The petitioner is the defendant in O.S.No.108 of 2008 on the file of the Wakf Tribunal (Principal Subordinate Judge) Cuddalore. The respondent filed the suit for permanent injunction on the strength of an agreement of sale. The respondent also filed an application under Order 39(1)and (2) CPC, for grant of temporary injunction restraining the respondent(petitioner) and his men from any manner interfering with his possession during the pendency of the suit. The petitioner has filed his counter.
2. In the affidavit, the petitioner has stated as follows:
The suit property was agreed to be sold to the principal of the petitioner and the same is evidenced by three agreements dated 16.7.2007, 2.8.2007 and 16.1.2008. It is followed by delivery of possession which is evidenced by the deed dated 16.1.2008. The plaintiff has already paid towards advance a major portion of the sale consideration. After taking possession he has raised concrete pillars around the boundary line. There is a thatched shed and a portion of the property is brought under cultivation. The respondent as agreed should get sanction form the Wakf Board for sale of the property. Having received the advance amount to be sold, he unjustly demanded more than what he agreed. The documents filed along with the plaint establish the possession of the plaintiff. The respondent has attempted to encroach upon his property.
3(i). In the counter filed before the lower court in the above said interlocutory application the following are stated. The application is not maintainable and this court has no jurisdiction to entertain the suit for bare injunction. Whatever the relief available under the Indian Contract Act, Specific Relief Act and Transfer of property Act are not contemplated in the Wakf Act. If this Tribunal had jurisdiction to exercise its power under the Code of Civil Procedure and grant injunction under Order 39 Rule 1 and 2 C.P.C. it is entitled to grant ancillary relief in the suit instituted under the provisions of Wakf Act. It has no jurisdiction to grant permanent injunction, since the suit itself is for bare injunction and no interim injunction could be granted. The sale agreement is only in favour of the trust, not in the name of the plaintiff and hence the suit should not have been numbered. The petitioner has suppressed the material facts namely the issuance of notice to the respondents 18.3.2003 and the belated reply dated 17.5.2008. The respondent has entered into a sale agreement on 2.8.2007 with Dr.Rahman Trust represented by the petitioner to sell the suit properties after obtaining permission from the Wakf Board. It is a conditional agreement and it is also void. Since he could not obtain permission from the Wakf Board, the sale agreement has become infructuous and unenforceable and hence the respondent opted to cancel the agreement and refund the advance amount.
3(ii). It is absolutely false to say that the respondent (in I.A.) received Rs.36,12,000/- as advance but he only received Rs.14,12,000/-. When this respondent (Present petitioner) represented that the permission could not be obtained and wanted to cancel the sale agreement, the petitioner replied that he will try the chance of getting permission and obtained signatures of the respondent in various blank stamp papers and blank white papers. It seems that he had concocted the documents 3 and 4 dated 16.1.2008, out of which the alleged deed of sale agreement dated 16.7.2007 and letter of delivery of possession dated 16.1.2008 which are not true, valid and supported by consideration and they are inadmissible in evidence. This respondent never delivered the possession to the petitioner nor he is in possession of the suit properties. Only this respondent erected the concrete pillars and he is in actual possession and enjoyment of the suit property. The respondent has already filed a suit for injunction on the file of the District Munsif-cum-Judicial Magistrate, Parangipetti and the same is still pending. Hence he prayed that this petition has to be dismissed.
4. After hearing both parties and perusing the exhibits marked on both sides, the learned Principal Subordinate Judge, Cuddalore has allowed the application finding that this respondent is entitled for temporary injunction. It is also observed that even if the respondent raised the plea that some of the documents were held to be concocted, they could only be found out at the time of trial alone and the documents produced have made prima facie case. This order is being challenged before this court.
5(i). The petitioner is a Muthavalli of the Yousuff Sahib Trust, Parangipettiai. The properties were under the possession of different parties under the arrangement by the Muthavalli. The respondent is engaged in educational activities and he approached the petitioner for sale of land for his institution. In addition to these, it is further alleged that both the parties entered into a written agreement of sale dated 16.7.2007 for the sale of property at Rs.1,75,000/- per acre, that the defendant received an advance amount of Rs.2,00,000/-, that delivery of possession to be handed over to the plaintiff after recovery of possession from the persons who were in enjoyment, that since the defendant wanted some more money for paying the enjoyers to get back possession, on 2.8.2007 he entered another agreement getting further advance of Rs.5,00,000/-, that the defendant was able to pay the sum only for securing possession, 5(ii). that at the request of the defendant on 16.1.2008 an agreement was entered into for the sale value of Rs.51,12,000/- and the defendant also received further advance totalling a sum of Rs.36,12,000/- as advance, that the defendant delivered possession of the property 16.1.2008, which is specifically mentioned in the agreement and on the same day, he also executed a document in the name and style of "epy xg;gilg;g[ cWjpbkhHp Mtzk;" which affirms the delivery and also enables the plaintiff to build the educational institution, that possession was taken by the plaintiff, that the parties also entered into a lease document dated 16.1.2008 for the period of 11 months with a specific undertaking that it should be renewed and that after taking possession, the plaintiff raised concrete pillars to earmark the boundary and also put up thatched shed to carry on further work and the remaining extent was utilised by him for cultivation.
