IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED.09.08.2011 CORAM: THE HONOURABLE MR.JUSTICE T. MATHIVANAN A.S.No.712 of 2008 1.Anbu 2.Natarajan 3.Munusamy 4.Panchatcharam 5.Natarajan 6.Kannan 7.Ravi ... Appellants/Defendants Vs. Chinnakarasamangalam Sunnath Val Jamath by its Patel and Muthawalli K.K.Hajibasha (died) Present Managing Trustee P.K.Khader Sheriff ... Respondent/Plaintiff Prayer: Appeal is filed under Section 96 of the Code of Civil Procedure against the Judgment and Decree dated 03.04.2006 and made in O.S.No.381 of 2003, on the file of the learned Subordinate Judge, Vellore. For Appellants : Mr.R.Margabandhu For Respondent : Mr.W.M.Abdul Majeed J U D G M E N T Challenge is made in this appeal by the defendants against the Judgment and Decree dated 03.04.2006 and made in O.S.No.381 of 2003, on the file of the learned Subordinate Judge, Vellore. 2. The matrix of the facts required for the disposal of this appeal are detailed as under: 2.1. The plaintiff is the owner of the schedule mentioned property being the mosque and burial ground for muslim for more than 100 years. The plaintiff, is in full and absolute possession of the https://hcservices.ecourts.gov.in/hcservices/ schedule mentioned property and quiet enjoyment of the same, without let or hindrance. The said mosque and burial ground of Karasamangalam has been registered with the Tamil Nadu State Wakf Board, as the Wakf as per Section 25 of the Wakf Act, 1995 as 288A, North-Arcot. The Wakf has been administered by the plaintiff Committee, headed by its Muthawalli and Patel. The said property has been vested with the Committee and registered as a Wakf for the benefit of the Muslim committee. 2.2. Whileso, unduly and unlawful elements, who have scant regard for law and Courts and peoples' right tried to encroach and to make use of the property for their nefarious purposes. With great difficulty, the plaintiff was able to resist the same by lodging complaints with concerned authorities. Periodically, the plaintiff would clear the area of shrubs and make it presentable and usable by contributions as aforestated. The Karasamangalam Muslim Community has the schedule mentioned property only as burial ground and there is no other property available to bury their dead. 2.3. For annual rituals the ground used to be cleaned and it was also thought fit by the Tamil Nadu State Wakf Board and the plaintiff that the property must be protected from vandals and encroachers, for which it was resolved to put up a compound wall surrounding the entire area by funds to be generated from contributions from the local community and also well wishers. 2.4. With that object in view when the plaintiff was making arrangements to clear the area, the defendants had suddenly attempted to trespass on the land, as if the land is belonged to them. When the plaintiff protested, the defendants surrounded by their minions and interested intermeddlers raised a dispute claiming that they need a part of the land for their own purpose, claiming that it could be used for a cemetery or burial ground or even for cremation. Being a Muslim property, it cannot be used for such purpose and the defendants can have no claim over the schedule mentioned property as it exclusively belongs to the plaintiff and the defendants are merely trying to make a false claim and also giving a communal colour and twist to the claim. Hence, the suit is filed for the relief of declaration and permanent injunction. 2.5. The defendants 1, 3 to 7 have adopted the written statement of the second defendant. They have contended that the defendants and the plaintiffs are living in Karasamangalam Village. Originally, there were ten houses for Muslims and fifty houses for Hindus. They are living amicably and harmoniously. There is a separate burial ground for Hindus in Karasamangalam Village in Survey No.263, measuring 0.65.0 Hectare and for Muslims in Survey No.268/2, measuring 0.15.5 Hectare. If any Hindu dies his body will be buried in the land comprised in Survey No.263. Likewise, if any Muslim dies his body will be buried in the land comprised in Survey No.268/2. https://hcservices.ecourts.gov.in/hcservices/ Muslims have also constructed a mosque in the above said survey number. The plaintiff is the owner of the mosque and burial ground in Survey No.268/2, measuring 0.15.5 Hectare. He is not the owner of Survey No.263, measuring 0.65.0. 2.6. The site comprised in Survey No.268/2, measuring 0.15.5 Hectare has been used as Muslim burial ground. On the other hand, the site comprised in survey No.263, measuring 0.65.0 Hectare has been used as Hindu burial ground for more than 100 years. The Muslims never used this Survey No.263 and they are also not in possession and enjoyment of the same. The Adangal itself will clearly show that Survey No.268/2, measuring 0.15.5 has been used by the Muslim as mosque and burial ground and Survey No.263, measuring 0.65.0 Hectare has been used as burial ground for Hindus. The plaintiff has deliberately suppressed these facts in the plaint. 