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Judgment
K. Govindarajan, J.—The petitioners have filed the above revisions against the order passed in E.A.Nos.83 of 1993 and 378 of 1992 in
O.S.No. 10 of 1909, on the file of the Sub Court, Chidambaram, dated 25.11.1998.
One Hazarath Syed Sha Rahmathulla Sahib was given certain properties in Killai Village, Chidambaram Taluk Samayapuram Village, Tiruchi
District and in Navabpettai, Chidambaram taluk by the then King. After this death, he was interred in Killai village and his son Syed Sha Eduallh
was also interred after his death in Navabpettai Dargah. He had two sons, namely, Syed Sha Ghulam Mohideen and Syed Sha Phool. Syed Sha
Phool had a quarrel with his father with respect to the properties and he separated himself from the family by getting 20 kani lands. The balance
extent of the properties had come under the control of Syed Sha Gulam Mohideen. With a view to continue the object for which the properties
were given by the original owner, the said Syed Sha Ghulam Mohideen executed two documents in the year 1926 and 1939. The said Syed Sha
Ghulam Mohideen had three sons, namely, Fariduddin Athar, Mohammed Ghouse and Ghulam Jeelani. The said three sons were directed to
administer the three Darghas at Killai, Navabpettai and Samayapuram. There was a dispute between the parties regarding the management of the
abovesaid Darghas. One Syed Sha Ghulam Javani Sudari Sahib filed the suit in O.S.No. 10 of 1909 on the file of the Sub Court, ''Mayavaram.
The said suit was dismissed on 22.12.1909. Thereafter, the plaintiff therein filed appeal in A.S.No. 156 of 1910 before this Court. The Division
Bench of this Court remanded the matter for fresh disposal. After remand, the learned Sub Judge in the judgment dated 27.3.1923 appointed
Piran Sahib as the Muthawalli of Killai Dargah and Ghulam Kadhar Sahib as Muthawalli''with respect tot he other institutions. The original plaintiff
in O.S.No. 10 of 1909 who was transposed as sixth defendant in the suit, filed appeal in A.S.No. 186 of 1923 and the other defendants in the suit
filed appeals against the same judgment and decree, in A.S.Nos.76, 77 and 106 of 1926.
The Division Bench of this Court in modification of the decree of the trial court passed a decree to the following effect:
(1) that the 12th defendant Piran Sahib Be and hereby is appointed as Muthawalli for the Killai Dargah and its endowments, and that he will be on
probation for a period of three years form the 9th day of May, 1933;
(2) that the work of the said 12th defendant from April, 1929 to 1936 be reviewed by the Subordinate Judge of Mayavaram and that if there be
no objection, he be made permanent;
(3) that the subordinate Judge of Mayavaram do pass the said 12th defendant''s accounts kept as receiver and do also ascertain the surplus
available for distribution and deal with the same;
(4) that the security of rupees six thousand already furnished by the said 12th defendant as receiver do continue during the period of his probation
aforesaid;
(5) that the said 12th defendant do take possession of the Dargah of Killai and all its properties, moveable and immovables;
(6) that the 2nd plaintiffs appointment (by the lower court) on probation for three years as Muthawalli for the Navabpettai Dargah and
its endowments be and hereby is confirmed, without the discretion of the subordinate Judge of Mayavaram being in any way fettered with in the
matter of examining his work;
(7) that the said 2nd plaintiff do take possession of the dargah at Navabpettai and all its properties moveable and immovables;
(8) that the 12th defendant and the 2nd plaintiff as soon as they assume the management of their respective trusts to submit to the court sub court,
Mayavaram) a correct inventory of all moveables and immovables possessed by their respective darghas;
(9) that the 12th defendant and 2nd plaintiff do submit a correct list of outstandings and cash possessed by their respective darghas;
(10) that the 12th defendant and the 2nd plaintiff do also submit a report, to the court (Sub Court, Mayavaram) as to the probable income and
expenditure of their respective darghas for the next fasli;
(11) that the 12th defendant and the 2nd plaintiff do likewise make a report as to the surplus available for distribution, the members of the family
who would be entitled to distribution out of such surplus and the proportion in which each would be entitled to, and take the orders of the court
