M.S. Abuthagir and Others vs Peer Mohammed and Others

Thanikkachalam, J.—This appeal is directed against the judgment and decree rendered in O.S. No. 250 of 1970 dated 5.11.1980 on the

file of Sub-court, Dindigul. Defendants 3 to 5 are the appellants herein. The suit was filed in a representative capacity for cancellation of the suo

motu scheme framed by the Special Officer, Wakf Board, dated 17.8.1968 in W.A. No. 9 of 1968 and for a direction to frame a single

consolidated scheme for the suit Pallivasals. The trial court decreed the suit as prayed f6r with costs. It is against that judgment and decree the

present first appeal has been filed by the defendants 3 to 5.

In the plaint, the case of the plaintiffs is as under: In Cumbum town from ancient time, there was only one mosque called Vaveer Pallivasal or

Bava Fakruddin Pallivasal or ''Big Mosque''. All the original Muslim in habitants of Cumbum used to pray in the said Mosque. They constituted a

Jamath known as Cumbum town Jamath. There are two other Pallivasals, known as Mohideen Andavar Pallivasal and Mamarathubava Pallivasal.

Mohideen Andavar Pallivasal is now in a dilapidated condition. This was used for idgah at the time of Bakrid and Ramzan. Mamarathubava

Pallivasal is a Darga. It is a open grpund where cultivation is going on. It is situate two miles away from Cumbum town.

There is one single Jamath for the said three Pallivasals. The other two Pallivasals are under the administration and management of Vaveer

Pallivasal. These institutions were under the management of Jathi Nattanmaikkar of Muslims of Cumbum, assisted by representatives of Khan-mars

and Levais. The Jathi Nattanmaikkar also happened to be Miras, headman of the town appointed by Government. From 1927 one C. Mohammed

Meeran Levai was Jathi Nattanmaikkar administering the mosque. Before him his forefathers were the Jathi Nattanamaikkarars. They improved

the mosques and acquired properties for the mosques by collecting tharagu and other levis. They are the founders of the mosque.

The Jamath for all the three Pallivasals was consisting of original permanent Muslim inhabitants of Cumbum town inclusive of Uthamapuram. In

1954 these three Pallivasals were registered under the Wakf Act. While so, about 30 years ago the Muslims who came from Rajapalayam built a

mosque of their own called ""New Mosque"" or Masjid-E-Ilahi"". The immigrant Muslims from Rajapalayam constituted Jamath for the said Mosque.

They do not belong to the Vaveer Pallivasal Jamath consisting of original Muslim inhabitants of Cumbum.

The original Muslim inhabitants of Cumbum who constituted Jamath of Vaveer Pallivasal are not permitted to take part in the administration of

New Mosque constructed by the Rajapalayam Muslims. So also, the immigrant Muslims of Rajapalayam never used to take part in the

administration of Vaveer Pallivasal and other two Pallivasals. Though they used to come to Vaveer Pallivasal on the beginning before the

construction of their new Mosque for prayer, they do not belong to the Jamath attached to Vaveer Pallivasal, which is also known as Cumbum

Jamath. The migrated Muslims of Rajapalayam had nothing to do with the suit mosques. They do not have any right to take part in the

administration of the suit mosques.

In the year 1963 C. Mohammed Meera Levai resigned from his office of Muthavalli due to his old age and ill-health. It is customary among the

Muslims, in Cumbum to appoint members in the family of Jathi Nattanmaikkar as Muthavalli. It is also customary that the Muthavalli of the suit

mosque used to be assisted by Khanmars and Levais. The Jathi Nattanmaikkar used to enjoy special honours during all important occasions both

inside the mosque and outside the mosque They used to enjoy special distinct honour in the. Kabarsthan also. Thus by long and continuous'' usage

the custom attained legal sanction. Ignoring the long standing custom and usage, the Wakf Board on the petition moved by some disgruntled

persons, without issuing any notice to the interested persons in the mosque and Jamath appointed one Mr. Hajee Mohammed Meeran as

temporary Muthavalli. This was objected by the Muslim residents of Cumbum town. Then the Wakf Board appointed a committee consisting of

M/s. N.P.M. Meeran and M. Heera u/s 22 of the Wakf Act. After enquiries they filed a report stating that according to the customs and usage

prevailing in Cumbum, the caste Nattanmaikkar, Khanmars and Levais should be allowed to continue the administration of the mosques.

