The Madurai Bench quashed the Wakf Tribunal's order which had declared disputed property as wakf property belonging to the Pallivasal. The High Court held that prior judgments had already determined the property was a personal inam, creating res judicata.
The order dated 08.08.2011 made in W.O.P.No.1 of 2003 is set aside and W.O.P.No.1 of 2003 is dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.R.P. (MD)No.2399 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.11.2019
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P. (MD)No.2399 of 2011 and M.P(MD) No.1 of 2011
1.Abdul Wahab (died)
3.M.Asha Banu
4.A.Aahaal Khan
... Petitioners
(Petitioners 2 to 4 are brought on record as
LRs of the deceased sole petitioner vide order
dated 09.06.2015 made in M.P(MD)No.01 of 2015)
Vs.
1.Abdul Salam
2.Jainul Alam ... Respondents 1 and 2/ Petitioners
Rep by its Secretary,
Mylapore, Madras-600004.
5.Superintendent of Wakf,
Madurai Zone,
Travelers Bangalow Road,
Arasaradi, Madurai Town.
Rep by its President,
Vilachery, Madurai South Taluk, Madurai District. ... Respondents 3 to 6/ Respondents 2 to 5
PRAYER:- Civil Revision Petition filed under Section 83(9) Proviso of Wakf Act, 1995, against the fair and decreetal order dated 08.08.2011 made in W.O.P.No.1 of 2003 on the file of Wakf Tribunal, Principal Sub Court, Madurai.
For Petitioners : Mr.A.Arumugam
1/7
C.R.P. (MD)No.2399 of 2011
For R-1 and R-2 : Mr.T.Amjad Khan For R-4 and R-5 : Mr.S.A.Ajmalkhan For R-6 : Mr.R.Aravindan For R-3 : No appearance
ORDER
The above civil revision petition has been filed challenging the order passed by the Wakf Tribunal allowing the claim petition filed by the respondents 1 and 2 herein.
2.The parties are referred to in the same array as in the Wakf Tribunal.
3.The petitioners had filed W.O.P.No.1 of 2003 on the file of the Wakf Tribunal, Principal Sub Court, Madurai for the following reliefs:-
a) Declaring that the petition property absolutely belongs to the 5th respondent (Vilacheri Muslim Jamath Pallivasal); and consequently
b) Restraining the respondents, their men, subordinates and any other persons claiming title under them and etc., from in any way effecting alienations and transfers by way of sale, mortgage, gift and etc., of the suit property by an order of perpetual injunction.
4.The facts in brief which are necessary for disposing of the civil revision petition are as follows:-
(i) It is the case of the petitioners that the petition mentioned property belongs to the sixth respondent Pallivasal called as Vilacheri Muslim Jamath Pallivasal. It is their case that long back the petition mentioned property was endowed and given as a wakf for religious and charitable purposes. The person who endowed the property was unknown and the title deeds cannot be traced out. Their main contention is that the petition mentioned property was surveyed as wakf property in G.S.No.90/MDU Tamil Nadu Wakf Board, after its constitution i.e., in the year 1959. The said property was entered in the proforma report of the wakf Board and the same was notified in the survey of wakfs. Hence, the fifth respondent was its absolute owner. The purpose for which the property was granted is known to the entire Vilacheri Village.
(ii) It is their further case that the first respondent who https://hcservices.ecourts.gov.in/hcservices/
2/7
C.R.P. (MD)No.2399 of 2011
claimed to be Nattamai of the Vilacheri Village and prior to him his father was acting as “Nattamai”. It is their specific case that in the year 2001, they had found that the first respondent was attempting to enter into a sale agreement over the petition mentioned property in favour of the second respondent and a lawyer notice was issued, for which, reply was sent on 23.04.2001, by the first respondent alone. They would contend that the first respondent's father had manipulated and created false records using his position as 'Nattamai'. They would further contend that if any revenue entry is found either in the name of the 1st respondent or his father, it cannot set up a separate title and it will be presumed only on behalf of wakf. They would further feign ignorance about the earlier proceedings in O.S.Nos.201, 270 and 271 of 1968, which were filed against the father of the first respondent. The petitioners come forward with the specific case that the property belongs to the Pallivasal and they would contend that as person interested in the Pallivasal, there were moving with this petition.
