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2022 DIGILAW 484 (MAD)

E. S. Sikkandar v. A. Syed Mohideen

2022-02-24

R.VIJAYAKUMAR

body2022
JUDGMENT : R. VIJAYAKUMAR, J. Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated, 24.03.2000, rendered in A.S. No. 48 of 1997 on the file of the Principal District Judge of Madurai, confirming the decree and judgment, dated, 11.08.1993 rendered in O.S. No. 637 of 1990 on the file of the Principal Subordinate Judge at Madurai. 1. The plaintiff is the appellant. 2. The plaintiff filed a suit for declaration that the suit schedule properties are Wakf properties and for recovery of possession from the defendants. The trial Court granted a decree only with regard to the prayer for declaration of title. But it was dismissed with regard to the other prayers. The plaintiff filed A.S. No. 48 of 1997 before Principal District Court, Madurai. The learned District Judge concurred with the findings of the trial Court and dismissed the appeal filed by the plaintiff. As against the same, the plaintiff has filed the above second appeal. 3. In the plaint, the plaintiff has contended that the suit property belongs to Hazarath Aliyarsha Darga. The said Darga is a Wakf property, in which, the plaintiff is the Muthavalli. According to the plaintiff, the Darga is duly registered as a Wakf with the Tamil Nadu State Wakf Board. As a Muthavalli, the plaintiff and his family members have been residing in the eastern portion of the suit schedule property. The defendants' father had requested the plaintiff to permit them to occupy the western portion of the building for his residential purposes. Based on the said request, permission was granted to the defendants to occupy the western portion of the suit schedule properties. The possession of the defendants in the suit schedule property is only in the nature of a permissive occupation. The plaintiff further contended that since the defendants interfered in the conducting of festival in the Darga, he filed O.S. No. 5 of 1986 on the file of District Munsif, Madurai Town as against the defendants for permanent injunction, restraining them from interfering with the plaintiff’s management of the Darga. The trial Court decreed the suit. As against the same, the defendants filed A.S. No. 144 of 1988 before First Additional Subcourt, Madurai. The appeal was also dismissed. As against the same, the defendants have not filed any second appeal. 4. The trial Court decreed the suit. As against the same, the defendants filed A.S. No. 144 of 1988 before First Additional Subcourt, Madurai. The appeal was also dismissed. As against the same, the defendants have not filed any second appeal. 4. The plaintiff further contended that when O.S. No. 5 of 1986 was pending, the defendants have filed an application before Tamil Nadu Wakf Board to remove the plaintiff from the post of Muthavalliship and to appoint them as Muthavallis for the Darga. After enquiry, the Tamil Nadu Wakf Board dismissed their application on 25.04.1987. The plaintiff further contended that the defendants are acting against the interest of the Wakf and they have also demolished the western portion of the building without the permission of the plaintiff. 5. The plaintiff further contended that he sent a legal notice on 23.06.1990, demanding them to surrender possession of the suit building to plaintiff. The defendants sent a reply notice on 29.06.1990, contending that the defendants and their ancestors are the Huqdars of the Darga and they are in possession of the suit building only in the capacity of the Huqdars of the Darga. In the reply notice, they had further contended that they are in possession of the suit schedule properties over the statutory period and they have obtained prescriptive title over the same by adverse possession. Since the defendants have disputed the title of the suit schedule properties, the plaintiff is constraint to file the present suit for declaration that the suit schedule property is a Wakf property and for recovery of possession from the defendants. 6. The defendants filed a written statement contending that the present suit filed in the individual capacity as Muthavalli of the Darga is not maintainable without impleading the Darga. The defendants further contended that the suit Wakf is a private Wakf. The said Wakf has been hereditarily managed by the Huqdars. As per the Wakf Nama, the Huqdars are entitled to be in possession of the residential premises hereditarily. The defendants further contended that the defendants are also Huqdars of the suit Darga. The defendants and their ancestors are in possession of the suit building for more than 100 years. Hence, they have perfected title with regard to the right of residence in the suit schedule property. 7. The defendants further contended that the defendants are also Huqdars of the suit Darga. The defendants and their ancestors are in possession of the suit building for more than 100 years. Hence, they have perfected title with regard to the right of residence in the suit schedule property. 7. The defendants further contended that the plaintiff is also one of the Huqdars and he is residing in the eastern portion and the defendants are also Huqdars and they are residing in the western portion. 8. The defendants further contended that originally only the defendant’s grand-father was managing the Darga as a Huqdar. Thereafter, his son Aliyarsha was managing the Darga. When the defendants' father was managing the Darga, the plaintiff’s father had exercised undue influence over him and got a settlement deed registered in his favour on 09.06.1961. The said document was executed by the defendants' father, when the defendants were minors. Hence, the said settlement deed will not be binding upon the defendants. Only based upon the said settlement deed, the plaintiff’s father and thereafter, the plaintiff are administering the Darga. The defendants have already initiated steps for taking over the administration from the plaintiff. Since the defendants are in possession in the capacity of Huqdars, the prayer for recovery of possession is not maintainable. 