Back
2009 Supreme(Mad) 3346
High Court of Judicature at Madras
THE HONOURABLE MR.JUSTICE S.RAJESWARAN
Sunnath Jamath Committee of Masjid-e-Akasha, Rep. By its President Mr.K.Syed Ibrahim and its Joint Secretary Mr. B. Rizwan
Versus
K. Anthonysamy & Others
C.R.P.(PD) No.3956 of 2007 and M.P.No.1 of 2007
Decided on: 26-08-2009
For the Petitioner:V. Lakshminarayanan for M. Hidayathullah Khan, Advocates.
For the Respondents:R1 & 2, T. Arulraj, R8, Sulaiman, Advocates, R9 to 12, Mrs. Shanthi Rakkappan, A.G.P. (C.S.).
A trial court cannot reject a plaint on the ground of res judicata at the pre-number stage itself, especially when the plaintiff has prayed for various reliefs and the issue of res judicata has a mixed question of facts and law.
Headnote:
Revision Petition - Rejection of Plaint - Res Judicata - Maintainability - Jurisdiction of Wakf Tribunal - Scope of Sec.115 of C.P.C. - Powers of High Court under Art.227 of the Constitution of India.
Fact of the Case:
Plaintiff filed a suit for various reliefs, including a declaration that the suit property is a Wakf by user as a burial ground for the Muslim community, a permanent injunction restraining the defendants from trespassing into the suit property, and a declaration that certain sale deeds and a settlement deed are null and void. The trial court rejected the plaint on the ground of res judicata, holding that the same subject matter had already been adjudicated upon in a previous suit. The plaintiff filed a revision petition challenging the trial court's order.
Finding of the Court:
The High Court held that the trial court erred in rejecting the plaint on the ground of res judicata at the pre-number stage itself. The court noted that the plaintiff had prayed for various reliefs, including a declaration that the suit property is a Wakf by user, and that the trial court should have considered the entire plaint as a whole before deciding the issue of res judicata. The court also held that the trial court should have given notice to the other side before deciding the issue of res judicata. The court set aside the trial court's order and directed the trial court to number the suit and proceed with the same in accordance with law.
Issues: 1. Whether the trial court erred in rejecting the plaint on the ground of res judicata at the pre-number stage itself? 2. Whether the trial court should have considered the entire plaint as a whole before deciding the issue of res judicata? 3. Whether the trial court should have given notice to the other side before deciding the issue of res judicata?
Ratio Decidendi: 1. The trial court erred in rejecting the plaint on the ground of res judicata at the pre-number stage itself because the plaintiff had prayed for various reliefs, including a declaration that the suit property is a Wakf by user, and the trial court should have considered the entire plaint as a whole before deciding the issue of res judicata. 2. The trial court should have considered the entire plaint as a whole before deciding the issue of res judicata because a plaint cannot be rejected in part and the trial court has to decide the issue of res judicata on the basis of the averments of the plaint alone. 3. The trial court should have given notice to the other side before deciding the issue of res judicata because res judicata is an issue which could not be decided by the trial court even before the suit was numbered, as admittedly the issue res judicata has a mixed question of facts and law.
Final Decision: The High Court allowed the revision petition, set aside the trial court's order, and directed the trial court to number the suit and proceed with the same in accordance with law.
This Civil Revision Petition is filed against the Order in G.No.11295 of 2007 (unnumbered W.O.S.) on the file of District Wakf Tribunal (Subordinate Judge), Krishnagiri.
2. The plaintiff in Gen.No.11295 of 2007/Un-numbered W.O.S. on the file of the Court of District Wakf Tribunal (Subordinate Judge), Krishnagiri, is the revision petitioner before this Court. He is aggrieved by the order of the Wakf Tribunal dated 011. 2007, by which, the Tribunal rejected the plaint itself on the ground that the suit is barred by res judicata, as per Sec.11 C.P.C.
3. The plaintiff filed W.O.S. No.(un-numbered) 2007 for the following reliefs:
(1) to declare that the suit property is a Wakf by user as a burial ground for the Muslim community of the plaintiff mosque;
(2) to grant permanent injunction restraining the defendants 1 to 7 from trespassing into the suit property or any aprt of the same and from disturbing or obstructing the plaintiff people from using the suit property as burial ground of the Muslim community people of the plaintiff mosque;
(3) to declare that the sale deed dated 24.01.1963 executed by the defendants 3 to 5 in favour of Kolandaisamy Mudali, the father of the defendants 1 and 2 an sale deed dated 212. 1970 executed by the third defendant in favour of the 7th defendant and the settlement deed dated 20.08.1981 executed by the defendants 3, 4 and 6 in favour of Mustaq Ahamed are null and void and are not binding on the plaintiff mosque;
(4) to declare that the decree and judgment in O.S.No.286 of 1983 of the District Munsif Court, Krishnagiri and the decree and judgment in A.S.nO.41 of 1997 of the Additional District Judge cum Chief Judicial Magistrate, Krishnagiri are null and void;
(5) to declare the sub-division of S.No.15/2 as 15/2A and 15/2B and patta issued in favour of the defendants 1 and 2 for the S.No.15/2A by the defendants 9 to 11 are null and void and to register S.No.15/2 of 98 cents as burial ground of the Muslim community of the plaintiff mosque;
(6) to grant permanent injunction restraining the defendants 1 and 2 from seeking any enquiry in R.E.P. No.156 of 2006 of the District Munsif Court, Krishnagiri till the disposal of the suit.
(7) to direct the defendants 1 to 7 to pay the plaintiff the cost of the suit.
4. The case of the plaintiff is that the suit property is a burial ground which has eventually become a Wakf by user by Muslim community people of Londonpet area, Krishnagiri. The suit property was originally owned by one Md. Kasim who was a very rich and pious Muslim. He orally gifted 98 cents of land in S.No.15 in Kattiganapalli Village for the usage of the Muslim community as a burial ground. The said gift was made in 1895 and the entire 98 cents are being used for burying the dead bodies of Muslim in and around Londonpet without any interruption. Somewhere in 1960/1961, the said suit in S.No.15 was sub-divided as S.No15/1 and S.No.15/2. S.No.19/1 of 19 cents was classified as the land belonging to Md. Hussain one of the two sons of the said Md. Kasim and S.No.15/2 of 1998 cents was classified as burial ground. Thus, according to the plaintiff, the suit property namely 98 cents in S.No.15/2 is a burial ground for muslim community which is being used for more than 100 years and as such, it is a Wakf by user.
5. After the death of the said Md.Kasim, in 1901, his two sons namely Md. Hussain, and Sheik Mohideen, partitioned their fathers property and in that partition, the remaining extent of 19 cents in S.No.15 which was being used by them in common, was agreed to be taken in equal share by both the sons. The family of Md. Kasim in the partition, clearly recongnised the suit property as burial ground. However, in the partition of the family of Md. Hussain effected under the Deed of partition dated 21.01.1949 the said 19 cents were said to be owned by Md.Hussain only and sought to be allotted to the share of one of his sons Faizullah. However, the family members of Sheik Mohideen did not r
