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2024 DIGILAW 849 (AP)

Meer Shah Noor v. Mohammad Saleem Baig

2024-07-26

KIRANMAYEE MANDAVA

body2024
JUDGMENT : 1. The cause of action for filing the suit dates back to the year 1913. Masjid known as Jama Masjid Waqf/Jamia Mosque, Canal Road, Vijayawada is the subject-matter of the subject suit proceedings. 2. It is stated that one Md. Abdul Hakeem and another filed OS No.113 of 1913 before the Principal Sub-Judge, Bezwada, seeking following reliefs : "The plaintiffs therefore pray that the defendants may be removed from the management of the mosque and cemetery that proper trustees preferably the plaintiffs may be appointed trustees thereof, that a scheme of management may be settled, that the defendants may be ordered to pay the costs of this suit and that such other relief or reliefs may be granted as to this Court may seem fit under the circumstances of the case." 3. The facts leading to the filing of the suit, culled out from the record are that way back in the 17th century, one Shah Musafir Sahib acquired properties at Vijayawada. He constructed a mosque on the part of it and endowed the remaining property for the benefit of the mosque. After two centuries, Mr. Abdul Hakim Sahib and others filed suit in 1913, in OS No.113 of 1913, before the Sub-Court, Bezwada, under Sections 92 and 93 of C.P.C., to frame a scheme for better administration of the mosque properties. And they sought for appointment as trustees. The Court framed the scheme vide proceedings dated 30.09.1915. The gist of the scheme is as follows : (a) Mohammed Abdul Hakim shall be the first Trustee of the Mosque and its properties. He shall hold office for life and shall have the power. (b) to appoint his successor. (c) The succeeding Trustees shall also have the power to appoint their successors and the successors shall be among the descendents of the founder Mr. Shah Musafir Sahib. (d) Where, if any Trustee dies or vacates the office without appointing his successor, the Court may appoint the Trustee from among the descendents of the founder, on the applications of three worshippers of Bezwada. (e) If there is no person among the descendents qualified to fill the office, the Court may appoint a stranger. (f) A Panchayat or Committee consisting of five respectable Mohammedan residents of Bezwada shall be constituted to supervise and control the management and administration of the trust by the Trustees. (e) If there is no person among the descendents qualified to fill the office, the Court may appoint a stranger. (f) A Panchayat or Committee consisting of five respectable Mohammedan residents of Bezwada shall be constituted to supervise and control the management and administration of the trust by the Trustees. If the majority of the Committee feels that the nominee of the outgoing Trustee is not fit to hold office, they may pass a resolution in writing stating their objections to his nomination and may move the Sub-Court of Bezwada for his removal. (g) The property of the trust shall vest in the Trustee and he shall administer the same in accordance with the principles of Mohammedan religion and the provisions of Mohammedan Law and the Religious Endowment Act. (h) The Trustee or the members of the trust are liable to be removed or suspended by the Court, on proven acts of misconduct and neglect of duty; 4. The first trustee, Abdul Hakim, appointed under the scheme, continued till his life time. During his life time, he nominated his brother Abdul Rahim as his successor. During his tenure, on coming into force the Waqf Act, 1954, Abdul Rahim was appointed Chairman of the A.P. Waqf Board. Abdul Rahim nominated his son Abdul Gaffoor as his successor. Gafoor died on 19.08.1980 in a plane accident at Riyadh. He could not nominate his successor. His death caused vacancy to the office of the trustee of the mosque. Thereupon, one M.S. Khayyum and others filed an application in IA No.3517 of 1980 in OS No.113 of 1913 to appoint them as trustee and panchayatdars as per the scheme. In the said IA, Mir Shah Zahoor filed IA No.4431 of 1980 to implead him and also filed an IA No.4432 of 1980 to appoint him as trustee, claiming that he is a descendant of the founder of the Mosque. Vide order dated 07.03.1981, the learned Judge appointed Mir Shah Zahoor as Mutawalli. Against the said order, revision petitions were filed before the High Court in CRP Nos.1671 to 1673 of 1981. The