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TMI Blog2004 (8) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... e mosque and common graveyard. The trial court also granted decree for recovery of possession of plaint schedule property from the defendant no. 2 with a direction that the defendant no. 2 should demolish the alterations made by him during the pendency of the suit and surrender possession of the premises with the structure that existed prior to the institution of the suit. The defendant no. 2 was also restrained by permanent injunction from demolishing or altering the tomb which existed on the property at the time of the institution of the suit. The defendant no. 2 filed appeal A.S. No. 187/87 in the court of the District Judge. The first appellate court, on consideration and reappreciation of evidence recorded the findings against the plaintiff. It allowed the appeal and dismissed the suit holding that the plaintiff failed to establish its entitlement to the suit property and that it was not entitled for recovery of possession of the same. The first appellate court also found against the defendant no. 2 in regard to his claim of title over the suit property. Aggrieved by the judgment and decree of the first appellate court, the plaintiff filed second Appeal No. 638/88-A in the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Wakf Board and in payment of annual contribution to the Board as per the provisions of the Act. The High Court relying on the decisions in Moideen Bibi Ammal vs. Rathnavelu Mudali [AIR 1927 Madras 69] and Syed Mustafa Peeran Sahib Anr. Vs. State Wakf Board rep. by its Secretary, Madras [AIR 1969 Madras 66] concluded that a person acting as a mutawalli is entitled to the rights and duties of the mutawalli. In this view, the High Court held that the plaintiff-committee was entitled to sue for recovery of possession. The High Court rejected the contention of the second defendant that the document created in favour of the first defendant was valid. The case of the second defendant that his father was in possession from 1948 was also rejected. In the result, by the impugned judgment, the judgment of the first appellate court was set aside and a decree was passed entitling the plaintiff to recover possession of the plaint schedule property from the second defendant. A further direction was given to the Wakf Board to exercise its power under Section 63 of the Wakf Act and to appoint a mutawalli in place of the plaintiff making it clear that the decree granted to the plaintiff could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs have been recorded against the plaintiff on questions 1 and 2, on the third question, the defendant No. 2 had no opportunity to put forth his case. This, in our view is a serious infirmity being contrary to requirement of Section 100 of Civil Procedure Code. It is plain and well-settled that in order to claim a decree for declaration of title and for recovery of possession in the civil suit the plaintiff had to essentially plead necessary facts so that the defendant could meet that case in the written statement and the parties could adduce evidence on such claims. Our attention was drawn to plaint to show that there was no such pleading. It is clear from the perusal of the plaint that the plaintiff did not plead the case that alternatively it was acting as mutawalli as a matter of fact even though Exbt. A2 was illegal and mutawalliship could not be validly transferred. No issue was raised by the trial court as to whether the plaintiff was a mutawalli as per Section 3(f) of the Wakf Act 1954. Even before the first appellate court, the only point that was taken up for consideration was Whether the first respondent is entitled to the declaration of title to the plaint schedule prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... building tomb situated in the plaint schedule property. As is evident from the impugned judgment, the High Court took into consideration the written statement filed by the Secretary, Wakf Board wherein it has been stated that the plaintiff-committee was very regular in submitting annual statement of accounts to the Wakf Board and in payment of annual contribution to the Board as per the provisions of the Act in support of the view that the plaintiff was actually acting as a mutawalli. This approach, in our view, is not correct. The written statement filed by Wakf Board could not bind the defendant no. 2. Further any statement made in the said written statement could not be accepted against the defendant No. 2 unless it was established on the basis of evidence. The decision of Moideen Bibi Ammal (supra), in our view, does not help the plaintiff. To apply the said decision, necessary facts ought to have been pleaded and established. In the case on hand, as already noticed above, neither there was pleading specifically in that plaint as to the plaintiff actually acting as a mutawalli to come within the scope of Section 3(f) of 1954 Wakf Act nor acceptable and sufficient evidence was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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