2.7. The Muslims tried to encroach the Hindus burial ground in Survey No.263 by putting up thatched house in the year 1984 and the same was prevented successfully. Besides this, the Muslims were also trying to bury the dead body in the Hindus burial ground comprised in Survey No.263 in the same year. This was also prevented by Hindus. Again in the year 1989, the Muslims were tried to erect a board stating that the Survey No.263 belongs to the Wakf property. It was also prevented by the Hindus with the help of Police. 2.8. Apart from that, they had also tried to cut the trees standing in Survey No.263 in the year 1992. The same was also reported to the Revenue Divisional Officer, Vellore. A case was registered under Section 107 of the Code of Criminal Procedure in Crime No.266 of 1993. An enquiry was conducted by the Revenue Divisional Officer. In the said enquiry, the plaintiff had failed to produce documentary evidence to substantiate their case that the land in Survey No.263 belongs to them. In the interregnum, the Muslims were again trying to bury a Muslim dead body in the Survey No.263. This was prevented by the Hindus. The Revenue Divisional Officer had intervened and subsequently the body was buried in Survey No.263 at the protest of Hindus. 2.9. The Revenue Divisional Officer, after full enquiry, had passed an Order on 30.09.1994 and thereby he had allotted an extent of 0.32.5 Hectare, on the eastern side, to Muslims and the remaining extent of 0.32.5 Hectare on the western side to Hindus as burial ground in Survey No.263. In pursuant to the Order of the Revenue Divisional Officer, the Tahsildar of Gudiyatham, had sub-divided the Survey No.263 in two parts viz.263/1 and 263/2. Anyhow, the Hindus are also having half right in Survey No.263 as per the Revenue Divisional Officer's Order. The defendants have specifically denied the other allegations made in the plaint. https://hcservices.ecourts.gov.in/hcservices/ 3. Based on the pleadings of the parties to the suit, the Trial Court has carved out the following three issues for the better adjudication of the suit: i. Whether the plaintiff is entitled for declaration and injunction? ii. Whether the defendants have title over the suit property in Survey No.263? iii. To what relief the plaintiff is entitled? 4. In order to substantiate their respective cases, five witnesses were examined on behalf of the plaintiff and during the course of their examination Exs.A1 to A17 were marked. On the other hand, three witnesses were examined on behalf of the defendants and during the course of their examination Exs.B1 alone was marked. 5. On appraising the evidences on record and on considering the related facts and circumstances, the Trial Court has proceeded to decree the suit on 03.04.2006, after declaring the plaintiff's title to the suit property and consequently granting the relief of permanent injunction in favour of plaintiff. 6. In order to arrive at the above conclusion, the Trial Court has observed that: i. it was a customary right, extending over a long period, which is to be recognized by the Court and that the Court need not consider the specific number of years to which the prescription has lasted; ii. it has been established that the Muslims used to bury the dead bodies in Survey No.263 for more than 40 years or 50 years and that the plaintiff has every right to succeed; iii. based on the decision reported in Shahi Jama Masjid, Merta, Vs. Kanhaiya Lal Bhagat and others, AIR 1973 Rajasthan 322, a person who is in long possession of property can undoubtedly maintain a suit to turn out a trespasser who is to show a title better than that of the plaintiff, if the plaintiff's long possessions is otherwise established. In the absence of the Government or the Municipal Board the decree may not be binding on them. But, the defendants in the case cannot be heard to say that the suit cannot proceed without the government or the Municipal Board being made a party to the suit. https://hcservices.ecourts.gov.in/hcservices/ Ultimately, it was held that to grant the relief of declaration in favour of the plaintiff, the presence of Government in the suit is not at all required. 