said C.R.Ps., were dismissed. On further appeal to the Supreme Court, the Hon'ble Apex Court remanded the matter to the learned Trial Judge for disposal afresh. In pursuance thereof, the learned Trial Judge vide order dated 09.01.1997 appointed Mir Shah Zahoor as Mutawalli of the Mosque. The said C.R.Ps., were dismissed. On further appeal to the Supreme Court, the Hon'ble Apex Court remanded the matter to the learned Trial Judge for disposal afresh. In pursuance thereof, the learned Trial Judge vide order dated 09.01.1997 appointed Mir Shah Zahoor as Mutawalli of the Mosque. His appointment was confirmed by the Board vide proceedings dated 14.05.1997 and the same was notified vide publication in A.P. State Gazette dated 06.08.1998. Challenging the order dated 09.01.1997 of the learned Trial Judge, the plaintiffs in the present suit have filed a revision petition before this Court. This Court, vide common order dated 09.04.2002 in CRP No.2142 of 2002 and Batch, confirmed the order of the learned Judge appointing the father of the 1st defendant as Mutawalli of the Jamia Masjid. Mir Shah Zahoor appointed Mir Shah Noor as his successor, and filed a Memo dated 28.03.1988 before Sub-Court, Vijayawada, declaring him as Mutawalli of the mosque after his lifetime. Mir Shah Zahoor died on 03.08.2011. After his demise Mir Shah Noor had informed the Board that he has taken charge of the institution and discharging the duties of Mutawalli in terms of the Memo dated 28.03.1988 and Court order dated 10.09.2012 in IA No.1335 of 2012 in OS No.113/1913. He requested the Board to make changes to the management of the institution as per the provisions of the Waqf Act. The Waqf Board vide notification dated 16.01.2014 notified the appointment of Mir Shah Noor's appointment as Mutawalli. While affirming the order of the learned Trial Judge, this Court observed in CRP No.2142 of 2002 and Batch of cases as follows : "The next question is as to the validity and correctness of the appointment of Mr. Zahoor as the Mutawalli of the Mosque by the Trial Court. As observed earlier, one of the clauses contained in the Scheme were that the Trustee (Mutawalli) shall be appointed, as far as possible, from the descendents of the founder of the Mosque. The necessity for the Trial Court to undertake the adjudication on this matter arose on account of the death of Abdul Gafoor, who died in a plane accident on 19.08.1980, even before he could nominate his successor. While Abdul Khayyum and three others filed IA No.3517/80 for appoint an appropriate person as the Trustee, Mr. The necessity for the Trial Court to undertake the adjudication on this matter arose on account of the death of Abdul Gafoor, who died in a plane accident on 19.08.1980, even before he could nominate his successor. While Abdul Khayyum and three others filed IA No.3517/80 for appoint an appropriate person as the Trustee, Mr. Zahoor filed IA No.4432/80 for appointment of himself as the Mutawalli, claiming to be the descendent of the founder of the Mosque. The Trial Court passed orders appointing Mr. Zahoor as the Mutawalli. The matter was ultimately taken to the Supreme Court and the Hon'ble Supreme Court observed that the Trial Court "should have required evidence to be placed in support of Shah Zahoor's claim to have life trusteeship on the basis that he was in the line of the creator of the Wakf". It is in this context that the matter was adjudicated afresh. Before the Trial Court, arguments were advanced as regards the implication of the provisions of 1954 Act. After elaborate discussion and relying upon certain decided cases, the Trial Court held that the Scheme continued to be in operation. Thereafter, it has undertaken elaborate discussion with reference to the oral and documentary evidence to arrive at a conclusion as to whether Mr. Zahoor hails from the descendent of the founder. After discussing the principles laid down by the Hon'ble Supreme Court in AIR 1983 SC 684 as regards the acceptance of and decision on genealogy, it considered Exs.A1 to A8. Mr. Zahoor, who figured as PW1, claimed to be the grandson of Mir Karimuddin. Ex A1 is the deposition of Mir Karimuddin in OS No.113/13, i.e., the very Scheme suit. Ex.A2 dated 27.04.2025 is the memo filed by local Muslims notifying to appoint the Committee of members of the Mosque and inviting objections. Ex.A3 is the memo dated 17.03.2025 where the names of the members of the founder and ordinary