19 August 2004
Supreme Court
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SAYED MUHAMMED MASHUR KUNHI KOYA THANGAL Vs BADAGARA JUMAYATH PALLI D. COMMTT.

Case number: C.A. No.-001864-001864 / 2003
Diary number: 17871 / 2001
Advocates: E. M. S. ANAM Vs


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CASE NO.: Appeal (civil)  1864 of 2003

PETITIONER: Sayed Muhammed Mashur Kunhi Koya Thangal

RESPONDENT: Badagara Jumayath Palli Dharas Committee & Ors.

DATE OF JUDGMENT: 19/08/2004

BENCH: Shivaraj V. Patil & B.N. Srikrishna

JUDGMENT: J U D G M E N T

Shivaraj V. Patil J.

       The first respondent (plaintiff) filed the suit O.S.  No.91/84 for declaration of its title and for recovery possession  of the plaint schedule property.  The appellant (defendant no. 2)  filed written statement in the suit contending that the suit was  not maintainable; the plaintiff had no title to the plaint  schedule land; the agreement dated 13.2.1973 did not confer any  title on the plaintiff and the said agreement was signed only by  five members of the tarwad out of about 100 members and it did  not convey legal or valid title over the properties in question  on the plaintiff.  In addition, the defendant no. 2 resisted the  suit on some more grounds.  Trial court, after a full dressed  trial, appreciating the evidence placed on record, decreed the  suit declaring that the plaintiff-committee has got title to the  property as mutawalli in management of the mosque and common  graveyard.  The trial court also granted decree for recovery of  possession of plaint schedule property from the defendant no. 2  with a direction that the defendant no. 2 should demolish the  alterations made by him during the pendency of the suit and  surrender possession of the premises with the structure that  existed prior to the institution of the suit.  The defendant no.  2 was also restrained by permanent injunction from demolishing or  altering the tomb which existed on the property at the time of  the institution of the suit.  The defendant no. 2 filed appeal  A.S. No. 187/87 in the court of the District Judge.  The first  appellate court, on consideration and reappreciation of evidence  recorded the findings against the plaintiff.  It allowed the  appeal and dismissed the suit holding that the plaintiff failed  to establish its entitlement to the suit property and that it was  not entitled for recovery of possession of the same.  The first  appellate court also found against the defendant no. 2 in regard  to his claim of title over the suit property.  Aggrieved by the  judgment and decree of the first appellate court, the plaintiff  filed second Appeal No.  638/88-A in the High Court.  The  defendant no. 2 also filed cross objections in so far as the  findings of the district court were against him.  The learned  Single Judge of the High Court referred the appeal to a Division  Bench for consideration and decision on the following question of  law

"The question to be decided is whether Section 85  will operate in respect of the pending proceedings  which has not become final."

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       The Division Bench of the High Court allowed the second  appeal filed by the plaintiff and dismissed the cross objections  filed by the defendant no. 2.  The High Court, by the impugned  judgment, held that transfer of mutawalliship in favour of the  plaintiff was not valid.  It also held that Exbt. A-2, the  agreement dated 13.2.1973, was not valid in the eye of law but at  the same time the Division Bench held that the plaintiff- committee was entitled to sue for recovery of possession of the  plaint schedule property.  The High Court also gave directions to  the State Wakf Board to exercise its power under Section 63 of  the Act to appoint a mutawalli in place of the plaintiff.  Hence  defendant no. 2 is in appeal before us calling in question the  validity and correctness of the impugned judgment and decree.

       The High Court in the impugned judgment has recorded that  the following substantial questions of law arose for  consideration:-

"1.     Whether this court is competent to decide the  question of Wakf in view of Section 85 of the  Wakf Act, 1995?

