IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 23.7.2010 Coram: THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.195 of 2008 Hajee M.S.Farook .. Appellant/Defendant vs. The Board of Trustee of Makkan Trust, Rep.by its Hereditary Trustee Mr.P.A.G.Hussam Moulana No.88-89, (Old No.15) Mosque Street, Royapuram Chennai – 13 .. Respondent/Plaintiff The Second Appeal has been filed against the Judgment and decree, dated 1.8.2007, made in A.S.No.172 of 2006, on the file of the 1st Additional City Civil Court, Chennai, confirming the judgment and decree, dated 15.9.2005, made in O.S.No.3751 of 2002, on the file of the XVIIth Assistant City Civil Court, Chennai. For Appellant : Mr.V.Ayyathurai for Mr.N.M.S.Md.Jafarulla For Respondent : Mr.H.Mohamed Ghouse J U D G E M E N T The second appeal has been filed against the Judgment and decree, dated 1.8.2007, made in A.S.No.172 of 2006, on the file of the 1st Additional City Civil Court, Chennai, confirming the judgment and decree, dated 15.9.2005, made in O.S.No.3751 of 2002, on the file of the XVIIth Assistant City Civil Court, Chennai. 2. The defendant in the suit, in O.S.No.3751 of 2002, is the appellant in the present second appeal. The plaintiff in the suit is the respondent herein. The plaintiff had filed the suit, in O.S.No.3751 of 2002, praying for a decree for ejecting the defendant from the suit premises and for costs. 3. It has been stated that the plaintiff trust is a public wakf, which is a public trust, managed by a board of trustees, as per the scheme decree, dated 27.4.1954, passed in C.S.No.43 of 1951, on the file of the High Court of Judicature at Madras. According to the https://hcservices.ecourts.gov.in/hcservices/ scheme decree, P.A.G.Hassain Moulana had been appointed as a hereditary trustee of the wakf, by an order of the High Court of Judicature at Madras, dated 10.7.1996, passed in Application No.2330 of 1996. Two other trustees, namely, K.Haziur Rahman and M.Hussain Sheriff had been appointed as non-hereditary members of the board of trustees, as per the order of the High Court, dated 24.12.1997, passed in Application No.1626 of 1997. As such, the plaintiff trust is being represented by the Managing Trustee P.A.G.Hassain Moulana. 4. It has been further stated that the defendant is carrying on business under the name and style of Motta Bhai Scrap Dealer, at No.88-89 (old No.15), Mosque Street, Royapuram, Chennai, as a tenant, paying a rent of Rs.3,000/- per month to the Mutawalli of Masjid-e- Farkhunda, at No.158, Adam Sahib Street, Royapuram, Chennai. 5. It had also been stated that a legal notice had been issued to the Mutawalli of Masjid-e-Farkhunda asking him not to receive the rent from the defendant, as the Board of Trustees had already come into existence, with effect from 1.1.1998, as per the order passed by the High Court of Judicature at Madras. He was also called upon to send the statement of account and to pay the already collected amounts to the board of trustees of the plaintiff trust. Since, there was no response from the defendant, the plaintiff had filed the contempt application before the High Court of Judicature at Madras, in C.A.No.831 of 1999. During the hearing of the contempt application, the High Court was pleased to direct the defendant to pay the monthly rent to the Mutawalli of the Dargah, namely, the hereditary trustee of the Makkan Trust, as per the order passed, on 10.1.2001. However, as the defendant had not paid the rent, even after a direction had been issued by the High Court, the plaintiff had terminated the tenancy of the defendant and he had been asked to pay the damages for his illegal occupation of the premises in question. In such circumstances, the plaintiff had filed the suit, in O.S.No.3751 of 2002, on the file of the XVIIth Assistant City Civil Court, Chennai. 6. In the written statement filed on behalf of the defendant, the averments made in the plaint had been denied. The defendant had stated that the suit had been filed only by one of the trustees without the other trustees of the Makkan Trust and therefore, it is liable to be dismissed for non joinder of necessary parties. 