w w w . L a w y e r S e r v i c e s . i n


R.K. Madhavan v/s Thulukan Chatram Charities Trust, Rep by its Muthavalli, Ameenuddin Abdul Hasan, Tiruvallur & Others

    C.R.P.No. 959 of 2022
    Decided On, 06 September 2022
    At, High Court of Judicature at Madras
    By, THE HONOURABLE MR. JUSTICE S. SOUNTHAR
    For the Petitioner: M/s. Uma Shankar, Advocate. For the Respondents: R1, N.A. Nissar Ahmed, Advocate, R2 to R4, Dr. S. Suriya, Additional Government Pleader.


Judgment Text
(Prayer: Civil Revision Petition filed under Article 227 of Constitution of India, r/w Section 83(a) or Waqf Act, against the judgment and decree dated 30.11.2021 in O.S.No.53 of 2019 on the file of Tamil Nadu Waqf Tribunal, Chennai.)

This Revision is filed challenging the judgment and decree passed by Wakf Tribunal granting declaration that order passed by the 3rd respondent dated 04.07.2016, ordering registration of the land measuring 0.00.5 hectares (60ftx56ft) in S.No.97B/3F of Naravarikuppam Village, Madavaram Taluk in the name of revision petitioner is null and void and not binding upon 1st respondent.

2. The first respondent is a Trust called Thulukkan Chatram Charities Trust administered by Mutawalli. It filed a suit for declaration that the order dated 04.07.2016 passed by the 3rd respondent is null and void and not binding upon it. According to the first respondent, originally it was the owner of property described in the plaint in S.No.97B/3F under Inam title deed T.D.1709. After coming into force of Minor Inam Abolition Act 30/63, Inam patta was granted in patta No.197 in favour of first respondent by Settlement Tahsildar, Chengalpet, by his order dated 22.04.1970. The petitioner herein, challenged the same before the Assistant Settlement Officer and the same was dismissed on 29.02.1972 as evidenced by Ex.A9. The revision petitioner again challenged the said order before the Settlement Officer and his appeal was dismissed by order dated 17.12.1974 as evidenced by Ex.A10. The revision petitioner had taken the matter to the Board of Revenue by revision and the same was also dismissed by order of Board of Revenue dated 28.10.1975 marked as Ex.A11. Therefore, the patta granted in favour of first respondent by Settlement Tahsildar under Minor Inam Abolition Act proceedings became final. After long time, the revision petitioner filed a petition dated 21.01.2013 before Revenue Divisional Officer, Ambattur, seeking issuance of patta in respect of very same property and the same was dismissed. Aggrieved by the same, the revision petitioner filed a revision before 3rd respondent and the said revision was allowed by order dated 04.07.2016, directing grant of patta in the name of revision petitioner. The first respondent Trust filed the above suit for declaration that order passed by the 3rd respondent is null and void mainly on the ground that the 3rd respondent has no right or jurisdiction to order patta in the name of revision petitioner after Inam patta granted in the name of first respondent/Trust attained finality by order passed by Board of Revenue.

3. The revision petitioner filed a written statement stating that the suit property was purchased by his grandmother Ammani Ammal under sale deed dated 02.01.1907 marked as Ex.A2. The revision petitioner further submitted that said Ammani Ammal filed O.S.No.71 of 1931 on the file of District Munsif Court, Poonamallee, against the 3rd parties and the first respondent Trust, which was arrayed as 5th defendant therein. In the said suit it was claimed by Ammani Ammal that said suit property belonged to first respondent Trust and said Ammani Ammal put up building thereon and let out the same to tenants and collecting the rent. It was also submitted that Ammani Ammal was paying rent to the first respondent Trust. It was claimed that in the said suit, finding was rendered that Ammani Ammal acquired Kudiwaram right in the suit site as against first respondent Trust. The revision petitioner further averred that based on the Civil Court finding, the 3rd respondent considered his application and came to the conclusion that revision petitioner had proved his right over the suit property and granted patta in his favour. Therefore, he prayed for dismissal of the suit.

