IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD WEDNESDAY, THE TWELFTH (12TH) DAY OF OCTOBER, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Second Appeal Nos.113, 153 and 265 of 1999 SA No.113 of 1999 & SA No.153 of 1999: Between: Mohd. Raheemullah Khan (died) by Lrs) … Appellants And: A.P. Wakf Board, rep. by its Secretary, Hyderabad & others … Respondents SA No.265 of 1999: Between: Mohd. Raheemullah Khan (died per LRs) … Appellants And: Syed Shah Sadiq Mohiuddin Qadri & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Second Appeal Nos.113, 153 and 265 of 1999 COMMON JUDGMENT: These three appeals are directed against the common judgment dated 08.09.1998 in AS Nos.305, 306 and 307 of 1994 on the file of the III Additional Chief Judge, City Civil Courts, Hyderabad, wherein the said appeals filed by the appellants herein were dismissed, confirming the common judgment dated 19.09.1994 in OS Nos.671, 672 and 745 of 1984 on the file of the V Assistant Judge, City Civil Court, Hyderabad, wherein the said suits filed by the appellants herein were dismissed. 2. Heard the learned counsel for the appellants and the learned counsel for the respondents. Perused the record. 3. The appellants herein filed three suits i.e., OS Nos.671 and 672 of 1984 against the respondents for declaration of Mutawalliship and for cancellation of the judgment and decree dated 28.08.1982 on the file of the 9th Assistant Judge, City Civil Court, Hyderabad in OS No.813 of 1979 and OS No.745 of 1984 is filed for the similar relief of declaration of Mutawalliship and for recovery of possession of mulgies bearing Nos.13-3-261 and 13-3-262 situated at Mustaidpura, Hyderabad and for past and future mesne profits was also prayed for. According to the plaintiffs, the suit mosque known as ‘Mohaboob Begum Mosque’, together with two mulgies is the private ancestral property of the plaintiffs, whose ancestors were functioning as Muthawalli and the property being a private wakf property devolved on the plaintiffs by succession. One Bahadur khan, who was the father of first plaintiff, was the Muthawalli of the suit mosque from the year 1955. One Syed Shah Ahmed Mohiuddin Qadri, father of first defendant in OS No.671 of 1984, obtained orders from the Assistant Secretary, Endowment Department in his favour with a direction to the first plaintiff’s father to deliver suit mosque in his favour. Aggrieved by the said orders, Bahadurkhan filed WP No.80 of 1955 and the same was allowed in 1956 declaring the orders of the Assistant Secretary as being void. Syed Shah Ahmmed Mohiuddin Qadri, filed OS No.308 of 1958 on the file of the II Assistant Judge, Hyderabad against the first plaintiff and his brothers for declaration that he is a Muthawalli of the suit mosque and for recovery of possession. The said suit was disposed of in 1961 holding that the order in WP No.80 of 1955 operates as res judicata. Defendants 3 to 5 in OS No.672 of 1984 are brothers and they are tenants of two mulgies. As they committed default in payment of rent, the deceased first plaintiff initiated rent control proceedings in RC Nos.180 and 181 of 1974 before the I Additional Rent Controller. The said two rent control petitions were allowed and the appeals preferred by the tenants were also dismissed. Further, the revision petitions filed by the tenants were also dismissed. While the first plaintiff was initiating execution proceedings for eviction, Syed Mohiuddin Qadri-2nd defendant in OS No.671 of 1984, filed OS Nos.813 and 814 of 1979 before 9th Assistant Judge, for declaration that the suit mosque is a registered wakf property and therefore, the provisions of AP Rent Control Act have no application and for consequential injunction restraining the first plaintiff from evicting the tenants. A.P. Wakf Board also filed OS No.1791 of 1979 for the similar reliefs. It is further pleaded that the first plaintiff became sick in 1981 due to paralysis and subsequently, when he recovered, he came to know that his counsel B.N.Chobe died on 03.02.1983 and thereafter, the first plaintiff was set exparte in those suits and exparte decrees were passed on 28.08.1982. The plaintiffs alleged that the plaintiffs in those three suits i.e., OS Nos.813, 814 and 1791 of 1979 played fraud and obtained decrees by misrepresentation and suppressing the real facts. The plaintiffs reiterated that their rights were already decided in the judgment and decree in OS No.308 of 1958 and the Rent Control proceedings also ended in favour of the first plaintiff. The defendants have no manner of right over the suit mulgies and defendants 3 to 5 in OS No.672 of 1984 are liable to be evicted in view of the eviction orders passed by the Rent Controller. 