(Sub Court, Mayavaram) thereon before such distribution;
(12) that the 12th defendant and the 2nd plaintiff do each of them keep regular and correct accounts of the income and expenditure of their
respective darghas submit the same to the court (Sub Court, Mayavaram) once in six months and have them passed by the court (sub Court,
Mayavaram);
(13) that the court (Sub Court, Mayavaram) be at liberty to give further instructions as occasions arise on all the above matters, on the application
of any parties to the suit or their representatives, for the effective and proper management of the darghas and the division of the surplus amongst
the members of the family and that such orders will be considered as orders passed in execution of the decree in this suit;
(14) that-the Subordinate Judge of Mayavaram be also at liberty if he thinks proper, to give directions for distribution of a definite fraction of the
darghas with reference to the provisions Exs.D and M;
(15) that the Subordinate Judge of Mayavaram will see that the above provisions and directions in the decree are carried out;
The said Peeran Sahib who has been appointed as Muthawalli for Killai Dargah died on 24.10.1992. The said Peeran Sahib was working as
Muthawalli from 1933 to 1974, and due to his ill-health he appointed his son Syed Ismath Basha Sahaf as his successor. He has also executed a
document regarding the appointment of trustees oh 24.6.1992, which has been marked as Ex.A-2 in the trial court.
Now the petitions were filed before the lower court for appointment of muthawallis on the basis of the decree passed in A.S.No. 186 of 1923
.Though the four sets of persons filed petitions claiming Muthavalliship before the lower court, the lower court rejected the applications in
E.A.Nos.375, 378 of 1992 and 68 of 1993. The lower court appointed the petitioner in E.A.No. 83 of 1993 as muthawalli with respect to Killai
Dargah and prescribed three years as probation period. Aggrieved against the said appointment of the petitioner in E.A.No. 83 of 1993 as
muthawalli, the petitioners have filed the above revisions, one against allowing E.A.No. 83 of 1993 and the another against the order of dismissal
passed in E.A.No. 178 of 1992.
The learned Counsel appearing for the petitioners has submitted that there is no provision incorporated in the scheme decree for filling up the
vacancy of the office of the muthawalli by the court and by virtue of registered appointment deed dated 24.6.1992 the petitioners have assumed
charge as joint Muthawallis and so they have to be recognised as Muthawallis jointly to the Dargah known as the Dargah at Killai and its
properties. The learned Counsel has further submitted that the decree in A.S.No. 186 of 1923 cannot be construed as a scheme decree at all. He
has also pointed out the comparative merits of the petitioners to sustain his submission that the lower court should have preferred the petitioners
than the respondent.
I am unable to accept the said submissions of the learned Counsel for the petitioners. In Clause 13 of the said decree, the High Court has given
liberty to the lower court to give further instructions as occasions arise on all the matters on the application of any parties to the suit or their
representatives for the effective and proper management of the darghas. So, in view of the said clause in the decree, it cannot be said that the court
has no power to appoint the muthawallis. The said clause in the decree in very specific that the trial court can pass orders to have an effective and
proper management if occasions arise. Even the said Peeran Sahib was appointed by the court. In view of the abovesaid decree in A.S.NO. 186
of 1923 it cannot be said that Peeran Sahib was having power to appoint the muthawallis. It is well-settled that unless the power is given, he
cannot appoint anybody as muthawalli and the appointees also cannot claim any right on that basis. Moreover, on the date of executing the said
document Ex.A-2, the said peeran Sahib was not a Muthawalli. The lower court relying on the decision in S.K Usman Sheriff v. Abdul Hanifa
Sahib 1976 T.N.L.J. 232, has held that only if the person is holding the post of Muthawalli, he can nominate his successor. It is also further held
that if the Muthawalli is hale and healthy, he cannot execute the appointment deed as held in
Hajee Sheikh Ali Mohammed and Others Vs. Mohemmed Yusuf, ; Mazhar Ali v. Gulam Murtujah AIR 958 AP 8; Shaik Masthan Sahib v.