4. The 3rd respondent filed a written statement and the same was adopted by other official defendants, wherein, it was averred that the 3rd respondent had gone through the various documents including the sale deed dated 02.01.1907 and passed the order challenged in the suit. It was also submitted that the order was passed by the 3rd respondent by applying his mind to the documents produced before him and hence, the suit was liable to be dismissed.

5. The Wakf Tribunal on careful consideration of oral and documentary evidence available on record, came to the conclusion that the suit property is the Wakf property endowed to the first respondent Trust. It also found that under the proceedings initiated under Minor Inam Abolition Act, patta was granted in favour of the first respondent Trust and no patta was granted in favour of revision petitioner. The proceedings initiated under Minor Inam Abolition Act, attained finality by the order passed by Board of Revenue and the revision petitioner has not filed any suit claiming title or possession over the suit property thereafter. The Wakf Tribunal found that the 3rd respondent passed order in favour of revision petitioner without considering the material documents pertain to Minor Inam Abolition Proceedings and hence the same was not sustainable. The Tribunal also found that the suit property had been registered as a Wakf and the same has become final, consequently, decreed the suit filed by first respondent as prayed for. Aggrieved by the same, the revision petitioner has come up with this revision.

6. The learned counsel for the revision petitioner submitted that the suit property was originally purchased by revision petitioner’s grandmother viz., Ammani Ammal under Ex.A2-sale deed and her Kudiwaram right over the suit property was recognized by Civil Court under Ex.B2. Therefore, the order passed by the 3rd respondent by taking into consideration, the findings of the Civil Court is correct. He further submitted that after coming into force Minor Inam Abolition Act, the entire extent of property situated in S.No.97B/3F was vested with the Government and the Settlement Tahsildar under Minor Inam Abolition Act had granted patta to entire extent in S.No.97B/3F to the first respondent excluding a small extent 0.00.5 hectares. The said small extent was classified by lane poromboke, a new sub division was assigned to it in S.No.97B/3F2. The learned counsel further submitted that the suit property which is a small extent measuring 60ft x 56ft lies in S.No.97B/3F2, which was classified as a lane poromboke and therefore, the first respondent is not entitled to lay any claim over the same.

7. Per contra, the learned counsel for the first respondent submitted that the right of the first respondent Trust over the suit property was recognized by Settlement Tahsildar under Minor Inam Abolition Act and Inam patta was granted in it’s favour under Ex.A8. The said order passed by the Settlement Tahsildar was confirmed by hierarchy of authorities established under Minor Inam Abolition Act and attained its finality. Therefore, the revision petitioner is not entitled to reopen the same by making a fresh application before the 3rd respondent. The learned counsel also drawn the attention of this Court, to Ex.B2-judgment passed in suit O.S.No.71 of 1931 filed by Ammani Ammal, wherein she admitted the title of first respondent Trust over the ground site. The learned counsel also submitted that the suit property is a registered Wakf property and further submitted that once a property is recognised as a Wakf property and the same will remain as Wakf property. Therefore, he sought for confirmation of the order passed by the 3rd respondent.

8. The learned counsel for the respondents 2 to 4 submitted that the 3rd respondent by taking into consideration the sale deed in the name of Ammani Ammal and also the judgment in O.S.No.71 of 1931 were marked as Exs.B1 and B2, correctly came to the conclusion and ordered patta in favour of revision petitioner.

9. Heard the submissions of the learned counsel appearing for either side and perused the documents filed in the typed set of papers.

