BATCHA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE decree and judgment in O.S.No.25 of 1997 on the file of the Additional District Judge, Pondicherry, is under challenge in this appeal. THE unsuccessful plaintiff in O.S.No.25 of 1997 is the appellant herein.

(2.) HE averments in tHE plaint in brief are as follows:-2(a) One Kassim Sahib S/o.Ussain Sahib was resident of Melavanjore, T.R. attinam Cummune, Karaikal District, died leaving his only son Mahaboob Alisha @ Mohamed Saliah Sahib Maricar, tHE maternal grand-fatHEr of tHE plaintiff. THE above said grand-fatHEr of tHE plaintiff died on 30.04.1961 leaving two daughters viz., Smt.Sabura Beevi, motHEr of tHE plaintiff, and Smt.Maiboob Beevi. THE plaintiff, his sisters Mumtaj and Maiboob Beevi and his younger brotHEr Shaik Babu are tHE LRs of tHEir motHEr Sabura Beevi. Except tHE plaintiff otHEr legal HEirs of Sabura Beevi are in abroad. Smt.Maiboob had three daughters and two sons. Smt.Maiboob Beevi has no independent interest in tHE plaint scHEdule property and tHErefore allowed HEr sister Sabura Beiv and HEr son, tHE plaintiff HErein, to enjoy and lookafter tHE property. THE plaint scHEdule property is comprised in R.S.No.122/1, 122/2 & 122/6 with an extent of 1 Hec 9 Are (14 Are 88 Ca, and 7 Are). THE above said properties are situated at No.37, Melavanjore Village, T.R.Pattinam Commune, Karaikal. THE patta number to tHE plaint scHEdule property is 54, which was originally a 'burial ground' and it is also called 'Thaikkal'. 2(b) One Haji Hasarath Syed Alisha, who was a saint and fore-fatHEr of tHE plaintiff, died several decades ago and buried at tHE suit property. THE said burial ground was maintained and preserved by tHE descendants of tHE Hasarath Syed Alisha. THE descendants of Haji Hasarath Syed Alisha were also buried on tHE same ground by tHEir successors. Since Haji Hasarath Syed Alisha was a saint, a tomb was constructed with superstructure on tHE burial place by his successors. All tHE ancestors including tHE great grand-fatHEr, grand-fatHEr, motHEr and otHEr family members of tHE plaintiff were buried in tHE suit property. In tHE year 1993 tHE plaintiff's motHEr Sabura Beevi died and has been buried in tHE same ground. THE plaintiff's brotHEr-in-law Rajee Vanllah died on 15.05.1994 and HE has also been buried in tHE same ground. THE otHEr tombs found in tHE suit property were also constructed by tHE ancestors of tHE plaintiff on tHE burial place. THE plaintiff and his ancestors had permitted tHE outsiders to visit tHE tomb and offer prayer without losing tHEir control over tHE THEikkal. All tHE dead bodies of tHE family members of tHE plaintiff buried in tHE suit property. THE old mathiris record which was maintained by tHE French Regime, stands in tHEname of Kassim Sahib S/o.Shaik Ussain Sahib ie., great grand-fatHEr of tHE plaintiff. After tHE death of Kassim Sahib, his son administered and managed tHE suit property. Kassim Sahib and his son paid tax to tHE Government and tax is also being paid upto Smt.Sabura Beevi ie., tHE motHEr of tHE plaintiff. Even after tHE merger of tHE erstwhile French Indian Territory with Indian Union, Revenue Assessment had been assessed in tHE name of Kassim Sahib. THE plaintiff's ancestors alone used to clean tHE tomb stands on tHE burial ground and every Thursday tHEy performed 'Rathief' and made all arrangements to tHE people who frequently visit tHE tomb to offer prayer. Kanthuri Festival and Sandal worship prayer have also been performed every year by tHE plaintiff and his ancestors. People in and around Vanjore, Nagore, Karaikal visit tHE said tomb and offer prayer especially on Thursday. 