Madras High Court
Mr.Mahboobbasha vs Butt Road Jumma Masjid Committee ... on 18 April, 2022
C.R.P.(NPD).Nos.2804 & 2805 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.R.P.(NPD).Nos.2804 and 2805 of 2017
and
C.M.P.No.13274 of 2017
1.Mr.MahboobBasha
2.Mr.Niyamathullah
3.Mr.Rahimanullah
4.Mr.Rahimullah
5.Mr.Ghayazullah ... Petitioners in both CRPs
vs.
1.Butt Road Jumma Masjid Committee represented by
Its Secretary, HasanAmbalam
Butt Road, St.Thomas Mount,
Chennai-600 016.
2.C.A.Rajadurai
3.The Junior Engineer,
Tamil Nadu Electricity Board,
Alandur, St.Thomas Mount,
Chennai-600 016.
4.The Chief Executive Officer,
Tamil Nadu Wakf Board,
Chennai-600 001. ... Respondents in both CRPs
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C.R.P.(NPD).Nos.2804 & 2805 of 2017
Prayer in C.R.P.No.2804 of 2017:
Civil Revision Petition filed under Article 227 of the Constitution of
India, against the petition and order of return of the learned Additional
Subordinate Judge at Chengalpet in E.A.S.R.No.3832 of 2017 in E.A.No.113
of 2017 in E.P.No.25 of 2016 in Wakf O.S.No.163 of 1999 dated 12.07.2017.`
Prayer in C.R.P.No.2805 of 2017:
Civil Revision Petition filed under Article 227 of the Constitution of
India, against the petition and order of return of the learned Additional
Subordinate Judge at Chengalpet in E.A.S.R.No.3833 of 2017 in E.A.No.113
of 2017 in E.P.No.25 of 2016 in Wakf O.S.No.163 of 1999 dated 12.07.2017.`
For Petitioners in both CRPs : M/s.McGan Law Firm
For R4 in both CRPs : Mr.V.Lakshmi Narayanan
For R1 in both CRPs : Mr.S.A.Raja
COMMON ORDER
Both the Civil Revision Petitions had come up on earlier occasions and
the learned counsel for the revision petitioners had complained that the learned
Principal Sub Judge at Chengalpattu had granted delivery of possession of a
particular property in the teeth of an order of stay granted by my learned
predecessor, dated 10.08.2017 in the present revision petitions.
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C.R.P.(NPD).Nos.2804 & 2805 of 2017
2. Even before entering into a discussion and appreciation of the facts, it
would only be appropriate to extract the order passed by my learned
predecessor on 10.08.2017.
“5.Considering the peculiar circumstance of the case, the
following directions are issued:-
(a) an order of interim injunction is granted; (b) the
learned Additional Subordinate Judge, Chengalpet is
directed not to terminate the E.A. Pending disposal of the
C.R.P.; and (c)possession of the building shall be under
the control of the Execution Court and nobody, either the
petitioner or the respondent shall be permitted to enter
or have possession of the building in dispute in the
Execution Petition.”
3. These Civil Revision Petitions have been pending from the year 2017.
This Court, when presented with such a complaint had directed a report to be
forwarded by the Principal Sub Court at Chengalpet, giving the sequence of
events as to what had happened, particularly, since it is complained that inspite
of the order which had been extracted above, delivery had been ordered and
possession also handed over.
4. A report has been received from the Additional Sub Court at
Chengalpet who it is presumed holds full additional charge of the Principal Sub
Court at Chengalpet. The said report is dated 08.04.2022 bearing
D.No.504/2022.
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C.R.P.(NPD).Nos.2804 & 2805 of 2017
5. The facts of the case have been narrated in the report in accordance
with the records and it is seen that the learned Sub Judge, Chengalpet who had
forwarded the report, had taken charge of the said Court only on 14.06.2019
that is, far later than the order of this Court extracted above.
6. It had been stated in the report that originally O.S.No.163 of 1999 had
been filed by the first respondent herein, Butt Road Jumma Masjid Committee
represented by its Secretary against the second respondent herein
C.A.Rajadurai, seeking a direction to vacate and hand over possession. The
property which was the subject matter, was a shop and it is contended by the
learned counsel for the revision petitioners that the property which is the
subject matter of the revision petitions, is different from the property which was
the subject matter of the said suit.
7. Be that as it may, the suit proceeded in its normal manner and finally
an order to vacate and hand over possession was directed against the second
respondent C.A.Rajadurai. Thereafter, the first respondent/Jumma Masjid had
filed E.P.No.25 of 2016 based on the Judgment and decree dated 31.03.2015
passed by the learned Principal Sub Judge at Chengalpet/Wakf Tribunal. The
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C.R.P.(NPD).Nos.2804 & 2805 of 2017
delivery was ordered on 21.09.2016. Thereafter, C.A.Rajadurai filed
C.R.P.(NPD) No.3497 of 2016 and this Court had initially granted an order of
interim stay of execution of the decree, but however, by final order dated
24.10.2016, delivery of possession was confirmed and six months' time was
granted to vacate and hand over vacant possession.