members of the family were furnished. The name of Mir Karimuddin figured at Sl.No.12 as member from the founder's family. Through Ex.A4 dated 26.03.2025, the Court invited objections from the public in respect of the persons named in Ex.A3. The name of Mir Karimuddin was shown at Sl.No.12. In Ex.A1, Mir Karimuddin deposed that the tombs of his father and brother are in the premises of the Mosque. The relationship so claimed by Mr. Through Ex.A4 dated 26.03.2025, the Court invited objections from the public in respect of the persons named in Ex.A3. The name of Mir Karimuddin was shown at Sl.No.12. In Ex.A1, Mir Karimuddin deposed that the tombs of his father and brother are in the premises of the Mosque. The relationship so claimed by Mr. Zahoor was not disputed by any one, by placing any acceptable evidence before the Court. Further, no one with any superior or better claim has approached the Court. On the basis of the evidence on record, the Trial Court found that Mr. Shah Zahoor is from the descendant's family and appointed him as the Trustee/Mutawalli in accordance with the terms of the Scheme. We also hold that in the matter relating to the appointment of a Trustee/Mutawalli, that too, under a Scheme framed by the Trial Court the tenant has absolutely no locus either to participate in the adjudication in such proceedings or to challenge the outcome of the same. Even otherwise, we are not convinced by the learned Counsel appearing for the tenant or Mr. Khayyum, to take any other view. We accordingly uphold the order of the Trial Court in IA No.3517 and Batch and dismiss CRP Nos.642, 643 and 3177 of 1997." 5. Before filing the present suit, all three respondents filed separate applications in OS No.113 of 1913 seeking their appointment either as Mutawalli or as receivers, stating that the petitioner herein and his father have been appointed as Mutawalli of the Trust by misrepresentation. 6. Subsequently, the respondent Nos.1 to 3 filed the subject suit for the following reliefs : (a) To appoint one person among the plaintiffs as trustee of the Jama Masjid by declaring that the plaintiffs are descendants of founder Shamusafir Saheb as per the 1st clause of the scheme of the Court formulated in OS No.113/1913, consequently restraining the 1st defendant and his agents from dealing with the affairs of Jama Masjid and its properties, as the 1st defendant is not the descendant of the Shamusafir Saheb and he was not appointed as per the Hon'ble Court Scheme; (b) For consequential relief perpetual injunction restraining the 1st defendant from henceforth renewal leasing, fresh leasing and alienating the Plaint Schedule Property Mosque properties; (c) Awarding costs of the suit; and (d) Awarding such other reliefs that may be deem fit and proper in the circumstances of the case. 7. The cause of action for filing the suit as described by the plaintiff is that 300 years ago, one late Shah Musafir Saheb came down to Bezwada and settled here. He acquired extensive properties and built the subject property. And the said property was stated to have been managed by the descendents of the founder. And that, a suit was filed in 1913 for the appointment of trustees, and thus, a scheme was framed by the Court of Sub-Judge, Bezwada. The plaintiffs in the column of cause of action, while narrating the chronology of events till the date of the filing of the suit, have stated that the 1st defendant's father was appointed as Mutawalli of the subject Masjid on 07.03.1981 based on false documents produced by him. After that, he appointed his son, the petitioner herein, as trustee. The plaintiffs thus have stated (Para12 of the plaint) that the defendant, being a non-descendant of the founder, indulged in misappropriation and embezzlement of funds of the trust; they have filed separate applications stating that they are the descendants of the founder and sought their appointment as trustees to the mosque. The said applications were stated to have been dismissed. 