Revision petition challenging Wakf Tribunal decree dismissed. Court held suit barred by limitation as defendants proved possession since 1977 via Dhargah accounts, refuting plaintiff's 2001 encroachment claim.
Civil Revision Petition dismissed; original decree of Wakf Tribunal confirmed.
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.916 of 2005
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.12.2021
CORAM :
THE HONOURABLE MS.JUSTICE P.T.ASHA C.R.P.(MD) No.916 of 2005
1.V.S.T.Samsu Thabreze (died)
2.V.S.T.Shamsul Alam
(2nd petitioner has been impleaded vide order dated 07.08.2019)
... Petitioner
vs. 1.V.S.T.Haji Mohammed Abubucker
2.K.P.Mydeen Pitchai (died)
3.S.M.Abdul Kadar
4.V.S.T.M.Samsu Thasin
5.K.M.Samsu Beevi
6.K.M.Syed Ali Fathima 7.K.M.Razan Ali 8.K.M.Syed Mohammed Buhari
9.K.M.Mohammed Rishgullah
(R5 to R9 have been impleaded vide order dated 18.06.2019)
... Respondents
PRAYER:- This Petition is filed under Article 227 of the Constitution of India, to set aside the judgment and decree passed in O.S.No.223 of 2002 dated 18.10.2004 on the file of the Wakf Tribunal (Principal Sub Court), Tirunelveli.
For Petitioner : Mr.M.P.Senthil For R7 & R8 : No appearance For R9 : Mr.V.Meenakshi Sundaram
1/5
C.R.P.(MD) No.916 of 2005
ORDER
The 1st plaintiff, who is the revision petitioner before this Court, is challenging the judgment and decree passed in O.S.No.223 of 2002 dated 18.10.2004 on the file of the Wakf Tribunal (Principal Sub Court), Tirunelveli.
2.The facts in brief are herein below narrated and the parties are referred to in the same ranking as before the trial Court.
3.The plaintiffs had filed the above suit for recovery of possession against the defendants 2 and 3 and for directing them to pay damages for use and occupation. It is the case of the plaintiffs that the suit property is a Wakf property endowed by the grandfather of the plaintiffs and the 1st defendant. The plaintiffs and the 1st defendant are the turn Trustees of the Hameempuram Madarasa Pallivasal, Melapalayam. The defendants 2 and 3 have no manner of right or title over the suit property. In fact, the plaintiffs and the 1st defendant had filed a suit O.S.No.38 of 1996 against one Kaanai Meeran in respect of the suit schedule property for an injunction. Subsequently, they had compromised the issue with the said Kaanai Meeran, in and by which they had leased out the eastern portion to him. In or about January 2001, the defendants 2 and 3 had trespassed into the suit property and constructed a building thereon, after filing a Caveat Petition. On 23.03.2001, the plaintiffs had issued notice to the defendants 2 and 3 to deliver possession of the property. Though they had received the notice, they have failed to comply with the request and therefore, the above suit has been filed.
4.The defendants 2 and 3 on entering appearance had filed written statement, in which they had denied the entire allegations contained in the plaint. They have taken out a preliminary objection that the suit filed against them in their individual capacity is liable to be dismissed, since the defendants 2 and 3 are the President and Secretary respectively of the Hameempuram South Street Jamath (herein after referred to Jamath) and that the suit ought to have been filed against the defendants 2 and 3 only in the above capacity.
5.It is the case of the defendants 2 and 3 that on 26.12.1931, one Thamsuthasam Tharaganar had created a Trust and had endowed all his properties to the said Trust. The suit schedule property was the 25th item of the suit property in the said Wakf deed. Under the Wakf deed, the Wakeef had stated that the Trust properties would be managed by his children as turn Trustees. The Wakf deed had also given right to the Muthavalli to sell the properties. As per the said recitals, the then Muthavalli of the Trust, V.S.T.Mohammed Ibrahim, had sold an extent of 43.3/4 ft., east-west and 67 ft., north-south to the Hameempuram South Street Jamath under a sale deed dated 25.09.1984. The said Jamath thereafter sold an extent
2/5
C.R.P.(MD) No.916 of 2005
measuring east-west 11 ft., and north-south 67 ft., to Kaanai Meeran.
6.The defendants 2 and 3 would submit that apart from the property sold to the said Kaanai Meeran, the remaining extent was being enjoyed by the Jamath. There was a Dhargah of one Pitchukhan Masthan Sakib and this Dhargah has been in existence for over 80 years and the same has been maintained by the above Jamath. That apart the Jamath was also conducting festivals every year in the property. On the western end of the property, there were two houses, which had been let out on rent by the Jamath. Therefore, it is the case of the defendants 2 and 3 that the plaintiffs with mala fide intentions had filed a suit O.S.No.48 of 1996 against Kaanai Meeran, to whom the property had already been sold. The suit property entirely belongs to the Jamath and neither the plaintiffs nor the 1st defendant have any right over the same.
7.The Wakf Tribunal (Principal Subordinate Judge), Tirunelveli by judgment and decree dated 18.10.2004 was pleased to dismiss the suit. The learned Judge had held that the defendants had not filed any documents to prove the sale in their favour and the sale by them in favour of the said Kaanai Meeran, however considering the fact that from the year 1946, the defendants have proved that they are in possession of the property, the contention of the plaintiffs that it was only in the year 2001 that the defendants had trespassed into the property is an utter falsehood. Therefore, the learned Judge had held that the plaintiffs were not entitled to the decree as prayed for. Challenging the same, the 1st plaintiff is before this Court.
