AMEENA BEGUM Vs. KALBALI BAIG MOSQUE RANIPET

JUDGEMENT

(1.) The petitioner is the defendant in the suit for ejectment, viz. O.S.No.251 of 1975 on the file of the District Munsif, Ranipet, filed by the respondent herein. The petitioner herein filed I.A.No.1160 of 1975 in the said suit under section 9 of the Madras City Tenants Protection Act praying for direction to the respondent herein to sell the petition-mentioned premises for a price to be fixed by the Court. According to the petitioner, she is the tenant of the vacant site belonging to the respondent herein, that she and her sons had put up a construction in the said site worth Rs.15,000 that they are residing there and doing business, and that the Act was extended to the town wherein the petition mentioned property is situate only in 1973. The said claim was resisted by the respondent on the ground that the suit property is a Kabarssthan (burial ground) and hence it is exempted from the provisions of the Act and as such, the petition is liable to be dismissed.

(2.) The learned District Munsif, on a consideration of oral and documentary evidence before him allowed the application and directed the respondent herein to sell the vacant site of the petition-mentioned premises at Rs.1,070 to the petitioner, holding that it is not a burial ground and there is no bar for the sale of the property in view of section 36-A of the Wakf Act, 1954. Aggrieved by the same, the respondent preferred an appeal in C.M.A.No. 6 of 1977 before the learned First Additional Subordinate Judge, Vellore and the learned lower Appellate Judge reversed the finding of the learned District Munsif and allowed the appeal. Aggrieved by the same, this revision has been filed.

(3.) The learned Counsel for the petitioner mainly contended that in the instant case, the learned lower Appellate Judge allowed the appeal only on the ground that the respondent-wakf is represented by the Muthawalli, who is examined as R.W.1 and he has no right to sell the petition mentioned property belonging to the mosque and as such, the petitioner has no right to ask for sale under section 9 of the Tamil Nadu City Tenants Protection Act and the said finding is erroneous, both in law and on facts. According to the learned Counsel, the lower Appellate Judge has not reversed the finding of the trial Court that the petition mentioned property is not Kabarssthan (burial ground).