2015 Supreme(Mad) 1823

IN THE MADURAI BENCH OF MADRAS HIGH COURT
PUSHPA SATHYANARAYANA, J.
Nagoor Kaniammal @ Mahboobal Beevi & Others – Appellant
Versus
Tenkasi Vangaru Muthu Meeran Sahib Thailka Pallivasal through its Worshippers & Jamathars & Others – Respondent
CRP (NPD) (MD) Nos. 415 & 416 of 2005 & C.M.P.No. 1616 of 2015
Decided On : 30-04-2015

Headnote:

Wakf Act – Section 3 – Code of Civil Procedure, 1908 – Order I Rule 8, Section 92 – Sale Deed – Instant Civil Revision Petitions have been projected against the common judgment and decree passed by the Wakf Tribunal (Principal Subordinate Judge), Tirunelveli, in O.S. – According to the plaintiffs, who claim to be the worshippers of the Tenkasi Vangaru Muthu Meeran Sahib Thaikka Pallivasal, the property described in 1st schedule of the suit was sold by one Peer Mohammed Rowther in favour of minor Mohammed Ismail under a registered sale deed and the said Mohammed Ismail and his family members endowed the said property with the plaintiffs Mosque in 1946 and as such, it is a Wakf property. – It is stated that the said Mohammed Ismail, who is alleged to have dedicated the property to the Mosque, also directed that a Madarasa should be built and moulath should be recited and his heirs should not deviate the property. – According to the plaintiffs, the said details of dedication are found in the deed of partition dated 17.8.1946 marked as Ex.A2, entered in the family of Mohammed Ismail. – It is further stated that as the 1st schedule property was dedicated to Wakf, Mohammed Ismail was allotted some other property in the partition in lieu of the same and the property so allotted to him, was sold to one Kather Beevi by way of sale deed 14.7.1963. – Therefore, according to the plaintiffs, the said Mohammed Ismail had no right to deal with the 1st schedule property. – However, the said Mohammed Ismail gifted the suit 2nd schedule property, which is part of 1st schedule of the suit property, in favour of his daughter, viz., the first defendant, as per Gift Deed dated 07.5.1984, which is marked as Ex. A.4 and settled the suit 3rd schedule property, which is also another portion in suit 1st schedule, in favour of his second daughter, who is the second defendant, under Ex.A5 dated 07.5.1984. – According to the plaintiffs, the said settlement deeds are void. – Held, There is no evidence to show that the suit 1st schedule has become Wakf by user. – Therefore, the Wakf Tribunal has come to a conclusion that the plaintiffs have miserably failed to establish that the property is a Wakf property. – As the claim of the plaintiffs that the suit 1st schedule property has become a Wakf property in view of the alleged dedication of the same by Mohammed Ismail, has not been proved, the defendants get the title under settlement deeds Exs. A.4 and A.5 dated 07.5.1984 and the sale deed Ex. A.6 dated 27.4.1985. – The defendants are also admittedly in possession of the properties – While the suit was originally filed in O.S. No. 768 of 1995, which was prior to the coming into force of the Wakf Act and when the dispute as to the nature of the 1st schedule property as Wakf property arose even before the coming into force of the Wakf Act, 1995, it is not known as to how the suits were transferred to Wakf Tribunal and how the Wakf Tribunal, Tirunelveli, assumed jurisdiction over the suits. – So also, the suit filed by the plaintiffs in O.S. No. 773 of 1995 which was also filed before the coming into force of the Act. – Therefore, it is clear that on the dates when the suits were filed, the Wakf Act was not in force. Hence, the Court of District Munsif, Tenkasi, had jurisdiction to entertain the suits. – In such view of the matter, the Wakf Tribunal, Tirunelveli, can have no jurisdiction to entertain both the suits as they were filed before coming into force of the Act. – Nevertheless, none of the parties had objected to the jurisdiction of the Tribunal. – On the other hand, they have appeared before the Tribunal submitted their contentions. – Therefore, it is too late for the parties to contend that the Wakf Tribunal, Tirunelveli, has no jurisdiction to try the suits and the said contention cannot be sustained. – As it has been found above, the dedication of the suit 1st schedule property by Mohammed Ismail to the Mosque, has not been proved either by partition deed Ex. A.2 or otherwise, the 1st schedule is not a Wakf property. As such, it is clear that the plaintiffs have no title to the same and consequently, have no right to recover possession of the suit property. – In view of the same, O.S. No. 137 of 1999 is liable to be dismissed. – On a careful consideration of the respective stand taken by the parties and on an overall assessment of the entire facts and circumstances of the case in an integral manner, this court is of the considered view that the finding of the Wakf Tribunal suffers from material irregularity and patent illegality and the same needs to be set aside by this Court. – Therefore, this Court, sitting in revision, allows these Civil Revision Petitions to prevent an aberration of justice. – Civil Revision Petitions Allowed