Mohammed Sheriff (died) and Others vs Tamil Nadu State Wakf Board

A. Ramamurthi, J.—The unsuccessful plaintiffs are the appellants. The 1st appellant died and appellants 6 to 15 were brought on record as

legal representatives. The 3rd appellant also died and appellants 16 to 23 were brought on record as legal representatives. Thereafter, appellant

No. 9 also died and appellants 24 to 27 were brought on record as legal representatives.

The case in brief is as follows:

The plaintiffs filed a suit for declaration that the suit properties absolutely belonged to them and also for permanent injunction. The family of

plaintiffs owned large extent of properties including the schedule properties. They are mostly shop buildings built in Gramanatham, ""No 291/1 in

Kallakurichi. Under a partition deed dated 14.9.41 between Sheik Ahamed and his minor sons in one hand and others, there was division of

properties between the family of two cousins, viz., Masthan Sheriff and Sheik Ahamed. The suit properties were set out in ''C'' schedule in the

partition. They are the absolute properties of those persons. These properties should be enjoyed by the parties and the income divided between

the two branches. The branch of Sheik Ahamed and the branch of the first plaintiff should take the income from these buildings in equal moieties.

The parties should perform certain charities. Subject to their spending for the charities and also for repairing the buildings, the entire income has to

be taken in moieties without any further liability. The parties have been enjoying these properties as their absolute properties and after partition,

they were enjoyed by the sharers of two branches. The name of these parties alone are shown in Kallakurichi Panchayat records. There was

another partition in 1950 amongst the plaintiffs 2 to 5. Even after this partition, the parties have been in exclusive possession of these properties as

absolute owners. They have been paying the tax payable for the Panchayat and renting out the properties to various tenants and realising the

income.

The Muthavalliship of Jumma Masjid at Kallakurichi has always been in the family of the plaintiffs. Sheik Ahmed, father of plaintiffs 2 to 5, was

the Muthavalli till his death and thereafter, the plaintiffs have been the Muthavallis. There was a litigation between the first plaintiff on the one hand

and plaintiffs 2 to 5 on the other with regard to the Muthavalliship and has been finally decided in A.S. Nos. 254 of 1973 and 276 of 1973 on the

file of Sub Court, Cuddalore that the plaintiffs alone are jointly entitled to Muthavalliship. The defendant also was a party to these proceedings.

Subsequently, the defendant Board framed a scheme under the provisions of the Tamil Nadu Wakf Act of 1951 on 9.5.1964. Mismanagement

was also alleged and there was some kind of enquiry. While recognising the first plaintiff''s Muthuavalliship, they appointed Khadar Sheriff Sahib

and Mohamed Ummar to be in joint possession along with the first plaintiff. These properties were mistakenly treated as properties belonging to

Jumma Masjid. It will not take away the valuable absolute right of the plaintiffs in the suit properties. Jumma Masjid owns separate properties. The

mosque has absolutely nothing to do with these properties. The suit properties have not been dedicated for any pious, religious or charitable

purpose. The liability to perform the charity is not fastened on the suit properties or on the beneficial income. It will not be a wakf within the

meaning of the Wakf Act. It appears that a notification was issued by the defendant u/s 5(2). The plaintiffs have not been given any notice of the

said notification. No enquiry was done and none of the mandatory provisions had been followed. The principles of natural justice have also not

been adhered to. Plaintiffs 2 to 5 filed suit O.S. No. 74 of 1964 on the file of District Court, Cuddalore and later transferred to Sub Court,

Cuddalore and numbered as O.S. No. 10 of 1965 claiming the relief of declaration and for permanent injunction. The suit was coming up for trial

and evidence also was taken and only at the stage of arguments, it was found out the notice u/s 56 of Wakf Act is a prerequisite for filing the suit

and, as such, the suit filed by them was withdrawn with liberty to file a fresh suit on the same cause of action. The plaintiffs are in uninterrupted

possession of the properties and there was no interference by the defendant at any point of time. The defendant issued a notice on 12.11.1979,

calling upon the tenants to pay the rent to the Wakf Board. The plaintiffs also filed W.P. No. 4500 of 1979 and thereafter, the plaintiffs gave the

suit notice as contemplated u/s 56 of the said Act and the suit was filed.