8. It is the contention of the learned counsel who appears for the first
respondent/Jumma Mazjid that the second respondent C.A.Rajadurai did not
vacate and hand over possession within the said period of six months. In the
meanwhile, the present revision petitioners had filed an application, under
Section 47 of the Code of Civil Procedure which was initially returned on
24.04.2017. They preferred C.R.P.(NPD).No.1745 of 2017 and by order dated
23.06.2017 that particular application was directed to be numbered and heard.
It was numbered as E.A.No.113 of 2017. That was an application under
Section 47 of the Code of Civil Procedure. It must be mentioned that the
petitioners therein/petitioners herein were not parties in O.S.No.163 of 1999.
9. It is contended by the learned counsel for the respondents herein that
Section 47 of the Code of Civil Procedure would be applicable in a situation
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C.R.P.(NPD).Nos.2804 & 2805 of 2017
only where further issues are raised between the parties in a lis and not by a
third party.
10. However, E.A.No.113 of 2017 was taken on file. In the meanwhile,
on 12.07.2017 an order was passed by the Principal Sub Court at
Chengalpet/Wakf Tribunal that on 11.07.2017, possession had been taken
through the Court Bailiff and delivery had been handed over and therefore, on
12.07.2017, delivery was recorded. E.P.No.25 of 2016 was terminated. This
left enquiry in E.A.No.113 of 2017 to be conducted. To reiterate that was an
application filed under Section 47 of the Code of Civil Procedure.
11. I am informed today that E.A.No.113 of 2017 had also been
subsequently dismissed on 19.11.2021.
12. On 12.07.2017, when the Court had recorded delivery and the fact of
taking over of possession, two applications were filed by the present revision
petitioners. They sought the reliefs of not to record delivery and to order re-
delivery. Both the applications were returned by the Principal Sub Court,
Chengalpet. Questioning such return, the present revision petitions have been
filed.
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C.R.P.(NPD).Nos.2804 & 2805 of 2017
13. Even though it is contended by the learned counsel for the revision
petitioners that it had been brought to the notice of my learned predecessor
when these revision petitions was moved on 12.08.2017, that delivery had
already been recorded, still, in the aforementioned order which had been
extracted above, that fact is not reflected. The learned Judge had proceeded on
the basis that delivery had not been recorded and that the E.P was still pending.
However, complaining that the delivery had been recorded in the teeth of
aforementioned order, arguments were advanced in the present revision
petitions which necessitated me to call for a report.
14. The report has clarified the fact that the delivery was recorded on
12.07.2017. The aforementioned order of my learned predecessor was passed
on 10.08.2017, that is, after the delivery had been recorded and after the E.P
had been closed. Therefore, the order of my learned predecessor that the Court
should take control of the possession, can never be put into effect. As on date,
no petitions are pending before the Trial Court.
15. The petition under Section 47 of the Code of Civil Procedure in
E.A.No.113 of 2017 had been dismissed on 19.11.2021 and it is fairly
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C.R.P.(NPD).Nos.2804 & 2805 of 2017
conceded by the learned counsel for the revision petitioners that no further
steps had been taken and no appeal had been preferred and no revision petition
had also been preferred questioning such dismissal.
16. These two Civil Revision Petitions have therefore become otiose and
no orders are required to be passed, since the un-numbered petitions do not any
longer survive or necessitate further adjudication.
17. It is further contended by the learned counsel for the revision
petitioners that fraud had been played and that the property which is the
subject matter of O.S.No.163 of 1999, actually belongs to the revision
petitioners and the Jumma Mazjid had filed the Civil Suit, making only
C.A.Rajadurai, the tenant as a party. It is contended that this Court should re-
examine the entire issue.
18. My attention is however brought to the fact that the claim of the
present revision petitioners had been finally adjudicated by this Court in
S.A.No.1080 of 2001, which emanated from O.S.No.3306 of 1993. These facts
have not been stated by the revision petitioners herein. These facts are stated by
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C.R.P.(NPD).Nos.2804 & 2805 of 2017
the first respondent, who had filed two applications to vacate the order of
interim stay.
19. A copy of the affidavit filed in support of the said petitions had been
forwarded to this Court for reference and I would retain the office copy in the
Court bundle. The order in the Second Appeal had been extracted in the
affidavit and I would also extract the same.