Again proceedings were taken by the Wakf Board and a single scheme was framed for all the mosques by an order passed in W.A.Nos.58 and

61 of 1963 dated 16.12.1963. The Wakf Board also passed an order for electing managing committee for the three Pallivasals treating all the

Pallivasals as one unit. In pursuance of the said proceedings of the Wakf Board a common committee of 7 members for all the three Pallivasals

were directed to be elected from the electors constituted by the Vaveer Pallivasal Jamath for all the said Pallivasals.

Again, without giving any opportunity to the persons interested in the Jamath and the mosques and contrary to the report filed by M/s. N.P.M.

Meeran and M. Heera, the Wakf Board directed one S.P. Abdul Rehman and one T.Syed Mohammed said to have been the president and

Secretary of Muslim Dharmaparipalana Sangam, Cumbum to take charge of the three suit mosques and the properties belonging to them. This

order created dissatisfaction and disappointment among the Muslims in Cumbum. As against this order, petitions were filed by A. Pappatha

Rowther on 13.9.1965 and Jamath on 15.9.1965.

While so, the President T. Syed Mohammed filed a petition W.A. No. 9 of 1968 against some persons to obtain certain directions from the

Wakf Board, without making any enquiry and without giving any notice to the interested persons in the Jamath and the Mosques, the Special

Officer, Wakf Board on 17.8.1968 passed an order framing a suo motu scheme. The Special Officer framed three separate schemes for three

Pallivasals. He considered that the three Pallivasals are three distinct entities. He created three separate Jamath for the three Pallivasals. The

Jamaths of the abovesaid Pallivasals were constituted with not only the original Muslim residents and their heirs and descendants of Cumbum, but

also all the other Muslim persons who migrated to Cumbum from other places. According to the said scheme, the electoral body would consist of

all Muslims in Cumbum Municipal limits. This definition would include not only Muslim inhabitants of Cumbum town tracing their origin from the

descendants of original inhabitants, but also the members who had come and settled at Cumbum. The original Muslims from Cumbum were not

given any right in the New Mosque built by the immigrants.

Therefore the plaintiffs as representatives of the Cumbum Jamath, sent notices to the Special Officer for Wakfs on 21.3.1970, 25.3.1970 and

21.9.1970 setting forth their objections and for cancellation of the suo motu schemes framed by the Special Officer. No reply was given by the

Special Officer, for these notices. In the meanwhile, election was conducted and one T. Syed Mohammed and his henchmen were also elected.

Thereafter, the plaintiffs filed a W.P.No.1070 of 1970 before the High Court and an order of stay was obtained. While disposing of the

miscellaneous petitions, the High Court directed to hold fresh election within the Jamath and also in the meanwhile directed one of the Wakf

Inspector to take charge of the affairs of the mosque properties. It is under these circumstances, the plaintiffs filed the present suit.

The first defendant in his written statement supported his action in framing the scheme. He also expressed his willingness to consider if any

representation is made for any modification. He submitted that there is no such custom of usage prevalent in the cumbum town as alleged in the

plaint. According to him all Muslims residing in Cumbum belonging to Hanafi Shawl are entitled to take part in the administration of the suit

mosque. He also stated that he did not give any permission to file civil suit.

Defendants 3, 4 and 5 in their written statement supported the framing of the scheme by the first defendant. They said that their fore fathers

settled in Cumbum about a century ago and now there is no distinction between the immigrant Muslims and the original inhabitants. They also said

that by marriages they intermixed with the original inhabitants and now it is difficult to differenciate between original muslims and the immigrant

Muslims. According to them, they also took part from the beginning in the administration of the Vaveer Pallivasal. They also used to contribute

their might for the development of the Mosque. They pointed out that still there is one nikah register and one Kabarsthan for all the Muslims in

Cumbum town. They submitted that simply because some philanthropist built a new mosque that would not disentitle them from taking part in the

administration of the suit mosques. They relied upon various instances to show that the immigrant Muslims were also taking part in all the social and

religious functions in Cumbum town. According to them, there is no custom or usage prevalent in Cumbum to hold the office of Muthavalli

hereditarily, which is against the basic principles of Islam.

