S BALASUBRAMANIAM Vs. SHAMSU THALREEZ

JUDGEMENT

(1.) The first defendant in O.S.No.66 of 1974 on the file of the Subordinate Judge, Tirunelveli, is the appellant in this appeal. The first respondent is the second plaintiff and respondents 2 to 5 are defendants 2 to 4 and 6 in the suit. It must be noted that the original plaintiff died and the second plaintiff got added as his legal representative in the suit itself. The suit was filed for a declaration that the lease claimed by the first defendant is null and void and the first defendant has no right to enjoy and consequently, the relief of possession was also asked for with damages, past and future. The suit was filed on the following allegations: Under the wakfnama dated 20.12.1931, the suit properties were the subject-matter of endowment to Hameem Palli Madarsa Wakf absolutely and the first plaintiff and defendants 2 and 3 are the turn huqdars. The second defendant, without any authority, leased the scheduled properties to the first defendant. The alleged lease in favour of the first defendant is not valid since all the huqdars had not consented for the same and the second defendant alone could not permit the first defendant to enter into and cultivate the suit properties. The sanction of the Wakf Board is lacking. The first defendant is only a trespasser. In O.S.No.15 of 1969 on the file of the Court, below, an order of injunction was obtained against defendants 2 to 4 not to effect any transfer of the suit properties in any manner and subsequently, the suit was decreed, declaring that defendants 2 and 3 are unfit to be the muthavallis. The plaintiffs claimed that on this ground also, the. alleged lease is null and void. The first “defendant contested the suit stating that the lease in his favour is valid and is for the benefit of the wakf the second defendant was the trustee of the scheduled properties on the relevant date and he had authority to lease the litigation in O.S.No.15 of 1969 is irrelevant and could not affect the contractual obligations the first defendant has been recorded as the cultivating tenant of the scheduled properties by the Record Officer, Tirunelveli and it could not be questioned and assailed by the plaintiff and further, the claim for damages is not sustainable. We are not very much concerned with the written statement of defendants 2 and 3, who sailed with the first defendant, because we find that they have not prosecuted their defence effectively before the Court below. Defendants 4 and 5 remained ex parte. The sixth defendant supported the case of the plaintiff. Reflecting the controversy that arose on the pleadings of the parties, the Court below formulated and set forth the following issues for its decision: 1. Whether the lease in favour of the first defendant executed by the second defendant is not valid"

(2.) Whether the plaintiffs are entitled to any amount by way of damages"

(3.) Whether the first defendant is cultivating tenant as claimed by him"