9. The trial Court after considering the oral and documentary evidence, arrived at a finding that the suit schedule property is a Wakf property. 10. The trial Court however rejected the prayer for recovery of possession on the ground that both the plaintiff and the defendants are Huqdars of the suit Darga. The plaintiff is residing in the eastern portion of the suit schedule property in the capacity of a Huqdars and the defendants are residing in the western portion of the suit schedule property in the capacity of Huqdars. Whatever right is available to the plaintiff, the same right is also available to the defendants. 11. The trial Court also found that a settlement deed has been executed by the father of the defendants under Exhibit A.44 in favour of the father of the plaintiff. As per the settlement deed, no right of residence has been granted to the Huqdars. 11. The trial Court also found that a settlement deed has been executed by the father of the defendants under Exhibit A.44 in favour of the father of the plaintiff. As per the settlement deed, no right of residence has been granted to the Huqdars. However, when the plaintiff is in occupation of one portion of the suit schedule property as a Huqdar, the defendants are equally entitled to occupy the other portion of the suit schedule property in the capacity of the Huqdar. The trial Court also found that the defendants are residing not as a permissive occupant but under the right of a residence as a Huqdar of the suit Darga. Based upon the said findings, the trial Court granted a decree for declaration that the suit schedule is a Wakf property. But dismissed the prayer for recovery of possession. 12. The First Appellate Court after independent consideration of oral and documentary evidence, came to the conclusion that the defendants are not in possession based upon the permission granted by the plaintiff. The defendants are in occupation of the western portion of the suit schedule property only in the capacity of a Huqdars. The First Appellate Court found that both the plaintiff and the defendants are Huqdars of the suit Darga. When the plaintiff is residing in the eastern portion of the suit schedule property in the capacity of a Huqdar, the defendants are having equal right to be in occupation of the western portion of the same property. In the above said circumstances, the First Appellate Court also rejected the prayer for recovery of possession and dismissed the appeal. 13. The second appeal has been admitted on the following substantial questions of law: (i) Whether without any proof of the terms of the grant, a Huqdar is entitled to as a matter of a right, to reside in a Wakf property? (ii) If the duties and obligations of the Huqdar do not warrant for his residence, in a Wakf property can the Huqdar claim that he is as a matter of right, entitled to reside in the Wakf property? (iii) If there are more than one Huqdars to a Wakf property, what would be the duties and liabilities of each and every Huqdar, relating to Wakf property? (iv) Is not a Muthavalli entitled to revoke the licence granted to the Huqdar? (iii) If there are more than one Huqdars to a Wakf property, what would be the duties and liabilities of each and every Huqdar, relating to Wakf property? (iv) Is not a Muthavalli entitled to revoke the licence granted to the Huqdar? (v) Is not the Huqdar forfeits his right and his office, if such Huqdar claims a permanent right by adverse possession against the interests of a Wakf? (vi) Is not a Muthavalli enjoys more right and power, than Huqdar, and if so, what would be the duties of each Muthavalli and Huqdar? (vii) Whether a Muthavalli, in the interest of the Wakf can revoke of cancel or withdraw the right of the residence of the Huqdar in the Wakf property in the interest of the Wakf? 14. Since the present Muthavalli was not interested in prosecuting the second appeal, this Court directed the Wakf Board to be impleaded as one of the appellants in the second appeal. The standing counsel for the Wakf Board was directed to make his submissions. 15. The learned counsel for the Wakf Board contended that the suit schedule properties are Wakf properties and at the time of filing of the suit, the plaintiff was the Muthavalli and he has got every right to file the suit for declaration of title and recovery of possession. He further contended that the defendants have disputed the title of the Wakf in the reply notice, as well as in the written statement and hence they are not entitled to any relief in the second appeal. He further contended that Exhibit A.44 is the settlement deed executed by the defendants' father in favour of the plaintiff's father in the year 1961. The said document has not been challenged at any point of time. There is no reference about the right of residence for the Huqdars in the said document. That apart, the defendants have given up their right of Huqdarship under Exhibit A.4. Hence, the contention of the defendants that they are in possession of the western portion of the suit schedule properties of the suit schedule properties in the capacity of Huqdars is not legally sustainable. 16. He further contended that the defendants have caused damage to the Wakf property and they have also claimed adverse possession of right of residence in the suit schedule property. 16. He further contended that the defendants have caused damage to the Wakf property and they have also claimed adverse possession of right of residence in the suit schedule property. In the said circumstances, they are not entitled to be in possession of the suit schedule properties and are liable to be evicted. 