Defendants 6 to 1J in their written statement supported the case put forward by the plaintiffs.

Before this Court, the learned Counsel appearing for the appellants Mr. T.R. Mani submitted as under: The suit item No. 1 Vaveer Pallivasal,

suit Item No. 7 Mohideen Andavar Pallivasal and Mamarathubava Pallivasal in suit item No. 9 are separate and distinct institutions with separate

properties and title deeds. The Vaveer Pallivasal or Big Mosque situate in the southern side of the town is known as Therku Pallivasal and the suit

items 3 to 6 belong to the mosque while Mohideen Andavar Pallivasal which is in a dilapidated condition with a ruined building in a vacant side

within a compound owns suit item 8, and Mamarathubava Pallivasal which is also dilapidated is admittedly not a mosque but a Darga and is now

there is only cultivable lands. These three Pallivasals have separate title deeds in T.D. Nos. 411, 412 and 410 respectively and they have been

registered as independent Wakfs in the list of Wakfs published by the Wakf Board and after the statutory survey of Wakfs in the State. The three

institutions happen to be managed by the family of the first plaintiff for three generations, and two of them were allowed to be dilapidated during

their tenure and the properties were restored to the respective Wakfs due to the efforts and enterprise of fifth defendant and that the suit has been

instituted out of malice and ill-will, as the fifth defendant was put in management of the Pallivasals by the Wakf Board. Simply because Mohideen

Andavar Pallivasal and Mamarathubava Pallivasal are now defunct and the same Muthavalli was in charge of the three Pallivasals, a single scheme

could not be framed for all the three institutions. Simply because some persons were in management as Muthavalli for some time cannot make the

distinct and independent institutions as one and indivisible and the dilapidation of one or the other of the institutions cannot make it lose its identity.

There is no factual or legal basis for framing of a consolidated single scheme for all the three institutions by the Wakf Board under Ex.A-16. The

present suit filed by the first plaintiff and his henchmen since deceased, claiming to represent the jamath of Vaveer Pallivasal which is said to be

common to the other two Pallivasal and for cancellation of the schemes settled by the Wakf Board is not maintainable in law or on facts.

The claim that the native Mohamadan residents of Cumbum alone constituted the Jamath which is common to the 3 Pallivasals and the emigrant

Muslim whose forefathers came and settled in Cumbum about a century ago from places like Rajapalayam are not members of the Jamath entitled

to vote and participate in the administration of the institution is neither true nor tenable. All Hanafi Muslim residents in Cumbum constitute the

Jamath and are entitled to participate in the administration of the three Pallivasals and the Muthavallis of the three mosques are to be elected by the

common Jamath. There is no factual or legal basis for the parochial and aggressive ""son of the soil"" policy advocated by the plaintiffs, particularly

when the emigrants came and settled in Cumbum about a century ago, and they got intermingled with matrimonial alliances with the other residents

of the town and that in fact the second plaintiff himself came from Kullapuram, 38 miles away from Cumbum. The lower court was not correct in

holding that the immigrant Muslims whom he termed ""Rajapalayam Muslims"" cannot participatein the proceedings of the town Jamath inspite of

their residence in Cumbum for a century and inter marriages. The lower court was influenced by the fact that the emigrant Muslims have a separate

mosque of their own built by them in about 1940 in the administration of which the other Muslims have no share. All Hanafi Muslims of the town

do constitute the Jamath administering the common mosque and there is no basis or need for excluding some and the fact that there is a Mohalla

Mosque is no ground to exclude the residents of the Mohalla from the town Jamath. The trial court failed to see the distinction between the Jamath

and Mohalla and the Wakf and other institutions belonging to the one and the other. The defendants 3 and 4 and others like them who are

descendants of emigrants from Rajapalayam and other places, generations ago were born and brought up at Cumbum and there is no basis or

justification for differentiating them from the descendants of the earlier residents. All of them are Muslims of Cumbum and all have made

contributions for the upkeep and maintenance of the suit mosques and have also participated in the administration of the Mosques as members of

the Jamath. Evidence was let in to show that the descendants of emigrants have also made contributions to the suit mosques and participated in the

Jamath proceedings of the said Mosques, and the reasoning of the learned Judge in refusing to act upon the same is erroneous and unjust and it

amounts to special pleadings.

