K.T.Sankaran, J.
The plaintiffs in O.S.No.1 of 2001 on the file of the Wakf Tribunal, Kollam are the appellants. They are aggrieved by the dismissal of the suit by the Wakf Tribunal.
2. The suit was filed for a permanent prohibitory injunction restraining defendants 1 and 2 and their men from causing any obstruction to the possession of plaintiffs 1 to 6 over plaint 'A' schedule properties, of plaintiffs 7 to 13 over plaint 'B' schedule properties, of the 14th plaintiff over plaint 'C' schedule properties, of the 15th plaintiff over plaint 'E' schedule properties and of plaintiffs 16 and 17 over plaint 'D' schedule properties and also restraining defendants 1 and 2 from committing trespass into plaint 'A' to 'E' schedule properties.
3. The case of the plaintiffs is that their predecessors-in- interest were allotted the plaint schedule properties under Ext.A1 partition deed dated 19.3.1095 (ME). It was contended that the third defendant is also a person having title in the plaint 'A' schedule properties. According to the plaintiffs, defendants 1 and 2 have no right or possession over the plaint schedule properties. It was alleged that during 1986, the plaintiffs came to know that the defendants made a request to the Kollam Development Authority to purchase plaint 'A' to 'E' schedule properties for the purpose of a housing colony. The plaintiffs approached the Development Authority and informed them that defendants 1 and 2 have no right or title or possession over the plaint schedule properties. It is also averred in the plaint that, thereafter, defendants 1 and 2 approached the authorities under the Wakf Act and sought permission to sell the plaint schedule properties. The plaintiffs approached the Wakf Board, submitted the title deeds and convinced the Board that defendants 1 and 2 have no title. The suit was filed when defendants 1 and 2 attempted to commit trespass over the plaint schedule properties. It is stated that the plaint schedule properties are part of an extent of 13 acres allotted to the predecessors-in- interest of the plaintiffs.
4. Defendants 1 to 3 in their joint written statement contended that the plaint schedule properties are Wakf properties belonging to Chinnakkada Muslim Juma-Ath Mosque, the old name of which was Areekada mosque. They also contended that the present suit is barred by res judicata in view of the decision in O.S.No.139 of 1120 (ME) on the file of the District Court, Kollam. In O.S.No.139 of 1120 (ME), it was contended that the plaint 'C' schedule properties therein belonged to Areekada mosque and that the gift deeds and sale deeds executed by the predecessors-in-interest of the plaintiffs are invalid. The plaint 'C' schedule property in O.S.No.139 of 1120 constitutes an extent of 13 acres, which was dealt with in the partition deed of 1095 and the subsequent documents relied on by the plaintiffs.
5. The case of the plaintiffs is that their predecessor Ahammad Pillai Pulavar owned and possessed the plaint schedule properties along with several other items and as per Exts.A1 to A3 and A5 documents they are entitled to claim title to the properties. The first defendant is Chinnakkada Muslim Jama Ath and its erstwhile name was Areekada mosque. The second defendant is the Secretary of the Jama Ath. According to the defendants, the present suit is barred by res judicata in view of the decision in O.S.No.139 of 1120 (ME) on the file of the District Court, Kollam.
