Madras High Court
K.Yasodhai Ammal vs Jamia Masjid Peria Pallivasal on 29 September, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 29.9.2021.
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
S.A.(MD) No.567 of 2021
and
C.M.P.(MD) No.7597 of 2021
1. K.Yasodhai Ammal
2. V.Indirani (Died)
3. S.Sudha
4. K.Maheswaran (Died)
5. N.Kavitha
6. Smt.M.Jothimani
7. Minor M.Ganeshkumar
8. Minor M.Shobana
9. A.Veera Sekaran
10. V.Saranya
11. A.V.Kandhasamy Adthyan
12. A.V.Gogulavatshan Appellants
vs.
1. Jamia Masjid Peria Pallivasal,
South 2nd Street,
Pudukkottai Town,
Pudukkottai District
rep. by its Present Muthavalli.
2. Chairman,
Tamilnadu Wakf Board,
Indira Nagar, Mylapore, Chennai.
3. Chief Executive Officer,
Tamilnadu Wakf Board,
Indira Nagar, Mylapore, Chennai. Respondents
https://www.mhc.tn.gov.in/judis/
2
Second Appeal filed under Section 100 of CPC against the
Judgment and Decree dated 7.10.2020 passed in A.S.No.24 of 2015
on the file of the Additional Sub Court, Pudukkottai confirming the
Judgment and decree dated 9.2.2015 passed in O.S.No.144 of 2012 on
the file of the District Munsif Court, Pudukottai.
For Appellant : Mr.K.Baalasundharam
For RR 2 and 3 : Mr.D.S.Haroon Rasheed
JUDGMENT
The plaintiffs, who failed before both the courts below are the
appellants before this court.
2. For the sake of convenience, the parties are referred to as per
their status in the Original Suit.
3. The plaintiffs filed the suit for permanent injunction in respect
of two shops and the buildings constructed on the eastern side in
No.3268 , Barjimiyan Bazaar, Pudukottai Town.
4. The case of the plaintiffs is that the suit property belonged to
one K.M.Mohammed Abdul Kadher Ibrahim Levai Sayub and he had
leased out the shops to the first plaintiff's father in law viz.,
Muthurama Konar during the year 1950. It is the further case of the
plaintiffs that the first plaintiff's father in law constructed a house in
the suit property, after getting oral permission from K.M.Mohammed
Abdul Kadher Ibrahim Levai Sayub and that he had been residing there
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and doing his business in the two shops with his two sons Krishnan
and Ganesan. Whileso, on 5.8.1967, the said K.M.Mohammed Abdul
Kadher Ibrahim Levai Sayub settled the suit property alongwith the his
other properties to Periya Pallivasal vide a Wakf Nama entrusting the
management to his sons Rahamathullah and Mustafa and
subsequently, the when the plaintiff paid the rent to the said Trustees
and after his demise, his two sons and the husband of the first plaintiff
continued the tenancy and paid rent to the Trustees. The first
defendant demanded rent for the suit property as Muthavalli of the
Pallivasal and since the rent was not paid, the first defendant had filed
O.S.No.1538 of 1989 on the file of the District Munsif Court and it was
decreed ex parte and E.P.No.115 of 2004 was filed for recovery of
possession. During the year 1990, Krishnan and Ganesan orally
partitioned the suit property among themselves. The dispute arose
between the original Trustees and hence, the plaintiffs had been
paying the rent from the year 2009.
5. The first respondent/first defendant had filed written
statement denying the averments, however, they have admitted the
tenancy of the first plaintiff's father in law. They have denied that any
constructions were made by the plaintiffs. It is the case of the
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defendants that original Trustees handed over the properties to the
Pallivasal vide Registered deed and knowing about that fact, the
plaintiffs' predecessor paid the rent, but, subsequently from June 1987
the plaintiffs did not pay the rent and committed wilful default and
thereby O.S.No.1538 of 1999 was filed and E.P. was filed, but,
subsequent to the enactment of the Tamil Nadu Wakf Validating Act
and constitution of the Wakf Tribunal, the Execution Petition could not
be proceeded. The plaintiffs also assured to vacate the suit property
and the defendants never attempted to evict the plaintiff unlawfully.
6. It is the case of the defendant that they have taken every
steps to evict the plaintiff under due process of law and further, it was
the case of the first defendant that the plaintiffs are evading to hand
over the property without paying any rent and the rental arrears was
Rs.1,27,500/- as on the date of filing of the suit and that the plaintiffs
are not entitled to to the relief and the plaintiffs are bound to pay the
rent of Rs.3,000/- per month.
7. Based on the pleadings, the Trial Court framed the following
issues:-
(i) Whether the plaintiffs are entitled to permanent injunction
against the defendants?
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(ii) To what other relief they are entitled?
8. During the trial, on the side of the plaintiffs, P.Ws.1 and 2
were examined and Exs.A1 to A21 were marked and on the side of the
defendant, DW1 was examined and Ex.B1 was marked. After the full-
fledged trial, the Trial Court dismissed the suit. Aggrieved over the
dismissal of the suit, the plaintiffs filed first appeal in A.S.No.24 of
2015 on the file of the Additional Sub Judge, Pudukottai. Pending the
Appeal, the plaintiffs filed I.A.No.169 of 2015 seeking for temporary
injunction.
