RAHMATHULLIAH SHUTHARI ALIAS PEER HAZZRATH Vs. THE MUSLIM JAMATH OF EACHAMPATTI BY ITS SECRETARY KAMAL BATCHA,

JUDGEMENT

(1.) 6th defendant in O.S. No. 1057 of 1976, on the file of District Munsif's Court, Tiruchirappalli, is the appellant. After the suit was filed, second defendant Syed Edulla Sahib died, and his legal representatives were impleaded as defendants 5 to 9 as per Order in I.A.83 of 1978 dated 25 -4 -1978 before the trial Court. Originally there were only four defendants.

(2.) Suit was filed by plaintiff in his capacity as Secretary of the Muslim Jamath of Eachampatti, under Order l, Rule 8, C.P.C. It is said that the Secretary is looking after the affairs of the Jamath with the other elected members of the Jamath, which contains the Muslim residents of Eachampatti village. The suit property is a burial ground of the Muslims of Eachampatti, and the same is being enjoyed from time immemorial. It is said that there are about 150 palmyrah trees and 105 tamarind trees, besides other trees in the property, and the Jamath has been realising the income from the trees therefrom. The income so derived is used for the upkeep of the mosque and other religious and charitable activities of Muslims during festival times. It is said that the property has been in effective possession and enjoyment of the Muslim Jamath from time inimemorial. The settlement Tahsildar has also abolished the inam tenure and held the property as communal property of the Muslims of Eachampatti and no patta was issued to any of the applicants. Plaintiff alone is in possession and management of the 'Kaharsthan' and the trees standing thereon. Defendants 1 and 2 tried to interfere with the peaceful possession and enjoyment of the trees on 26 -2 -1974 and, therefore, plaintiff filed O.S.295 of 1974 against defendants 1 and 2 and others. An interim injunction was passed in that case which was made absolute as per Order dated 2 -7 -1974. Second defendant also filed a suit against the Jamath as O.S.187 of 1974. When that suit came for trial, he moved an application that he is not pressing the suit. That suit was, therefore, dismissed. The suit filed by Jamath as O.S.295 of 1974 was also withdrawn by plaintiff since there was a formal defect. The Government not being a party therein, an application was filed to withdraw the suit with liberty to file a fresh suit on the same cause of action. It is said that the same was allowed on 7 -7 -1976. It is further said that thereafter it issued notice under S. 80, C.P.C. The Government, though accepted the notice, did not send any reply. It is also said that first defendant is O.S.295 of 1974 is only a henchman of defendants 1 and 2 in the present suit and, therefore, he is not impleaded as a party in the present case. It is further said that the third defendant Wakf Board has no jurisdiction over the property of this kind, since it is managed by the Jamath. Defendants 1 and 2 have no manner of right or title whatsoever over the property. As they threatened to interfere and remove the usufructs from the trees on 26 -2 -1974 and as they continued to do so even as on the date of suit, the suit was filed for the relief's of declaration and injunction. The relief's prayed for are: (1) Declaration that the Muslim Jamath of Eachampatti is alone entitled to the management of the Kabarsthan and the usufructs of the trees of standing thereon; (2) Consequential relief of permanent injunction restraining defendants 1 and 2 and their men and agents from in any way interfering with the possession and enjoyment of the suit property with fruit bearing trees by plaintiff; (3) for costs of suit and to grant such further or other relief's as the Court may deem fit and proper in the circumstances of the case.

(3.) In the description of property, it is said that an extent of 7 -88 Hectares of land with 105 tamarind trees and 150 palmyrah trees and also other trees standing thereon, in Old Survey No. 82 in New Survey No. 173 of Eachampatti Village, is the Muslim burial ground (Kaharsthan).