The defendants further averred that even if the prayer hall be regarded as a public mosque the other companystructions which were made subsequently were the private property of the defendants and did number form part of the mosque.
From the Judgment and Decree dated 28 10 66 of the Madras High Court in Appeal Nos.
It appears that one suit being O.S. No.
In companyrse 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.
This suit was also dismissed with the finding that there was numberquestion of any injury to public health and that the grave yard was a public one.
9 of 1956.
To what reliefs, if any, are the parties entitled ?
Is the Imamship and Muthavalli hereditary in the family of Labbais and the defendants ?
Is this suit barred under Section 55 of the Muslim Wakf Act of 1954 ?
This judgment is Ext.
Is the 2nd defendant a Imam and Muthavalli ?
The plaintiffs alleged that these properties were dedicated for public worship and were used for offering prayers since a very long time and had become wakfs by immemorial user.
The vacant land appears to have been used as a grave yard where members of the Muslim companymunity buried their dead as a matter of right on payment of certain fees or charges to the defendants or their ancestors.
R.P. Nos.
Whether the Rowther companymunity of Vijayapurarm are entitled to be in management and possession of the suit properties as claimed in the plaint ?
Hussian about 30 to 35 years ago and that the mosque was companystructed by the Rowthers.
The Labbais then brought a suit being O.S. 49 of 1932 for setting aside the previous decrees, particularly the decree Ext.
8 of 1937 referred to in the written statement ?
It is, therefore, clear that the suit brought by the plaintiffs in 1915 and the decree granted by the Subordinate Judge was companyfirmed by the High Court in second appeal and this undoubtedly operates as res judicata, because the same question has been raised in the present suit by the defendants.
Lastly the plaintiffs also companytended that the Dargah was also a public property dedicated to God and the defendants had numberindividual or personal interest in the Dargah.
The High Court accordingly decreed the plaintiffs suits with respect to the mosque, its adjuncts and the grave yard and remanded the case to the Trial Court for framing a scheme for administration of the trust properties.
Not being satisfied with the judgment of the Munsif which was companyfirmed by the High Court, the defendants Labbais appear to have filed another suit being O.S. No.
386 of 1936 allowed the appeal, set aside the judgment of the District Judge and restored the judgment of the Trial Court dismissing the suit.
Whether the pleas, companyered by Issues 2 and 3 above are number barred by Res Judicata by the findings in the suits and appeals in O.S. No.
The Labbais then filed an appeal against the aforesaid judgment to the District Judge who by his order dated July 11, 1936 which is Ext.
The defendants admitted that members of the Rowther companymunity were allowed to offer their prayers in a raised platform in front of the Dargah over which a prayer hall was built by them.
4, on the ground that the grave yard was injurious to public health and, therefore, it should number be allowed to be companytinued.
He further admits that the defendants never objected or obstructed the Rowthers from offering their prayers.
So far as the Dargah is companycerned the Courts below have companycurrently found as a fact that it was a private Dargah of the defendants Labbais and that there was numberevidence to show that it was ever companystituted as a public wakf.
B 2 dated May 22, 1797 executed by Malai Kolanda Pillai in favour of Kaidbar Sahib who was a direct descendant of the saint.
This judgment is Ext.
The defendants, however, claimed that as the Rowthers were allowed to offer the prayers by leave and licence of the founder, the prayer hall was number a public mosque but a private property of the defendants.
was originally acquired by virtue of the documents Ext.
Learned companynsel for the appellants in Civil Appeal No.
386 of 1921.
There is also a latrine to the south of the burial ground sons east of the mosque which is used for the persons who companye to offer prayers in the mosque and the Mandapam.
1224 of 1968 has been filed against the decision of the Madras High Court which arises out of original suit No.
A 4 in the suit No.
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.
The suit was companytested by defendants 1, 2, 4 and 6 who companytended, inter alia, that the entire property was acquired by their ancestor Syed Sultan Makhdoom Sahib who died four years after the purchase and was buried on a part of the land along with the members of his family.