5.The first petitioner/first respondent had filed a detailed objection to the said claim made by the respondents 1 and 2/ petitioners inter alia contending that the petitioners are not competent to represent the Jamath and they were neither Mutawallis of the Pallivasal nor any other person, who was aggrieved by an order made under the Act or Rules made thereunder. Apart from questioning the jurisdiction of the Tribunal, the first respondent had contented that in the earlier proceedings in O.S.Nos.201, 270 and 271 of 1968, it has been clearly held that the inam is a personal inam and that it does not belong to the Wakf Board. This judgment and decree has been confirmed in first appeal in A.S.No.36 of 1981 by the learned Third Additional Subordinate Judge, Madurai and finally by this Court in S.A.No.710 of 1985. The first petitioner/first respondent had contended that the present OP was barred by principles of res judicata , since these issues were already considered in the earlier suit in O.S.No.201 of 1968. He would also contend that he had possession of the property for ever so long and that Pallivasal did not have any right, title or interest over the same.
6.The Tribunal below proceeded to frame the following issues:-
7.The Tribunal below proceeded to hold that the judgment and decree in the earlier suit would not act as res judicata , since the https://hcservices.ecourts.gov.in/hcservices/
3/7
C.R.P. (MD)No.2399 of 2011
sixth respondent is not a party to the earlier proceedings. The Tribunal below further held that in the earlier proceedings, the petitioner/first respondent's father had raised the plea of adverse possession, which was negatived by the Courts below and there was no cross appeal against the same and therefore, it is clear that the property belongs to the wakf board. Hence, it cannot be said that the property belongs to the first respondent. The learned Judge relying upon the earlier judgment reported in 1998 (2) SCC 642 in the case of Syyed Ali and others Vs. AP.Wakf Board, Hyderabad and others , held that the property belongs to the fifth respondent and ultimately, allowed the Wakf Original Petition. Challenging the same, the revision petitioner / first respondent is before this Court.
8.Mr.A.Arumugam, learned counsel appearing on behalf of the petitioner/first respondent would contend that the respondents 1 and 2/ petitioners came forward with the pleadings that the findings of the earlier suit in O.S.No.201 of 1968 would squarely apply to the facts of this case. Therefore, the present claim is barred by principles of res judicata . He would also point out the observation of the Tribunal below that the suit property is in physical possession of the petitioner/first respondent and further the suit has been filed with a great deal of ingenuity. Since the relief of possession has not been sought for and only the relief of declaration of title has been sought for, the second prayer with reference to alienation is nothing, but astute drafting and reading between the lines is clearly barred by the principals of res judicata .
10.The learned counsel appearing for the sixth respondent Pallivasal would further state that in the earlier proceedings, the petitioners / respondents 1 and 2 had set up the case of adverse possession and title and a new case is put forward in the present suit. The plea of adverse possession has been negatived by the Court below in the earlier proceeding and the fact that the petitioner has taken out the plea of adverse possession would only prove the fact that they had recognised the title of the fifth respondent to the suit property.
11.Heard the learned counsel appearing on either side and perused the papers.
12.In order to appreciate the facts of the present case, it is https://hcservices.ecourts.gov.in/hcservices/
4/7
C.R.P. (MD)No.2399 of 2011
necessary to allude to the earlier suit. The earlier suit has been filed by the fourth respondent/wakf board for recovery of possession of the suit property, mesne profit and damages. The specific case in the earlier proceeding in O.S.No.201 of 1968 on the file of the District Munsif, Tirumangalam is that the suit property which is described as wakf property, has been endowed as an inam for religious and charitable purposes namely, as a kairathi inam under T.D.No.891. After constitution of the Wakf Board, the said property has been published as a Wakf under Section 5(2) of the Wakf Act, following the enquires made under Section 5 of the Wakf Act. The case in the earlier suit was that the suit property has been alienated and the alienation in favour of the defendant therein who is none other than the father of the petitioner/first respondent, was false and fraudulent transaction cannot bind the wakf board. The third respondent has taken out the stand to ignore the alienation and demanded possession from the defendant therein. The written statement filed in earlier suit categorically stated that the plaintiff is not the owner suit property and further, no enquiry as alleged, had been conducted by the wakf board. The father of the petitioner/first respondent had further stated that nowhere in the fair inam register, it is shown that the grant has been made in favour of the Pallivasal. On the contrary, it was only personal inam and therefore, the Wakf Act would not apply to the said personal inam. The defendant would contend that they and the predecessor in title, have been in possession and enjoyment of the property with the Kudivaram right which has been upheld in the inam settlement. He had very clear terms stating that the wakf board did not have any right, title or interest to the suit property and also contended that the civil Court has no jurisdiction to try the suit.