9. The Appellate Court framed the following points for
determination:-
(i) Whether I.A.No.169 of 2015 deserves to be allowed for the
reasons thereof?
(ii) Is the finding of the Trial Court that the appellants are not
entitled to the relief of injunction is correct?
(iii) Whether the Appeal deserves to be allowed for the reasons
mentioned in the grounds of appeal?
10. After analysing the oral and documentary evidence and the
finding arrived by the Trial Court, the Appellate Court concurred with
the finding of the Trial Court aggrieved against which, the present
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second Appeal has been filed.
11. The Trial Court, finding that the Original Suit is only for bare
injunction and finding that admittedly, the suit properties are Wakf
properties and that the defendants had taken steps to evict the
plaintiffs in accordance with law, had dismissed the suit. The Appellate
Court also, from the perusal of Ex.A21 which is petition in Wakf O.P.
173 of 2012 held that it is evident that the Wakf O.P. was filed on
27.4.2012 by the defendants to evict the appellants herein and for
arrears of rent and also after reading of the plaint in the suit, found
that the suit had been filed only on 21.6.2012 subsequent to the filing
of the Wakf O.P.
12. The courts below also found that it is clear that the suit was
filed only after the first respondent had taken due process, inter alia,
to evict the appellants from the suit property, had dismissed the suit
and the appeal.
13. The learned counsel for the respondents/defendants would
submit that the suit has been filed by the plaintiffs for bare injunction
and not to evict other than by due process of law. The respondents
had taken steps to evict them only by following due process of law in
accordance with the provisions of Wakf Act, 1983 and the legal
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proceedings are pending before the Wakf Tribunal and till date, the
defendants are following the procedures and they have not taken law
into their hands to evict the plaintiffs by force and further, the plaintiffs
are in arrears of rent to the tune of Rs.1,27,500/-.
14. The claim of the Appellants/plaintiffs is that they should not
be evicted without following due process of law. A perusal of the
materials available on record and the chronology of events, it is clear
that the plaintiffs had filed the suit only after filing of the Wakf O.P. by
the respondents/defendants and the respondents/defendants have not
at all taken steps to evict the appellants/plaintiffs without following due
process of law and rather, the steps taken by them is only by following
the the same. Therefore, the findings arrived at by the courts below
do not call for interference.
15. In the opinion of this court, the Appellant has not made any
substantial question of law to admit this Second Appeal. The Hon'ble
Apex Court in Kirpa Ram (D) Tr.Lrs. vs Surender Deo Gaur
(2020 SCC OnLine SC 935) has categorically held as under:-
"23. Sub-section (1) of Section 100 of the Code
contemplates that an appeal shall lie to the High
Court if it is satisfied that the case involves a
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substantial question of law. The substantial question
of law is required to be precisely stated in the
memorandum of appeal. If the High Court is
satisfied that such substantial question of law is
involved, it is required to formulate that question.
The appeal has to be heard on the question so
formulated. However, the Court has the power to
hear appeal on any other substantial question of law
on satisfaction of the conditions laid down in the
proviso of Section 100 of the Code. Therefore, if the
substantial question of law framed by the appellants
are found to be arising in the case, only then the
High Court is required to formulate the same for
consideration. If no such question arises, it is not
necessary for the High Court to frame any
substantial question of law. The formulation of
substantial question of law or re- formulation of the
same in terms of the proviso arises only if there are
some questions of law and not in the absence of any
substantial question of law. The High Court is not
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obliged to frame substantial question of law, in
case, it finds no error in the findings recorded by
the First Appellate Court."
16. In view of the above, the Second Appeal fails and is,
accordingly, dismissed without being admitted. No costs. The
connected Miscellaneous Petition is closed.
17. At this juncture, the learned counsel for the appellants
submit that they may be given opportunity to raise all the grounds
before the Wakf Tribunal. It is needless to say that such an
opportunity always available to them.
29.9.2021.
Index: Yes/No.
Internet: Yes/No.
ssk.
Note: In view of the present lock down owing to
COVID 19 pandemic, a web copy of the order
may be utilised 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
1. Additional Sub Court,
Pudukkottai
2. District Munsif Court,
Pudukottai.
https://www.mhc.tn.gov.in/judis/
3. Chairman,
Tamilnadu Wakf Board,
Indira Nagar, Mylapore, Chennai.
4. Chief Executive Officer,
Tamilnadu Wakf Board,
Indira Nagar, Mylapore, Chennai.
5. Jamia Masjid Peria Pallivasal,
South 2nd Street,
Pudukkottai Town,
Pudukkottai District
rep. by its Present Muthavalli.
https://www.mhc.tn.gov.in/judis/
A.D.JAGADISH CHANDIRA, J.
Ssk.
S.A.(MD) No.567 of 2021 and
C.M.P.(MD) No.7597 of 2021
29.9.2021.
https://www.mhc.tn.gov.in/judis/