7. The defendant had stated that he has not been in occupation of the building owned by Makkan trust. Therefore, there is no landlord tenant relationship between the plaintiff and the defendant. Therefore, the suit filed by the plaintiff for ejecting the defendant from the suit premises is not maintainable in law. The ejectment suit filed by the plaintiff trust, without asking for a declaration of the rights of the plaintiff trust, is not maintainable. The defendant is in occupation of the building, situated at 89, Thoppai Mudali Street, Royapuram, Chennai, as a tenant under Masjid-e-Farkhunda Mosque, functioning under the supervision of the Tamil Nadu Wakf Board. As such, the suit filed by the plaintiff, without impleading Masjid-e- https://hcservices.ecourts.gov.in/hcservices/ Farkunda mosque and the Tamil Nadu Wakf Board, as parties to the suit, is not maintainable. 8. It had also been stated that the defendant, admittedly, is in occupation of the trust premises, bearing door No.89, Thoppai Mudali Street, Royapuram, Chennai, measuring an extent of 1610 square feet, as a tenant under Masjid-e-Farkunda mosque, which is declared to be the absolute owner and title holder of the existing superstructure, as per the deed of wakf, duly registered as document No.3783 of 1960, dated 27.8.1960, on the file of the District Registrar, Chennai North and the said mosque is under the supervision of the Tamil Nadu Wakf Board, Chennai. The defendant has been prompt in paying the monthly rents, since 1.3.1999, the date of commencement of the tenancy, till date, without any default. The rental amounts had been paid to the Muthavalli of the Masjid-e-Farkhunda mosque or to the duly nominated persons. Since, the defendant had not been made a party to the contempt application, in C.A.No.831 of 1999, on the file of the High Court of Judicature at Madras, the averments made in the plaint, in respect of the said application, cannot be accepted to be true and valid. 9. It had also been stated that the plaintiff had not come forward to prove the ownership of the superstructure, which is in occupation of the plaintiff trust, nor has the plaintiff trust obtained the possession of the superstructure, in accordance with law. In such circumstances, the plaintiff trust is not entitled to evict the defendant from the premises in his occupation, by way of a suit for eviction. Therefore, the suit filed by the plaintiff trust is devoid of merits and it is liable to be dismissed, with exemplary costs. 10. In view of the averments made on behalf of the plaintiff, as well as the defendant, the trial Court had framed the following issues for consideration: 1. Whether the plaintiff is entitled for the decree, as prayed for in the suit? 2. Whether the defendant is liable to be evicted from the suit property? 3. What reliefs, the plaintiff is entitled to? 11. One witness had been examined on behalf of the plaintiff and 15 documents had been marked as Exhibits A.1 to A.15. One witness had been examined on behalf of the defendant and eight documents had been marked on his behalf as Exhibits B.1 to B.8. 12. The trial Court had found that, by way of a scheme decree passed by the High Court of Judicature at Madras, in C.S.No.43 of 1951, the trustees had been appointed for the management of the plaintiff Makkan Trust. The trial Court had held that it cannot be https://hcservices.ecourts.gov.in/hcservices/ found that Mohamad Yusuf is the owner of the superstructure in the suit property, based on the tax receipts issued by the Corporation, marked as Exhibit B.1. 13. The trial Court had further found that the original settlement deed, dated 27.8.2000, marked as Exhibit B.2, had not been filed by the defendant. Further, the said settlement deed is said to have been made subsequent to the scheme decree, dated 27.4.1954, made in C.S.No.43 of 1951, marked as Exhibit A.1. In the document marked by the plaintiff as Exhibit A.1, it had been found that there was a direction to evict Mohamad Yusuf from the suit property. Though it had been claimed that a suit had been filed, in O.S.No.552 of 1951, to evict Mohamad Yusuf from the property in question, a compromise had been entered into thereafter. The trial Court had found that there was no evidence adduced by the defendant to substantiate such a claim. Further, there is no proof to show that Mohamad Yusuf had put the superstructure in the suit property. Documents filed on behalf of the defendant were said to have been obtained from the Muthavalli of the mosque. However, neither the Muthavalli concerned, nor any other person connected with the affairs of the mosque had been examined as a witness, on behalf of the defendant. From the order passed by the High Court of Judicature at Madras, in the contempt application, in C.A.No.831 of 1999, the trial Court had found that a statement had been made across the bar that Haji Mohamed Ghani was not the Muthavalli of Masjid-e-Farkunda mosque. 