8. The 1st defendant filed an application in IA No.830 of 2016 under Order VII Rule 11 of the C.P.C., seeking to reject the plaint on the ground that the plaintiffs have not established the cause of action for filing the subject suit and that the suit filed is for declaration and injunction. The cause for filing of the suit is barred by limitation since after a lapse of more than two (2) decades, the suit was filed. The 1st defendant further contends the appointment of his father Mir Shah Zahor went upto the Hon'ble Supreme Court and has attained finality by the order of this Court dated 19.04.2002 in AS No.480 of 1976 and Batch CRP No.2142 of 2002 and Batch. It is further stated that the 2nd plaintiff filed IA No.8446 of 1996 seeking his appointment as Mutawalli was dismissed on 17.12.1996. And the 3rd plaintiff filed IA No.645 of 2005 seeking removal of the then Mutawalli Mir Shah Zahoor and to appoint him or any other person who hails from the founder family, as Mutawalli was also dismissed on 06.11.2007. And the 3rd plaintiff filed IA No.645 of 2005 seeking removal of the then Mutawalli Mir Shah Zahoor and to appoint him or any other person who hails from the founder family, as Mutawalli was also dismissed on 06.11.2007. And it is further stated that IA No.1335 of 2012, filed by the 1st respondent/plaintiff after appointment of the petitioner/1st defendant as Mutawalli, was dismissed on 10.09.2012 observing that after the death of the Mutawalli (Mir Shah Zahoor), his son was appointed as the trustee in terms of the scheme. He is managing the affairs of the trust. In that view, the learned Trial Judge observed that the 1st respondent/plaintiff, seeking his appointment as receiver, would not be maintainable. It is stated that during the lifetime of the then Mutawalli, father of the petitioner/1st defendant, he nominated the petitioner/1st defendant as his successor to succeed to the office of Mutawalli. A Memo to the said effect was filed on 23.08.1988 before the learned Trial Court in OS No.113 of 1913. The Memo is stated to have been sent to the Waqf Board. The acknowledgement of the Waqf Board was also stated to have been filed in the Court. He contends that no cause of action has been shown for filing the present suit and that the suit claim is barred by limitation. Thus, he sought for rejection of the plaint. 9. The learned Trial Judge vide order dated 31.01.2019, observed that it is settled law, the Court shall go through the plaint, then only should come to conclusion whether the petition under Order VII Rule 11 is liable to be allowed. By placing reliance the decision of the Hon'ble Supreme Court in Chalur Bee and another v. Keertibai KR Tucker, 2018 SAR 587 SC, wherein it is observed that mere reading of the plaint does not entitle the Court to reject the plaint, the learned has dismissed the application. 10. Assailing the said order, the present civil revision petition. 11. Heard Sri V.S.R. Anjaneyulu, learned Counsel for the petitioner and Sri Krishna Murthy Sunkara, learned Counsel for the respondents. Extensive arguments have been advanced on behalf of the petitioner and the respondents and voluminous documents are placed before the Court. 12. 10. Assailing the said order, the present civil revision petition. 11. Heard Sri V.S.R. Anjaneyulu, learned Counsel for the petitioner and Sri Krishna Murthy Sunkara, learned Counsel for the respondents. Extensive arguments have been advanced on behalf of the petitioner and the respondents and voluminous documents are placed before the Court. 12. The learned Senior Counsel for the petitioner contends that the plaintiffs have failed to explain the cause of action for filing of the subject suit, and did not approach this Court within the period of limitation, therefore the suit is not maintainable. It is further submitted that the suit filed without the consent of the Advocate General is not maintainable. He relies on the decision of the Hon'ble Apex Court in the case reported in AIR 1969 SC 884 . And further that non-compliance of the provisions of Section 89 of Waqf Act suit is not maintainable. 13. The learned Counsel for the petitioner relies on the following judgments in support of his contention : 1. Rejection of Plaint -False or vexatious (i) The decision of the Hon'ble Supreme Court in the case of T. Arivandandam v. T.V. Satyapal and another, AIR 1977 SC 2421 . (ii) The decision of this Court in the case of Gadiyaram Padmavathi v. Addepalli Hanumantha Rao, 2007 (6) ALD 388 (DB). (iii) The decision of the Hon'ble Supreme Court in the case of C.S. Ramaswamy v. V.K. Senthil and others, 2022 SCC OnLine SC 1330. (iv) The decision of the Hon'ble Supreme Court in the case of Ramisetty Venkatanna and another v. Nasyam Jamal Saheb and others, 2023 SCC OnLine SC 521. (v) The decision of High Court of Telangana at Hyderabad in the case of Anup K. Kotapalli S/o. K. Rama Rao and