4. The first defendant in OS Nos.671 and 745 of 1984 and 2nd defendant in OS No.672 of 1984 filed written statement, contending that the suit Mosque is not a private property of the plaintiffs, but it is a registered wakf property, recorded in Kitabul-a-wakf maintained by A.P. Wakf Board. The first defendant’s ancestors were muthawallies and later, first defendant’s father Syed Shah Ahmed Mohiuddin Qadri became muthavalli and after his death, the first defendant is functioning as muthawalli. The suit mosque being a registered wakf property is not governed by the provisions of A.P. Rent Control Act, and therefore, the orders of eviction passed by the Rent Controller in RC Nos.180 and 181 of 1974 are without any jurisdiction. The first defendant has no knowledge about the proceedings in WP No.80 of 1955 or in OS No.308 of 1958, as he is not a party to the said proceedings. He further pleaded that the decrees passed in OS Nos.813, 814 and 1791 of 1979 have become final. 5. A.P. Wakf Board impleaded as defendant in OS No.672 of 84, also filed written statement, contending that the suit property is a registered wakf property and the eviction orders passed in RC Nos.180 and 181 of 1974 are null and void, being without jurisdiction. There is no relationship of landlord and tenant between the plaintiffs and defendants 3 to 5. The decrees passed in OS Nos.813, 814 and 1791 of 1979 are valid and binding. Bahadur Khan, plaintiff’s ancestor worked as Moazam, with a salary of Rs.10/- per month in the suit mosque. The ancestors of 2nd defendant in OS No.672 of 1984 were the previous multhavallies and later, 2nd defendant was appointed as muthawalli by Wakf Board. The other defendants also filed written statement, raising similar contentions. 6. Based on the pleadings, the trial court framed the following issues in OS No.671 of 1984: 1. Whether the suit is hit under Order 2 Rule 2 CPC as alleged by the defendants? 2. Whether the decree and judgment in OS No.813 of 1979 dated 28.08.1982 passed by the 9th Assistant Judge became final and operates as res judicata? 3. Whether the plaintiff is entitled for the reliefs as prayed for? 4. Whether the suit is premature as alleged by the defendant? 5. Whether there is no privity of contract between the plaintiff and defendant as alleged by the defendant? 6. Whether the suit is barred by time? 7. Whether Court fee paid is insufficient? 8. To what relief. 7. The following issues were framed in OS No.672 of 1984: 1. Whether the plaintiff is entitled for the reliefs as prayed for? 2. Whether the judgment passed in OS Nos.813/79, 814/79 and 1791/79 on the file of the 9th Assistant Judge operates as res judicata as contended by defendant? 3. Whether this suit is hit under Order 2 Rule 2 CPC and not maintainable? 4. Whether the plaintiff and his ancestors were Mutawallies of the suit property at any time? 5. Whether the suit is barred by limitation? 6. Whether the suit is hit for want of notice under Wakf Act? 7. Whether the defendants are tenants of the plaintiff and there is privity of contract between them as contended by him? 8. Whether the defendant No.2 is entitled for compensatory costs as prayed for? 9. Whether Court fee paid is not correct? 10. To what relief? 8. The following issues were settled in OS No.745 of 1984: 1. Whether the plaintiff is entitled to be declared as Mutawalli of suit mosque? 2. Whether the plaintiff is entitled for possession of suit mulgi? 3. Whether the plaintiff is entitled to ask cancellation of decree passed in OS No.814/79 on the file of 9th Assistant Judge? 4. Whether the suit is barred under Order 2 Rule 2 CPC? 5. Whether the suit is maintainable under the principle of res judicata? 6. Whether the plaintiff is entitled for damages and mesne profits as prayed for? 7. Whether the plaintiff is entitled for perpetual injunction as prayed for? 8. Whether the Court fee paid is sufficient? 9. To what relief? 9. The trial court also framed additional issues in OS No.670 of 1984, which are as follows: 1. Whether the plaintiffs are entitled for declaration that the plaintiff No.3 is the Mutawalli of the suit mosque known as ‘Mahaboob Begum Mosque’? 2. Whether the plaintiffs are entitled for the cancellation of the judgment and decree dated 28.08.1982 passed by the 9th Assistant Judge, City Civil Court, Hyderabad in OS No.813 of 1979? Additional issues in OS No.672 of 1984: 1. Whether the plaintiffs are entitled for declaration that the plaintiff No.3 is the Mutawalli of the suit mosque known as ‘Mahaboob Begum Mosque’? 2. Whether the plaintiffs are entitled for the cancellation of the judgment and decree dated 28.08.1982 passed by the 9th Assistant Judge, City Civil Court, Hyderabad in OS No.1791 of 1979? 10. During the course of trial, PWs.1 to 3 were examined and Exs.A.1 to A.18 were marked on behalf of the plaintiffs. DWs.1 to 3 were examined and no documents wee marked on behalf of the defendants. 