Balarami Reddy 66 L. W. 34 and Hashim Husain and Others Vs. Ahmad Raza and Others, .
In view of the above, the lower court has rightly proceeded with the proceedings to appoint the muthawallis on the basis of merits and demerits of
the parties concerned.
Without accepting the case of the petitioners that they alone should be recognised as muthawallis on the basis of Ex.A-2, the lower court has
given elaborate reasonings to prefer the petitioners in E.A.No. 83 of 1993 to appoint him as muthawalli, and rejected the request of the petitioners.
In cases like this, the jurisdiction of this Court is restricted to interfere with the order of the trial court on merits.
The above revisions have been filed u/s 227 of the Constitution of India, seeking to set aside the order of the lower court on the ground that the
lower court has not properly exercised its jurisdiction.
Before dealing with the submission of the learned Counsel for the petitioner regarding the merits of the case, it is my desire to deal with the
scope of jurisdiction of this Court under Article 227 of the Constitution of India. While dealing with the scope of the jurisdiction of this Court under
Article 227 of the Constitution of India, the Apex Court in the decision in AIR 1975 1297 (SC) , has held as follows:
The Special Civil Application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to
consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under
Article 227 to disturb the findings of fact reached by the district Court? It is well ""on the settled by the decision of this Court in Waryam Singh and
Another Vs. Amarnath and Another, , that the:
...power of superintendence conferred by Article 227 is, as pointed out by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways
Ltd. Vs. Sukumar Mukherjee, , to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the
bounds of their authority and not for correcting mere errors.
This statement of law was quoted with approval in a subsequent decision of this Court in Nagendra Nath Bora and Another Vs. The
Commissioner of Hills Division and Appeals, Assam and Others, and it as pointed out by Sinha, J., as he then was, speaking on behalf of the court
in that case:
It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not
greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extend to quashing an impugned
order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution the power of interference is limited
to seeing that the tribunal functions within the limits of its authority.
It would, therefore, be seen that the High Court cannot, while exercising jurisdiction under Article 227, interfere, with findings of fact recorded by
the subordinate court or tribunal. Its function is limited to seeing that the subordinate court or tribunal functions within the limits of its authority. It
cannot correct mere errors of fact by examining the evidence and reappreciating it. What Morris, L.J., said in Rex v. Northumberland
Compensation Appeal Tribunal (1952) 1 All E.R. 122 in regard to the scope and ambit of certiorari jurisdiction must apply equally in relation to
exercise of jurisdictio under Article 227. That jurisdiction cannot be exercised:
as the cloak of an appeal in disguise, It does not lie in order to bring up an order or decision for rehearing of the issues raised in the proceedings.
If an error of fact, even though apparent on the fact of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori
that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under
Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal.
The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not
conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts:
In the abovesaid decision, it has also been held by the Apex Court as follows:
Here, when we turn to the judgment of the High Court, we find that the High Court has clearly misconceived the scope and extent of its power
under Article 227 and overstepped the limits of its jurisdiction under that article. It has proceeded to reappreciate the evidence for the purpose of
correcting errors of fact supposed to have been committed by the District Court. That was clearly impermissible to the High Court in the exercise
of its jurisdiction under Article 227, The District Court was the final court of fact and there being no appeal provided against the findings of fact
reached by the District Court, it was not open to the High Court to question the propriety or reasonableness of the conclusions drawn from the
evidence by the District Court. The High Court could not convert itself into a court of appeal and examine the correctness of the findings of fact
arrived at by the District Court. The limited power of interference which the High Court possessed under the Article 227 was to see that the limits
of its authority and so far as that was concerned, there was no complaint against the District Court that it transgressed the limits of its authority.