6. O.S.No.139 of 1120 was filed by certain Mohammedans of the locality alleging that the mosque properties were being mismanaged by the trustees. The plaintiffs therein contended that plaint 'A', 'B' and 'C' schedule properties belonged to Areekada mosque. Karanavers of the mosque were in possession of the properties. While one Muhammed Kunju was managing the mosque, he created several documents in respect of the plaint 'C' schedule properties. The plaintiffs therein contended that the gift deeds and sale deeds executed by the trustee were void transactions. O.S.No.139 of 1120 was filed for a declaration that Muhammed Kunju or any member of his family had no right to be in management of the mosque, for an injunction restraining defendants 9 to 15 therein from interfering with the rights of the Yogam to manage the mosque, to compel defendants 9 to 15 to render accounts for the period during which Muhammed Kunju was in possession and management, for cancelling the gift deeds of 1095 and 1096 and another sale deed and for recovery of possession. Ext.A1 partition deed was also under challenge in O.S.No.139 of 1120. The District Court, Kollam in O.S.No.139 of 1120 held that the possession of the predecessors-in-interest of the present plaintiffs could be deemed to be only on behalf of the mosque. It was held that the plaint 'C' schedule property (of which the present plaint schedule property forms part) was dedicated to the mosque and that it does not belong to the family of the 10th defendant. It was also held that the family of the defendants had no right to deal with the same, that Exts.A1 and A3 gift deeds executed by Ahammad Pillai Pulavar were invalid, that the rights of the mosque could not be said to be lost by adverse possession and limitation. All the alienations made by the predecessors-in-interest of the present plaintiffs were set aside. It was also held that the predecessors of the present plaintiffs had no independent possession or their own right and their possession could be on behalf of Areekada mosque.
7. It is true that Areekada mosque was not a party to O.S.No.139 of 1120. That suit was filed by certain Mohammedans to protect the interest of the mosque and the contesting defendants in that suit were the predecessors-in-interest of the plaintiffs.
8. It would appear from the evidence of PW1 that the plaintiffs came to know of Ext.B1 judgment in O.S.No.139 of 1120 only after the institution of the present suit. The plaintiffs filed an application for amendment of the plaint to incorporate a contention that they have perfected title by adverse possession. The trial court dismissed that application. The plaintiffs having claimed title and possession on the basis of a title deed would not be allowed to set up adverse possession. The plaintiffs could not raise contradictory and irreconcilable pleas. The very fact that they pleaded that they have perfected title by adverse possession would mean that their claim as put forward in the plaint is unsustainable. The court below rightly rejected the application for amendment of the plaint.
9. The court below held that there is nothing to show that the plaintiffs are in actual possession of the plaint schedule properties. The possession of their predecessors was found to be as that of trustees and the plaintiffs cannot set up any possession in derogation of that possession. The plaintiffs claim possession on the basis of the title claimed by them. The title claimed by the plaintiffs was found against by the District Court in Ext.B1 judgment with the predecessors in interest of the plaintiffs in the party array. Ext.B1 judgment would bind the plaintiffs and they are barred by res judicata from claiming title. The very substratum of the case put forward by the plaintiffs has gone by the decision in O.S.No.139 of 1120. The documents relied on by the plaintiffs in the present suit were set aside in O.S.No.139 of 1120.
10. The court below elaborately considered the oral evidence of PW1 to PW3. We have also perused the said oral evidence and we do not find any ground to differ from the view taken by the trial court.
11, The learned counsel for the petitioners submitted that the suit is only for injunction and, therefore, possession alone need be considered. The counsel submitted that the plaintiffs have proved possession and, therefore, the court below ought to have granted a decree for injunction in their favour. We have already held that the claim of the plaintiffs is barred by res judicata by the decision in O.S.No.139 of 1120, where the predecessors of the present plaintiffs were parties. It was found in O.S.No.139 of 1120 that the possession of the predecessors of the plaintiffs were on behalf of the mosque and they had no independent possession. The plaintiffs have no claim for any possession other than as title holders. By the judgment and decree in O.S.No.139 of 1120, the claim of title made by the plaintiffs is barred by res judicata. Therefore, it cannot be said that the plaintiffs have settled possession to enable them to get a decree for injunction. Even assuming that a person in settled possession could claim a decree for injunction against the true owners, we do not think that the successors in interest of the trustees of a Wakf would be entitled to claim independent possession and got a decree for permanent prohibitory injunction against the true owners. There is nothing to indicate that the nature of the possession of the properties ever changed after Ext.B1 suit. When a state of things is proved to exist, its continuance forward can be presumed.
For the aforesaid reasons, we find no ground to interfere with the well considered judgment of the court below. The Civil Revision Petition lacks merits and it is accordingly dismissed.
(K.T.SANKARAN) Judge ahz/ (A.MUHAMED MUSTAQUE) Judge