14. It had also been noticed that P.A.G.Hussain Moulana had been recognised as the hereditary trustee of the plaintiff Makkan Trust. The trial Court had also rejected the claim of the defendant that the suit was bad in law for non joinder of the necessary parties, namely, the Muthavalli of Masjid-e-Farkunda mosque and the Tamil Nadu Wakf Board, since, it had already been found, in the order passed by the High Court of Judicature at Madras, that the suit property belongs to the plaintiff trust. 15. It had also been noted that in spite of several requests made by the plaintiff trust, the defendant had not paid the rental amounts to the plaintiff trust. Instead, the defendant had claimed that he has been paying the rental amounts to Masjid-e-Farkhunda. In such circumstances, the trial Court had come to the conclusion that the defendant was liable to be evicted from the suit property, as prayed for by the plaintiff trust in the suit, in O.S.No.3751 of 2002. 16. Aggrieved by the judgment and decree of the trial Court, dated 15.9.2005, made in O.S.No.3751 of 2002, the defendant in the suit had filed an appeal, in A.S.No.172 of 2006, on the file of the 1st Additional City Civil Court, Chennai. 17. The first appellate Court had found that, admittedly, the plaintiff is a public wakf consisting of Sydani Bibi and Mustan Owlia Durgah at No.88-89 Mosque Street, Royapuram, Chennai. The suit, under Section 92 of the Civil Procedure Code, had been filed before the https://hcservices.ecourts.gov.in/hcservices/ High Court of Judicature at Madras, in C.S.No.43 of 1951, for the framing of a Scheme for the proper management and administration of the institution known as the Makkan Trust. Accordingly, the trustees had been appointed for the management of the plaintiff trust. P.A.G.Hussain Moulana had been appointed as a hereditary trustee and K.Fazlur Rahman and M.Hussain Sheriff were the other two trustees. The appellant had contended that the suit must have been filed by the managing trustee instead of the hereditary trustee, who had filed the suit praying for a decree of ejectment, to eject the defendant from the suit property. However, the first appellate Court had confirmed the findings of the trial Court stating that, in the scheme formulated by the High Court of Judicature at Madras, for the management of the trust, it had not been mentioned that the trust must be represented only by the Managing Trustee for suing and for being sued. Therefore, the suit filed by P.A.G.Hussain Moulana, the hereditary trustee of the plaintiff trust, is maintainable in law. 18. The first appellate Court had noted that, based on the direction issued by the High Court of Judicature at Madras, a suit had been filed, in O.S.No.521 of 1992, to eject Mohamad Yusuf from the suit premises, on the file of the City Civil Court, at Chennai. However, the first appellate Court had found that the claim of the appellant that there was a compromise entered into, thereafter, had not been proved by the appellant, who was the defendant in the suit, by sufficient evidence. 19. The first appellate Court had also found that the documents filed on behalf of the appellant, as receipts for payment of property tax etc., cannot be taken as sufficient evidence to prove that the superstructure belonged to Mohamad Yusuf. The order passed by the High Court of Judicature at Madras, in the contempt proceedings, in the contempt application, in C.A.No.831 of 1999, had also been marked as Exhibit A.6. It had also been taken into consideration to come to the conclusion that the claims made by the defendant are not sustainable in the eye of law. From Exhibit A.6, the appellant had been directed to pay monthly rent to the trustee of the Makkan trust. From the scheme decree passed by the High Court of Judicature at Madras and the orders passed in the contempt application, it was clear that the the suit property belongs to the plaintiff trust and that the donor Mohamad Yusuf has no right in the suit property. 