6. The learned counsel for the petitioner submits that inasmuch as the property is a Wakf property the Wakf Tribunal cannot grant permanent injunction in the original suit even though it is authorized to grant an interim injunction under order 39 (1) (2) CPC and that the suit for permanent injunction should have been filed under the provisions of Indian Contract Act, Transfer of Property Act and Specific Relief Act etc.; that plaintiff is not at all the Trust, that the delivery receipt dated 16.1.2008 is disputed by the petitioner and there is no document to show the possession of the respondent and without prior sanction of the Wakf board, the alienation of wakf property is void, that the lease deed is not valid since it is not registered and that when the suit for injunction is not maintainable, the interim injunction could not be granted.
7. Repelling the contention of the petitioner, learned counsel for the respondent would submit that even though the petitioner has disputed the execution of other documents, the original sale agreement has been categorically admitted, which provides responsibility of the petitioner to deliver the property in favour of the respondent and that a large sum has been received by the petitioner as advance. Hence he prays dismissal of the petition. It is further contended that the petitioner himself filed an application before the Wakf Board for permission to sell the property and the sale agreement is valid transaction, that there is a specific bar under
Section 85(2) of Wakf Act, prohibiting the jurisdiction of the civil court, and that the suit can very well be maintained before the Tribunal.
8. The learned counsel for the petitioner placed reliance on a judgement of the Division Bench of this court reported in 1981 TNLJ 189,(Krishnamoorthy Kounder vs. Paramasivam Kounder) in which it has been held as follows:
" We are of the view that in the circumstances of this case unless the plaintiff establishes the actual delivery of possession of the properties on the date of agreement of sale, he can not merely rely on the term of the agreement which is denied by the first defendant and the truth of which the plaintiff has to establish at the stage of the trial. Unless the plaintiff establishes prima facie that the possession was given to the plaintiff by the first defendant in person on the date of the agreement of sale the plaintiff is not entitled to an injunction merely basing on the date of the agreement and the truth of which is yet to be established at the trial. In this view of the matter we find that the lower court is not justified in granting the injunction prayed for by the plaintiff."
9. In the above said case, the defendant had totally denied the execution of the agreement and hence the plaintiff was expected to establish the actual delivery of possession of the property. The facts available on hand are otherwise, which show that the petitioner has categorically admitted the execution of the sale agreement and the subsequent documents have been denied by him on the pretext that his signatures have been obtained by the respondent by representing that they are necessary for performance of getting sanction from the Wakf Board. It is stated that the respondent obtained signatures of the petitioner in various blank stamp papers and white papers and he could have concocted the document dated 16.1.2008. Even though the suit is in preliminary stage, it can be observed that since he has admitted the signature, it is to be presumed that he has executed the documents unless contrary is proved. The documents have been signed by the witnesses and the execution of the suit documents have to be tested only at the time of final hearing of the suit. It was also agreed in the original sale agreement that the petitioner has to obtain permission and in such circumstances, whether a responsible person like this petitioner-Muthavalli can sign in blank papers. Ex.A3 is another sale agreement dated 16.1.2008 between the parties, agreeing to fix the sale prize of properties at Rs.5.11.2000. As for the present case, the petitioner has categorically stipulated in Ex.A3,A4 and A6 that he has delivered possession of the property to the respondent. Exs. A1,3,4 and 6 cumulatively show prima-facie possession of the respondent in the properties.
10. Learned counsel for the petitioner garnered support from the decision reported in 1994(1)LW 21(S.P.Chengalvaraya Naidu (dead) by LRs. v. Jagannath (dead) by LRs & Ors.), wherein Their Lordships observed that if there was any suppression of material facts or fraud played on the court, the party who is responsible for that act is not entitled to get the relief. In this case it is stated that the respondent has not mentioned in the plaint about the notice and reply notice. Whether they are material documents or not have to be discussed at the time of trial. It is worthwhile to note that this petitioner has not produced any documents said to be in his possession much less the notice and the reply notice exchanged between the parties anterior to the filing of the suit.