The defendant resisted the suit, stating that the suit is barred u/s 6(1) of the Wakf Act. The allegation that the suit properties are private and

absolute properties and they were included in the partition of the years 1941 and 1950 are not correct. After dispute arose and taking advantage

of the fact that the 1st Plaintiff happened to be the member of the Panchayat Board, Kallakurichi, the names must have been changed in the

records. The suit properties are comprised in an area of 100 yards east-west and 100 yards north-south and they are public wakf properties. They

are in R.S. No. 291/1 Government Poramboke. The Jumma Masjid is in existence for more than 300 years and within the precincts there was also

a Kabarasthan. The schedule properties form part of Jumma Masjid Wakf. They had been held and enjoyed and managed as public wakf by

successive Muthavallis. The first plaintiff as well as others have been successively the Muthavallis and looking after the properties only in such

capacity. In fact, Sheik Ahamed, father of the 1st plaintiff, has filed a suit in O.S. No. 776 of 1923 on the file of District Munsif''s Court,

Kallakurichi, against one Khader Sheriff Sahib. The pleadings and the judgment in O.S. No. 776 of 1923 and in appeal A.S. No. 41 of 1926 will

show that the property was found to be part of the Jumma Masjid Wakf and Sherif Ahamed obtained recovery of possession only as Muthavalli.

In the face of such immemorial user and admissions by the plaintiffs and the predecessors-in-title about the public wakf character, the present claim

of private ownerships is a false and fraudulent one made with a view to wrongfully appropriate to their own use, the huge income realised by way

of rent from several tenants of the shops.

The heading for ''C'' schedule in the partition deed itself read that they are inam properties."" The recitals further disclosed that the surplus income

from the properties after performing the religious charities for the mosque and repair was to be taken by the parties thereto in turns, are self serving

and fraudulent. Even by virtue of the terms in the partition deed, the suit properties are wakf properties. The plaintiffs are well aware of the survey

done by the Assistant Commissioner, The 1st plaintiff himself had given the statement on 28.7.1955 as Muthavalli admitting that he is in possession

and enjoyment of the inam land and also the suit properties as Muthavalli and they will produce the account later on. On the basis of the report

only, the Board duly published the notification u/s 5 of the Wakf Act. They have to institute a suit within one year if really they are aggrieved by the

notification. There were several acts of misfeasance and malfeasance by the plaintiffs and wilful evasion to submit accounts. The Board has framed

the scheme by constitution of a committee of three members for a term of three years, associating the 1st plaintiff also as a member along with two

other persons. The plaintiffs filed a suit in O.S. No. 74 of 1965 without notice to the statutory Board. They are not entitled to any relief. The

plaintiffs have not valued the suit properly for purpose of court fees. The defendant has nominated about 12 members to form an Advisory

Committee along with an Executive Officer to look after the management and they are also necessary parties and the suit is bad for non-joinder of

necessary parties also.

The trial court framed seven issues and on behalf of the plaintiffs, Exs.A-1 to A-45 were marked and P.Ws. 1 to 4 were examined and on the

side of the defendant, Exs.B-1 to B-24 were marked and D.Ws.1 to 3 were examined. The trial court decreed the suit was aggrieved against this,

the defendant preferred A.S. No. 248 of 1984 on the file of District Court, Cuddalore and the appeal was allowed and the judgment and decree

of the trial court were set aside and the suit was dismissed. Aggrieved against this, the plaintiffs have come forward with the present second appeal.

