MOHAMMAD PEDA SALEMAN SAHEB Vs. HABIBUNNISSA

JUDGEMENT

(1.) The petitioner is the plaintiff in O.S No. 804 of 1954 on the file of the District Munsif's Court, Vijayawada. which was suit filed by him and another for a declaration that certain proporty was Wakf property granted for the upkeep, worship lighting etc., in the Thotavallur Masjeed and that the alienation of the said property by the second defendant was invalid and for possession of the same together with damages of Rs. 400 for use and occupation for the years 1952 and 1953. During the pendency of the suit the plaintiffs filed an application I.A. No. 360 of 1954 requcsting permission to amend the plaint by adding a prayer for a direction for inquiry into future mesne profits. This application was ordered. The learned District Munsif, Vijayawada dismissed the suit holding that it was not proved that the properties were Wakf properties. On issue 9 which was to the effect "what mesne profits, if any, are the plaintiffs entitled to ?", he held that the plaintiff would be entitled, to Rs. 400 as damages. But in view of his finding on the main issue he dismissed the suit. The plaintiffs preferred A.S. No. 121 of 1957 to the Sub-Court, Vijayawada.

(2.) The learned Subordinate Judge, held that the properties were wakf properties allowed the appeal and declared that the alienation by the 1st defendant in favour of the second defendant is void and. not binding on the plaintiff. A petition for review, I.A. No.2825 of 1957 was filed stating that there should, also be a decree for possession That petition was allowed and a decree directing tht defendants to be ejected from the suit property and possession be delive.ed to the first plaintiff was also passed.

(3.) Though the trial Court had held that the plaintiff would be entitled to damages of Rs. 400 if the suit were maintainable and though the plaint as amended had asked for past and future mesne profits the appellate decree was silent about the profits past or future. Tne defendants preferred S A. No. 136 of 1960 to this Court. By its judgment dated 17th July, 1963, this Court confirmed the findings of the Courts below but held that the first defendant would be eititled tothe surplus of the income which remained after spending for the upkeep of the Masjeed etc. The appeal was, therefore, allowed to the extent that the first defendant was delclared to be entitled to the surplus income In other respects it was dismissed, Tne plaintiff, thereafter filed an application C.M.P.No. 9528 of 1964 contending that this Court erred in granting a decree in favour of the defendent declaring that he was eititled to surplus income. This petition was allowed, The Second Appeal was reached and by judgment dated 13th September, 1965 the Second Appeal was dismissed in toto.