ANBU Vs. CHINNAKARASAMANGALAM SUNNATH VAL JAMATH BY ITS PATEL AND MUTHAWALLI K K HAJIBASHA DIED PRESENT MANAGING TRUSTEE P K KHADER SHERIFF

JUDGEMENT

(1.) 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 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. 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.

(3.) 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.