SYED MOHAMMAD SALIE LABBAI OEAD Vs. MOHAMMAD HANIFAVICE VERSA

JUDGEMENT

(1.) These appeals, by certificate granted by the High Court, arise out of a common judgment and will be dealt with by one judgment. The appeals have had a chequered career resulting from a highly contested litigation spreading over a century and a half. A review of the historical background of the case reveals a rather sad story and an unfortunate saga of a perpetual strife and struggle, disputes and differences between the two sections of the Muslim community of village Vijayapuram (situated in Tiruvarur District in the State of Madras) setting up diverse rights and rival claims over the property which was essentially a religious property originating from a fountain of purity flowing from the life and teachings of a celebrated saint who was the original founder of the property. Property essentially dedicated to God appears to have been used for mundane purposes which evoked loud protests from another section of the Mahomedan community who wanted to protect the public character of the trust property and this had led to several suits in various courts.

(2.) The most unfortunate part of the drama long in process is that the Courts before whom the disputes came up for decision handed down judgments which were not strictly in accordance with the shariat and the essential tenets of the Mahomedan Law which encouraged the parties to plunge themselves into a long drawn and unnecessary litigation, until the High Court of Madras in one of the litigations had to point out that the only remedy to put an end to the disputes was to invoke the provisions of Section 92 of the Code of Civil Procedure and this is what appears to have been done in the action out of which these appeals arise.

(3.) With this pragmatic preface we now proceed to consider the facts of the case which are by no means short and simple, but present highly complicated and complex features. It appears that some time towards the beginning of the 18th Century Syed Sultan Makhdoom Sahib a Sufi saint was residing at Vijayapuram who by his pious and saintly life attracted disciples not only belonging to the Mahomedan community but also some non-Muslims of that village. The saint was held in great respect and reverence by the Hindus and Muslims alike which is evidenced by the fact of a sale deed Ext. B-1 dated May 12, 1730 which forms the starting point of the existence of the properties in suit which have been the subject matter of such a long drawn litigation. Exhibit B-1 shows that a part of the site where the properties in dispute are situated and which was a punja land was sold to the saint Syed Sultan Magdoom Sahib by Thirumalia Kolandia Pillai who was a resident of village Vijayapuram. The sale deed conferred absolute rights on the saint with powers to alienate by way of gift, exchange and sale etc. The sale deed also mentioned that there were no encumbrances in respect of the land, and if any were found, the vendor would discharge the same. The saint died and about sixty years later another sale deed was executed by Malai Kolanda Pillai in favour of Kaidbar Sahib who appears to be a descendant of the saint and an ancestor of the Labbais who are the defendants in the present suit. This sale deed also appears to be in respect of the land which forms part of the disputed properties. The sale deed also appears to be in respect of the land which forms part of the disputed properties. The sale deed was executed on May 22, 1797. This sale deed (Ext. B-2) gives an indication that it consisted of lands and gardens and could be used as a graveyard also. Thus the properties in dispute are situated on the lands sold to the ancestors of the Labbais by the two sale deeds referred to above. It may be pertinent to note here that in the second sale deed Rowther Syed Uddin who is ancestor of one of the plaintiffs was a witness. In course of time the saint and the descendants were buried on the lands in dispute and a Dargah was set up which was managed by the descendants of the saint. Several years later, the Mahomedans of the village realised the necessity of having a mosque as no mosque existed in the village and inspired by this laudable objective, the Rowthers approached Masthen Ali Khader Sahib for permission to build a mosque on a part of the land in dispute. The permission having been granted, an agreement was executed in favour of Masthan Ali Khader Sahib which is Ext. B-4 and forms the sheet-anchor of the dedication said to have been made by Masthan Ali Khader Sahib for the purpose of a mosque. Thereafter in course of time certain additional constructions in the shape of a platform, few rooms a water tank, which form adjuncts to the mosque, were added obviously without any objection from the Labbais. The vacant land appears to have been used as a grave-yard where members of the Muslim community buried their dead as a matter of right on payment of certain fees or charges to the defendants or their ancestors. Subsequently the defendants constructed a few shops on a part of the grave-yard which alienated the sympathies of the Muslims particularly the Rowther community who regarded the construction of the shops as desecration of the grave-yard and accordingly a number of suits were filed for demolition of the shops. The defendants, however, claimed the entire properties as their private properties excepting the prayer hall which was admittedly used as a mosque. There also the defendants claimed that they had a right to manage the same and to lead the congregation at prayers. The present suit has been filed by the Rowthers who were the other section of the Muslim community and whose ancestors are alleged to have built the mosque and other constructions with the previous permission of the ancestors of the defendants. This suit was brought in a representative capacity under O. 1 Rule 8 Code of Civil Procedure after obtaining the sanction of the Advocate-General under Section 92 of the Code of Civil Procedure. According to the allegations made by the plaintiffs, there were three types of properties which were wakf properties of a public and charitable nature dedicated by the ancestors of the defendants. These properties consisted of: