Filing of application u/s 36-A necessary.

RAMANUJAM, J. :- An interesting question of law as to whether a non-Muslim can create a Wakf as defined

in the Wakf Act 1954, arises in this appeal filed by the plaintiff, the Tamil Nadu Wakf Board, in O.S. 39 of 1975 on the file of the Sub Court, Thanjavur.

2. The appellant filed the said suit, for recovery of vacant possession of the suit property, claiming it to be a Wakf property. Its case asset out in the plaint was as follows-

The suit property belongs to Hazarath Sham Mansoor Avulia Dargah at Thanjavur, and it is one of the several properties endowed for the maintenance and support of the said Dargah. The said Dargah is a notified Wakf. In O.P. 41 of 1971, the Dargah has been declared as a Wakf by the Sub Court, Thanjavur. The suit property is close to the Dargah and had been used hitherto as burial ground and for purposes connected with the Urs festivals of the Dargah and therefore, it has also become a Wakf by user from time immemorial. The suit property has been leased out to the second defendant, by the first defendant, who is the Secretary of the Board of Trustees of the said Dargah, for a period of 25 years for erecting a permanent cinema theatre, by an agreement dated 7-5-1971, without obtaining the sanction from the plaintiff, as required under Section 36-A of the Wakf Act. The said lease, without such sanction, is invalid, as it is for non-agricultural purpose for a period exceeding one year. Hence, the said lease is void and the second defendant's possession of the suit property is illegal and wrongful. The said lease also will not bind the Wakf Board. The plaintiff is therefore entitled to recover vacant possession of the land ignoring the lease deed in favour of the second defendant, treating him as a trespasser.

3. The suit was resisted by both the defendants. The first defendant, who is the Secretary of the Board of Trustees of the said Dargah contended that the suit land is not being used as a burial ground. The suit property is not a Wakf. It is a charitable endowment granted by a Hindu King by name Sevappa Naicker for the purpose of Fakirs resorting to the Dargah and therefore, it will not come under the definition of 'Wakf'. The administration of the Dargah is governed by a scheme framed by the Civil Court in O.S. 11 of 1941, on the file of the Sub Court, Thanjavur. In O.P. 41 of 1971, the Wakf Board sought direction from the court to the trustees to register the trust as a Wakf, submit annual reports, pay contributions and get permission of the Wakf Board before constructing any building in T.S. No. 2980 belonging to the Trust. However, this petition was dismissed on 7-7-1971, on the objection of the Board of Trustees. The lease in favour of the second defendant, which has been impugned by the plaintiff, has been given after obtaining the sanction of the Court in I.A. 288 of 1971, wherein the terms and conditions of the lease were also approved by the court. On the strength of the said lease, the second defendant has constructed a theatre at a huge cost of Rs. 3 lakhs. The trust is getting a monthly assured income from the property demised. The lease is not only valid, but also beneficial to the trust. The existence of the theatre is not a hindrance to any of the religious functions performed in the Dargah. In any event, the property leased out in favour of the second respondent is a small piece of land in the eastern extremity, out of the entire area of 6-1/3 acres, belong to the trust.

4. The second defendant, though filed a separate written statement, has practically adopted the same averments as found in the written statement of the first defendant. He has added that he had invested a large amount in the construction of the cinema theatre relying on the orders of the Court sanctioning the lease and to the knowledge of the plaintiff and therefore, the plaintiff is estopped from challenging the lease in his favour.

5. On these pleadings, the two substantial questions that arose for consideration