2.      Whether the right of Mutawalli is transferable?

3.      Was the court below correct in holding that the  plaintiff was not legally entitled to file the  suit?"

       On the first two questions, the High Court found against  the plaintiff observing that the civil court had jurisdiction to  try the suit and the transfer of mutawalliship was not valid.  In  dealing with the third question, the High Court accepted the  alternative argument of the learned counsel for the plaintiff  that even if Exbt. A-2, the agreement dated 13.2.1973, was  invalid, since the plaintiff was acting as a mutawalli in fact,  he was entitled to recover possession.  In doing so, the High  Court took note of the definition of mutawalli given in the Wafk  Act, 1954 that mutawalli includes a person who acts as mutawalli;  referred to the written statement filed by the Wakf Board wherein  it had been stated that the plaintiff-committee was very regular  in submitting annual statement of accounts to the Wakf Board and  in payment of annual contribution to the Board as per the  provisions of the Act.  The High Court relying on the decisions  in Moideen Bibi Ammal vs. Rathnavelu Mudali [AIR 1927 Madras 69]  and Syed Mustafa Peeran Sahib & Anr. Vs.  State Wakf Board rep.  by its Secretary, Madras [AIR 1969 Madras 66] concluded that a  person acting as a mutawalli is entitled to the rights and duties  of the mutawalli.  In this view, the High Court held that the  plaintiff-committee was entitled to sue for recovery of  possession.  The High Court rejected the contention of the second  defendant that the document created in favour of the first  defendant was valid.  The case of the second defendant that his  father was in possession from 1948 was also rejected.  In the  result, by the impugned judgment, the judgment of the first  appellate court was set aside and a decree was passed entitling  the plaintiff to recover possession of the plaint schedule  property from the second defendant.  A further direction was  given to the Wakf Board to exercise its power under Section 63 of  the Wakf Act and to appoint a mutawalli in place of the plaintiff  making it clear that the decree granted to the plaintiff could be  executed by the plaintiff or if the plaintiff is removed, by  another mutawalli appointed by the Wakf Board.  It may be stated  that the plaintiff-committee appeared to be satisfied with the

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impugned judgment as it has neither filed any appeal nor cross- objections aggrieved by it.

       Shri R.F. Nariman, the learned senior counsel for the  appellant, contended that the High Court committed a serious  error in reversing the judgment of the first appellate court on a  so-called substantial question of law without formulating it so  as to put the parties on notice; such a course adopted by the  High Court was contrary to the mandatory requirement of Section  100 of Civil Procedure Code.  The reversal of the judgment of the  first appellate court on a question of fact under Section 100 of  Civil Procedure Code, that too in the absence of any pleading  issue and supporting evidence, cannot be sustained.           In opposition, Shri T.L.V. Iyer, the learned senior counsel  for the respondents, made submissions supporting the impugned  judgment.  According to him, having regard to the definition of  mutawalli given in Section 3(f) of the Wakf Act, 1954, the  plaintiff-committee was mutawalli by virtue of the fact that it  was acting as a mutawalli even assuming that Exbt. A-2, the  agreement dated 13.2.1973, was invalid.  The learned senior  counsel, referring to the very judgments referred in the impugned  judgment, in particular the case of Moideen Bibi Ammal (supra),  submitted that no fault can be found with the impugned judgment.   He added that when the High Court has done substantial justice by  the impugned judgment, this Court may not interfere with the same  exercising jurisdiction under Article 136 of the Constitution;  doing so may amount to allowing a trespasser, i.e., the  appellant, to continue in possession of the suit property.

       It does appear to us from the impugned judgment that the  substantial questions of law were formulated for consideration in  the course of writing the judgment.  The learned Single Judge  referred the second appeal to the Division Bench only on one  question of law already referred to above.  Be that as it may,   the parties were not made known about the substantial questions  of law if formulated that arose for consideration as required  under Section 100 of Civil Procedure Code so that they could  address on such a substantial question of law.  In this case,  although findings have been recorded against the plaintiff on  questions 1 and 2, on the third question, the defendant No. 2 had  no opportunity to put forth his case.  This, in our view is a  serious infirmity being contrary to requirement of Section 100 of  Civil Procedure Code.  It is plain and well-settled that in order  to claim a decree for declaration of title and for recovery of  possession in the civil suit the plaintiff had to essentially  plead necessary facts so that the defendant could meet that case  in the written statement and the parties could adduce evidence on  such claims.  Our attention was drawn to plaint to show that  there was no such pleading.  It is clear from the perusal of the  plaint that the plaintiff did not plead the case that  alternatively it was acting as mutawalli as a matter of fact even  though Exbt. A2 was illegal and mutawalliship could not be  validly transferred.  No issue was raised by the trial court as  to whether the plaintiff was a mutawalli as per Section 3(f) of  the Wakf Act 1954.  Even before the first appellate court, the  only point that was taken up for consideration was "Whether the  first respondent is entitled to the declaration of title to the  plaint schedule property, recovery of possession of the plaint  schedule property along with the building situated therein on the  strength of plaintiff’s title and for a permanent prohibitory  injunction restraining the appellant from demolishing or altering  the existing building, tomb, situated in the plaint schedule  property".  No doubt, it was brought to our notice that the trial  court in its judgment has stated that the plaintiff-committee was  actually acting as a mutawalli but the first appellate court has