At the time of admission of the second appeal, the following substantial questions of law were framed:

(1) Whether the prior proceedings in O.S. No. 776 of 1923 and A.S. No. 41 of 1926 would preclude the appellants from claiming title to the suit

properties?

(2) Whether the judgment of the lower appellate court is not vitiated owing to its failure to frame a point and consider the question relating to

prescriptive right?

The points that arise for consideration are: (1) whether the plaintiffs are entitled to the relief of declaration and permanent injunction? (2)

Whether the suit properties are the private properties of the plaintiffs or wakf properties as contended by the defendant? (3) Whether the suit is

also barred by limitation? (4) Whether the plaintiffs have prescribed the title to the properties by adverse possession? (5) To what relief?

Points; The plaintiffs filed the suit for declaration that the suit properties are the private absolute properties and they continued to be in

uninterrupted possession of the properties for more than the statutory period and in any event, they have also prescribed the right. They further

claimed the relief of permanent injunction restraining the defendant, Wakf Board from taking any action in respect of these properties. The

defendant mainly resisted the suit, stating that the suit properties are wakf properties and the plaintiffs and their predecessors-in-interest were only

functioning as Muthuvallis and they cannot claim any prescribed title to the properties. The authorities have made proper enquiry and notification

was also done as contemplated under the Wakf Act. Moreover, already there was a suit which reference to one shop concerned in the present

subject matter in O.S. No. 776 of 1923 and in which, the first plaintiff as well as the defendant were also parties. There is a clear finding that the

properties belonged to Jumma Masjid and they are the joint Muthavallis of the properties.

It is admitted that item 1 of the properties consist of 14 shops and item 2 of the properties covers about 21 shops. These properties are in

Gramanatham Survey No. 291/1. The learned Counsel for the plaintiffs contended that the plaintiffs and their predecessors-in-interest were alone

in management of the properties for a very long time and they have dealt with these properties in the earlier partition deeds of the year 1941 as well

as 1950 as their absolute properties. It has come out in evidence that Sherif Ahamed, father of plaintiffs 2 to 5 was the Muthavalli since 1923 for

Jumma Masjid. Sheik Ahmed himself was examined as P.W. 1 in the earlier suit, apart from seven other witnesses. Ex.B-17 is the copy of the

judgment in O.S. No. 776 of 1923 and Ex.B-18 is the copy of the judgment in A.S. No. 14 of 1926. There is a finding as seen from Ex.B-17 that

the subject matter of the shop belonged to Pallivasal and Sheik Ahamed along was entitled to manage the same as Muthavalli and he was also

entitled to recovery of possession of the said Shop. The lower appellate court also confirmed the judgment and decree of the trial court and Sheik

Ahamed took possession of the properties in his capacity as Muthavalli.

The learned Counsel for the appellants contended that the lower appellate court erred in holding that the decision referred in O.S. No. 776 of

1923 will operate as res judicata. The prior proceedings was only with reference to one shop and admittedly, the plaintiffs father had not filed the

suit in his individual capacity, but only as a Muthavalli. The suit properties are classified in the settlement register as natham and the mosque cannot

put forward title. They have also filed Exs.A-1 and A-2, the partition deeds entered into by them in 1941 and 1950 respectively, to claim that

these properties were also dealt with as their absolute properties. ''C'' schedule property under Ex.A-1 relates to the property in question. There is

a clear reference that Sheik Ahamed himself can continue as Muthavalli and carry on the work. It is further stated that income realised by way of

rent from ''C'' schedule property can be collected by Sheik Ahamed for one month and by the first plaintiff in turns. They should spend money for

Muharam as well as repair work in Pallivasal. There is also a specific reference in ''C'' schedule as Inam properties. There is no reasonable

explanation on the part of the plaintiffs relating to such a description in this document. However, the learned Counsel for the appellants contended

that the properties have not been dedicated for any pious, religious or charitable purpose, but only some expenses have to be met in equal share

and this will not lead to the conclusion that the properties are wakf properties. They should explain as why these properties alone have to be

shown in a separate schedule in partition deed and the intention can be gathered from the recitals in these documents. But the other properties have

not be in described as inam properties. This specific reference in respect of ''C'' schedule property would only falsify the case of the plaintiffs.