11. On a consideration of the evidence available on record, the trial court held that the plaintiffs failed to establish that the decrees in OS Nos.813, 814 and 1791 of 1979 are obtained by the plaintiffs therein by playing fraud on the court or by misrepresentation of facts and consequently, held that the said decrees are not liable to be cancelled. The trial court also held that the plaintiffs failed to show that the suit mosque is their ancestral property. The trial court also held that the plaintiffs failed to establish that the defendants 3 to 5 are their tenants. Consequently, the trial court held that the plaintiffs are not entitled for recovery of possession of the suit mulgies or for damages or mesne profits or for consequential injunction in respect of the suit mulgies. The trial court also held that the suits are not barred by limitation and the suits are however barred by res judicata in view of the decrees passed earlier. The trial court also held that the suit OS No.672 of 1984 is bad for non-compliance with the mandatory requirement of issuing statutory notice under section 56 of the Wakf Act. Consequently, all the three suits were dismissed holding that the plaintiffs are not entitled for any of the reliefs prayed for. 12. Aggrieved by the same, the plaintiffs filed AS Nos.305, 306 and 307 of 1994. By impugned common judgment dated 08.09.1998, the learned III Additional Chief Judge, dismissed the three appeals. Assailing the same, the plaintiffs filed the present second appeals. 13. The main contention of the learned counsel for the appellants is that the exparte decrees in OS Nos.813, 814 and 1791 of 1979 are vitiated by fraud and misrepresentation. Learned counsel for the respondents, on the other hand would contend that the plaintiffs have failed to establish the alleged fraud and misrepresentation and the courts below have on proper appreciation of the evidence available on record, held that the said decrees which have attained finality, are valid and binding and the said findings recorded on the question of fact does not call for any interference in these second appeals. 14. The appellants/plaintiffs contend that the suit mosque is a private wakf and one Bahadur Khan, father of the deceased-first plaintiff was muthawalli and after his death, the first plaintiff became muthawalli. The plaintiffs further contend that the two mulgies belonging to the Mosque are let out to defendants 3 to 5 and as the tenants committed default in payment of rents the first plaintiff’s father filed rent control cases i.e., R.C.Nos.180 and 181 of 1974 and the eviction orders passed therein have become final. It is not disputed that the first defendant’s father Syed Shah Ahmed Mohiuddin Qadri, was appointed as muthawalli by the Endowments Department and a direction was issued to the first plaintiff’s father to deliver possession of the suit mosque to first defendant’s father. The first plaintiff’s father Bahadur Khan filed WP No.80 of 1958 questioning the said proceedings issued by the Assistant Secretary and the same was allowed, holding that the impugned orders were void as they were issued without conducting proper enquiry under section 43 of the Wakf Act. Thereafter, Syed Shah Ahmed Mohiuddin Qadri, filed OS No.308 of 1958 against the first plaintiff’s father and his brothers for declaration regarding muthwalliship. The said suit was disposed of in 1961 on the ground that the order in WP No.80 of 1958 operates as res judicata. While matters stood thus, A.P. Wakf Board filed OS No.1791 of 1979 and one Syed Shah Mohiuddin Qadri-2nd defendant in OS No.671 of 1974, filed suits i.e., OS No.813 and 814 of 1979 for declaration that the suit mosque is a registered wakf property and so, the Rent Control Act has no application and for consequential injunction restraining the first plaintiff’s father from evicting tenants in pursuance of the eviction orders issued in RC Nos.180 and 181 of 1974. The said suits were decreed exparte on 28.08.1982. The said decrees have become final as no appeals were preferred by the plaintiffs’ father. He did not even take any steps for setting aside the exparte decrees. The plaintiffs allege that the said decrees in OS Nos.813, 814 and 1791of 1979 are vitiated by fraud and misrepresentation and suppression of material facts. 15. According to the plaintiffs, first plaintiff engaged one B.N.Chobe, Advocate, as counsel to defend him in those suits and the first plaintiff became bedridden due to paralysis and therefore he could not pursue the matter and the counsel B.N.Chobe also died on 03.02.1983 and subsequently, the first plaintiff came to know that he was set exparte and exparte decrees were passed on 28.08.1982. The present suits are filed seeking cancellation of the decrees on the ground that they are vitiated by fraud and misrepresentation and to declare the first plaintiff as muthawalli. Admittedly, the first plaintiff engaged a counsel to defend him in the earlier suits and the first plaintiff has not pursued the matter personally and when the suits have ultimately resulted in passing exparte decrees, owing to non- appearance of the first plaintiff or his counsel, it is not known as to how the question of playing of any fraud arises. When the counsel Sri B.N.Chobe died on 03.02.1983, the first plaintiff ought to have engaged some other counsel to defend him, but he failed to do so. The latches and in action on the part of the first plaintiff in defending earlier suits is sought to be pitted against the defendants herein, as if they played fraud. Admittedly, the first plaintiff has not filed any application for setting aside