8.Mr.M.P.Senthil, learned counsel appearing for the petitioner/1st plaintiff would mainly place his arguments on the fact that after holding that the defendants had not proved the sale in their favour by the then turn Trustees of the Hameempuram Madarasa Pallivasal, Melapalayam, the learned Judge had erred in dismissing the suit. The learned counsel would submit that the Court below has not considered Ex.A2 and Ex.A3, which are the decree and judgment in O.S.No.48 of 1996, under which the said Kaanai Meeran had admitted the ownership of the property by the plaintiffs and therefore, the decree deserves to be set aside and the suit has to be allowed.
3/5
C.R.P.(MD) No.916 of 2005
exists a Dhargah and two houses, this has been deliberately omitted to be included by the plaintiffs in the suit schedule, although the suit is one for recovery and damages. He would submit that these factors have been rightly considered by the learned Principal Subordinate Judge (Wakf Board), Tirunelveli.
10.He would further submit that the Dhargah is being maintained by the Jamath and this fact has not been denied by the plaintiffs. The plaintiffs have produced the accounts relating to the Dhargah for the period from 1977 to 1984 under Ex.B7 and for the period from 1992 to 1995 under Ex.B8. Therefore, the possession of the property by the Jamath is easily traceable to the year 1977 itself. Therefore, the contentions in the plaint are totally false and the suit is clearly barred by limitation.
11.Heard the learned counsels on either side and perused the records.
12.The only point for consideration is whether the plaintiffs have proved that the trespass and construction in the suit property had taken place after January 2001. The suit property as described by the plaintiffs is as follows:-
" Nkyg;ghisak; rg;b rufk; Nkyg;ghisak; `kpk; Guk; njw;F jk;jh]; efh; 1tJ njUtpy; fpoNky; Xba njUtpw;F njw;F CL KLf;fpw;F tlf;F fhid IJUIpf;F nfhLj;jpUf;Fk; kidf;F fpof;F V.Nf.nra;aJ mG+gf;fh; Kk;jhIpf;F nfhLj; ;jpUf;Fk; kidf;F Nkw;F ,jw;Fs;gl;l fpoNky; 32.3 / 4 njd;tly; 67 mb cs;s fhypkid. "
13.The plaintiffs had clearly described the property as a vacant site. A perusal of Ex.A3, decree in O.S.No.48 of 1996 would describe the suit property as follows:-
" ghisaq;Nfhl;il up[p];buu; rufk; Nkyg;ghisak; rg;b rufk; Nkyg;ghisak; fpuhkk; mad; GQ;ir rh;Nt ek;gh; 2y; Vf;fh; 7 nrz;L 97y; fpoNky; Xba njUtpw;F njw;F CL KLf;Ff;F tlf;F thjpfs; iftrk; cs;s ,lj;Jf;Fk; fpof;F Nkw;Fk; ,jw;Fl;gl;l fpoNky; tljiy 43-3 / 4 mb njd;jiy 41 mb njd;tly; Nky;jiy 67 mb njd;tly; ; f Po ;jiy 57 mbapy; mike;Js;s gpr;irf;fz; k];jhd; rhfpg; rkhjp kw;Wk; ,ijr; rhh;e;j ,lKk;. "
14.Therefore, even as early as in the year 1996, the suit property was not a vacant site, but it contained a Dhargah. The existence of the said Dhargah is deliberately omitted in the description of property in the present suit. That apart, the defendants have produced Ex.A7 and Ex.A8 series to show that they are in management and control of the said Dhargah. The defendants had stated that apart from the Dhargah, there are two houses situated in the suit property. However, no document has been filed https://hcservices.ecourts.gov.in/hcservices/ in support of the same. Be that as it may, since the defendants have
4/5
C.R.P.(MD) No.916 of 2005
been able to show their enjoyment of the property at least from the year 1977, the case of the plaintiffs that the encroachment was in the year 2001 proves to be wrong. Therefore, the suit filed for recovery of possession in the year 2002 is clearly barred by limitation. The Court below has rightly dismissed the suit and the point for consideration is answered in favour of the defendants. Consequently, the Civil Revision Petition stands dismissed, confirming the decree and judgment in O.S.No.223 of 2002 dated 18.10.2004 on the file of the Wakf Tribunal (Principal Sub Court), Tirunelveli. No costs. Consequently, connected miscellaneous petition is closed.
mm
To
The Principal Subordinate Judge, Tirunelveli.
+1 CC to M/s.D.NALLATHAMBI, Advocate ( SR-38266[F] dated 10/12/2021 )
MGJ(25.01.2022) 5P 4C
5/5
3 issues framed by the court
Whether the suit for recovery of possession was barred by limitation given defendants' possession since 1977.
Whether the plaintiffs' claim of 2001 encroachment was false considering the Dhargah existed since 1996.
Whether the Civil Revision Petition challenging the Wakf Tribunal decree should be dismissed.
V.S.T.Samsu Thabreze
V.S.T.Shamsul Alam
V.S.T.Haji Mohammed Abubucker
K.P.Mydeen Pitchai
S.M.Abdul Kadar
K.M.Syed Ali Fathima
P.T.Asha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