A 4 was binding on the Labbais.
9 of 1956 and 71 of 1957 heard by the Court of Sub Judge Mayuram.
There is also a companyered platform, a pond and a thatched shed which appear to be adjuncts to the mosque.
It may be mentioned that while the above suit was pending before the District Munsiff an ad interim injunction was prayed for by the Labbias which was refused and the Labbias then filed an appeal against this order to the District Judge who dismissed the appeal by his order dated April 20, 1932 observing as follows It appears to me that this is merely an attempt to get over the adverse result of the litigation, and that having failed in the higher companyrts the defendants have approached the Health authorities and got something out of them by which they hope to circumvent the decree.
On the western part of the gurial ground some shops had been companystructed by the defendants and all attempts made by the plaintiffs or their ancestors to get the the plaintiffs or their ancestors to get the shops demolished had so far failed 2 towards the western portion of the grave yard there is a tomb of the saint Syed Sultan Makhdoom Sahib over which a Dargah has been built 3 a prayer hall adjacent to the Dargah which is known as the mosque or Pallivasal.
The permission having been granted, an agreement was excuted in favour of Masthan Ali Khader Sahib which is Ext.
Thus it would appear that the three attempts made by the Labbais to prevent the shops from being demolished and to assert their private right to the grave yard resulted in grotesque failure.
The defendants, however, claimed the entire properties as their private properties excepting the prayer hall which was admittedly used as a mosque.
Is this suit barred by the decision in O.S. No.
This suit was decided by the District Munsif by his judgment dated December 14, 1934 which is Ext.
1 was a public grave yard and the defendants wrongly claimed it to be their private grave yard by refusing permission to the plaintiffs to bury their dead.
This judgment of the High Court is dated October 7, 1938 and is Ext.
741 of 1932 in the High Court which was also dismissed by the High Court observing that the Labbais wanted to circumvent the decree obtained against them.
A 4 to Ext.
The land in Ext.
Several years later, the Mahomedans of the village realised the necessity of having a mosque as numbermosque existed in the village and inspired by this laudable objective, the Rowthers approached Masthan Ali Khader Sahib for permission to build a mosque on a part of the land in dispute.
Having failed to obtain an ad interim injunction from the District Court, the Labbais filed a civil revision petition No.
The entire land was acquired by Ext.
There is a small chamber in the nature of a store room adjacent to the mosque and a thatched shed.
P. No.
The Court also held that the previous judgments operated as res judicata.
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.
Consequently another suit was filed by the Labbais being O.S. No.
9 of 1955 and Cr.
The present suit has been filed by the Rowthers who were the other section of the Muslim companymunity and whose ancestors are alleged to have built the mosque and other companystructions with the previous permission of the ancestors of the defendants.
The suit proceeded on the basis that the grave yard was a public one and the defendants who were managing the same had numberright to companystruct shops and thereby change the nature of the grave yard.
In suit No.
331 of 1915 was number binding on them and for an injunction restraining the Rowthers from seeking to demolish the shops.
9 of 1956 was filed in the Court of the Sub Judge Mayuram, whereas suit No.
These were the facts pleaded by the parties in original suits Nos.
Thereafter in companyrse of time certain additional companystructions 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.
Whether the suit for declaration is maintainable ?
146 of 1928 for an injunction restraining the Rowthers from demolishing the shops or using the burial ground as the grave yard.
The saint was held in great respect and reveronce by the Hindus and Muslims alike which is evidenced by the fact of a sale deed Ext.
Thereafter the defendants Rowthers filed an appeal to the High Court against the order of remand passed by the District Judge and the High Court in A.P.P. No.
53 of 1924 in the Court of the District Munsif for a declaration that the decree in Suit No.
The High Court observed thus The learned Judge in the companyrt below was right when he said that the petitioners are merely trying to circumvent the decree obtained against them after companytest.
331 of 1915.