While discussing the scope of the judicial superintendence, the Apex Court in India Pipe Fitting Co. Vs. Fakruddin M.A. Baker and Another, ,
has held as follows:
The limitation of the High Court while exercising power under Article 227 of the Constitution is well settled. Power under Article 227 is one of
judicial superintendence and cannot be exercised to upset conclusion of facts however erroneous those may be
Similarly in Khalil Ahmed Bashir Ahmed Vs. Tufelhussein Samasbhai Sarangpurwala, , the Apex Court has further held that even if two views
are possible and the trial court has taken one view which is also possible and merely because another view is attractive, the High Court should not
interfere and would be in error in interfering with the finding of the trial court under Article 227 of the Constitution.
Even in Trimbak Gangadhar Telang and Another Vs. Ramchandra Ganesh Bhide and Others, , the Apex Court has taken similar view.
Recently, the Apex Court in Mrs. Rena Drego Vs. Lalchand Soni, Etc., has held that the High Court should not disturb the findings of facts
given by the trial court and has further held as follows:
According to us, the High Court has traversed far beyond the limit of its supervisory jurisdiction under Article 227 of the Constitution when the
learned single Judge reversed the decree of eviction which was based on findings of facts arrived at by the fact-finding authority upon the evidence
on record. It would have been well for the High Court to remind itself that it was not exercising certiorari jurisdiction under Article 226 of the
Constitution but a. supervisory jurisdiction under Article 227 which obliges the High Court to confine to the scrutiny of records and proceedings of
the lower tribunal. By relying on fresh materials which were not before the tribunal, the High Court should not have disturbed findings of facts in
exercise of such supervisory jurisdiction. It is now well nigh settled that power under Article 227 is one of judicial superintendence which cannot be
used to upset conclusions of facts, however erroneous those may be, unless such conclusions are so perverse, so unreasonable that no court could
even have reached them. Way back to 1954, a Constitution-Bench of this Court, in Waryam Singh and Another Vs. Amarnath and Another, , has
pointed out that the power of superintendence conferred by Article 227 should be exercised most sparingly and only in appropriate cases in order
to keep the subordinate"" courts within the bounds of their authority and not for correcting mere errors.
In another decision in S.M.S. Sheikh Jaldludeen and Anr. v. S.K. Sheik Jalaludeen and Ors. (1994) 1 L.W. 14, the Apex Court has held as
follows:
In our view, the High Court, in setting aside the order of the District Judge has assumed jurisdiction with which it is not invested. Article 227 of the
Constitution by the 1st clause provides:
Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
It occurs in fasicule of Articles enumerating the powers of a High Court. It does not, how ever, define the quality or restriction on the exercise of
the power. The power conferred by Article 227 is one of superintendence over courts and tribunals in the territories in relation to which the High
Court exercises jurisdiction. This power though judicial as well as administrative, is not appellate nor even revisional. The power has to be
exercised sparingly and in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not merely to correct
errors of fact or law (See Waryam Singh and Another Vs. Amarnath and Another, . In the exercise of this power the High Court cannot seek to
reappraise evidence on which the conclusions of a subordinate court or tribunal is based, nor even to correct mere errors of law. But, in
appropriate cases, the High Court may ratify errors apparent on the fact of the record, or set aside orders made on erroneous assumption of or
refusal to exercise jurisdiction or in arbitrary or capricious exercise of authority vested in a subordinate court or tribunal.
The abovesaid decisions of the Apex Court are very clear that this Court''s jurisdiction under Article 227 is very limited.
In this case, the trial court has applied its mind with respect to various documents no evidence and preferred the applicant in E.A.No. 83 of
1993 to be appointed as muthawalli and has given reasons also to reject the application filed by the petitioner. As held by the Apex Court, it is not
for this Court to go into the correctness of the findings given by the lower court which are based on evidence. No party has any absolute right to
be appointed to the office and the court has to make the appointment in the best interest of the institution.