It is necessary to look into the provision of Wakf Act, 1954 (Act 29 of 1954), to consider the rival contentions of the parties. Section 3(1) of

the Wakf Act defines ""wakf means the permanent dedication by a person professing Islam (of any other person) of any movable or immovable

property for any purpose recognized by the Muslim law as pious, religious or charitable and includes (i) a wakf by user but such wakf shall not

cease to be a wakf reason only of the user having ceased irrespective of the period of such cessor; (ii) grants for any purpose recognized by the

Muslim Law as pious, religious or charitable; and (iii) a wakf-alal-aulad.

Section 3(f) defines Mutawalli. ""Mutawalli"" means any person appointed either verbally or under any deed or instrument by which a wakf has

been created or by a competent authority to be the mutawalli of a wakf and includes any person who is mutawalli of a wakf by virtue of any

custom or who is Naib-mutawalli, Khadim, Mujawar, Sajjadanashin, Amin or other person appointed by a mutawalli to perform the duties of a

mutawalli and, save as otherwise provided in this Act, any person, Committee or Corporation for the time being, managing or administering any

wakf or wakf property.

It is clear from the documents filed on the side of the plaintiffs themselves that the plaintiffs are acting as Muthavalli for these properties.

Previously, the father of plaintiffs 2 to 5 was acting as Muthavalli. The very fact that persons have been described as Muthavalli even in the

documents filed by the plaintiffs themselves, would only lead to the conclusion that a wakf has been created and only for the purpose of

management, Muthavalli has been nominated. If really the intention of the parties was only to spend a portion of the amount recovered from the

rent, then there was no necessity to appoint any muthavalli. This is one circumstance to show that the intention of the parties is manifestly clear that

the properties were dedicated for the purpose mentioned under this Act and the appointment of Muthavalli only fortified this contention.

The definition for ''wakf'' given under the Act includes not only wakf by user but also grant and a wakf-alal-aulad. The recitals in the document

established that his property has been separately described under ''C'' schedule and, therefore, it will come under the head ''grant'' for any purpose

recognised by the Muslim Law as pious, religious or charitable. This is another circumstance to show that the property is a wakf property.

The learned Counsel for the respondent contended that the wakf Inspector had already conducted survey as provided u/s 4 of the Wakf Act

and publications was also made u/s 5 of the Act, pointing out that it is a wakf property. No doubt, the Inspector had made a survey and

notification was also issued, but the learned Counsel for the appellants contended that an opportunity was not given to the plaintiffs or their

predecessors-in-interest and, moreover, the various columns provided u/s 4(3) of the Act have not been duly filed up. A perusal of the document

viz., Ex.A-3 indicate only as Jumma Masjid and apart from that, the other columns provided u/s 4(3) have not been filed up. Under the

circumstances, it cannot be said that it is a proper publication made in accordance with law and, as such, parties may not be in a position to find

out whether these properties were also duly notified. No doubt, Section 6 of the Act provides that immediately within a period of one year, it can

be questioned in a civil court of competent jurisdiction. But, in the present case, the available materials indicated that necessary and proper

particulars have not been provided in the notification issued by the Board and, as such, it is not possible for the parties to find out which are the

properties covered under the notification and, hence, one could not expect in filing of a suit within the period allowed u/s 6 of the said Act. Under

the circumstance only, the lower appellate court also came to conclusion that it cannot be said that the present case is barred by time in view of

Section 6 of the said Act.