17. Per contra, the learned counsel for the respondents contended that admittedly the defendants are also Huqdars as that of the plaintiff. Whatever right that is available to the plaintiff is also available to the defendants. He further contended that the plaintiff in the capacity of a Huqdars from his father's period is in possession of the eastern portion of the suit schedule property. Similarly, the defendants are in possession of the western portion of the suit schedule properties. Out of personal enmity, the plaintiff is attempting to evict the defendants. He further contended that Exhibit A.44 document is not binding upon the defendants, which was executed when the defendants were minors. He further disputed the contention of the plaintiff that some damages has been caused to the western portion of the suit schedule properties. According to the learned counsel for the respondents, they have not challenged the decree for declaration that is a Wakf property. Once it is decided to be a Wakf property, the prayer sought for by the Muthavalli for recovery of possession is not maintainable. Hence, he prayed for dismissal of the second appeal. 18. I have carefully considered the submissions on either side. 19. The decree for declaration granted by the trial Court that the suit schedule property is a Wakf property has not been challenged by the defendants. Hence, the suit schedule property is admittedly a Wakf property. 20. According to the defendants, the present suit schedule property is only a private family Wakf. The same is being administered by hereditary Trustees from the family of the plaintiff and the defendants. The plaintiff's family and the defendants' family were the Huqdars of the said private Wakf. Both the families are entitled to administer and manage the Wakf. The defendants had further contended that the plaintiff is in possession of the eastern portion of the suit schedule properties only in his capacity as a Huqdar. Similarly, the defendants are also Huqdars and they are in possession of the western portion of the suit schedule properties. Both the families are entitled to administer and manage the Wakf. The defendants had further contended that the plaintiff is in possession of the eastern portion of the suit schedule properties only in his capacity as a Huqdar. Similarly, the defendants are also Huqdars and they are in possession of the western portion of the suit schedule properties. Whatever right that is available to the plaintiff is also available to the defendants. 21. As contended by the defendants, the Wakf was originally functioning as a private Wakf. The plaintiff's and the defendants' family were jointly managing the Darga and its properties as Huqdars. But the Wakf Board after conducting an enquiry has declared it to be a public Wakkf and has taken over the administration of the Wakf by an order dated, 07.06.1985 under Exhibit A.3. 22. According to the learned counsel for the appellant, though the defendants have objected, after hearing the plaintiff and the defendants, the said order has been passed. The order has not been challenged either by the plaintiff's family or by the defendants' family. After taking over of the Wakf, the Wakf Board has appointed the plaintiff as the Muthavalli. 23. As long as a Wakf continues to be a private Wakf, it may be under the administration of the Huqdars and certain families may be continuing to be in the administration hereditarily. But once it is declared to be a public Wakf and taken over by Tamil Nadu Wakf Board, the right of the Huqdars to administrate the Wakf properties ceases. Only the Muthavalli, who is appointed by the Wakf Board will have right of administration over the Darga and the properties attached to the Darga. In the present case, admittedly, the alleged private Wakf was taken over by Tamil Nadu Wakf Board and the plaintiff has been appointed as a Muthavalli. Hence, any right of the erstwhile Huqdar will cease to operate and neither the plaintiff nor the defendants can call themselves to be Huqdars entitled to administrate or manage the properties of the Darga. 24. The possession of the plaintiff over the eastern portion of the suit schedule property is only attributable to his post of Muthavalli by the Wakf Board. That apart, the defendants' father has executed a registered document in favour of the plaintiff's father relinquishing all his rights of Huqdarship in the year 1961 under Exhibit A.44. 24. The possession of the plaintiff over the eastern portion of the suit schedule property is only attributable to his post of Muthavalli by the Wakf Board. That apart, the defendants' father has executed a registered document in favour of the plaintiff's father relinquishing all his rights of Huqdarship in the year 1961 under Exhibit A.44. Thereafter, the defendants' family cannot claim that they are also Huqdars for the suit Dhargha or claim any right of administration or management of the suit Darga. Hence, viewed from any angle, the defendants have no right to be in possession and enjoyment of the western portion of the suit schedule properties. 25. The defendants in their reply notice issued under Exhibit A.2, dated, 29.06.1990 and in the written statement have categorically disputed the title of the Wakf over the suit schedule properties. The defendants have gone to the extent of claiming adverse possession of their right of residence in the suit schedule properties. Hence, they have not entitled to be in possession of the suit schedule properties once they have denied the title of the Wakf Board. 26. The defendants have filed an application before Tamil Nadu Wakf Board under Exhibit A.41 for removal of the plaintiff from the post of Muthavalli and to appoint them as Muthavalli of the suit Darga. This clearly shows that the defendants have admitted that the plaintiff is the Muthavalli and the right of appointment of Muthavalliship vests only with the Tamil Nadu Wakf Board. Tamil Nadu Wakf Board had dismissed the said application under Exhibit A.42 on 25.04.1987, confirming the right of Muthavalliship of the plaintiff. Hence, the plaintiff's right to file a suit for declaration of title and to seek recovery of possession from the defendant cannot be disputed. 27. In view of the above said discussion, all the substantial questions of law are answered in favour of the appellant. The judgment and decree of the Courts below with regard to dismissing the prayer for recovery of possession from the defendants is set aside. The suit is decreed with regard to the prayer for recovery of possession also. The O.S. No. 637 of 1990 on the file of the Principal Sub Court, Madurai is decreed in entirety. The Second Appeal is allowed. No costs.