- (1.) THE petitioner has come forward with the present writ petition for mandamus forbearing the respondent or any person claimed under it from interfering with his right and possession of the property bearing G.N.S.No.111/2 measuring 3000 square feet in M.Agaram Village, Vridhachalam Taluk, Cuddalore District, except by due process of law.
(2.) THE case of the petitioner in nutshell is set out hereunder: 2.1 THE petitioner is the Muthavalli of Jamia Mosque and Madrasa, M.Agaram Village. He has filed the present writ petition on behalf of the mosque. An extent of 3000 sq. ft. in Gramanatham S.No.111/2 measuring east to west 30 feet and north to south 100 feet belongs to the mosque by virtue of purchase made under a registered sale deed dated 10.11.1953. Ever since then, the property is in the possession of the mosque till date. THEre was a building in a portion of the property which was damaged by a fire a few years back. Only portions of the destroyed wall remained. 2.2. On 8.8.2009 at about 2.00 p.m. the respondent and few persons accompanying him, came to the property and demolished the walls of the building high-handedly and unauthorisedly. No prior notice was issued to the petitioner. No acquisition proceeding was taken and no compensation was paid. THE property cannot be acquired since it belongs to a mosque and is wakf property. THE sanction of the Wakf Board is necessary for taking any action. A notice dated 9.8.2009 was sent to the respondent by the petitioner and a reply dated 18.8.2009 was received by him. In view of the above stated position, the petitioner has approached this Court for the relief set out in the writ petition. The learned counsel for the petitioner submitted that the property belongs to a mosque by way of purchase under a registered sale deed dated 10.11.1953. Further, the property is in the possession of the mosque from 1953. In view of the above stated position, the respondent cannot interfere with the possession and enjoyment of the property which is held by the mosque in question. Further, he contended that before eviction, prior notice was not given to the petitioner and hence, the entire action taken by the respondent is illegal. Counter Affidavit was filed on behalf of the respondent wherein the following facts have been set out:- 4.1. The petitioner did not mention the location of the property over which he claims title for and on behalf of the mosque, since the said survey number consists of 30 sub-divisions. Further, the petitioner has filed the writ petition on behalf of an unregistered wakf. 4.2. It is also the contention of the respondent that the writ petition itself is not maintainable as there is no valid dedication to wakf as contemplated under the Wakf Act, 1995. Further, the District Collector and the Block Development Officer (Village Panchayat) who are the actual authorities performing the project have not been made parties to this writ petition. It is the further contention of the respondent that the property chosen for the construction of library belongs to the Government and the said fact has been suppressed by the petitioner. It is also contended that the petitioner filed a suit in O.S.No,85 of 2002 on the file of the Subordinate Judge, Cuddalore and the same was dismissed by the said learned Sub Judge on 23.4.2007. The parties, property, title and cause of action are all the same. The petitioner instead of preferring an appeal against the said judgment of the Civil Court, had approached this Court by way of the present writ petition and the same is not sustainable.
(3.) THE learned counsel for the respondent mainly contended that the petitioner is laying his claim as Muthavalli of Jamia Mosque and Madrasa, M.Agaram Village. He has claimed it as a right over the property in question alleging that the mosque has purchased the property in question under a registered sale deed dated 10.11.1953. According to the learned counsel for the respondent Section 87 of the Wakf Act 1995 bars filing of a suit, appeal or other legal proceedings for enforcement of any right on behalf of any wakf which has not been registered in accordance with of the said Act. Hence, the writ petition is not maintainable as per Section 87 of the said Act. Thus, he prays for dismissal of the writ petition. I have considered the submissions made by the learned counsel for the petitioner as well as the learned counsel for the respondent.;