The lower court rejected the claim of the petitioners based on Ex. A-2 and has rightly come to the conclusion that the said Peeran Sahib has
no power to appoint his successor. As stated earlier, he himself was appointed only by the court pursuant to the scheme decree. Though the
learned Counsel appearing for the petitioner has submitted that the decree in A.S.No. 186 of 1923 cannot be construed as a scheme decree on
the basis that there is not provision with respect to future appointment of muthawalli, as discussed supra, under the said decree, Clause 13 was
provided for that purpose. So, it cannot be said that the said decree is not a scheme decree. That being the fact the petitioners, on the basis of
appointment of the said Peeran Sahib, cannot claim any right. Moreover, as held by the lower court, on the date of appointment of the petitioners
by the said Peeran Sahib, he was not in the office. Even in the said decree no such power was given to Peeran Sahib to select his successors. The
lower court was given another reason to reject the plea of the petitioners that a muthawalli cannot select his successors when he is hale and healthy.
Relying on the recitals in Ex.A-2, the lower court has come to the conclusion that on the date of Ex.A-2, the said Peeran Sahib was hale and
healthy. The lower court has also relied on the decided cases in support of its decision.
While comparing the merits and demerits between the parties, the lower court relying on Exs.B-8 and B-9 found that P. W. 1, the first
petitioner herein has been residing in the property belonging to the Dargah as a lessee. A perusal of Exs.B-50 and B-51, it will be clear that the
rent was not properly paid. Even P.W.2 the second petitioner has accepted that they are residing in the property belonging to the Dargah, and he
has handed over the said property to the Wakf Board though it belongs to the Dargah. Moreover the lower court on evidence, found that the
petitioners had spent money towards court expenses without getting any permission from the Wakf Board.
u/s 62 of the Wakf Act, 1995 no muthawalli shall spend any money out of the funds of the wakf for meeting any costs, charges, or expenses
which are or may be, incurred by him, in relation to any suit, appeal or any other proceedings, for, or incidental to, his removal from office or for
taking any disciplinary action against him. The lower court also found on the basis of Exs.B-47 to B-S1 and on appreciation of the evidence of
RW1 and D. W.4 that the petitioners did not maintain the accounts properly during the period when they administered the Dargah. To take a
different view from the said findings, the learned Counsel for the petitioner is not in a position to point out any other evidence. In view of the
abovesaid facts based on evidence, the lower court has rejected the claim of the petitioners to be appointed as muthawallis. The learned Counsel
appearing for the petitioners has submitted that regarding misappropriation, there is no pleading and so the lower court is not correct in deciding
the same. The lower court has rejected the plea of the petitioners mainly on the ground that the first petitioner is residing in the premises of the
Dargah as tenant and he has not paid the rent properly, that the second petitioner has been in possession of the property without even handing over
the same to the Wakf Board, that the amounts were spent for litigation to defend their case without getting permission from the Wakf Board and
that they have not properly maintained accounts during the tenure of their office.
To prefer the second respondent herein in C.R.P.No. 1312 of 1994, the lower court has given valid reasons based on evidence. First of all,
the lower court, found that the second respondent is the grandson through of the original donee. But, the petitioners had relied on the fact that the,
second respondent had been cultivating the lands belong to the Dargah on waram basis and he is having personal interest in the property of
Dargah. The said fact has been explained by the lower court to that cultivating land on waram basis cannot be construed on tenancy basis and so
the second respondent herein cannot have any personal right in the lands. Before the lower court the respondents therein have established that they
have not even withheld the money due from to the Dargah. Moreover, on the date of the petition it was found that the second respondent herein
was not the tenant to any of the properties of the Dargah. The lower court also took into consideration of the effective management of the Dargah
by the father of the second respondent herein. It is also found that when the second respondent herein was incharage of the Dargah 16.11.1991 to
31.3,1992 he did not waste the income of the Dargah and he did not anything against the interest of the Dargah. Thus, the lower court has
elaborately discussed about the issue in question and preferred the second respondent herein, than the petitioners to appoint him as muthawalli of
the Dargah. The findings of the lower court are based on evidence and on well-founded reasonings. Hence I find it difficult to accept the case of
the petitioners.
For the foregoing reasons, these revisions are dismissed. No costs. Consequently, C.M.P.No. 6569 of 1994 is closed.