IMPORTANT POINTS
(1) Creation of Wakf – Alleged use of suit land as burial ground prior to 1900 or 1867 is not sufficient to establish a Wakf by user in absence of evidence to show that it was so used.
(2) Principle of Acquiescence – Acquiescence is followed by estoppel – Law does not permit a person to both approbate and reprobate as no party can accept and reject same instrument.

JUDGMENT :

PANKAJ MITHAL, J.

1. Under challenge in these appeals is the judgment and order passed by the Division Bench of the High Court of Judicature at Madras allowing the writ appeals whereby and wherein the judgment and order of the learned Single judge dated 29.04.2005 declaring the suit land as wakf property has been set aside.

2. The controversy in the present appeals centers around land in Zamin Survey Nos. 5105 and 5108 in Salem Zameen Estate which corresponds to O.T.S. Nos. 2253 and 2210 respectively. The O.T.S. 2253 has been allotted New Town Survey No. 1 (T.S. No.1) and O.T.S 2210 has been allotted New Town Survey, i.e. T.S. Nos. 113 & 70.

3. In the present appeals, we are only concerned with the Zamin Survey No.5108 (O.T.S.2210, now T.S. Nos.113 & 70) only which henceforth shall be described as “suit land”.

4. The appellant herein is Salem Muslim Burial Ground Protection Committee, Salem¹[hereinafter referred to as “appellant Committee”]. The State of Tamil Nadu (Revenue Department) is respondent No.1, and respondent Nos.2 and 3 are Commercial Taxes and Religious Endowments and the Director of Survey and Settlement Office respectively, who are formal parties. Respondent Nos.4 to 23 are the claimants, who alleged that they are residing over the “suit land” and are the settlers thereon from times immemorial having acquired rights over it through their predecessors-in-interest. The old records reveal that the “suit land” at one point of time was used as a burial ground paramboke but the municipality ordered its closure for health reasons somewhere in the year 1867 and an alternative site was allotted for use as a burial ground.

5. One of the claimants respondents, Perumal Chettiar claimed Ryotwari patta in the “suit land”. Three other sets of respondents claimants’ namely, A. Ramaswamy Chettiar, Govinda Pillai and appellant Committee through Sri Abdul Salim Sahib also set up their claims in the suit land. Accordingly, Assistant Settlement Officer, Salem²[hereinafter referred to as “ASO”] in March, 1959 initiated inquiry under Section 11(a) of the Tamil Nadu Estate (Abolition & Conversion into Ryotwari) Act 1948³[hereinafter referred to as “Abolition Act, 1948”]

6. The aforesaid Section 11 of the Abolition Act, 1948 provides that every ryot in an estate shall with effect from the notified date, be entitled to a ryotwari patta in respect of ryotwari lands which as per Madras Estate Land Act, 1908⁴[hereinafter referred to as “Estate Act”] means cultivable land in an estate other than the private land excluding certain types of lands, such as village sites and those set apart for common use of the villagers.

7. In the aforesaid inquiry initiated by the ASO under Section 11(a), Perumal Chettiar claimed that the “suit land” was assigned to him by the zamindar of Salem vide Exhibit A1 dated 20.01.1935. He relied upon Exhibits A2 and A3 which were pattas granted to him in respect of the suit land by the then zamindar. On the basis of the aforesaid assignment and the pattas, he claimed himself to be in possession of the “suit land” ever since the date of assignment and contends that the muslims have never buried their dead bodies on the said land.

8. Simultaneously, A.Ramaswamy Chettiar claims to have purchased some portion of the suit land from one Ramaswami Pillai, Manickam Pillai, Subhu Pandaram and Vasudeva Chettiar for a sum of Rs.5000/- some time in the year 1954. He asserted his claim on the basis of mortgage deeds (Exhibits B2 to B7) executed by him in respect of the “suit land” in favour of various parties.

9. The other claimant Govinda Pillai staked his claim over the suit land, on the basis of title of his predecessors-in-interest as told to him by his father whereas the appellant Committee asserted that it is a burial ground, and it can’t be settled with any private person.

10. The ASO vide order dated 31.03.1959 dismissed the claims of all parties observing that the “suit land” is communal in nature and that any assignment