the exparte decrees nor preferred any appeals against the common judgment and decree dated 28.08.1982. No reason or explanation is forthcoming from the plaintiffs for the said inaction on the part of the first plaintiff, which resulted in three judgments and decrees attaining finality. The plaint does not disclose any averments pertaining to the plea of alleged fraud and misrepresentation nor does the evidence on record substantiate the said contention. If the first plaintiff could not attend the court on account of paralysis and his counsel subsequently died and the first plaintiff has not engaged any other counsel and ultimately, the suits came to be decreed exparte, it is not understandable, how the question of fraud or misrepresentation comes into play. If really, any such fraud or misrepresentation is played by the defendants, nothing prevented the first plaintiff from filing the applications for setting aside the exparte decrees or preferring appeals against the said judgments. The plea of the plaintiffs that no immediate steps could be taken because the wife of the counsel B.N.Chobe, could not trace out the records in time, remains totally unsubstantiated besides being baseless. The exparte decrees were passed on 28.08.1982. Even according to the plaintiffs, the counsel B N Chobe died on 03.02.1983, which is about six months after passing of the exparte decrees. The said counsel was very much alive by the time exparte decrees were passed. It is only on account of the first plaintiff’s failure to appear before the court and pursue the matter, the suits came to be disposed of exparte. 16. The courts below on proper appreciation of the evidence, recorded concurrent finding to the effect that the plaintiffs have miserably failed to establish the plea of fraud and misrepresentation and even the said plea raised in the plaint is vague. The plea of alleged fraud and misrepresentation are matters of pure questions of fact to be decided on appreciation of evidence available on record. There is nothing on record to show that the concurrent findings recorded by the courts below rejecting the contention of the plaintiff is vitiated by any mis-appreciation of evidence or that the findings recorded are perverse. The concurrent findings recorded by the courts below on the said questions of fact namely that the plaintiffs failed to establish the plea of fraud and misrepresentation alleged by him with regard to exparte decrees passed in the earlier suits does not therefore call for any interference. 17. The decisions in the three earlier suits OS Nos.839, 840 and 1791 of 1979 to the effect that the suit mosque is a registered wakf under the provisions of the A.P. Wakf Act and the two mulgies belonging to the mosque, are wakf property and the provisions of the Rent Control Act have no application, has attained finality, as the plaintiffs failed to establish the plea of fraud and misrepresentation. The courts below have rightly dismissed the suits. No question of law muchless, substantial question of law arises for considerations in these second appeals. 18. In a decision in GURDEV KAUR AND OTHERS V. KAKI AND OTHERS[1], the Apex Court while dealing with the scope of Section 100 CPC held as follows:- “The analysis of cases decided by the Privy Council and this Court prior to 1976 clearly indicated the scope of interference under Section 100 CPC by this Court. Even prior to amendment, the consistent position has been that the Courts should not interfere with the concurrent findings of facts. Now, after the 1976 amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 CPC only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. 19. In HERO VINOTH V. SESHAMMAL[2], the apex Court held as follows: “Though the scope for interference with concurrent findings of fact while exercising jurisdiction under S. 100, CPC is very limited, and re-appreciation of evidence is not permissible where the trial Court and/or the first Appellate Court misdirected themselves in appreciating the question of law or placed the onus on the wrong party certainly there is a scope for interference under S. 100, CPC after formulating a substantial question of law.” 20. In view of the principles laid down in the above decisions, it must be held that the scope of interference by the High Court in a second appeal, particularly after the amendment of Section 100 CPC is very very limited and is confined only to cases where a substantial question of law arises. The concurrent finding of fact recorded by the Courts below cannot be interfered with in exercise of jurisdiction under Section 100 CPC nor can the High Court seek to correct any erroneous findings of the appellate court even on questions of law unless such question of law is a substantial one. 21. In the circumstances and in view of the principles laid down in the above decisions, there are no merits in the second appeals and they are liable to be dismissed. 22. In the result, the three appeals are dismissed. No order as to costs. G.V.SEETHAPATHY, J Date: 12.10.2011 bss [1] (2007) 1 SCC 546 [2] (2006) 5 SCC 545