Madras High Court
Unknown vs D.Syed Sarbudeen on 1 February, 2021
1 C.R.P.(MD)No.1341 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.02.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
C.R.P.(NPD)(MD)No.1341 of 2008 and
C.R.P.(NPD)(MD)No.1482 of 2010 &
M.P.(MD)No.2 of 2008
C.R.P.(MD)No.1341 of 2008
Sivakasi Shaji Madahab Peria
Pallivasal Jamath,
Through its Present President
A.Rafi Ahamed,
Peria Pallivasal Street,
Sivakasi.
(Cause title is accepted vide order dated 22.07.2008
made in M.P.(MD)No.1 of 2008) ... Petitioner/Defendant
Vs.
D.Syed Sarbudeen ... Respondent/Plaintiff
PRAYER : Civil Revision Petition is filed under Article
227 of Constitution of India, to set aside the Judgment and
Decree of the learned Subordinate Judge(Wakf Tribunal),
Srivilliputhur passed in O.S.No.59 of 2004 dated 11.07.2007.
For Petitioner : Mr.M.P.Senthil
For Respondent : Mrs.P.Jessi Jeeva Priya,
for Mr.G.Aravindhan.
***
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C.R.P.(MD)No.1482 of 2010
D.Syed Sarbudeen ... Petitioner/Plaintiff
Vs.
Sivakasi Shaji Madahab
Pallivasal Jamath,
Through its Present President
Mohammed Honey,
Peria Pallivasal Street,
Sivakasi. ... Respondent/Defendant
PRAYER : Civil Revision Petition is filed under Article
227 of Constitution of India, to set aside the Decree and
Judgment dated 11.07.2007 passed in O.S.No.59 of 2004 on
the file of the Subordinate Judge(Wakf Tribunal),
Srivilliputhur, by allowing this Civil Revision petition.
For Petitioner : Mrs.P.Jessi Jeeva Priya,
for Mr.G.Aravindhan.
For Respondent : Mr.M.P.Senthil
***
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COMMON ORDER
Heard the learned counsel on either side.
2. These two civil revision petitions arise out of the
Judgment and Decree dated 11.07.2007 made in O.S.No.59 of
2004 on the file of the Wakf Tribunal/Sub Court, Srivilliputhur.
3. Mr.D.Sayed Sarbudeen filed the suit seeking relief of
declaration, permanent injunction and mandatory injunction.
During the pendency of the suit, the plaintiff filed I.A.No.255
of 2005 for incorporating the second schedule for the purpose
of maintaining the relief of mandatory injunction. In the said
suit, Sivakasi Shabi Mathahab Pallivasal Jamath was shown as
the defendant. The defendant filed written statement and an
additional written statement. Their specific stand was that the
property belonging to the plaintiff was distinct from the
property owned by the defendant. According to them, the
plaintiff's property bears Door No.41, Sakkaraivava Street and
the property belonging to the defendant bears Door No.28A,
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Seethakadhi Thaikkal Street. The specific stand of the
defendant is that unless the identity of the suit schedule is
located with reference to the title deeds of both the parties, it
would not be possible to adjudicate the issue raised in the suit.
Since the identity of the property was questioned, the Court
below rightly appointed the Advocate Commissioner.
Interestingly, the Advocate Commissioner did not take the
assistance of the licensed surveyor before executing the
warrant. Citing the same, the defendant raised their
objections. The Advocate Commissioner also appears to have
filed a perfunctory report. In fact the Court below in
paragraph No.20 of the Judgment had rightly observed that it
was not established by the plaintiff that the offending
construction was being put up in the schedule property.
Therefore, the Court below chose to decline the relief of
mandatory injunction, but strangely it chose to grant other
two reliefs sought by the plaintiff. That necessitated the filing
of C.R.P.(MD)(NPD)No.1341 of 2008 by the defendant.
Aggrieved by the partial dismissal of the suit, the plaintiff also
filed C.R.P.(MD)(NPD)No.1482 of 2010.
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4. The learned counsel appearing for the plaintiff took
me to paragraph Nos.13 of the impugned Judgment and
contended that the issue had been adjudicated in favour of the
plaintiff in prior proceedings and that therefore this Court
ought to sustain the impugned Judgment.
5. I am not persuaded by the said contention. As rightly
pointed out by the defendant, the present defendant was not a
party to the prior proceedings and that therefore, the prior
proceedings cannot be said to be binding on the defendant
herein.
6. I have already perused the entire Judgment. The case
turns on the identity of the said property. Identity can be
established only by carrying out the exercise by taking the
assistance of a Municipal Surveyor. In this case, the assistance
of the Municipal Surveyor was not at all availed by the
Advocate Commissioner and therefore, the warrant could not
be executed properly. The Court below ought to have reissued
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the warrant and directed the Advocate Commissioner to take
the assistance of the Municipal Surveyor and submit a proper
report. Such a course of action was not taken by the Court
below. This omission is fatal and it goes to the root of the
matter. The Court below could not have decided the issues
raised in the suit without proper report from the Advocate
Commissioner. That apart, the Court below also erred in
relying on the earlier proceedings such as O.S. No.1068
of 1978 dated 28.01.1882 and A.S.No.33 of 1882 etc., to which
the defendant was not a party. On these twin grounds, I am
inclined to set aside the impugned Judgment and Decree.
7. It appears that the jurisdictional Sub Court is no
longer functioning as Wakf Tribunal. Be that as it may, the
impugned Judgment and Decree is set aside. The matter is
remitted to the file of the jurisdictional Wakf Tribunal. The
Wakf Tribunal is directed to dispose of the suit afresh in
accordance with law. Of course, the pleadings as well as the
evidence already taken will very much remain on record. The
Wakf Tribunal is directed to appoint an Advocate
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Commissioner for identifying the disputed property by taking
assistance of the municipal surveyor. After the report is
submitted, objections will have to be invited from both the
parties. Of course the Advocate Commissioner will be
examined. This remand is made only for this limited purpose.
8. Subject to this, these civil revision petitions are
allowed. No costs. Consequently, connected miscellaneous
petition is closed.
01.02.2021
Index : yes/No
Internet:Yes/No
PMU
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.
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G.R.SWAMINATHAN,J.
PMU
To
1. The Subordinate Judge(Wakf Tribunal),
Srivilliputhur.
2. The Record Keeper,
V.R.Section, Madurai Bench of Madras High Court,
Madurai.
C.R.P.(NPD)(MD)No.1341 of 2008 and
C.R.P.(NPD)(MD)No.1482 of 2010 &
M.P.(MD)No.2 of 2008
01.02.2021
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