13.The learned District Munsif, Tirumangalam by his judgment and decree dated 19.02.1980 was pleased to hold that the suit property is not the wakf property and in Gazette Notification dated 27.05.1959, it has been published that the property in T.D.No.801 as wakf property are invalid and not binding on the defendant and therefore, the plaintiff namely the wakf board was not entitled to the property covered under the suit and seeks its recovery. While answering in issue Nos.1 to 3 in the said suits, which were a) is the Gazette notification dated 27.05.1959 valid and binding on the defendants? b) does the suit property belong to the plaintiff/wakf board; and c) is the plaintiff entitled to the relief of possession as prayed for? the learned District Munsif has observed as follows:-
So, nowhere it is stated in Ex.A1 that the properties covered under T.D.No.891 were granted to any institution or Mosque. On the other hand, the above said particulars would show that they were granted to a person and it was enjoyed by his heirs. So, it is clear that the properties covered under T.D.No.891, is only a personal inam granted to an individual and not to any institution. When confronted with the entries in the survey and settlement register, P.W.1 has admitted
5/7
C.R.P. (MD)No.2399 of 2011
that T.D.No.891 corresponding to Old Pymash No.506 and Old Survey No.554 are in the name of Sheik Muruthaja Sahib as Pattadars and it is shown as personal Inam. Only T.D.No.1244 in S.No.524 is given to the pallivasal describing the Hahdar of the Pallivasal as pattadar. So the property allotted to pallivasal is something different in T.D.No.1244. The suit properties in T.D.No.891 is only a personal grant.
So, the above findings of the Lord ship in the above decision are directly applicable to the facts of the present case. Kairathi Inam given to a person individually in the present cases are alienable personal grants. Those alienabel personal grants record to show that the present suit properties were give to the pallivasal at Vilacheri and that the said pallivasal was in possession and enjoyment of the same at any time and so the properties covered under the present suits are not wakf properties.
15.In the light of this judgment and decree, which has been confirmed in appeal by A.S.No.36 of 1989 by the learned Subordinate Judge, Madurai and ultimately, by this Court, in S.A.No.710 to 712. In the earlier proceeding in which it has been clearly held that the property in question is neither wakf property nor does it belong to the fifth respondent Pallivasal. The present suit has been filed for declaration only on the basis that the suit property belongs to the Pallivasal. The Tribunal below has overlooked these findings and further has shifted the onus of proof on the respondents and has held that since the finding of adverse possession has been negatived in the earlier proceeding, the respondents were not entitled to the property and further the property belong to the Pallivasal. The Tribunal has not traversed through the judgment and the earlier proceedings and this error has affected the decision. The order of the Wakf Board suffers from a perversity and is an absolute nonapplication of mind.
16.In the result, this Civil Revision Petition is allowed. The https://hcservices.ecourts.gov.in/hcservices/ order dated 08.08.2011 made in W.O.P.No.1 of 2003 is set aside and
6/7
C.R.P. (MD)No.2399 of 2011
W.O.P.No.1 of 2003 is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
Sd/Assistant Registrar (AD II) // True Copy // Sub Assistant Registrar(CS) cp To 1.The Principal Subordinate Judge, Wakf Tribunal, Principal Sub Court, Madurai. 2. The Section Officer, V.R. Section, Madurai Bench of Madras High Court, Madurai.(2 COPIES) +1 CC to M/s.R.ARAVINDAN, Advocate ( SR-96210[F] dated 05/11/2019 ) +1 CC to M/s.S.A. AJMAL KHAN, Advocate ( SR-96268[F] dated 06/11/2019 ) +1 CC to M/s.A.ARUMUGAM, Advocate ( SR-96375[F] dated 06/11/2019 ) C.R.P. (MD)No.2399 of 2011 and M.P(MD) No.1 of 2011 KK/SAR/29.11.2019/7P-7C/
7/7
3 issues framed by the court
Whether the findings in the earlier suit regarding the property being a personal inam create res judicata?
Whether the Wakf Tribunal erred in setting aside the District Munsif's judgment that the property was not wakf property?
Whether the Tribunal's order allowing the claim petition was perversely applied without traversing the prior judgment?
Colour shows how this judgement treated each authority
Syyed Ali and others Vs. AP.Wakf Board, Hyderabad and othersReferred¶58
1998 (2) SCC 642 · Who else cites this
1 provisions across 1 enactments
Abdul Wahab (died)
A.Mumtaj Begam
A.Aahaal Khan
Vilachery Muslim Jamath Pallivasal
Abdul Salam
Jainul Alam
P.T. Asha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