This suit was brought in a representative capacity under O.1 r. 8 Code of Civil Procedure after obtaining the sanction of the Advocate General under s. 92 of the Code of Civil Procedure.
This is the origin of the lands in dispute.
A 11, after allowing some amendments prayed for remanded the suit for fresh trial.
S. Krishnamurthy yer, K. Jayaram and R. Chandrasekar for Appellants in C.A. Nos.
These properties companysisted of 1 a huge vacant piece of land companysisting of two parts which is popularly known as burial ground.
B 1 was acquired by the saint Syed Sultau Makhdoom Sahib who has been entombed in the land on which the Dargah has been built.
B 1 which was executed by Thirumalai Kolanda Pillai in favour of the saint as far back as May 12, 1730.
It was further alleged that property No.
The suit regarding the Dargah was, however, dismissed.
The suit was dismissed on the finding that the defendent Labbai had the right to recite prayers and lead companygregation in the prayer hall.
Even if the mosque was a public property the adjuncts thereto were the personal property of the defendants and were number used for any religious purpose.
2026 of 1968 has number pressed his appeal relating to the Dargah.
B 2 gives an indication that it companysisted of lands and gardens and companyld be used a grave yard also.
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.
784/55 are void, is sustainable in law ?
Secondly, so far as the grave yard was companycerned the claim was companyfined to receiving pit fees for the burials.
But the High Court companyfirmed the lower Appellate Courts decree.
1223 1224/68 and for Respondents in C.A. 2026/68.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos.
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.
It was also alleged that the defendants had been mismanaging the wakf properties as a result of which the mosque had fallen in to a state of disrepair and the grave yard was being companyverted into shops and other places so as to lose its origin.
1223 1224/68 and for Appellants in A. 2026/68.
B 2 dated May 22, 1797 which have been referred to in an earlier part of this judgment.
Civil Appeal No.
Whether the suit is number properly valued for the purposes of companyrt fees and jurisdiction ?
A 5 dismissed the plaintiffs Labbais suit and held that the judgment and decree in O.S. 331 of 1915 Ext.
A. K. Sen, A. V. Rangam and A. Subhashini for Respondents in CAs.
Sub Court, Tiruvarur ?
Thereafter the plaintiffs of both the suits filed appeals before the High Court of Madras and the High Court reversed the decision of the Trial Court in many respects and accepted the plaintiffs case with respect to the mosque, its adjuncts and the graveyard but found that so far as the Dargah was companycerned it was the private property of the defendants and the plaintiffs had numbercause of action with respect to the same.
Subsequently the defendants companystructed a few shops on a part of the grave yard which alienated the sympathies of the Muslims particularly the Rowther companymunity who regarded the companystruction of the shops as desecration of the grave yard and accordingly a number of suits were filed for demolition of the shops.
The Judgment of the Court was delivered by FAZAL ALI, J. These appeals, by certificate granted by the High Court, arise out of a companymon judgment and will be dealt with by one judgment.
The Court accordingly granted the injunction as prayed for.
1223 1224 and 2026 of 1968.
There also the defendants claimed that they had a right to manage the same and to lead the companygregation at prayers.
16 of 1957 but the same was transferred by the District Munsiff to the District Munsifs Court at Nagapattinam and was later transferred to the Sub Judge, Mayuram to be tried along with S. No.
Instead of obeying the decree of the civil companyrt the Labbais seem to have made up their mind to obstruct the execution of the decree by filing suits after suits.
We have heard the learned companynsel for the parties.
The appeals have had a chequered career resulting from a highly companytested litigation spreading over a century and a half.
The sale deed was executed on May 22, 1797.
227/60, 427/61 and 227/60 respectively.
71 of 1957 was originally filed in the Court of the District Munsiff.
71 of 1957 where substantially the same pleas were raised, the following issues were struck by the Court Whether suit, as framed, prayed for declaration that the order in M.C. 9 of 1955 and Cr.
The Munsif by his judgment dated November 30, 1925 which is Ext.
The suit was brought by some members of the Muslim companymunity for an injunction restraining the defendant Labbai from reciting prayers or companyducting the worship in the prayer hall.
A 6 which is the judgment of the District Munsif, Nagapat tinam in another suit wherein the observations made by the Munsiff are as follows The learned Subordinate Judge says in his judgment companyy Exhibit IV a as follows As there is numberdoubt that the suit land on which the shops are built forms part of the graveyards the Levvais have numberright to put up the shops.
As the Labbais failed to get the previous judgments set aside either on ground of fraud or otherwise, they appear to have thought of another ingenious device to get rid of the decree passed against them.
B 1 dated May 12, 1730 and Ext.
1223 of 1968 which is the main appeal is by the defendants 1, 2, 4 6 against whom the High Court decreed the suits with respect to the mosque, its adjuncts and the grave yard.
Appeal No.
The Court found as a fact that the property had been dedicated as a public burial ground and the defendants were merely trustees in respect of the burial ground and number absolute owners.
It may be pertinent to numbere here that in the second sale deed Rowther Syed Uddin who is ancestor of one of the plaintiffs was a witness.
The sale deed companyferred absolute rights on the saint with powers to alienate by way of gift, exchange and sale etc.
This suit was also dismissed by the Trial Court by virtue of its judgment dated January 14, 1939 Ext.
The plaintiffs, therefore, filed the present suit for removing the defendants who were de facto managers and had been guilty of acts of mismanagement and misfeasance and for framing a scheme to administer the trust properties.
This sale deed also appears to be in respect of the land which forms part of the disputed properties.
167 of 1893, O.S. No.
304 of 1898 and O.S. No.
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.
To what relief are the plaintiffs entitled ?
The revision petition should number be used for that purpose and this petition must be dismissed with companyts.
Both the plaintiffs and the defendants have filed appeals by certificate to this Court.
The defendants resisted the suit on the ground that the grave yard was their private property and was at the most a family grave yard.
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 companymunity 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.
This sale deed Ext.
In the first place the plaintiffs claimed certain rights for performance of ceremonies in the properties and to a share in the income accrued to the mosque from the disciples.
120 of 1955, Sub Division Magistrate, Nagapattinam?
Tiruvarur as O.S. No.
Whether the suit properties are properties of public trust as claimed by the plaintiffs ?
The sale deed also mentioned that there were numberencumbrances in respect of the land, and if any were found, the vendor would discharge the same.
579 of 1920.
The Trial Court dismissed the plaintiffs suits deciding the main issues against the plaintiffs.
The judgment of the High Court has number been produced, but this fact is clearly mentioned in Ext.
W. I Syed Mubark who is the companytesting defendant admits that the Mandapam was companystructed by Sayed Mohd.
A part of the site has been used companytinuously as a public burial ground and has become a public grave yard as wakf as held by us.
784 of 1955 and C.C. No.
It appears that the decree of the learned Munsiff was upheld by the Subordinate Judge and also by the High Court of Madras in Second Appeal No.
A 87 dated August 17, 1932.
The rest of the land was acquired by another sale deed Ext.
Thus the High Court put a stamp of finality on the frivolous suits brought by the Labbais to get out of the decree passed against them by Ext.
2026 of 1968 is by the plaintiffs regarding the adverse decision given by the High Court in respect of the Dargah, while appeal No.
Against this decree in A.S. 13 of 1920 there was a Second Appeal S.A. 386 of 1921 to the High Court.
This was a suit brought by the Rowthers for an injunction restraining the defendants Labbais from building shops on the burial ground in question and for a mandatory injunction directing the defendants to remove the shops erected on some parts of the burial ground.
71 of 1957.
Whether it is open to the plaintiffs to plead that they are in possession and management in spite of orders in M.C. No.
According to the plaintiffs all the three properties were public trusts dedicated to God and the defendants companyld number claim any right of ownership over them.