The next contention put forward by the learned Counsel for the respondent is that already the father of plaintiffs 2 to 5 instituted a suit with

reference to one item of property in O.S. No. 776 of 1923 before a competent court of law and the suit was also filed in his capacity as Muthavalli

for recovery of the said property. There is a clear admission in the plaint itself that the property is a wakf property and he was the Muthavalli,

managing the same. On the basis of the admission, the learned Counsel for the respondent contended that the admission is binding on the plaintiffs

also. The learned Counsel for the respondent relied on D.S. Mohite v. S.I. Mohite AIR 1960 Bom. 153, wherein it is observed that admission on

question of fact and admission can be considered in subsequent proceedings regarding the same subject matter. There is no dispute about this

proposition.

The learned Counsel for the appellants relied on Dasarathi Chamar v. Balmukunda AIR 1959 On. 38, wherein it is stated that an admission

can be used as against the party making it only when the admission is taken as a whole. Hence, mere recital in the judgment that the tenant

admitted surrender cannot be admissible as an admission to be used against him unless the entire deposition is placed on record. Similar view has

also been reiterated in Dundbahadur Singh and Others Vs. Durga Prasad Singh and Others, .

Reliance was also placed upon another decision in Ambika Prasad v. Ram Ekbal Rai AIR 1966 S.C. 605, wherein it is observed that

admission made by witness in other litigation is admissible against him alone and not against other defendants. There is no dispute about this

proposition, but the applicability of the same depends upon the fact and circumstances in each case.

The learned Counsel for the appellants strenuously contended that even assuming that there was a decree in O.S. No. 776 of 1923, it will not

operate as resjudicata. The father of plaintiffs 2 to 5 filed the suit and Exs.B-17 and B-18 are the copies of the judgment in the trial court as well as

in the appellate court. The appellants contended that the earlier dispute was only with reference to management of the properties and not with

reference to the nature of the properties. Further more, apart from the copies of the judgments, the pleading in the case were not filed and the

statement made in the judgments alone cannot be made use of to apply Section 11 of the Code of Civil Procedure. A perusal of Exs.B-17 and B-

18 indicated that there is a finding to the effect that the properties covered in the case as well as other shops concerned belonged to Pallivasal as

inam properties. The filing of the earlier suit as well as the finding are not disputed by the appellants. In the light of the finding, the burden of proof

would be more heavy on the appellants to establish that they are the private absolute properties. No doubt, the appellant have filed number of

documents to show that they have paid kist to the Panchayat Board and even the assessment stood in their names. It is necessary to state that the

plaintiffs and their predecessors were members of the Panchayat and as they were holding the posts, they were able to get the assessment in their

names and payment of the tax would not clothe them with absolute right in the properties, more so, when admittedly they are Muthavallis for these

properties.

The learned Counsel for the appellants relied on Syed Mohd. Salie Labbai (Dead) by L.Rs. and Others Vs. Mohd. Hanifa (Dead) by L. Rs.

and Others, , wherein it is observed that the best method to decide the question of resjudicata is first to determine the case of the parties as put

forward in their respective pleadings of their previous suits, and then to find out as to what had been decided by the judgments which operate as

resjudicata. It is well settled that pleadings cannot be proved merely by recitals of the allegations mentioned in the judgment. There is no dispute

about this proposition. Reliance was also placed upon another decision of this Court in Ramalinga Bajanai Madam by Muthupillai Vs. Gerart

Pappammal and Others, , wherein it is observed that,

where the causes of action are different, even a dismissal of the first suit by the court after contest on the merits is no bar to the maintainability of a

second suit, even though the defences may be the same in the two suits.

The facts in the case referred to above clearly indicate that it cannot be made applicable to the case on hand. There is already a finding in the case

referred to about that the defendants have no right over the suit property by virtue of the sale deed and a finding was given relating to title in favour

of the plaintiff and only under such circumstances, it was held that the plaintiff in that suit is entitled to the reliefs as prayed for. In view of the

documents filed on the side of the defendant and also in the capacity of the Muthavalli only, the plaintiffs and their predecessors dealt with the

properties, there is no difficulty in come to the conclusion that the earlier decision will operate as res judicata and it is no longer open to the

plaintiffs to contend that they are separate properties. It has also come out in evidence that at the time of preliminary survey, the statement from

one of the plaintiffs was also recorded and thereafter only, a scheme was also framed relating to the properties in question.