7. Being dissatisfied with the Judgment and Decree of the Trial Court, the defendants stand before this Court with this appeal on the following grounds: a) The defendants are concerned only in respect of the property in Survey No.263/1, measuring 0.32.5 Hectare of the land (Hindu burial ground); b) Survey No.263 was originally classified as 'Mayanam Promboke Land' and it was used by the Hindus as graveyard, whereas the Muslims are having separate graveyard in Survey No.268/2 and hence the suit has to be dismissed in respect of Survey No.263/1, measuring 0.32.5 Hectare of land, which has been entered as burial ground for Hindus in the settlement register dated 11.10.1994.; c) There was no dedication in form of grant in favour of Muthavalli. There was also no anterior dedication mentioned either in Ex.A3 or Ex.A16. Ex.A16 and Ex.A3 came into existence aftr dispute arose between Hindus and Muslims in the year 1984. Ex.A16 came into existence in the year 1999 after Ex.B1 in the year 1994, but these documents are subsequent to 1984 when the trouble started between Hindus and Muslims, which resulted in passing of order under Section 107 and 111 Proceedings under the Code of Criminal Procedure. d) The plaintiff has not perfected title by way of adverse possession. The finding that the plaintiff's adverse possession was not pleaded by the plaintiff in their pleading, but on the other hand, they relied upon the title which was not proved. 8. Heard Mr.R.Margabandhu, learned counsel for the appellants/defendants and Mr.W.M.Abdul Majeed, learned counsel for the respondent/plaintiff. 9. The suit in O.S.No.381 of 2003 has been filed by the plaintiff seeking the following reliefs: a) declaring the title of the schedule mentioned property to the plaintiff; b) consequently grant an order of permanent injunction, restraining the defendants, their men, agents, servants and others from in any manner, interfering with the rights of the plaintiff over the schedule mentioned property; and https://hcservices.ecourts.gov.in/hcservices/ c) directing the defendants jointly and severally to pay the costs of the suit and other ancillary proceedings; 10. As per the plaint, the property has been described as under: In N.A.A. District, Gudiyattam Taluk, Karasamangalam Village, Mosque and the burial ground in Survey Nos.263 and 268. As per the case of the plaintiff, the suit schedule property is the Wakf property. Virtually, the plaintiff has not pleaded that he is having prescriptive title over the suit property by way of adverse possession. In short, the plaintiff has not pleaded that he had prescribed adverse possession. However, the Trial Court has proceed to pass a decree declaring the title of the plaintiff over the suit property on the ground of adverse possession. 11. Sub-clause (r) to Section 3 of the Wakf Act, 1995 (43 of 1995) (hereinafter it may be referred to as Act) defines the expression 'Wakf' as follows: (r) "wakf" means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable and includes- (i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser; (ii) " grants", including mashrut- ul- khidmat for any purpose recognized by the Muslim law as pious, religious or charitable; and (iii) a wakf- alal- aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, and" wakf" means any Person making such dedication; 12. From the Judgment of the Trial Court it appears that an argument was advanced by the learned counsel for the appellants/defendants that since the land was a Government land, the Government was not made as a party and hence the suit was bad. In support of his contention, the learned counsel for the defendants before the Trial Court had placed reliance upon the decision reported in Shahi Jama Masjid, Merta, Vs. Kanhaiya Lal Bhagat and others, AIR 1973 Rajasthan 322. In this case in Paragraph No.22, the learned Single Judge of Rajasthan High Court has observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "21. Then I may deal with the question whether the Government and the Municipal Board, Merta City were necessary parties to the suit. Learned counsel for the respondents argued that the plaintiffs had not produced any title deeds for the disputed strip of land and their case was based on long possession. Therefore, the question of title could not be effectively adjudicated upon in the absence of the Government or the Municipal Board, Merta City. Now, it is true the plaintiffs have not produced any title deeds, but long possession may be evidence of title as well. A person who is in long possession of property can undoubtedly maintain a suit to turn out a trespasser on the property, as it is the trespasser who is to show a title better than that of the plaintiff, if the plaintiffs long possession is otherwise established. In the absence of the Government or the Municipal Board the decree may not be binding on them, but the defendants in the case cannot be heard to say that the suit cannot proceed without the Government or the Municipal Board being made a party to the suit. I therefore, do not find any force in this contention either." 