For filing suit for cancellation of framing of scheme whether sanction u/s 92 CPC necessary.

Thanikkachalam, J.

1. This appeal is directed against the judgment and decree rendered in O.S. No. 250 of 1970 dated 5.11.1980 on the file of Sub-court, Dindigul. Defendants 3 to 5 are the appellants herein. The suit was filed in a representative capacity for cancellation of the suo motu scheme framed by the Special Officer, Wakf Board, dated 17.8.1968 in W.A. No. 9 of 1968 and for a direction to frame a single consolidated scheme for the suit Pallivasals. The trial court decreed the suit as prayed for with costs. It is against that judgment and decree the present first appeal has been filed by the defendants 3 to 5.

2. In the plaint, the case of the plaintiffs is as under : In Cumbum town from ancient time, there was only one mosque called Vaveer Pallivasal or Bava Fakruddin Pallivasal or 'Big Mosque'. All the original Muslim in habitants of Cumbum used to pray in the said Mosque. They constituted a Jamath known as Cumbum town Jamath. There are two other Pallivasals, known as Mohideen Andavar Pallivasal and Mamarathubava Pallivasal. Mohideen Andavar Pallivasal is now in a dilapidated condition. This was used for idgah at the time of Bakrid and Ramzan. Mamarathubava Pallivasal is a Darga. It is a open ground where cultivation is going on. It is situate two miles away from Cumbum town.

3. There is one single Jamath for the said three Pallivasals. The other two Pallivasals are under the administration and management of Vaveer Pallivasal. These institutions were under the management of Jathi Nattanmaikkar of Muslims of Cumbum, assisted by representatives of Khan-mars and Levais. The Jathi Nattanmaikkar also happened to be Miras, headman of the town appointed by Government. From 1927 one C. Mohammed Meeran Levai was Jathi Nattanmaikkar administering the mosque. Before him his forefathers were the Jathi Nattanamaikkarars. They improved the mosques and acquired properties for the mosques by collecting tharagu and other levis. They are the founders of the mosque.

4. The Jamath for all the three Pallivasals was consisting of original permanent Muslim inhabitants of Cumbum town inclusive of Uthamapuram. In 1954 these three Pallivasals were registered under the Wakf Act. While so, about 30 years ago the Muslims who came from Rajapalayam built a mosque of their own called "New Mosque" or Masjid-E-Ilahi". The immigrant Muslims from Rajapalayam constituted Jamath for the said Mosque. They do not belong to the Vaveer Pallivasal Jamath consisting of original Muslim inhabitants of Cumbum.

5. The original Muslim inhabitants of Cumbum who constituted Jamath of Vaveer Pallivasal are not permitted to take part in the administration of New Mosque constructed by the Rajapalayam Muslims. So also, the immigrant Muslims of Rajapalayam never used to take part in the administration of Vaveer Pallivasal and other two Pallivasals. Though they used to come to Vaveer Pallivasal on the beginning before the construction of their new Mosque for prayer, they do not belong to the Jamath attached to Vaveer Pallivasal, which is also known as Cumbum Jamath. The migrated Muslims of Rajapalayam had nothing to do with the suit mosques. They do not have any right to take part in the administration of the suit mosques.

6. In the year 1963 C. Mohammed Meera Levai resigned from his office of Muthavalli due to his old age and ill-health. It is customary among the Muslims, in Cumbum to appoint members in the family of Jathi Nattanmaikkar as Muthavalli. It is also customary that the Muthavalli of the suit mosque used to be assisted by Khanmars and Levais. The Jathi Nattanmaikkar used to enjoy special honours during all important occasions both inside the mosque and outside the mosque They used to enjoy special distinct honour in the. Kabarsthan also. Thus by long and continuous' usage the custom attained legal sanction. Ignoring the long standing custom and usage, the Wakf Board on the petition moved by some disgruntled persons, without issuing any notice to the interested