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A. Abdul Kader @ A. Babu & Others v/s Jamiah Majid, Ambur, Rep. by its Muthavalli Nadeesa Mohammed Syed, Ambur

    S.A. No. 2018 of 2004

    Decided On, 18 July 2018

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE T. RAVINDRAN

    For the Appellants: R. Subramanian, Advocate. For the Respondent: V. Srimathi, Advocate.



Judgment Text

(Prayer: Second Appeal has been filed under Section 100 of CPC against the Judgement and Decree dated 30.06.2004 passed in A.S.No.45 of 2003 on the file of the Subordinate Court, Thirupathur, confirming the Judgment and Decree dated 19.03.2003 passed in O.S.No.123 of 1999 on the file of the Principal District Munsif Court, Ambur.)

1. In this second appeal, challenge is made to the Judgement and Decree dated 30.06.2004 passed in A.S.No.45 of 2003 on the file of the Subordinate Court, Thirupathur, confirming the Judgment and Decree dated 19.03.2003 passed in O.S.No.123 of 1999 on the file of the Principal District Munsif Court, Ambur.

2. The second appeal has been admitted on the following substantial questions of law:

(a). Whether in law, have not the Courts below overlooked that the defendants can setup title in 3rd party(justertii) and that will not attract Section 116 of Evidence Act?

(b). Whether in law have not the Courts below omitted see that the notice to quit is not in confirmity with Section 106 of the T.P.Act and hence, the suit itself is not maintainable?'

3. The defendants, who had suffered concurrent judgements and decrees before the Courts below, are the appellants in this second appeal. Briefly stated, the plaintiff has laid the suit against the defendants seeking possession of the s

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uit property and also claiming past arrears of rent and it is the case of the plaintiff that the defendants are in the occupation of the suit property belonging to the plaintiff on lease basis and inasmuch as the defendants had failed to pay the lease amount properly and also failed to pay the same, despite the repeated demands and the issuance of notice and further, as the suit property is required for the extension of the plaintiff's mosque, it is the case of the plaintiff that the lease of the defendants had been terminated by the quit notice dated 16.11.1994 and despite the same, as the defendants failed to comply with the demands made in the notice, according to the plaintiff, it has been necessitated to lay the suit for appropriate reliefs.

4. The defendants have resisted the suit preferred by the plaintiff on the footing that the claim of the plaintiff that the defendants are not regular in the payment of lease is incorrect and the further case of the plaintiff that the suit property is required for the extension of the plaintiff's mosque is false and according to them, the suit property does not belong to the plaintiff's mosque and the same is a Government property and no doubt, the plaintiff's mosque had leased out the suit property to the defendants' father Abdul Hameed and accordingly, Abdul Hameed and thereafter, the defendants were paying the lease to the plaintiff and after enquiry, the defendants have come to know that the suit property does not belong to the plaintiff's mosque and accordingly, the notice to quit issued by the plaintiff is invalid and the defendants are not required to hand over the possession of the suit property to the plaintiff as claimed and further, on account of the continuous and long enjoyment of the suit property by the defendants, the defendants, had set up title to the suit property by prescription and as the suit pertains to the dispute of title as to whether it really belongs to the mosque, it is to be tried and determined only by the tribunal constituted under the Wakf Act and hence, the civil Court has no jurisdiction to entertain the suit and therefore, the suit is liable to be dismissed.

5. Materials placed on record go to disclose that the suit property had been leased out by the plaintiff's mosque to the defendants' father Abdul Hameed and he having admitted the title of the plaintiff's mosque in respect of the suit property and been paying the lease to the plaintiff and after him, the defendants also continued to pay the lease amount to the plaintiff and however, as the defendants fail to pay the lease properly, according to the plaintiff, it had terminated the lease of the defendants by issuing the quit notice and further, according to the plaintiff, the suit property is required for its extension and hence, the suit has come to be laid .

6. As above seen, the defendants, at the inception, having admitted the title of the plaintiff to the suit property and has taken the suit property on lease from the plaintiff, in such circumstances, the contention of the defendants that later on enquiry, they came to know that the suit property does not belong to the plaintiff's mosque and it belongs to the Government and hence, the suit laid by the plaintiff is not maintainable, as such, cannot be countenanced. As rightly determined by the Courts below, when the defendants admitting the title of the plaintiff having taken the suit property on lease from the plaintiff is estopped from the disputing the plaintiff's title to the suit property and accordingly, held that the abvoesaid defence put forth by the defendants cannot be allowed, particularly, in the light of the bar of estoppel outlined under Section 116 of the Evidence Act and in such view of the matter, refused to accept the abovesaid plea of the defendants to reject the plaintiff's case. As rightly determined by the Courts below, I do not find any valid reason projected in the second appeal to differ from the abovesaid determination of the Courts below. However, the counsel for the defendants relying upon the decision reported in 2004 (3) CTC 489 (A.Koman Vs. T.S.Balasubramaniyan), contended that the defendants are not precluded from denying the title of the plaintiff and according to him, the Rule of estoppel contemplated under Section 116 of the Evidence Act is restricted only to the denial of the title at the commencement of the tenancy and thus, it is his argument that at a later point of time, on the defendants coming to know that the suit property does not belong to the plaintiff, they are entitled to dispute the claim of title of the plaintiff to the suit property and hence, it is his argument that the Courts below had not properly appreciated the above aspect of the plea of estoppel as per law provided under Section 116 of the Evidence Act. However, the above argument does not merit acceptance. In the abovesaid case, it has been held that the lessees therein had established their claim of denial of title by placing acceptable evidence and accordingly, in such circumstances, the Courts below had held that on the establishment of the abovesaid case of the lessees in projecting the title upon a third party, in such circumstances, it has been held in the abovesaid position that the plea of estoppel contemplated under Section 116 of the Evidence Act would not operate. However, insofar as the present case is concerned, as could be seen from the materials placed on record, particularly, the evidence of DW1, there is no material placed by the defendants to establish that the suit property belongs to the Government. With reference to the abovesaid claim of the defendants, absolutely, no proof is placed. Further, there is no material placed by the defendants that the Government had staked a claim to the suit property and that, any threat of dispossession had emanated from the Government to evict them from the suit property. Further, there is no material placed by the defendants that recognising the title of the government in respect of the suit property, they had been paying tax or kist to the Government with reference to the suit property. In such view of the matter, without placing any material whatsoever to establish the alleged title of the government in respect of the suit property and on the other hand, when it is found that the evidence adduced would go to show that the suit property has not been classified as the poramboke property and that apart, when the defendants having admitted the title of the plaintiff to the suit property and taken the same on lease right from the days of their father and paying the lease also and thereafter, without any basis the denial of the title projected by the defendants as such cannot be accepted sans material pointing to the same and in such view of the matter, it is found that the abovesaid decision relied upon by the plaintiff's counsel for contending that the defence of the defendants setting up title in the third party would not attract the provisions of 116 of the Evidence Act as such cannot be countenanced and accordingly, the Courts below are justified in holding that the defendants are estopped from denying the title to the plaintiff as adumbrated under Section 116 of the Evidence Act and the substantial question of Law No.1 is accordingly, answered against the defendants.