13. Based on the above cited decision, the learned Trial Judge has rejected the contention made on behalf of the defendants. But, the Trial Court has placed reliance upon the decision of this Court reported in Mohamed Ali and others vs. Khader and others, 1999(2) MLJ 183. In this case two important questions were arisen as to whether specific dedication is necessary in order to create a wakf and whether the disputed property is wakf property. On these questions, the learned Single Judge of this Court has held in Paragraph No.12 as follows: "12.Even subsequent to the decision of the learned single judge reported in Rahiman Sahib Chowdary v. Marudappa Naicker A.I.R. 1924 Mad. 577 cited above, many judgments have been rendered by the Privy Council as well as other High Courts holding the contra view. In the very judgment relied on by the learned Counsel for the appellants for the proposition that the question of custom would be a mixed question of law and fact and namely, Lakshimidhar Misra v. Ratanlal A.I.R. 1950 P.C. 56, the Privy Council has positively held that dedication was known only to English Law as something equivalent to an irrevocable licence granted by the owner for the use of the public. But a customary right can always be established by https://hcservices.ecourts.gov.in/hcservices/ proper evidence to the effect that the said lands were used for generation as cremation or burial ground. A Division Bench of Andhra Pradesh Court, in its judgment reported in Gulam Mohideen v. Abdul Majid A.I.R. 1957 A.P. 941, has held that though there may be no specific or public dedication, the user of the land as a Muhammadan burial ground for a long time would by itself make the land a wakf land. In the absence of direct evidence of dedication it was open to the parties to establish the right by long user, If dedication was proved or admitted, then mere non-user for some years may not detract from the character of the graveyard as a wakf. But when the evidence of user assumes importance and the continued user for a long time was sufficient to interfere in favour of a Wakf. Therefore, there is overwhelming authority to support the proposition that there need not be specific dedication in favour of the Muslim community in general in order to prove as to whether the property is a wakf property or not." 14. The learned Trial Judge has also placed reliance upon a decision reported in Gulam Mohideen v. Abdul Majid, AIR 1957 AP 941, in which it is held that though there is no public dedication, the user of the land, as a Mohamedan burial ground for a long time would by itself make the land wakf land. Though a wakf may, in the absence of direct evidence of dedication, be established by evidence of user, the user from which dedication can be implied must be clearly established and must be of such a character as to be consistent only with dedication of the land as a graveyard. If dedication is proved or admitted, then mere non-user for some years may not detract from the character of the graveyard as a wakf. But, when the question is whether a land has become wakf by user without a dedication, the evidence of user assumes importance, for it is on continued user for a long time and in many cases that the inference of a wakf has to be drawn. 15. On coming to the instant case on hand, Mr.R.Margabandhu, learned counsel for the appellants/defendants has contended that the property which has been described as suit property in the plaint is not a wakf property as evident from Ex.B1. Ex.B1 appears to be Form No.156 settlement register of No.129, Karasamangalam Village, Gudiyatham Taluk, North Arcot District. In this document, Survey No.263, measuring 0.65.0 Hectare has been classified as Promboke and described as graveyard (burial ground). It is also seen from this document that Survey No.263 has been divided into two compartments: https://hcservices.ecourts.gov.in/hcservices/ i) Survey No.263/1 measuring 0.32.5 Hectare classified as Promboke and described as Hindus graveyard, and ii) Survey No.263/2 measuring 0.32.5 Hectare classified as Promboke and described as Muslims graveyard. 16. The learned counsel would submit further that as per the revelation of Ex.B1, settlement register, the land comprised in Survey No.263 is the Government Mayanam and as such no one can claim exclusive right over the said land. He would submit further that the appellants/defendants are not claiming any right over the land comprised in Survey No.268 as the land has been used by the respondent/plaintiff as their burial ground. He has also admitted that the appellants/defendants do not have any dispute over the land as a mosque and burial ground are encompassed in the above said land. In sofar as the appellants/defendants are concerned, they are disputing the land comprised in Survey No.263. 