Madras High Court
V.S.T.Samsu Thabreze (Died) vs V.S.T.Haji Mohammed Abubucker on 9 December, 2021
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.Shamsu 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
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C.R.P.(MD) No.916 of 2005
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
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
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C.R.P.(MD) No.916 of 2005
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.
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C.R.P.(MD) No.916 of 2005
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 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
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C.R.P.(MD) No.916 of 2005
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
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C.R.P.(MD) No.916 of 2005
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.
9.Per contra, Mr.V.Meenakshi Sundaram, learned counsel appearing for
the 9th respondent would submit that the plaintiffs have come with the case that
in June 2001, the defendants had trespassed into the suit property and
constructed a building. However, much prior to 2001, in fact from the year
1984, after the sale in their favour, it is the Jamath that has been in possession
and enjoyment of the property. He would submit that the description of property
given in the suit schedule itself is false, since in the suit property apart from the
property sold to Kaanai Meeran, there 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
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C.R.P.(MD) No.916 of 2005
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:-
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C.R.P.(MD) No.916 of 2005
"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;; fPo;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 in support of the same. Be that as it may,
since the defendants have 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
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C.R.P.(MD) No.916 of 2005
on the file of the Wakf Tribunal (Principal Sub Court), Tirunelveli. No costs.
Consequently, connected miscellaneous petition is closed.
Index : Yes / No 09.12.2021
Internet : Yes / No
mm
To
The Principal Subordinate Judge,
Tirunelveli.
P.T.ASHA, J.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.916 of 2005
mm
C.R.P.(MD) No.916 of 2005
09.12.2021
https://www.mhc.tn.gov.in/judis