2(c) part from that tHE burial ground tHE otHEr items of tHE property which are manaicut land enjoyed and managed by kassim Sahib ie., great grand-fatHEr of tHE plaintiff. THE said manaicut had been leased out by Mahaboob Alisha @ Saliah Sahib S/o.Kassim Sahib and Sabura Ummal ie., tHE motHEr of tHE plaintiff to different persons and collected tHE rent. THE rent receipts are also filed along with tHE plaint. THE suit property specifically dedicated for tHE purpose of burial of tHE deed bodies of tHE family members of tHE plaintiff and never dedicated for public purpose or religious purpose or charitable purpose. It is purely a private Wakf as tHE suit property was enjoyed, maintained and managed by tHE plaintiff and his ancestors. WHEn tHE property was adminisered by Sabura Beevi, tHE plaintiff stayed at Bombay and returned to Melavanjore wHEn his motHEr died. WHEn tHE plaintiff's brotHEr-in-law died on 15.05.1994 and his body was brought to tHE suit property, tHE defendants 4 to 6 prevented tHE plaintiff and raised objection as if tHEy have some right over tHE suit property. THE defendants 4 to 6 also stated that tHEy are 'muthavallies' appointed by tHE Wakf Board, PondicHErry. THE matter went to Police Station, T.R.Pattinam wHEre tHE 4th defendant allowed to bury tHE dead body of tHE plaintiff's brotHEr-in-law near tHE tomb. THE plaintiff stated to enquire about tHE claim of tHE defendants 4 to 6 and as a result, HE learnt that tHE settlement record was changed at tHE instance of tHE Wakf Board, PondicHErry. THE plaintiff immediately approacHEd tHE Settlement Officer and requested him to conduct a due enquiry by producing relevant records to show that HE is entitled to manage tHE suit property without interference from outsides. THE matter is still pending before tHE Settlement Officer, PondicHErry. Taking advantage of tHE absence of tHE plaintiff tHE Wakf Board represented by tHE defendants 4 to 6 has assumed control without making due proper enquiry into tHE matter over tHE Thaikkal and tHE suit properties and left tHEm with tHE control of tHE defendants 4 to 6. In tHE mean time, tHE plaintiff filed a suit before tHE Principal District Munsif, Karaikal, in O.S.No.81 of 1995. THE suit was meant for declaration against tHE defendants 4 to 6 and recovery of possession from some of tHE occupants of tHE suit property. THE plaint was returned on tHE ground that tHE plaintiff has not paid sufficient Court fee. Since tHE plaintiff is intending only to manage and administer tHE property, HE has not proceed with tHE said suit and filing this fresh suit for managing and administering tHE suit property as a Manager. THE suit is not bared under law. THE suit property never dedicated for public purpose, or Religious purpose or Charitable purpose. THErefore, it is not public Wakf as contemplated by tHE Wakf Act. It is also pertinent to note that none of tHE public burried on tHE suit land at any point of time. THErefore, Wakf Board has no right to foot tHEir access into tHE property. THE plaintiff, tHErefore, sent a legal notice to all tHE defendants under Section 80 of CPC on 28.08.1996. THE defendants 2 & 3 issued a reply notice on 17.01.1996 claiming that tHE property is a Wakf Property. THE defendants 4 to 6 have also sent tHEir reply notice claiming that property is belonging to Wakf Board, PondicHErry. THE contents of tHE reply is false and untenable in law. THE plaintiff, as a descendants on Haji Hasarath Syed Alisha, is tHE competent person and has tHE right to administer tHE Thaikkal as Thaikkal meant for tHE burial of tHE family members of tHE plaintiff. Hence, tHE suit for declaration, for recovery of possession after removing all and every unauthorised encroachments at tHE instance of tHE defendants and for costs.

(3.) THE points that arose for consideration in this appeal are as follows:-1) Whether the suit is not barred by Limitation?.2) Whether the decree and judgment in O.S.No.25 of 1997 on the file of the Court of Additional District Judge, Pondicherry at Karaikkal, is liable to be set aside for the reasons stated in the memorandum of a appeal?.