7. It is found that the defendants are not regular in paying the lease amount and accordingly, it is seen that as the defendants failed to pay the lease amount, despite the demands and the issuance of the notice by the plaintiff, it is seen that the plaintiff had issued the quit notice terminating the lease of the defendants and despite the same, there is no response to the quit notice issued by the plaintiff and accordingly, it is found that the defendants are liable to handover the possession of the suit property to the plaintiff as demanded. That apart, the defendants have not taken any specific plea as such that the quit notice issued by the plaintiff is invalid. As above seen, only on the footing that the plaintiff has no title to the suit property, the plea has been taken by the defendants that the suit laid by the plaintiff for possession is not maintainable. However, as above seen, when the abovesaid denial of title put forth by the defendants does not have any foundation or material to stand and when the quit notice issued by the plaintiff and exhibited in the matter is not shown to be suffering from any infirmities as such, it has to be held that quit notice issued by the plaintiff is in confirmity with the requirements of Section 106 of the T.P.Act and the suit laid by the plaintiff following the same is maintainable. The substantial question of law No.2 is accordingly, answered in favour of the plaintiff and against the defendants.

8. The argument has also been put forth by the defendants' counsel that the civil Court has no jurisdiction to entertain the suit, as according to him, when the defendants have disputed the title of the plaintiff as such, in such circumstances, it is only the Tribunal constituted under the Wakf Act, which would be competent to determine the issues involved in the suit and on that score, it is his contention that the judgments and decrees passed by the Courts below, ordering the eviction of the defendants are liable to be set aside. In this connection, reliance is placed upon the decisions reported in (2017) 14 Supreme Court Cases 561 (Rajasthan Wakf Board Vs. Devaki nandan Pathak and others) and 2017-5-L.W.34 (K.G.Jilendran Vs. Mohideen Andavar Dharga and Pallivasal and Meera Noordheen Dharga and Pallivasal through its Trustees & others). Per contra, the plaintiff's counsel contended that on the date of laying of the suit, there was no provision in the Wakf Act conferring the jurisdiction on the tribunal constituted under the said Act as regards the determination of the issues concerning eviction of the tenants in occupation of the property, which was admittedly wakf property and hence, it is her contention that the suit laid by the plaintiff for eviction/possession is maintainable and in this connection, reliance is placed upon the decision reported in (2010) 8 Supreme Court Cases 726 (Ramesh Gobinadram (Dead) Through Lrs. Vs. Sugra Humayun Mirza Wakf).

9. The abovesaid plea has been raised by the defendants on the footing that the plaintiff has no title to the suit property. However, as above seen, when with reference to the abovesaid case of the defendants, there is no material whatsoever placed by them and in such view of the matter, it is seen that the plea of the defendants setting up title on a third party having no foundation, it is evident that the abovesaid plea has been taken by the defendants only for the purpose of the case to stall the eviction proceedings against them. That apart, when the defendants have been inducted into the suit property only as the lessees of the plaintiff from the days of their father and accordingly, the defendants had been also paying the lease amount to the plaintiff without any demur and in such circumstances, their defence that the plaintiff has no title to the suit property as claimed in the suit without laying any basis for the same or placing any material to substantiate the same, it is found that the denial of the title of the plaintiff to the suit property raised by the defendants is unjustified and cannot be countenanced and in such view of the matter, no bonafide is seen in the defence taken by the defendants as regards the denial of title of the plaintiff. In such view of the matter, as rightly argued by the plaintiff's counsel, considering the date of the institution of the suit, it is seen that the civil Court had all the jurisdiction to entertain the suit and in such view of the matter, it is found that the decision relied upon by the defendants' counsel would have no application to the case at hand on facts and accordingly, the Courts below had rightly determined that the civil Court has jurisdiction to entertain the plaintiff's suit.

In the light of the above discussions, the second appeal is found to be devoid of merits and accordingly, dismissed with costs. Consequently, connected miscellaneous petition,if any, is closed.
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