10. The revision petitioner laid claim over the suit property mainly based on the sale deed in favour of his grand mother viz., Ammani Ammal, marked as Ex.B1 and judgment passed in a suit filed by Ammani Ammal in O.S.No.71 of 1931 marked as Ex.B2. The perusal of Ex.B2 would suggest that the said Ammani Ammal admitted title of first respondent over the site of the suit property. She has specifically averred that she had been paying ground rent to the first respondent. Even in Ex.B1-title deed, it was mentioned that site of the suit property belonged to the first respondent. Therefore, the said Ammani Ammal under whom revision petitioner claims title herself admitted that ground site of the suit property belongs to first respondent. The revision petitioner tried to improve his case by taking shelter under findings in Ex.B2 judgment that Ammani Ammal acquired Kudiwaram right in the suit property as against the first respondent. The said contention of the revision petitioner cannot be accepted in view of coming into force of Minor Inam Abolition Act 30/63. It is not in dispute on coming into force of said Act the minor Inam properties including the suit property vested with the Government and thereafter the patta was granted by Inam Tahsildar under the provisions of Minor Inam Abolition Act. In the case on hand, the Settlement Tahsildar, granted patta in favour of first respondent under Ex.A8 on 22.04.1970. The said order was confirmed by Assistant Settlement Officer under Ex.A9, dated 29.02.1972. The order by Assistant Settlement Officer was again confirmed by Settlement Officer under Ex.A10, dated 17.12.1974. Finally, the said order was confirmed by Board of Revenue under Ex.A11 by order dated 28.10.1975. Therefore, the patta granted in favour of first respondent, in respect of the suit property had attained finality and the same has not been challenged by revision petitioner in the manner known to law. It is admitted case that no patta had been granted under Minor Inam Abolition Act in favour of revision petitioner. Though revision petitioner was a party to the proceedings initiated under Minor Inam Abolition Act before the hierarchy of authorities, he allowed it to become final by order of Board of Revenue. Hence, even if there is a finding in Ex.B2 that revision petitioner’s predecessor namely Ammani Ammal acquired Kudiwaram right, the same was not recognized by any of the authorities constituted under Minor Inam Abolition Act. Patta under Minor Inam Abolition Act was granted only to the first respondent Trust and no patta has been given to the revision petitioner.

11. In these circumstances, it is not open to the revision petitioner to approach the 3rd respondent District Revenue Divisional Officer and seek patta once again after authorities under the Minor Inam Abolition Act negatived his claim. The 3rd respondent erred in ignoring the material piece of evidence available before it and therefore, the Tribunal correctly came to the conclusion that the order passed by 3rd respondent is null and void.

12. The learned counsel for the 1st respondent relied on the following two decisions for the proposition that under Section 13 of Minor Inam Abolition Act, unless owner of the building is also owner of the site, cannot claim patta under Minor Abolition Act.

(i) CDJ 2000 MHC 927 reported in Shri Thiagarajaswami Devasthanam, Thiruvallur, Thanjavur District Vs The Commissioner of Land Administration, Chepauk and others, equivalent to 2000(2) LW 103;

(ii) CDJ 1995 SC 954 reported in R.Manicka Naicker Vs E.Elumalai Naicker, equivalent to 1995 (4) SCC 156.

13. In R.Manicka Naicker vs. E.Elumalai Naicker cited supra, the Apex Court has observed as follows:-

12. The contention of the appellant that by virtue of Section 13, the land underneath the building also vests in him must be rejected. Section 13 does not vest any property in a person in whom that property did not vest prior to the appointed day. It merely sets out that a building shall vest in the person who owned it immediately before the appointed day. Section 13(2) merely provides that the site on which the building stands will also be covered by section 13(1). Hence the site on which the building stands will vest in the person who owned it immediately before the appointed date.

13. In the case of Sri Kumarakattalai Subrahmanyaswami Devasthanam v. K.S. Sunderarajulu Chettiar, ILR (1975) 1 Mad., 501, a learned Single Judge of the Madras High Court considered the provisions of Section 13 of the said Act and held that unless the owner of the building is also the owner of the site, the site will not vest in the owner. The effect of sub-section (2) is not to make a statutory transfer of the land to the owner of the building where it had not formerly belonged to him. An inamdar who continues to be in constructive possession of the site even after the notified date would be entitled to recover possession from his tenant. We respect-fully agree with these findings of the learned Single Judge.