17. The learned counsel has also added that the plaintiff has not produced any document to substantiate their claim that the suit properties have been dedicated as wakf. He has also adverted to that the Government has also not issued any documents in favour of the plaintiff to show that the suit properties are the wakf properties. 18. The case of the appellants/defendants is that a dispute was arisen between the Hindus and Muslims when the Muslims were trying to bury the dead body in Survey No.263. Then proceedings were initiated in Crime No.266 of 1993 under Section 107 of the Code of Criminal Procedure. After due enquiry, the Revenue Divisional Officer had passed an Order in Na.Ka.No.m3/9986 of 1993 dated 30.09.1994 and thereby he had allotted an extent of 0.32.5 Hectare on the eastern side of the land in Survey No.263 to Muslims and allotted the remaining extent of 0.32.5 Hectare on the western side to the Hindus for using the same as burial ground. Hence, the Survey No.263 Government burial ground was sub-divided into two parts viz.263/1 and 263/2. 19. It is significant to note here that the plaintiff challenging the order of the Revenue Divisional Officer dated 30.09.1994, had preferred a criminal revision before this Court in Crl.R.C.No.565 of 1994. This Court, after hearing both sides and on deep analysation of the relevant materials on record had ultimately quashed the impugned order dated 30.09.1994 with an observation that the parties are at liberty to work out their respective rights in appropriate forum. In view of the Order passed by this Court dated 15.12.1997 and made in Crl.R.C.No.565 of 1994 quashing the impugned https://hcservices.ecourts.gov.in/hcservices/ order of the Revenue Divisional Officer dated 30.09.1994, the evidentiary value of Ex.B1, settlement register in respect of No.129 Karasamangalam Village has become under question. 20. Ex.A1 is the proceedings of the Chairman, Tamil Nadu Wakf Board, Madras-4. As per his proceedings in Proc.No.19324/88/C4/NA, dated 29.03.1989, 'The wakf known as Karasamangalam Masjid & Burial Ground Wakf, Karasamangalam Village, North Arcot District has been registered as No.228/NA with the Tamil Nadu Wakf Board as required under Section 25 of the Wakf Act, 1954. 21. Ex.A2 is the letter dated 08.05.1990 addressed to erstwhile Muthavalli of Karasamangalam Masjid & Burial ground by the Secretary, Tamil Nadu Wakf Board, enclosing the proceedings of the Chairman of Wakf Board, Madras-4 in which it is stated that the Karasamangal Mosque and Burial Ground, Karasamangalam Village, Latteri Post, Gudiyatham Taluk, North Arcot District has been registered with the Tamil Nadu Wakf Board as per Section 25 of the Wakf Act, 1954 and its registration number is 288/NA. 22. During the course of his argument, the learned counsel appearing for the defendants has made reference to Section 4(3), 5 and 6(1) of the Wakf Act, 1995. In this circumstance, it is imperative on the part of this Court to have reference of Sections 4 (3), 5 and 6(1) of the Act Wakf Act, 1995. Sections 4(1) and 4(3), 5 and 6(1) enacts as follows: 4. Preliminary survey of wakfs:- (1) The State Government may, by notification in the Official Gazette, appoint for the State a Commissioner of Wakfs and as many additional or assistant commissioners of wakfs as may be necessary for the purpose of making a survey of wakf properties existing in the State at the date of the commencement of this Act. (2) ............. (3) The Survey Commissioner shall, after making such inquiry as he may consider necessary, submit his report in respect of wakfs existing at the date of the commencement of this Act in the State or any part thereof, to the State Government containing the following particulars, namely- (a) the number of wakfs in the State, or as the case may be, any part thereof], showing the Shia wakfs and Sunni wakfs separately; https://hcservices.ecourts.gov.in/hcservices/ (b) the nature and objects of each wakf; (c) the gross income of the property comprised in each wakf; (d) the amount of land revenue, cesses, rates and taxes payable in respect of such property; (e) the expenses incurred in the realisation of the income and the pay or other remuneration of the mutawalli of each wakf; and (f) such other particulars relating to each wakf as may be prescribed. 5. Publication of list of wakfs.- (1) On receipt of a report under sub- section (3) of section 4, the State Government shall forward a copy of the same to the Board. (2) The Board shall examine the report forwarded to it under sub- section (1) and publish, in the Official Gazette, a list of Sunni wakfs or Shia wakfs in the