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2022 DIGILAW 246 (MAD)

M. Magdhum v. M. Mohammed Sali

2022-01-27

P.T.ASHA

body2022
ORDER : The defendant is before this Court challenging the order dated 23.10.2021 passed by the learned I-Additional District Munsif, Tirunelveli dismissing the petitioner's application for rejecting the plaint filed by the plaintiff in I.A.No.1 of 2019 in O.S.No.146 of 2016. 2. The brief facts, which are essential for disposing of the above Civil Revision Petition, are as follows :- 2.1. The respondent had filed O.S.No.146 of 2016 on the file of the I-Additional District Munsif, Tirunelveli for a declaration that the suit schedule property belongs to him absolutely and for a mandatory injunction against the defendant to vacate and handover vacant possession of the suit property to the plaintiff within a stipulated time. 2.2. The respondent/plaintiff had come forward with the case that the suit schedule property and its larger extent belonged to his father. The revision petitioner/defendant is the brother of the respondent/plaintiff. The property, which is situate to the West of the plaint schedule property, is a private Thurkha, which was under maintenance of the plaintiff's father. Apart from the schedule properties, there were other properties, which his father was in possession and enjoyment. On 29.06.1992, the respondent's father had executed a registered gift settlement deed in favour of the plaintiff in respect of the suit schedule property and on the very same day, the property was handed over to him. From the date of settlement, the plaintiff has been in possession and enjoyment of the same. He has had the revenue records mutated in his name and from 1992, property tax to the Municipal Corporation was being remitted only in his name. 2.3. The respondent would further submit that he had obtained a loan by mortgaging this property with the bank for meeting the expenses of his daughter's marriage in the year 2004 and that he had redeemed the property, thereafter and once again in the year 2011, had obtained a loan. In short, the plaintiff would submit that he had exercised all rights as a owner in respect of the suit schedule property. The respondent would submit that since the defendant had no employment or sources of income, he had requested the respondent to permit him to run a petty shop in the premises for some time so as to maintain himself and his family. On a humanitarian ground, the respondent/plaintiff had permitted the same. The respondent would submit that since the defendant had no employment or sources of income, he had requested the respondent to permit him to run a petty shop in the premises for some time so as to maintain himself and his family. On a humanitarian ground, the respondent/plaintiff had permitted the same. After the respondent had retired from service, his son, who has completed his college education, had no job. The plaintiff required the premises and therefore, he had requested the revision petitioner to hand over vacant possession of the same. Though initially the revision petitioner had agreed however, after the revision petitioner's wife had got employment in one of the Arab countries as a result, the defendant's lot had improved, he was not ready to hand over possession of the property. In fact, he has been keeping the property closed. Therefore, the plaintiff had issued a legal notice dated 02.08.2013 and a reply containing false and fabricated contentions was issued on 30.08.2013 by the defendant. He took out a defence that the property in question was a Wakf property by taking advantage of the fact that there is a Thurkha situate nearby. The respondent would submit that the Thurkha is situate in a totally different survey number and door number and the same still stands in the name of his father. However, all the records in respect of the suit schedule property are in his name. The Thurkha also is a private family Thurkha and not a Wakf property. Hence, the plaintiff had come forward with the present suit for declaration. 3. The revision petitioner had filed his written statement in which, he would submit that the suit itself was a vexatious one and would contend that the gift settlement deed in favour of the plaintiff was null and void, since his father did not have the authority to execute the gift settlement deed in his name. He would also raise a plea that the Court did not have jurisdiction to hear the suit, since the property in question was a Wakf property, therefore, the matter should go before the Tribunal. 4. Pending the suit, the defendant/revision petitioner had taken out an application for rejecting the plaint on the ground that the suit in respect of Wakf property cannot be initiated before the Civil Court and had to be filed only before the Wakf Tribunal. 4. Pending the suit, the defendant/revision petitioner had taken out an application for rejecting the plaint on the ground that the suit in respect of Wakf property cannot be initiated before the Civil Court and had to be filed only before the Wakf Tribunal. The said application was resisted by the respondent/plaintiff. The respondent would submit that the ground on which the application is filed is absolutely baseless. The schedule property had been gifted by his father and possession had been handed over to him as early as in the year 1992 under a registered gift deed. The revision petitioner herein had executed the said deed as a witness and therefore, is estopped from contending otherwise. The mutation of the revenue records as well as the tax records have been effected in the name of the respondent. The respondent has also exercised his rights as an absolute owner by mortgaging the property to the Bank. At no point of time, was there any objection by the revision petitioner. The petitioner, by just using the name 'Wakf', cannot have the matter transferred and he has to prove that the property is a Wakf property. The suit has been filed by the plaintiff for a declaration of his right to the property as well as for a mandatory injunction directing the respondent to vacate and handover possession of the suit property. 5. The learned I-Additional District Munsif, Tirunelveli, by order dated 23.10.2021, was pleased to dismiss the said application. The learned Judge had observed that the revision petitioner had not let in an iota of evidence to prove that the property is a Wakf property. Challenging the same, the revision petitioner is before this Court. 6. Mr.D.Nallathambi, learned counsel appearing for the petitioner would submit that the fact that the property is situate next to a Thurkha would clearly prove that the suit schedule property is a Wakf property. He would, therefore, contend that the learned Judge has overlooked the boundaries of the suit schedule property, which would clearly show that it is flanked by a Thurkha on one side and therefore, he would submit that the dismissal of his application under Order VII Rule 11 of the Code of Civil Procedure was totally erroneous. 7. Heard the learned counsel for the petitioner. 8. 7. Heard the learned counsel for the petitioner. 8. A Wakf is defined as follows:- “Wakf means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes– (i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser; (ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record; (iii) “grants”, including mashrut-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and (iv) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, and “wakif” means any person making such dedication; 9. Therefore, in order to fall within the category of a Wakf property, there must be a permanent dedication by the Wakf. In the instant case, the respondent has not been able to produce any evidence whatsoever to show that there has been a dedication of the immovable property for the purpose of a pious, religious or charitable work. On the contrary, the father of the plaintiff, who admittedly was the owner of the property, has executed a gift settlement deed in favour of the respondent/plaintiff. Therefore, without any proof that the property is a Wakf property, the application for rejecting the plaint and directing the parties to approach the Wakf Tribunal is not maintainable and the learned I-Additional District Munsif, Tirunelveli has rightly dismissed the said application. I do not find any reason whatsoever to interfere with the finding of the learned I Additional District Munsif, Tiruneveli and consequently, the order dated 23.10.2021 made in I.A.No.1 of 2019 in O.S.No.146 of 2016 is confirmed. 10. In the result, this Civil Revision Petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.