14. Moreover, in the present case, the patta granted expressly provides that the appellant has been granted a ground rent patta only in respect of the building, while the patta for the site has been granted to the respondent. A joint patta seems to have been granted in the names of both the appellant and the respondent because of the claim of the appellant to the building and the claim of the respondent to the site on which the building stands. Therefore, looking to the nature of the grant of the patta also it cannot be said that by virtue of the patta, the site on which the building stands has been, in any manner, transferred to the appellant or vests in him. The appellant cannot, therefore, claim that the decree for possession cannot be executed against him because he has become the owner of the site.”

14. In Shri Thiagarajaswami Devasthanam, Thiruvallur, Thanjavur vs. The Commissioner of Land Administration, cited supra, a learned Judge of this Court while considering scope of Section 13 of Minor Inam Abolition Act, observed as follows:-

9. I am of the view that the issue raised in the writ petition is concluded by the decision of the Supreme Court in (1995) 2 MLJ. 121 (S.C.),: A.I.R. 1995 S.C. 1613. The Supreme Court has considered the scope, object and purpose of the Tamil Nadu Act 30 of 1963, particularly, the scope of Sec.13 of the said Act and held as under:

....Sec.13 does not vest any property in a person in whom that property did not vest prior to the appointed day. It merely sets out that a building shall vest in the person who owned it immediately before the appointed day, Sec.13(2) merely provides that the site on which the building stands will also be converted by Sec.13(1). Hence, the site on which the buildings stands will vest in the person who owned it immediately before the appointed date. [Italics suppled] 14. In the case of Sri Kumarkattalai Subramanyaswami Devasthanam v. K.S.Sundararajulu Chettiar Sri Kumarkattalai Subramanyaswami Devasthanam v. K.S.Sundararajulu Chettiar Sri Kumarkattalai Subrahmanyaswami Devasthanam v. K.S.Sundararajulu Chettiar, I.L.R. (1975) 1 Mad. 501 a learned single Judge of the Madras High Court considered the provision of Sec.13 of the said Act nad held that unless the owner of the building is also the owner of the site, the site will not vest in the owner. The effect of sub-section (2) is not to make a statutory transfer of the site to the owner of the building where it had not formerly belonged to him. An inamdar who continues to be in constructive possession of the site even after the notified date would be entitled to recover possession from his tenant. We respectfully agree with these findings of the learned single Judge.” [Italics supplied]

Therefore, it is settled law that unless the owner of the building is also owner of the site, he is not entitled to claim right over site and claim patta under Minor Inam Abolition Act, as per the decisions cited supra.

15. As far as the case on hand is concerned, the patta was granted in favour of first respondent Trust under the proceedings initiated under Minor Inam Abolition Act. The same has no

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t been challenged by the revision petitioner in the manner known to law and the same had become final. It is also clear that under Minor Inam Abolition Act, no patta has been granted in favour of revision petitioner recognizing his alleged right over the buildings standing in the suit property. Therefore, it is not open to the revision petitioner to approach the 3rd respondent and seek patta on the strength of the decree passed in favour of his predecessor in the year 1932 ignoring the orders passed by authorities constituted under Minor Inam Abolition Act. 16. Therefore, I concur with the finding rendered by Wakf Tribunal and the same is confirmed. 17. The learned counsel for the revision petitioner further submitted that in the Settlement proceedings total extent in S.No.97B/3F, was vested with Government as per Minor Inam Abolition Act and thereafter patta was granted in favour of first respondent Trust except for a small extent of 0.00.5 hectares in S.No.97B/3F, which was classified as lane poromboke by Settlement Tahsildar and the suit property lies in that lane poromboke. The said contention of the revision petitioner cannot be considered because he has not made any plea in support of such contention. In his written statement, it was not his case that subject land was classified as lane poromboke in Settlement Proceedings and the suit property lies in lane poromboke. The revision petitioner is not entitled to raise a new contention without the support of pleadings. Hence, the second contention made by the learned counsel for the revision petitioner is also rejected. 18. In view of the discussions made above, there is no illegality or irregularity in the order passed by the Wakf Tribunal and hence the Civil Revision Petition stands dismissed. No costs.
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