IMPORTANT POINT
The High Court in second appeal, is not right in upsetting the findings of fact recorded by the first appellate Court, that too without putting the parties on notice on the substantial question of law.

Headnote:Civil Procedure Code, 1908-Section 100-Wakf Act, 1995-Sections 3(f), 63 and 85-Mutawalli-Suit filed by Ist respondent for declaration of its title and for recovery of possession of plaint schedule property-Trial Court, after appreciating the evidence on record, decreed the suit declaring that plaintiff committee has got title to the property as mutawalli in management of the mosque and common graveyard-Appeal-Ist appellate Court recorded the findings against the plaintiff-Second Appeal-Substantial questions of law were formulated for consideration in course of writing the judgment-Parties were not made known about the substantial questions of law-Whether impugned judgment of the High Court allowing plaintiff s case and dismissing cross objections filed by defendant 2 is substainable-(No).
       Held : The judgment of the first appellate court was set aside and a decree was passed entitling the plaintiff to recover possession of the plaint schedule property from the second defendant. A further direction was given to the Wakf Board to exercise its power under Section 63 of the Wakf Act and to appoint a mutawalli in place of the plaintiff making it clear that the decree granted to the plaintiff could be executed by the plaintiff or if the plaintiff is removed, by another mutawalli appointed by the Wakf Board. It may be stated that the plaintiff-committee appeared to be satisfied with the impugned judgment as it has neither filed any appeal nor cross-objections aggrieved by it. (Para 4)
        It does appear to us from the impugned judgment that the substantial questions of law were formulated for consideration in the course of writing the judgment. The learned Single Judge referred the second appeal to the Division Bench only on one question of law already referred to above. Be that as it may, the parties were not made known about the substantial questions of law if formulated that arose for consideration as required under Section 100 of Civil Procedure Code so that they could address on such a substantial question of law. In this case, although findings have been recorded against the plaintiff on questions 1 and 2, on the third question, the defendant No.2 had no opportunity to put forth his case. This, in our view is a serious infirmity being contrary to requirement of Section 100 of Civil Procedure Code. It is plain and well-settled that in order to claim a decree for declaration of title and for recovery of possession in the civil suit the plaintiff had to essentially plead necessary facts so that the defendant could meet that case in the written statement and the parties could adduce evidence on such claims. Our attention was drawn to plaint to show that there was no such pleading. It is clear from the perusal of the plaint that the plaintiff did not plead the case that alternatively it was acting as mutawalli as a matter of fact even though Exbt. A2 was illegal and mutawalliship could not be validly transferred. No issue was raised by the trial court as to whether the plaintiff was a mutawalli as per Section 3(f) of the Wakf Act 1954. Even before the first appellate court, the only point that was taken up for consideration was "Whether the first respondent is entitled to the declaration of title to the plaint schedule property, recovery of possession of the plaint schedule property along with the building situated therein on the strength of plaintiff s title and for a permanent prohibitory injunction restraining the appellant from demolishing or altering the existing building, tomb, situated in the plaint schedule property". No doubt, it was brought to our notice that the trial court in its judgment has stated that the plaintiff-committee was actually acting as a mutawalli but the first appellate court has clearly pointed out that the definite case pleaded by the plaintiff was based on the title to the plaint schedule property by virtue of Exbt. A-2 and that it was not a specific case in the pleading of the plaintiff that by virtue of definition of mutawalli under 1954 Wakf Act the plaintiff-committee actually acting as a mutawalli was entitled for relief. (Para 7)
       The High Court in second appeal, in our view, was not right in upsetting the findings of fact recorded by the first appellate court, that too without putting the parties on notice on the substantial question of law. Even otherwise, the finding of the High Court on question No.3 cannot be sustained when such a case did not arise for consideration in the absence of necessary pleading in the plaint in that regard. More so when the case of the plaintiff was based clearly on title said to have been derived. (Para 8)

JUDGMENT

Shivaraj V. Patil, J.-The first respondent (plaintiff) filed the suit O.S.No. 91/84 for declaration of its title and for recovery possession of the plaint schedule property. The appellant (defendant No.2) filed written statement in the suit contending that the suit was not maintainable; the plaintiff had no title to the plaint schedule land; the agreement dated 13.2.1973 did not confer any title on the plaintiff and the said agreement was signed only by five members of the tarwad out of about 100 members and it did not convey legal or valid title over the properties in question on the plaintiff. In addition, the defendant No.2 resisted the suit on some more grounds. Trial court, after a full dressed trial, appreciating the evidence placed on record, decreed the suit declaring that the plaintiff-committee has got title to the property as mutawalli in management of the mosque and common graveyard. The trial Court also granted decree for recovery of possession of plaint schedule property from the defendant No.2 with a direction that the defendant No.2 should domolish the alterations made by him during the pendency of the suit and surrender possession of the premises with the structure that existed prior to the institution of the suit. The defendant No.2 was also restrained by permanent injunction from demolishing or altering the tomb which existed on the property at the time of the institution of the suit. The defendant No.2 filed appeal A.S.No. 187/87 in the court of the District Judge. The first appellate court, on consideration and reappreciation of evidence recorded the findings against the plaintiff. It allowed the appeal and dismissed the suit holding that the plaintiff failed to establish its entitlement to the suit property and that it was not entitled for recovery of possession of the same. The first appellate court also found against the defendant No.2 in regard to his claim of title over the suit property. Aggrieved by the judgment and decree of the first appellate court, the plaintiff filed second Appeal No. 638/88-A in the High Court. The defendant No.2 also filed cross objections in so far as the findings of the district court were against him. The learned Single Judge of the High Court referred the appeal to a Division Bench for consideration and decision on the following question of law

"The question to be decided is whether Section 85 will operate in respect of the pending proceedings which has not become final."

2. The Division Bench of the High Court allowed the second appeal filed by the plaintiff and dismissed the cross objections filed by the defendant No.2. The High Court, by the impugned judgment, held that transfer of mutawalliship in favour of the plaintiff was not valid. It also held that Exbt. A-2, the agreement dated 13.2.1973, was not valid in the eye of law but at the same time the Division Bench held that the plaintiff-committee was entitled to sue for recovery of possession of the plaint schedule property. The High Court also gave directions to the State Wakf Board to exercise its power under Section 63 of the Act to appoint a mutawalli in place of the plaintiff. Hence defendant No.2 is in appeal before us calling in question the validity and correctness of the impugned judgment and decree.

3. The High Court in the impugned judgment has recorded that the following substantial questions of law arose for consideration:-

"1. Whether this court is competent to decide the question of Wakf in view of Section 85 of the Wakf Act, 1995?

2. Whether the right of Mutawalli is transferable?

3. Was the court below correct in holding that the plaintiff was not legally entitled to file the suit?"

4. On the first two questions, the High Court found against the plaintiff observing that the civil court had jurisdiction to try the suit and the transfer of mutawalliship was not valid. In dealing with the third question, the High Court accepted the alternative ar

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2004 Supreme(SC) 909

IMPORTANT POINTThe High Court in second appeal, is not right in upsetting the findings of fact recorded by the first appellate Court, that too without putting the parties on notice on the substantial question of law.

IMPORTANT POINT
The High Court in second appeal, is not right in upsetting the findings of fact recorded by the first appellate Court, that too without putting the parties on notice on the substantial question of law.