed has been executed in favour of the plaintiff by only one of the Huqdars. He had further pointed out that one of the signatories under Exhibit B2 has chosen to execute Exhibit A1 lease deed in favour of the plaintiff. The learned counsel for the appellant had further contended that under Exhibit B2 it has been specifically mentioned that the western boundary is Nanguneri road. However in Exhibit A1 which has been mentioned as west of the property leased in favour of the present defendant. Hence, he contended that when the western boundary of the defendant's leased property is a road, the road property could not have been leased out in favour of the plaintiff under Exhibit A1. Hence, he contended that Exhibit A1 is a void document executed by one of the Huqdars, who has also signed in Exhibit B2 lease deed. He had further contended that the trial Court as well as the Appellate Court have not properly appreciated the boundary recital in Exhibits A1 and B2 and arrived at an erroneous finding and decreed the suit as prayed for. 9. Per contra, the learned counsel for the first respondent had contended that the trial Court as well as the Appellate Court have found that Exhibit A2 lease deed has been executed in favour of the plaintiff by turn Huqdar and hence, it is a valid document. The learned counsel had further contended that the Courts below have found that the property covered under Exhibits B2 and A1 are completely different and hence, the plaintiff is entitled to protect his right of a lessee of the vacant site. When the Courts below have arrived at a concurrent finding with regard to the validity of the lease deed and the said concurrent finding may not be disturbed in the second appeal. Hence, he prayed for dismissal of the second appeal. 10. I have given anxious consideration to the submissions made on either side. 11. It is admitted by both the parties that the suit schedule property belongs to Pallivasal. Hence, he prayed for dismissal of the second appeal. 10. I have given anxious consideration to the submissions made on either side. 11. It is admitted by both the parties that the suit schedule property belongs to Pallivasal. The plaintiff claims right on the basis of Exhibit A1 lease deed said to have been executed by the turn Huqdar namely one V.S.T.Mohammed Abubukker On the other hand, the defendant claims right of possession over the suit schedule property on the basis of a lease deed executed by three Huqdars including the said V.S.T.Mohammed Abubukker in the year 1995. Both the Courts below have found that Exhibit A1 has been executed by one of the Huqdars namely V.S.T.Mohammed Abubukker The said V.S.T.Mohammed Abubukker was also examined as PW2 on the side of the plaintiff. The Courts below have concurrently found that three Huqdars including PW2 have executed a lease deed in favour of the defendant on 03.05.1995. The Courts below have not disputed the validity or genuineness of Exhibit B2. 12. In the light of the above said fact, the question that arises for consideration is whether the property covered under Exhibits B2 and A1 are different or one and the same. A perusal of boundary recital in Exhibit B2 specifically indicate that the western boundary is Nanguneri road. Hence, it is evident that the property leased out in favour of the defendant was abutting Nanguneri road which was located on the western side of the leased out property. A perusal of the boundary recital in Exhibit A1 indicates that the property located to the west leased out in favour of the defendant has been dealt with. A perusal of the boundary recital of Exhibits B2 and A1 will clearly show that when the western boundary is Nanguneri road under Exhibit B2 , the same could not have been leased out under Exhibit A1 in favour of the plaintiff. Hence, it is evident that what has been leased out under Exhibit A1 in favour of the plaintiff is the same property that was already leased out in favour of the defendant under Exhibit B2. Hence, the Courts below have not properly appreciated the boundary recital in these two documents and arrived at an erroneous finding that the properties covered under these two documents are different. 13. Hence, the Courts below have not properly appreciated the boundary recital in these two documents and arrived at an erroneous finding that the properties covered under these two documents are different. 13. Exhibit B2 in favour of the defendant has been executed by three Huqdars including one V.S.T.Mohammed Abubukker in favour of the defendant on 03.05.1995. The same V.S.T.Mohammed Abubukker who had executed Exhibit B2 in favour of the defendant, has chosen to execute Exhibits A1 lease deed in favour of the plaintiff individually. The same Huqdar (PW2) had executed a lease deed already for the same property in favour of the defendant in the year 1995, has chosen to execute another lease deed for the same property in favour of the plaintiff who is a close relative. Hence, I find that without terminating the lease under Exhibit B2, Exhibit A1 lease deed has been executed and the same will not confer any right upon the plaintiff. 14. The trial Court as well as the Appellate Court have not properly appreciated the boundary recitals and the legal validity of Exhibit A1 lease deed in favour of the plaintiff and have proceeded to grant a decree in favour of the plaintiff. 15. In view of the above said discussions, all the substantial questions of law are answered in favour of the appellant. The judgment and decree of the Courts below are set aside. The suit in O.S.No.333 of 2013 on the file of the Principal District Munsif Court, Tirunelveli is dismissed. The second appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed.