V.S.T.Nazeer vs N.Abdul Maideen @ Abdulla
2021 Latest Caselaw 25081 Mad

                                                         1

                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                      RESERVED ON                    12.04.2022
                                      DELIVERED ON                   28.04.2022

                                                       CORAM :

                                  THE HONOURABLE MRS.JUSTICE S.ANANTHI

                                             CR.P.(MD)No.1062 of 2015

                  1.V.S.T.Nazeer
                  2.V.S.T.Samsul Alam
                  3.V.S.T.E.Mohaideen Sheik Mansur              ...Petitioners/Plaintiffs
                  [Petitioners 1 to 3 are substituted vide Court order dated 21.12.2021]


                                                         Vs.

                  1.N.Abdul Maideen @ Abdulla
                  2.K.S.Sahul Hameed
                  3.K.Abitha Beevi                              ...Respondents/Defendants


                  PRAYER: Civil Revision Petition under Article 227 of the Constitution of
                  India, to set aside the Judgment and Decree made in O.S.No.211 of 2006 on
                  the file of Wakf Tribunal (Principal Sub Court), Tirunelveli by allowing this
                  Civil Revision Petition.


                                       For Petitioners    :Mr.V.Meenakshi Sundaram
                                       For R-1 & R-3      :Mr.T.Selvam
                                       For R-2               :Mr.H.Arumugam

https://www.mhc.tn.gov.in/judis
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                                                        ORDER

These Civil Revision Petition has been filed to set aside the Judgment

and Decree in O.S.No.211 of 2006 on the file of Wakf Tribunal (Principal

Sub Court), Tirunelveli.

2.The parties are referred to as per the rank mentioned before the Court

below.

3.The plaintiffs have filed a suit in O.S.No.211 of 2016 on the file of

the learned Wakf Tribunal (Principal Subordinate Judge), Tirunelveli, for

recovery of possession and mandatory injunction and also seeking permanent

injunction for not alienate the suit 2nd schedule property against the

defendants. The said suit was dismissed on 27.01.2015. Against the said

dismissal order, the revision petitioners are before this Court.

4.Heard on either side. Perused the material documents.

5.This Civil Revision Petition is filed on the ground that the Court

below ought to have held that the Judgment in O.S.No.158 of 1992 and in

O.S.No.149 of 1997 are binding upon the defendants and the Court below https://www.mhc.tn.gov.in/judis

has failed to consider that the Judgment in O.S.No.158 of 1992. The Court

below has failed to note that the cause of action for the relief of recovery of

possession has been asked for in the suit is the rejection of the prayer for

injunction in the previous suit in O.S.No.158 of 1992. The findings of the

Court below that Section 107 of the Wakf Act, 1995 is not applicable to the

suit since there is no pleading that the building has been erected after the said

Section came into force is not correct in law. The Judgment and Decree of

the Court below is liable to be set aside.

6.The case of the plaintiffs is as follows:

The 2nd schedule property is part of 1st schedule property one Tamus

Tasim Tharaganar had purchased the properties on 09.01.1908. He has

executed Wakf nama on 26.12.1931 to settle some properties including the 1 st

schedule properties. It was recognized by Wakf Board also. Tamus Tasim

became Muthavalli. After his death his three sons were acted as Akdars in

turn are VST Mohamed Abubucker, 2 & 3rd plaintiffs have also field

declaration suit against one Asami Beevi in O.S.No.158 of 1992.

6(ii).The said Asami Beevi has also claimed rights in east half of 1 st

schedule property is 3 acre and 2 cents and filed suit in O.S.No.458 of 1992

for recovery of possession. Both the parties have filed interim application for https://www.mhc.tn.gov.in/judis

injunction. The plaintiffs have filed a petition in I.A.No.502 of 1992 for

interim injunction not to disturb their possession and the same was allowed.

7.Without disclosing the order, Asima Beevi (Asan Meeral Beevi) has

filed a suit in O.S.No.318 of 1995 for partition. In that suit, they have filed a

petition in I.A.Nos.442 & 443 of 1995 for interim injunction which was

already dismissed in I.A.No.777 of 1992 in O.S.No.458 of 1992 and got

interim injunction.

8.Then Akdars of the Wakf have filed C.R.P.Nos.3511 & 3512 of 1995

before this Court and order passed in I.A.Nos.442 & 443 of 1995 were

cancelled. Subsequently, O.S.No.318 of 1995 was dismissed for default.

Asan Meera beevi has executed a sale deed regarding part of 1st schedule

properties to one Jeenath Beevi. The said Jeenath Beevi has filed a suit in

O.S.No.149 of 1997 against the Wakf tenant and the same was also

dismissed.

9.One Kadija Ameena and four others have sold the properties to R-1

to R-3/D-1 to D-3 on 18.05.2000 in two sale deeds regarding the 2nd schedule

property.

https://www.mhc.tn.gov.in/judis

10.Asan Meera Beevi has obtained Joint Patta by fraudulently without

any notice to Wakf.

11.The Joint Patta was also cancelled in appeal A3/Ma/Mu.2/01 on

22.04.2003. R-1 to R-3 have also filed revision against the order and the

same was also dismissed. D-1 to D-3 have also got sub-division as 584/

1A to C on the basis of their sale deed.

12.On 02.09.2000, D-1 to D-3 have also obtained property tax receipts

in their name. So, the suit was filed.

13.D-1 & D2 have filed written statement and stated that on

26.04.1916 VST.Samsudeen Tharanganar have partitioned their property.

This suit schedule property which was shown as 37th item in the deed and

total extent is 7027. Half of the property was allotted to Tamustasin

Tharanganar. Eastern half was allotted to Meeran Mohaideen and Sheik

Mansoor. They have sold the properties to 40 persons. They are necessary

parties to the suit.

https://www.mhc.tn.gov.in/judis

14.Appeal is pending against the Judgment and Decree in O.S.No.158

of 1992. In O.S.No.318 of 1995, these defendants or vendors of the

defendants are not parties. Wakf never enjoyed the properties.

15.The following issues are to be decided in the Civil Revision Petition.

1.Whether the plaintiffs are entitled for decree as prayed for?

2.Whether the 2nd schedule properties belonged to D-1 to D-3 on the basis of valid sale deed?

16.The plaintiffs have claimed their rights through a sale deed of the

year 1908. The defendants have claimed their rights through a partition deed

of the year 1916.

17.The sale deed, dated 09.01.1908 was marked as Ex.A.1 in which

the Thamus Tasim has purchased the 1st schedule property in S.No.584/1,

6 cents. A Patta stands in the name of Madarsha was marked as

Ex.A.2(2008).

18.Thamus Tasim Tharaganar has settled the properties on 26.12.1931

to Madarsha. The entire properties in S.No.584/1 was settled in favour of the

said Madarsha.

https://www.mhc.tn.gov.in/judis

19.On behalf of Madarsha the suit in O.S.NO.158 of 1992 was filed by

the Akdars for declaration and injunction and the said suit was decreed on

23.07.2005.

20.R-1 to R-3/D-1 to D-3 have purchased the 2nd schedule properties

on 18.05.2000. Based on the sale deed they have also obtained Joint Patta

which was cancelled subsequently.

21.All the litigation between the plaintiffs and vendor of the

defendants have ended in favour of the plaintiffs. An appeal was also filed

against the Judgment and Decree in O.S.No.158 of 1992.

22.Pending the suit in O.S.No.158 of 1992, R-1 to R-3/D-1 to D-3

have purchased the properties. Their rights can be decided only on the basis

of Judgment and Decree in O.S.No.158/92.

23.Since declaration decree in favour of the Madarsha the decree will

bind the defendants also.

https://www.mhc.tn.gov.in/judis

24.The suit in O.S.No.211 of 2006 was filed in the year 2006 and the

trial Court has dismissed the said suit on the ground that even at the time of

deciding the suit in O.S.No.158 of 1992 the possession of the defendants was

admitted. But, D-1 to D-3 have purchased the properties in the year 2000.

25.As per Section 107 of Wakf Act, nothing contained in the

Limitation Act, 1963 shall apply to any suit for possession of immovable

properties comprised in any Wakf or for possession of any interest in such

property.

26.The suit in O.S.No.158 of 1992 was filed for declaration decree

granted and dismissed regarding the relief of permanent injunction in the

year 2005. After that only, the suit in O.S.No.211 of 2006 was filed for

recovery of possession and mandatory injunction.

27.So, based on the declaration decree which is still in force the

plaintiffs are entitled for recovery of possession and mandatory injunction.

28.On the basis of above discussion, the 1st issue is decided in favour

of the plaintiff and the 2nd issue is decided against the defendants.

https://www.mhc.tn.gov.in/judis

29.Finally, this Civil Revision Petition is allowed by setting aside the

order, dated 02.03.2022 in E.A.No. 55 of 2021 in E.P.No.27 of 2008 on the

file of the learned District Munif, Vadipatti. No Costs.

                  Index :Yes/No                                                       28.04.2022
                  Internet:Yes/No
                  ksa

Note:In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned.

To The Wakf Tribunal (Principal Sub Court), Tirunelveli.

https://www.mhc.tn.gov.in/judis

S.ANANTHI, J.

ksa

Order made in C.R.P.(MD)No.1062 of 2015

28.04.2022

https://www.mhc.tn.gov.in/judis