another v. Pannala Malla Reddy and others, CRP No.2120 of 2021 reported in 2023 (6) ALD 891 (TS) and in the case of Bala Krishna Shaw v. Pannala Malla Reddy and others, CRP No.970 of 2022. (2) Rejection of Plaint on ground of limitation (i) The decision of the Hon'ble Supreme Court in the case of Hardesh Ores (P) Ltd. v. Hede and Company with Sociedade De Fomento Industrial (P) Ltd. v. Hede and Company, (2007) 5 SCC 614 . (3) Waqf In terms of the provisions of Section 92 of C.P.C., suit filed without the consent of the Advocate General is not maintainable. (3) Waqf In terms of the provisions of Section 92 of C.P.C., suit filed without the consent of the Advocate General is not maintainable. (i) The decision of the Hon'ble Supreme Court in the case of Sugra Bibi v. Hazi Kummu Mia, AIR 1969 SC 884 (4) For Non-Compliance of the provisions of Section 89 Waqf Act, suit is not maintainable. (i) The decision of this Court in the case of Andhra Pradesh State Wakf Board, Hyderabad v. Tati Venkata Sheshagiri Rao and others, 2013 (1) ALD 390 . 14. The learned Counsel for the respondents would contend that the subject IA was filed on 07.04.2016 when the petitioner was not on record, as he was set ex parte. The appointment of the father of the petitioner as Mutawalli is not in accordance with the scheme decree, and it is the Court, which alone has the jurisdiction to appoint the Mutawalli in accordance with the scheme decree. And further contended that as on the date of the Memo dated 23.08.1988, the father of the petitioner was not Mutawalli, since his appointment was challenged and the same was set aside by the Apex Court on 06.11.1990. Therefore, the Memo dated 23.08.1988, nominating the petitioner as Mutawalli, has no force. It is further contended the learned Trial Court has appointed the petitioner's father, stranger, and that the petitioner's father has neither filed the petition or a Memo to succeed as Mutawalli from 09.01.1997 to 03.08.2011. He relies on the following judgments. (i) The decision of this Court in the case of Amjatulla Siddiqui and another v. Mirza Nizamiddin and others, AIR 1982 AP 342 (DB). (ii) The decision of the Hon'ble Supreme Court in the case of Gulab Chand Chhotalal Parikh v. State of Bombay (Gujarat), AIR 1965 SC 1153 . (iii) The decision of the Calcutta High Court in the case of Sri Mahadev Jew and another v. Bala Krishna Vyas and another, AIR 1952 Cal. 763 . (iv) The decision of the Hon'ble Supreme Court in the case of Manak Lal v. Dr. Prem Chand, AIR 1957 SC 425 . (v) The decision of the Bombay High Court in the case of ONGC v. Offshore Enterprises, AIR 1993 Bom. 217 . (vi) The decision of this Court in the case of S.C. Bose and Co., Hyderabad and others v. G. Srikanth, AIR 2006 AP 337 . Prem Chand, AIR 1957 SC 425 . (v) The decision of the Bombay High Court in the case of ONGC v. Offshore Enterprises, AIR 1993 Bom. 217 . (vi) The decision of this Court in the case of S.C. Bose and Co., Hyderabad and others v. G. Srikanth, AIR 2006 AP 337 . (vii) The decision of this Court in the case of Radha Krishna Rice Mill Company v. Jumma Maszid by its Muthawalli, AIR 2003 AP 70 . (viii) The decision of this Court in the case of V. Narasimha Reddy and others v. Sara Abdul Gafoor and others, 2011 (5) ALT 586 . (ix) The decision of Madras High Court in the case of Tamilnadu Waqf Board v. S. Syed Inam Saheb and another, AIR 1983 Mad. 297 . (x) The decision of this Court in the case of R. Raghunatha Reddy and another v. R. Rama Krishna Reddy, 2012 (3) ALT 656 . (xi) The decision of the Hon'ble Supreme Court in the case of Md. Gouse Saheb and others v. Muhammad Kuthubudin Sahib and others, AIR 1985 SC 375 . 15. Considered the rival submissions. The issue for consideration is whether the plaint in OS No.67 of 2016 is liable to be rejected in terms of Order VII Rule 11 CPC. 16. The relevant provisions of Order VII Rule 11 relating to the rejection of plaint is as under : "11. Rejection of Plaint.-The plaint shall be rejected in the following cases : (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of Rule 9. Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff." 17. As per the terms of the above provision, the plaint is liable to be rejected in cases where the plaint does not disclose cause of action or where the suit claim is barred by limitation or the suit is under-valued. In the facts of the present case, a thorough look at the plaint shows that the suit is not valued correctly, and there is no cause of action for filing the present suit inasmuch as earlier interlocutory applications filed for the very same relief, by the plaintiffs were dismissed vide separate orders. The petitioner except narrating the facts right from 1913 did not show any cause of action, that necessitated them the filing of present suit now. The plaintiffs having failed in their earlier separate efforts of seeking their appointment as trustees have come forward together to file jointly the present suit, without there being cause of action being demonstrated in terms of Clause 2 of the scheme decree in OS No.113 of 1913, through which both the parties stated to have derived their right to claim trusteeship. 18. For both the plaintiffs and the defendants, the scheme decree passed in OS No.113 of 1913 is sacrosanct document. The appointment of the father of the petitioner herein as Mutawalli has become final and during his life time he has appointed his son as his successor and the said Memo is stated to have been sent to the Waqf Board. And the acknowledgement of the Waqf Board was also stated to have been filed in the Court. He contends that no cause of action has been shown for filing of the present suit and that the suit claim is barred by limitation, thus he sought for rejection of the plaint. Vide the scheme of 1913, the procedure for the appointment of trustee and for supervision of the affairs of the trust is also provided. He contends that no cause of action has been shown for filing of the present suit and that the suit claim is barred by limitation, thus he sought for rejection of the plaint. Vide the scheme of 1913, the procedure for the appointment of trustee and for supervision of the affairs of the trust is also provided. In terms of the said scheme Abdul Hakeem was the first trustee of the mosque and he was entitled to hold office for life and had power to appoint his successor. Each succeeding trustee would hold office for life and had the power to appoint his successor. The successors shall be from among the descendants of the founder Shah Musafir Saheb. And only when the trustee dies or vacates the office without appointing his successor or if for any other reasons, the office of the trustee falls vacant, the Court may appoint a trustee from among the descendents of the founder on the applications of not less than three worshipers of Bezwada and if there is no person among the descendents of the founder qualified to fill the office, the Court may appoint a stranger. And it further provides that if the nominee of the outgoing trustee is not found to be fit to hold office for any reason the majority of the Committee after passing their resolution stating their objections to his nomination may move the Sub-Court, Bezwada, for his removal. Therefore, only under the situations contemplated under Clause 2 of the scheme decree of 1913, alone, the appointment of the trustee could be sought by the worshippers, not by those who propose themselves to be appointed as trustees. Therefore the cause of action for filing of the suit conspicuously absent as noted from the column relating to the cause of action. 19. While both the parties are claiming their rights through the scheme formulated under OS No.113 of 1913, without establishing the cause of action that has arisen with reference to the Clause 2 of the scheme decree of 1913, the suit filed by the respondents is not maintainable. Further, the plaintiffs were aware of the appointment of the 1st defendant as Mutawalli in the year 2011, kept quiet in seeking appropriate relief during the relevant time. Further, the plaintiffs were aware of the appointment of the 1st defendant as Mutawalli in the year 2011, kept quiet in seeking appropriate relief during the relevant time. Right from 1996 the plaintiffs in their separate efforts have been filing applications in OS No.113 of 1913 seeking their appointment as trustees/receiver of the institution. Being aware of the fact that Mutawalli was appointed and his successor was also nominated way back in 1988, they cannot now seek for declaration that they are the descendant members of the founder of the Trust, which is barred by limitation. 20. The order under revision is set aside. Accordingly, the civil revision petition is allowed. No separate orders are required. There shall be no order as to costs. 21. As a sequel, interlocutory applications, pending if any, shall stand closed.