20. It had also been held that creating a settlement deed, as shown in Exhibit B.2, cannot be held to be valid in law. As such, the first appellate Court had confirmed the findings of the trial Court and the appeal filed by the appellant, in A.S.No.172 of 2006, had been dismissed. 21. Aggrieved by the judgment and decree of the fist appellate Court, made in A.S.No.172 of 2006, the defendant in the suit and the appellant in the first appeal had filed the present second appeal, raising the following questions, as substantial questions of law: https://hcservices.ecourts.gov.in/hcservices/ "1. When the Exhibit A.1 (27.4.1954) scheme decree in C.S.No.43 of 1951 directed the Managing Trustee, to take steps to get Md.Yusuf evicted, can the Hereditary Trustee, file this suit, for ejectment of the appellant who and Masjide Farkunda stands in the same status of Mohammed Yusuf? 2. While the appellant is the tenant of the Masjide Farkunda and is paying the rent to be Masjide Farkunda, as admitted by the plaintiff in the plaint itself, and all the document of title relating to the superstructure stands in the name of Masjide Farkunda, can the plaintiff initiate action without impleading the Masjide Farkunda? 3. Is not the first appellate Court correct to decide the suit, without considering the pleading that the Masjide Farkunda is a necessary party? 4. When the appellant has established the prima facie case in respect of the title to superstructure to the plaintiff in favour of Masjide Farkunda. Can the court below decide the title to the property on the absence of the Rival Claimant, Masjide Farkunda? 5. When all the records relating to the superstructure stands in the name of Masjide Farkunda, can the respondent trust ignore him and proceeds again the tenants of the respondent? 6. When the contempt application is directed against the claim of Mohamed Gani (Muthavalli of Masjide Farkunda), that he was appointed by High Court, as trustee of Makkan Trust, can the courts below construe as it decide the title of the superstructure in favour of plaintiff/respondent?" 22. The learned counsel appearing for the appellant had submitted that the judgment and decree of the courts below are against law, weight of evidence and the probabilities of the case. The Courts below ought to have held that the suit is not maintainable, since, the suit cannot be laid by the hereditary trustee. Only the managing trustee ought to have filed the suit. Though the suit filed by the plaintiff, without impleading the Muthavalli of Masjid-e-Farkunda mosque and the Tamil Nadu Wakf Board, is bad in law for non joinder of necessary parties, the courts below had erred in deciding the title of the superstructure in the property in question, without the participation of the real owner in the court proceedings. 23. The learned counsel appearing for the appellant had further submitted that the courts below had not considered the documents, marked as Exhibits B.1 to B.7, marked in favour of the appellant, in their proper perspective. The courts below had failed to take into consideration Exhibit A.8, the order, dated 7.8.2001, passed in the https://hcservices.ecourts.gov.in/hcservices/ contempt proceedings before the High Court of Judicature at Madras, in its true meaning and spirit. In such circumstances, the decree of the courts below are liable to be set aside, as devoid of merits. 24. The learned counsel appearing for the appellant had relied on the following decisions in support of his contentions: 1. PROFULLA CHORONE Vs. SATYA CHORON (AIR 1979 SC 1682) 2. M/S.ALIJI MONOJI & CO., Vs. LALJI MAVJI AIR 1997 SC 64 25. Per contra, the learned counsel appearing for the respondent trust had submitted that the courts below were right in arriving at their conclusions, based on the evidence available on record. Both the Courts below, on analysing the documentary, as well as the oral evidence adduced on behalf of the parties concerned, had come to the conclusion that the appellant had not been in a position to show that he has been in occupation and possession of the suit schedule property, by paying the monthly rental amounts to the rightful owner of the premises concerned. 