Ex.B-23 dated 9.5.1964 is an order passed by the State Wakf Board. There is a finding that of prior administration of the Jumma Masjid

Wakf and to ensure that the income from other properties was properly utilised, committees were also appointed. Ex.B-24 is the suit register

extract relating to the suit O.S. No. 776 of 1923. Column 5 under Ex.B-24 indicated that the suit was filed for establishing plaintiffs right to the

plaint mentioned properties and for recovery of the same through court. As adverted to, Sheik Ahamed, the father of plaintiffs 2 to 5 alone filed the

said suit in his capacity as Muthavalli. There is nothing in this document to show that the properties were ever claimed as private properties and this

being so, naturally plaintiffs 2 to 5 are also bound by the result of the case.

The learned Counsel for the appellants also relied upon a decision in The Karnataka Wakf Board Vs. State of Karnataka and others, relating

to the notification issued u/s 5 of the Act, It is stated as follows:

When the plaintiff has taken a contention that there is no enquiry held as required u/s 4(3) of the Act and consequently the list published u/s 5 of the

Act is not legal and is not binding on the plaintiff, it was for the defendants to have proved by adducing satisfactory evidence that a valid enquiry

has been held and the plaintiff had notice prior to such enquiry. ...In the absence of such evidence, it has to be held that there is no enquiry at all u/s

4(3) of the Act in the eye of law and consequently the list published without such enquiry is illegal.

Even in the present case, there is no satisfactory evidence on the side of the defendant to show that the enquiry was conducted in accordance with

Section 4(3) of the Act and, as such, by virtue of the publication u/s 5, it cannot be made use of by the defendant.

The learned Counsel for the appellants relied upon another decision of this Court in C. Balasundaram v. C. Abdulla Badsha 84 L. W. 252.

wherein it is stated that it is well settled that if once the courts come to the conclusion that the plaintiffs are in possession of the suit properties, the

declaration prayed for and the injunction prayed for, must automatically follow. The applicability of the decision depends upon the facts and

circumstances in each case. The learned Counsel for the appellants contended that admittedly possession of the properties continued only with the

plaintiffs and their predecessors from 1923 onwards. They have also partitioned the properties as early as 1941 and subsequently in 1950 also.

They have gone to the extent of even stating that they have also prescribed the title to the properties by adverse possession. But the contention of

the learned Counsel for the appellants cannot be accepted. It is admitted that the plaintiffs are acting as Muthavallis in respect of these properties

and prior to that their father was acting as Muthavalli for these properties. The records filed in the case also indicated that the earlier suit in O.S.

No. 776 of 1923 was also filed in the capacity as Muthavalli. So long as they were acting as Mutavallis, the possession of the properties cannot be

said adverse to the interest of the defendant Board. The decision referred to above also indicated that the courts below have concurrently found

that the defendant in that suit have neither title nor possession of the property and only under such circumstance, the finding was given to that effect.

In the present case, there is abundant material to come to the conclusion that the properties are wakf properties and there is nothing to show that

they are the private properties. When the defendant had established the title to the properties, I am of the view of that the plaintiffs are not entitled

to get the relief of declaration and injunction.

