TAMIL NADU WAKF BOARD Vs. LARABSHA DARGA PANRUTI

JUDGEMENT

(1.) This appeal is preferred by the Tamil Nadu Wakf Board represented by its Chief Executive Officer, Chennai against the final judgment dated 25-6-2004 and decree dated 28-6-2004 passed by the High Court of Madras in Second Appeal No. 641 of 1996 whereby a learned Judge of the High Court allowed the second appeal reversing the judgment and decree of the first appellate Court and restoring the judgment and decree of the trial Court.

(2.) The facts which are necessary for the disposal of this appeal are as follows : Originally the suit property was Wakf property being a part of a Wakf property belonging to one Noor Mohammedsha Aulia Darga. One Bhadursha, the 5th Janishan of Noor Mohammad Shah Khadari Darga, Panruti conveyed the suit property to his disciple Shabansha and he was in possession and enjoyment of the same through his disciple Larabsha. Larabsha conveyed the suit property to his wife Khathija Bi by way of a Hibba with the intention of doing certain pious, religious and charitable purposes. Khathija Bi conveyed the suit property to her grandson Syed Umar. After the death of Syed Umar, his wife Safia Bi was managing the suit property and was performing the said pious, religious and charitable purposes. In 1978, Safia Bi filed O. S. No. 189 of 1978 in the Sub-Court, Cuddalore for declaration that the suit property is not wakf property and it is their private property. The said suit was dismissed holding that the suit property is wakf property belonging to Larabsha Darga. Against the said order, Safia Bi filed an appeal being A. S. No. 108 of 1980 in the District Court, Cuddalore and the same was dismissed on 22-4-1983. Aggrieved by that judgment and order, Safia Bi filed a second appeal being S. A. No. 1104 of 1983 in the High Court. In the meanwhile, on 8-8-1985, Safia Bi died and Adbarbasha and Abdulsalam were impleaded collusively and fraudulently. Heeralal and Khaleel Basha filed a petition in A. No. 20 of 1985 before the Tamil Nadu Wakf Board, Madras to recognize and appoint them as hereditary Muthavallis to Larabsha Darga and its properties and the Wakf Board after holding enquiry appointed the respondents herein- plaintiffs as joint Muthavallis recognizing their right to be hereditary trustees and legal representatives of late Larabsha. The High Court on 10-1-1990 dismissed the second appeal holding that the suit property is wakf property and not a private trust property. Against the said dismissal, S. L. P. (C) No. 2486 of 1990 was filed by the respondents herein/plaintiffs before this Court and the same was dismissed. Respondents herein filed O. S. No. 20 of 1992 in the sub-Court, Cuddalore for a declaration that the suit Darga and its property belongs to a wakf i.e., Wakf-alal-aulad, and the Wakf Board had no jurisdiction to appoint Muthavallis for the said Darga and for injunction restraining the Wakf Board from interfering with the suit Draga and its property except claiming contribution from the net income of the wakf. The trial Court decreed the suit holding that the suit Darga and its property belong to a private wakf. Aggrieved by the said order, Tamil Nadu Wakf Board filed an appeal being A. S. No. 206 of 1994 in the District Court, Cuddalore and the same was allowed holding that the suit Darga and its property do not belong to a private wakf. Against that order, the respondents herein filed a second appeal being S. A. No. 641 of 1996 in the High Court. The High Court allowed the second appeal reversing the judgment of the first appellate Court and restoring the judgment of the trial Court. Hence the present appeal is filed by the Tamil Nadu Wakf Board by way of special leave petition before this Court.

(3.) Heard Mr. J. M. Khanna, learned counsel appearing for the appellant and Mr. P. S. Misra and Mr. K. Samidurai, learned senior counsel appearing for the respondents.