26. The learned counsel appearing for the respondent trust had submitted that the appellant had not shown sufficient evidence to prove that the superstructure put up in the suit property is owned by Mohamad Yusuf and that the appellant had been paying the rental dues as per the terms and conditions of the lease agreement. Further, the courts below were right in finding that the High Court of Judicature at Madras had passed an order in the contempt application, in C.A.No.831 of 1999, marked as Exhibit A.6, directing the eviction of Mohamad Yusuf from the suit schedule property. When the respondent Trust is found to be the owner of the property in question, it is not open to the appellant to claim that he is paying the rental amounts to a third party, who is not a trustee of the respondent trust. As such, second appeal filed by the appellant is devoid of merits and therefore, it is liable to be dismissed. 27. The learned counsel appearing for the respondent had relied on the following decisions in support of his contentions: 1. YUNUS ALI Vs. KHURSHEED AKRAM (2008)7 SCC 293 2. YASHPAL LALA SHIV NARAIN Vs. ALLATALA TALA MALIK WAQF AJAKHAN MUS (AIR 2006 ALLAHABAD 115) 3. V.K.BALAKRISHNAN Vs. C.SHANKAR (2007) 3 MLJ 982 4. SALEM JAMMATH MASJID COMMITTEE Vs. P.A.KAREEM (2010 CIJ 119 PLJ) 28. In view of the submissions made by the learned counsels appearing for the parties concerned and on a perusal of the records available, this Court is of the considered view that the appellant has not shown sufficient cause or reason to interfere with the concurrent findings of the Courts below. https://hcservices.ecourts.gov.in/hcservices/ 29. Both the Courts below have rightly held that the appellant had not adduced sufficient evidence to substantiate his claims. Even though the appellant had claimed that the superstructure belonged to one Mohamad Yusuf, there was nothing shown by the appellant to prove the alleged fact. Further, the appellant has not been in a position to explain as to how he has been paying the monthly dues, in respect of the property in question, to the Muthavalli of the Masjid-e- Farkhunda mosque. Further, it is found that the High Court of Judicature at Madras, by its order, dated 7.8.2001, marked as Exhibit A.8, passed in contempt application in C.A.No.831 of 1999, had directed the eviction of Mohamad Yusuf. While so, it would not be open to the appellant to claim that Mohamad Yusuf is the owner of the superstructure in the property in question and therefore, the respondent trust cannot initiate the proceedings to evict the appellant, as prayed for in the suit, in O.S.No.3751 of 2002. 30. It is seen that the claim of the appellant that there was a compromise during the pendency of the suit, in O.S.No.552 of 1951, had not been substantiated by filing the necessary documents. The appellant had not shown as to how his claim that the suit filed by the hereditary trustee is not maintainable, especially, when the respondent trust is covered by the scheme decree passed in C.S.No.43 of 1951, dated 27.4.1954. The deed of wakf, alleged to have been executed, had not been proved. Even otherwise, such a deed could not have been executed by a person in illegal occupation of the property in question. In such circumstances, this Court is of the considered view that the contentions raised on behalf of the appellant, in the present second appeal, cannot be countenanced. As such, the second appeal is devoid of merits and it is liable to be dismissed. Hence, it stands dismissed. No costs. Consequently, connected M.P.No.1 of 2008 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar lan To: 1. The 1st Additional City Civil Court, Chennai, 2. The XVIIth Assistant City Civil Court, Chennai. 3.The Section Officer, VR.Section, High Court, Madras-104. 2 cc To M/s.B.Fazluddin, Advocate, SR.53273 1 cc To Mr.N.M.S.Md.Jafarulla, Advocate, SR.53384 S.A.No.195 of 2008 ksk(co) pmk.19.8.2010. https://hcservices.ecourts.gov.in/hcservices/