The learned Counsel for the respondent relied on Surendrakrishna Roy Vs. Shree Shree Ishwar Bhubaneshwari Thakurani, , wherein it is

observed that the possession of two joint shebaits does not become adverse to the idol, even when they openly claim to divide the property

between them. The fact of their possession is in accordance with the idol''s title, and the change made by them in the intention with which they hold,

evidenced by an application of the rents and profits to their own purpose and other acts does not extinguish the idol''s right, because such a change

of intention can only be brought home to the idol by means of the shebaits knowledge and the idol can only re-act to it by the shebaits. The

principle enunciated in the decision can be made applicable to the facts of the case also and there is no difficulty in coming to the conclusion that

any length of possession of the properties by the plaintiffs in their capacity as Muthavallis would not enable them to claim any title by adverse

possession and, as such, this claim was also rightly rejected by the lower appellate court.

It is admitted that the Board framed a scheme under Ex.B-23 dated 9.5.1964. Plaintiffs 1 to 4 were also parties to this proceedings.

Aggrieved by this, they filed a suit in O.S. No. 74 of 1964 before the District Court, Cuddalore and later, it was transferred to Sub Court,

Cuddalore and renumbered as O.S. No. 10 of 1965. Admittedly, the suit was taken up for trial and parties have also let in evidence. When the suit

was nearing completion only, the plaintiff withdrew the suit since statutory notice as contemplated u/s 56 of the Act was not given and they were

also given liberty to file a fresh suit on the same cause of action. This order was passed on 31.12.1970 as seen from Ex.A-7. However, it is

necessary to state that the plaintiffs have not chosen to file any suit till 1982. If really the plaintiffs thought that the properties are their private

properties and having obtained liberty to file a fresh suit on the file a suit for a period of nearly twelve years. Only when the Wakf Board issued

notice, calling upon the tenants to pay the rent, the plaintiffs were driven to the necessity of filing, a suit in 1982. This is one more circumstance to

indicate that since the possession of the properties continued with the plaintiffs and they were collecting the rent, they want to squat on the

properties by adopting all dilatory tactics and as the plaintiffs lack in bonafide they are not entitled to claim any relief in the suit.

The respondents have positively established that the suit properties belonged to Jumma Masjid Pallivasal at Kallakurichi, by positive evidence.

The appellants already filed W.P. No. 4500 of 1979 as seen from Ex.B-22 and obtained an interim order. Thereafter only, the statutory notice u/s

56 of the Act was issued by them and the suit was filed. The Wakf Board has issued notice and thereupon only the appellants filed the writ petition

before this Court. Already the Wakf Board has appointed 12 persons in the Committee to run the administration. In all fairness, the

plaintiffs/appellants ought to have impleaded them as parties in this proceedings. They have deliberately impleaded only the Wakf Board, ignoring

the Committees already appointed by them. The learned Counsel for the appellants further stated that if necessary, the matter can also be remitted

back to the trial court in order to enable both parties to let in further evidence and to establish their case. I am unable to agree with the contention

of the learned Counsel for the appellants. Both parties have filed the documents in their custody and they have also let in available evidence. It is

not the case of the appellants that they are in possession of some other documents and they could not file the same and, as such, they require one

more opportunity to establish their case. The case can be remanded only if felt necessary in the interests of justice. Now, the case has been filed as

early as 1982 by the plaintiffs and more than 17 years have already passed. There is absolutely no valid reason or justifiable cause for remanding

the matter and the remand at best, would enable the plaintiffs to squat on the properties and collect the rent and spend for their personal expenses

rather than fulfilling the desire of the persons, who have dedicated the properties for pious, religious or charitable purpose. The lower appellate

court has considered all the contention raised by the appellants and it is a well considered judgment. It cannot be said that there is erroneous

application of law or non-consideration of material evidence adduced by the parties. The documents filed by the parties clearly establish that the

suit properties are wakf properties and the plaintiffs were only Muthavallis, managing the properties and they are not the private properties. There

cannot be any prescription do title to the properties by adverse possession since they are only functioning as Muthavallis. Since it is a second

appeal and as the finding is not perverse and all the points had been reasonably considered by the lower appellate court, no interference is called

for.

For the reasons stated above, the second appeal fails and is dismissed with costs.