11. In the case reported in 1997 (III) CTC 573(Janab K.Mohamed Hussain v. Dalavai A.Ramaswami Mudaliar and 53 others), this court has held that injunction cannot be granted when equally efficacious relief can be obtained by any other usual mode or proceedings except in case of breach of trust. Since the properties are wakf properties the respondent cannot file suit in a civil court for permanent injunction.
12. Learned counsel for the petitioner also relied upon the decision of this court reported in 2001(2) LW 753(A.M.Ali Akbar and another v. Keelakarai South Street Jamath Masjid Paripalana Committee etc. & 3 Ors., wherein this court had an occasion to deal with various provisions under
Section 83 of wakf Act and held that in the suit for permanent injunction restraining the respondent from interfering in the management of Jamath consequent grant of temporary injunction from holding election is not sustainable. The matter involved in that case was with regard to management of the Jamath and the decision was rendered by this court in that line. But, herein the suit is with respect to the possession of the property under
Section 83(1) of the Wakf Act. The other matters which are mentioned in the Act have to be determined by the Tribunal are referable only to
Sections 6,7,67(4),70(1) and (2) and 94 of the wakf Act.
Section 94(2) of the Wakf Act is relevant in this regard.
Section 94 (2) reads as follows:
"(2) Where a mutawalli is under an obligation to discharge any other duties imposed on him under the Wakf and the mutawalli willfully fails to discharge such duties, the Board or any person interested in the Wakf may make an application to the Tribunal and the Tribunal may pass such order thereon as it thinks fit."
13. The learned counsel for the petitioner also cited a decision of the Supreme Court in 2007 (2) LW SC 879(M.P.Wakf Board vs. Subhan Shah (D) by LRs. & others) in which it is held that the admission of party must be clear and explicit in a case where an inference is required to be drawn with regard to the fact that thereby he had admitted the title of the other and that generally speaking, no title can be created by admission. In this case, there is no question of acquisition of title as regards any property. For the purpose of ascertaining prima-facie possession, learned counsel for the respondent placed reliance upon a decision reported in 1999-I.L.W.156(Varghese Daniel v. Balakrishnan and another), in which the Supreme Court held as follows:
"He cited the decision reported in Masjid Kacha Tank, Nahan v. Tuffail Mohammed (AIR 1991 S.C. 455), in the said case, the Apex Court has held as follows:
"The High Court is empowered only to interfere with the findings of fact if the findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the Courts below. Simply because another view of the evidence may be taken is no ground by the High Court to interfere in the reversional jurisdiction."
14. When the court below has properly appreciated the materials on record in the light of the documents there is no question of interference and there is also no perversity as a ground taken by the petitioner. The order passed by the court below cannot be said to be perverse. Following is the decision of the First Bench of this court reported in 2005 1 LW 676(Salam Khan v.Tamilnadu Wakf Board and others) in which powers of the Wakf Tribunal has been discussed. The operative portion of the judgement is as follows:
"6. Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property. The words "any dispute, question or other matters relating to a Wakf or Wakf property" are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. The word 'Wakf' has been defined in
Section 3(4) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in
Section 3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal. It is not proper for this Court to straight away entertain writ petitions relating to a Wakf or Wakf property when there is a special Tribunal constituted for this purpose."
15. The Division Bench has taken a view that any dispute, question or other matters what so ever and whatever manner raised relating to Wakf property, can be decided by the Tribunal. Hence the present matter on hand has also to be brought under the purview of the provision of Wakf Act and it has to be necessarily observed that Wakf Tribunal has got jurisdiction to try the matter.
16. To sum up, prima-facie position of this respondent over the suit property is evident from the Original agreement dated 16.7.2007 and the subsequent agreement between the parties dated 2.8.2007 16.1.2008. In pursuance of the sale agreement, the petitioner has taken necessary steps to get sanction for sale from the Wakf Board as evident from Ex.A5. The delivery of possession in favour by the respondent has been duly established and prima-facie possession has been shown for grant of temporary injunction.
17. Above circumstances do not warrant interference in the orders passed by the Tribunal, which deserve to be confirmed and they are accordingly confirmed.
18. In view of the above discussion, this revision petition is dismissed. No costs. Consequently the connected M.P.1 of 2009 is closed. The Tribunal will not be influenced by any of the observations contained in this order while passing further orders in the Original Suit.