“8.As of now, there is no dispute before this Court that
the suit site absolutely belongs to the plaintiff Mosque. It
is not in dispute that the first defendant was previously
Muthavalli of the plaintiff Mosque. It is also not in
dispute that as per the order of the Tamil Nadu Wakf
Board, by its proceedings in Rc.743/C1/92/CGT dated
16.11.1992 [Exhibit A.1], the first defendant was
removed from Muthavalliship. A reading of the said
order would go to show that he was so removed from
Muthavalliship on certain charges. One of the charge is
that treating the suit property namely the property
comprised in T.S.No.1826 and the house bearing Door
No.5/62 (the suit property herein) as his own property,
the first defendant had executed a hibba in favour of his
own namely the second defendant on 25.08.1986. It is
further stated that subsequently, it was rectified by the
first defendant by executing another document dated
01.03.1992 wherein, the first defendant has stated that
the suit site belongs to the plaintiff Mosque whereas, the
superstructure belongs to him and the same was
conveyed to the second defendant. On this charge and
another charges, the first defendant was removed from
Muthavalliship.”
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C.R.P.(NPD).Nos.2804 & 2805 of 2017
20. It is also stated that questioning this particular order, the revision
petitioners had filed a further appeal to the Hon'ble Supreme Court, and the
Apex Court had dismissed their claim, by order dated 08.05.2012 in SLP Civil
No.8929 of 2012.
21. It had been stated that Habibullah, the father of the revision
petitioners had attempted to convert the Wakf property to himself and it is
claimed that he was only a Muthavalli and that the Legal Representatives of a
Muthavalli cannot claim any right or title over the Wakf property in their
individual capacity. The Wakf remains a Wakf. It had been dedicated as a Wakf
and such dedication shall remain and should be under the control of the Wakf
Board. It cannot be converted as a private property by any body, much less the
Muthavalli or by his legal representatives. Such a stand taken by the revision
petitioner cannot be encouraged and cannot be accepted by a Court of Law.
22. It is also contended that the property which the revision petitioners
now claim is in Survey No.1826. It is seen that Survey Nos.1825, 1826 and
1827 belong to the first respondent/Mosque and it was gifted in the year 1905
by a registered Gift Settlement by Sheik Davood who is the forefather of the
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C.R.P.(NPD).Nos.2804 & 2805 of 2017
present revision petitioners.
23. The revision petitioners must rest their case in peace. Their forefather
had created a Wakf dedicating his property. They must abide by such a
decision taken by him, rather than disputing and re-claiming and attempting to
re-claim the property as their own and as their own private property. It cannot
be done and it should not be encouraged to be done and it should be prevented.
It is also seen that even in the year 1911, the property in the said Survey
Numbers were declared to be the property of the first respondent/Mosque.
24. It is also seen that on 12.01.2015, the Tahsildar at Alandur had also
filed such a report before the District Collector affirming that fact. It is stated
that Patta had been issued in favour of the Mosque.
25. In view of all these facts, it is clear that the revision petitioners have
indulged in a litigation, to only protract the finality of another litigation which
had commenced in the year 1999 in O.S.No.163 of 1999. They had filed an
application under Section 47 of the Code of Civil Procedure and such
application in E.A.No.113 of 2017 had ended in dismissal on 19.11.2021. They
had thought it prudent not to question that order any further either by way of
revision or by way of appeal or by any other method in manner known to law.
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C.R.P.(NPD).Nos.2804 & 2805 of 2017
26. They had filed two applications seeking re-delivery and not to record
the delivery of possession when actually a judicial order had been passed
recording delivery of possession. Both the revision petitions seeking a direction
that those two applications should be numbered and taken up for consideration
would not lie and would necessarily have to be dismissed by this Court.
27. It is also seen that the revision petitioners have, not brought the fact
that the delivery had already been recorded by the Executing Court, to the
notice of my learned predecessor when he passes the order as extracted above.
They will have to now face the consequences of inviting such an order to be
passed. They will have to suffer an order of dismissal in the revision petitions.
28. Accordingly, both the Civil Revision Petitions stand dismissed.
Consequently, the connected miscellaneous petition is closed. No costs.
18.04.2022
Index:Yes/No
Speaking Order:Yes/No
ssi
To:
1.The Additional Subordinate Judge,
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C.R.P.(NPD).Nos.2804 & 2805 of 2017
Chengalpet.
2.The Section Officer,
V.R.Section,
High Court of Madras.
3.The Junior Engineer,
Tamil Nadu Electricity Board,
Alandur, St.Thomas Mount,
Chennai-600 016.
4.The Chief Executive Officer,
Tamil Nadu Wakf Board,
Chennai-600 001.
C.V.KARTHIKEYAN, J.
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C.R.P.(NPD).Nos.2804 & 2805 of 2017
ssi
C.R.P.(NPD).Nos.2804 & 2805 of 2017
18.04.2022
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