J U D G M E N T

The contesting defendants in O.S.No.15 of 1995 on the file of the District Munsif Court, Thirupathur are the appellants in this second appeal.

2.The said suit was instituted by the Tamil Nadu Wakf Board seeking declaration that the suit property is a Wakf property and for directing the defendants to hand over possession of the same. The case of the plaintiff is that the suit property comprises a burial ground and a Dargah under the control of the Muslim Jamath Periya Pallivasal, Thirupathur. For the benefit of the Dargah, five shops were also constructed. The Wakf is to be under the management of a mutawalli selected from among the members of the Jamath once in three years. One such mutawalli was M.A.Muthalif Ambalam. The allegation of the plaintiff is that taking advantage of his position as mutawalli, he remitted the tax and other public dues in his personal name. The suit property was notified in the Government Gazette as Wakf property vide notification dated 13.01.1982. Since the contesting defendants declined to surrender the possession to the Board, O.S No.15 of 1995 for declaration and recovery of possession was instituted. During its pendency, the first defendant Muthalif Ambalam passed away and the appellants herein who are his legal heirs were brought on record. Muthalif Ambalam in his written statement, had contended that the suit property is a Government poramboke and that it was never a Wakf property. Based on the rival pleadings, the trial Court framed the necessary issues. The plaintiff examined PW.1 and PW.2. Exs.A1 to A14 were marked. Three witnesses were examined on the side of the defendants and Ex.B.1 to Ex.B.139 were marked. After considering the evidence on record, the trial Court dismissed the suit by judgment and decree dated 05.08.1996. Questioning the same, the plaintiff/Board filed A.S.No.43 of 1997 before the Sub Court, Sivagangai. The first appellate Court by judgment and decree dated 15.06.1998 set aside the judgment and decree passed by the trial Court and allowed the appeal. Challenging the same, this second appeal came to be filed by the contesting defendants.

3.The second appeal was admitted on the following substantial question of law:-

“Whether the defendants who have a possessory title due to long and continuous possession of the suit property could be dispossessed without proof of a better title ?”.

4.Heard the learned counsel on either side.

5.The learned counsel appearing for the appellants submitted that it is incorrect to assume that the suit property is a Wakf property. According to him, the procedure set out in Section 27 of the Wakf Act, 1954 was not at all followed. There is nothing on record to indicate that the then mutawalli was put on notice. He characterised Ex.A.1 and Ex.A.2 as nullity and hence the suit proceedings are clearly not maintainable. He submitted that the suit property is actually a burial ground as evidenced by the stand taken by the Government. It is not open to the Wakf Board to declare a Government poramboke as a Wakf property. The learned counsel reiterated all the other grounds set out in the memorandum of grounds and called upon this Court to answer the substantial question of law in favour of the appellants and allow this appeal and restore the decision of the trial Court.

6.The sixth respondent produced the relevant records indicating that the property in question is a burial ground. The learned Government Advocate submitted that the impugned judgment passed by the first appellate Court does not call for any interference.

7.The first appellate Court had declared that the suit property is a Wakf property. The Government of Tamil Nadu is of course a party to the proceedings. It figured as respondent No.9 before the first appellate Court. The Government has not challenged the impugned judgment. The contesting private defendants alone have come before this Court. The only question is whether the suit property is a Wakf. To show that the property in