1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:20.06.2011 CORAM: THE HONOURABLE MR.JUSTICE A.SELVAM S.A.(MD).No.176 of 2011 1.Syed Masood 2.Palgus Beevi ..Appellants/Defendants Vs. Alloor Muslim Samudaya Vagai, rep. By its Gajanji (Treasurer), Alloor, Alloor Post,Kalkulam Taluk, Kanyakumari District. ..Respondent/Plaintiff Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree made in A.S.No.49 of 2010 dated 22.09.2010 by the Sub-Court, Padmanabhapuram, confirming the judgment and decree of the Additional District Munsif Court, Eraniel made in O.S.No.89 of 2005 dated 13.03.2010. For Appellants :Mr.S.Palanivelayutham For Respondent :Mr.V.M.Balamohan Thambi JUDGMENT The concurrent judgments and decrees passed in O.S.No.89 of 2005 by the Additional District Munsif Court, Eraniel and in A.S.No.49 of 2010 by the Sub-Court, Padmanabhapuram are being challenged in the present second appeal. 2.The respondent herein as plaintiff has instituted O.S.No.89 of 2005 on the file of the trial Court for the relief of perpetual injunction, wherein, the present appellants have been shown as defendants. 3.It is averred in the plaint that the suit property is the absolute property of the plaintiff. The suit property has been let out to the father of the first defendant on monthly rental basis. The plaintiff has already instituted O.S.No.308 of 1996 for the relief of perpetual injunction, wherein, it has been held that the first defendant has ben enjoying the suit property as a tenant. The suit property is nothing but a dilapidated building and in order to evict the first defendannt, necessary notice has been issued under Section 106 of the Transfer of Property Act, 1872. After receipt of the same, the defendants have been making arrangements to alter the suit property. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. 4.In the written statement, it is averred that the suit property is the absolute property of Wakh Board and the plaintiff is not the owner of the same. It is false to say that the first defendant has been enjoying the suit property as a tenant. There is no relationship of landlord and tenant in between the plaintiff and first defendant and there is no merit in the suit and the same deserves to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 2 5.On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence, has decreed the suit as prayed for. Against the judgment and decree passed by the trial Court, the defendants as appellants have preferred A.S.No.49 of 2010 on the file of the first appellate court. 6.The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, has dismissed the appeal, whereby and whereunder, confirmed the judgment and decree passed by the trial Court. Against the concurrent judgments and decrees passed by the courts below, the present second appeal has been preferred at the instance of the defendants as appellants. 7.As agreed by the learned counsels appearing on either side, the present second appeal is disposed of on merits at the stage of admission. 8.On the side of the appellants/defendants, the following substantial questions of law have been raised for consideration: “1.Whether the lower appellate court is legally or factually correct in confirming the decree and judgment of the trial court which allowed the suit filed by the respondent/plaintiff as and when the appellants/defendants had disproved the case of the plaintiff by producing acceptable documents, clinching evidence and convincing materials disproving the case of the respondent/plaintiff? 2.Whether the courts below has jurisdiction to deal with this case as and when a separate forum of Wakf Tribunal viz., the Principal Subordinate Judge, Nagercoil has been constituted and in view of the above, whether the decree passed and subsequently as confirmed by the appellate court is legally a sustainable one or not? 3.Whether the entire proceedings vitiates for the non joinder of necessary parties in the suit viz., the Wakf Board which is the real owner admittedly? 4.Whether the above decree and judgment by the trial court and subsequently as confirmed by the appellate court is legally a sustainable one as and when there is a bar under Section 85 of Wakf Act?” 9.The sum and substance of the case of the plaintiff is that the suit property is the absolute property of the plaintiff and the same has been let out to the father of the first defendant and subsequently a suit has been instituted in O.S.No.308 of 1996 against the first defendant, wherein, it has been held that the first defendant has been enjoying the suit property as a tenant and further it is averred in the plaint that the building which situates in the suit property is in a dilapidated condition and in order to evict the https://hcservices.ecourts.gov.in/hcservices/ 3 first defendant, a notice has been issued under Section 106 of the Transfer of Property Act, 1882, and now, the defendants have been making arrangements to alter the suit property. Under the said circumstances, the present suit has been instituted for the relief sought for in the plaint. 10.The defence taken on the side of the defendants is that the suit property is the absolute property of the Wakf Board. The plaintiff has no locus standi to institute the present suit and further there is no relationship between the plaintiff and first defendant as landlord and tenant. Under the said circumstances, the present suit deserves to be dismissed. 11.As stated earlier, the courts below have concurrently rejected the defence taken on the side of the defendants. 12.The learned counsel appearing for the appellants/defendants has strenuously contended that the suit property is the absolute property of Wakf Board and the plaintiff is not the owner of the same and since the plaintiff is not the owner of the suit property, the plaintiff is not having locus standi to institute the present suit and the courts below, without considering the main defence taken on the side of the appellants/defendants, have erroneously rejected the same and therefore the concurrent judgments and decrees passed by the courts below are liable to be interfered with. 13.Per contra, the learned counsel appearing for the respondent/plaintiff has also equally contended that the suit property is the absolute property of the plaintiff and the plaintiff has already filed O.S.No.308 of 1996 against the first defendant, wherein, it has been held that the first defendant has been enjoying the suit property as a tenant and since the defendants have been making arrangements to alter the suit property, the present suit has been instituted and the courts below, after considering the rival evidence adduced on either side, have rightly rejected the defence taken on the side of the defendants and therefore the concurrent judgments and decrees passed by the courts below are not liable to be interfered with. 14.The present suit has been instituted for the relief of perpetual injunction. The main averments made in the plaint are that the plaintiff is the owner of the suit property and the same has been let out to the father of the first defendant on monthly rental basis and subsequently a suit has been instituted in O.S.No.308 of 1996 against the defendants, wherein, it has been held that the first defendant has been enjoying the suit property as a tenant and the suit property is in a dilapidated condition and the plaintiff has decided to demolish the same. Under the said circumstances, a notice under Section 106 of the Transfer of Property Act, 1882 has been given to the defendants. Now the defendants have been making arrangements to alter the suit property. 15.Even though it has been contended on the side of the defendants that the suit property is the absolute property of the https://hcservices.ecourts.gov.in/hcservices/ 4 Wakf Board, no document has been filed on the side of the defendants. But on the other hand, on the side of the plaintiff, enormous documents have been filed so as to prove that the plaintiff is the owner of the suit property. Considering the fact that enormous documents have been filed on the side of the plaintiff so as to prove that the suit property is the absolute property of the plaintiff, it is needless to say that the main defence taken on the side of the appellants/defendants cannot be accepted. 16.As stated supra, the present suit has been instituted for the relief of perpetual injunction so as to restrain the defendants from altering the suit property. Considering the fact that the suit property is the absolute property of the plaintiff and also considering that the first defendant has been enjoying the same as a tenant on monthly rental basis, the defendants have no locus standi to make any alteration in the existing building. Since the defendants have no right to make any alteration in the existing building, it is needless to say that the relief sought for in the plaint can very well be granted in favour of the plaintiff. 17.The Courts below, after considering the rival evidence adduced on either side, have rightly rejected the defence taken on the side of the defendants. In view of the discussion made earlier, this court has not found any error in the concurrent judgments and decrees passed by the courts below and the substantial questions of law raised in the present second appeal are not having substance at all and altogether the present second appeal deserves to be dismissed. 18.In fine, this second appeal deserves dismissal and accordingly, is dismissed without costs at the stage of admission. The concurrent judgments and decrees passed by the Courts below are confirmed. Consequently, connected M.P.No.1 of 2011 is also dismissed. Sd/- Assistant Registrar (P&A) /True Copy/ Sub Assistant Registrar To 1.The Subordinate Judge, Padmanabhapuram. 2.The Additional District Munsif, Eraniel. +1cc to Mr.S.Palanivelayutham, Advocate Sr.No.19302 +1cc to Mr.V.M.Balamohan Thambi, Advocate Sr.No.19307 vs akm/20.07.11 /5p-5c/ SA.(MD).No.176 of 2011 https://hcservices.ecourts.gov.in/hcservices/