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clearly pointed out that the definite case pleaded by the  plaintiff was based on the title to the plaint schedule property  by virtue of Exbt. A-2 and that it was not a specific case in the  pleading of the plaintiff that by virtue of definition of  mutawalli under 1954 Wakf Act the plaintiff-committee actually  acting as a mutawalli was entitled for relief.  In this case, the  first appellate court in para 26 of its judgment has observed  thus:-

"26.      It would appear from a reading of the  judgment of the lower court that the lower court  proceeded on the footing that once it is found that  the title on the plaint schedule property set up by  the appellant is not established the first respondent  who filed the suit for declaration of title and  recovery of possession on the strength of title on  the plaint schedule property is entitled to succeed  in the suit.  It appears that the lower court forgot  the cardinal principle in a suit for declaration of  title and recovery of possession on the strength of  title, the plaintiff can succeed only on establishing  his title to the plaint schedule property and he  cannot succeed on the weakness of the case put  forward by the defendant.  My foregoing discussions  clearly establish that the first respondent has not  succeeded in establishing its title to the plaint  schedule property to obtain the declaration of title  and recovery of possession of the plaint schedule  property though rival title to the plaint schedule  property set up by the appellant is also found  against by him.  Therefore, it is clear that the  first respondent is not entitled to the declaration  of title to the plaint schedule property and recovery  of possession of the plaint schedule property along  with the building situated therein on the strength of  the plaintiff’s title and for the permanent  prohibitory injunction restraining the appellant from  demolishing or altering the existing building tomb  situated in the plaint schedule property."  

As is evident from the impugned judgment, the High Court  took into consideration the written statement filed by the  Secretary, Wakf Board wherein it has been stated that the  plaintiff-committee was very regular in submitting annual  statement of accounts to the Wakf Board and in payment of annual  contribution to the Board as per the provisions of the Act in  support of the view that the plaintiff was actually acting as a  mutawalli.  This approach, in our view, is not correct.  The  written statement filed by Wakf Board could not bind the  defendant no. 2.  Further any statement made in the said written  statement could not be accepted against the defendant No. 2  unless it was established on the basis of evidence.  The decision  of Moideen Bibi Ammal (supra), in our view, does not help the  plaintiff.  To apply the said decision, necessary facts ought to  have been pleaded and established.  In the case on hand, as  already noticed above, neither there was pleading specifically in  that plaint as to the plaintiff actually acting as a mutawalli to  come within the scope of Section 3(f) of 1954 Wakf Act nor  acceptable and sufficient evidence was placed on record to prove  it as a fact.  In the situation, the aforementioned decision has  no application to the case of the plaintiff.  When the plaintiff  came forward specifically pleading that he was entitled for  declaration of title and for recovery of possession of the plaint  schedule property based on the agreement Exbt. A-2 dated  13.2.1973, it could succeed only on the basis of validity of

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Exbt. A-2 and the validity of transfer of mutawalliship in its  favour.  Since all the courts have concurrently found that  mutawalliship could not be validly transferred in favour of the  plaintiff-committee under Exbt. A2, the suit filed by the  plaintiff ought to have been dismissed.  The plaintiff could only  succeed on the strength of its case and not on the weakness found  in the case of the defendant, if any. The first appellate court  having elaborately considered the evidence placed on record in  the light of the pleadings of the parties had come to the right  conclusion in dismissing the suit of the plaintiff.  The High  Court in second appeal, in our view, was not right in upsetting  the findings of fact recorded by the first appellate court, that  too without putting the parties on notice on the substantial  question of law.  Even otherwise, the finding of the High Court  on question no. 3 cannot be sustained when such a case did not  arise for consideration in the absence of necessary pleading in  the plaint in that regard.  More so when the case of the  plaintiff was based clearly on title said to have been derived  under Exbt. A-2.

Under the circumstances and in the light of what is stated  above, the impugned judgment cannot be sustained.  In the result,  the appeal is allowed, the impugned judgment is set aside except  the direction given to the Wakf Board to act under Section 63 of  the Wakf Act, 1995 and the suit filed by the plaintiff is  dismissed.  In other words, the direction given by the High Court  to the Wakf Board to exercise power under Section 63 of the Wakf  Act, 1995 is maintained.  In case any of the parties wants to  challenge that the property in question is not a wakf property,  it is open to such party to seek appropriate remedy in accordance  with law.  No costs.