The scheme framed by the ""Wakf Board under Ex.A-16 order allowing all the Mohammedan residents of Cumbum to participate in the

administration of the institutions is proper and justified. The case of the plaintiffs that the properties of Mamarathubava Pallivasal and Mohideen

Andavar Pallivasal were also treated as the properties belong to Vaveer Pallivasal is erroneous and baseless. There can be no hereditary

Muthavalliship and any such claim is untenable in law. It is not correct to say that 5th defendant mismanaged the affairs of the Pallivasal. In fact, he

was responsible for restoring the properties to the Wakf and the allegations made against his have been found to be baseless. The observation of

the learned Judge that the Rajapalayam Muslims belong to Rajapalayam Jamath is not only factually incorrect but also in the nature of special

pleadings for the plaintiffs. It is not correct to state that persons affected were not given due notice and want of notice to the interested persons

would vitiate Ex.A-i6schemes framed by the Special Officer of the Wakf Board. The Cumbum Muslims Dharmaparipalana Sangam representing

the Muslim residents of the town was a party before the Wakf Board and the persons affected had thus given due notice and were heard. Due

opportunity was given to the residents to appear before the Wakf Board before the schemes were settled and the inclusion of all Mohamadan

residents in Cumbum in the electoral roll is proper and consistent with the order of this court in the writ proceedings.

Exs.B-2,3 and 5 would go to show that there is only one Jamath and the present claim of the plaintiffs is false. Ex.B-2 is a resolution passed by

Bava Fakruddin Pallivasal in the Jamath of Cum-bum on 11.11.1955 for constituting a committee with Thiruvalargal Syed Mohammed, 5th

defendant, Mohammed Sheriff, Khadar Mohideen for taking action to recover some properties belonging to Mohideen Pallivasal which was in the

unlawful possession of some other persons. It was admitted by P.W.3 Mohammed Sheriff mentioned in this is a Muslim belonging to Rajapalayam

group. It was also admitted by P.W. 3 that Mohammed Sheriff and some other persons who have signed in this resolution are all belonging to

Rajapalayam group. Therefore, the Muslims of Rajapalayam group were actually taking part in the administration of the Jamath of Vaveer

Pallivasal as early as 1954 and that therefore, the plaintiffs cannot seek to exclude them from the common Jamath. Ex.B-3 is welcome address

given to Maulana Sowkath Ali on 5.5.1934. Ex.B-4, dated 28.9.1972 is a copy of a letter showing the welcome given to the Minister S.M.A.

Majid. Ex.B-2 is the welcome address given to certain persons on their return from Haj. There is only one nikka register before 1942 and there is

only one Kabarsthan for all Muslims in Cumbum and this would indicate that there is only one jamath in the town. There was only one Pallivasal,

Vaveer Pallivasal before the Muslims of Rajapalayam built their own mosque about 30 years ago.

The learned Counsel also submitted that the suit is bad for want of sanction u/s 92, C.P.C., and the finding of the learned Judge in this behalf is

erroneous and unsustainable. The suit filed in November, 1970 for cancellation of the scheme settled in August, 1968 is barred by limitation and

the finding of the learned Judge to the contrary is unsustainable. The two nominees of the plaintiffs cannot claim to represent the Jamath of the suit

mosques and they are not entitled to sue under Order 1, Rule 8, C.P.C. Accordingly, it was pleaded that the judgment and decree of the trial court

should be set aside and suitable scheme may be framed by giving right to the emigrant Muslims from Rajapalayam and other; places to take part in

the administration of all the three mosques as stated above.

On the other hand, while supporting the judgment and decree rendered by the trial court, the learned Counsel Mr. S.P. Subramanian,

appearing for the first plaintiff/first respondent herein submitted as under: The trial court was correct in setting aside the suo motu scheme framed

by the special officer dated 17.8.1968 in W.A.No.9 of 1968 in Ex.A-16. The trial court after considering various facts directed to frame one

single scheme for the administration of the three suit institutions. On an appraisal of facts appearing in this case, the trial court correctly held that the

emigrant Muslims came from Rajapalayam and other places cannot take part in the administration of the said three suit institutions. The trial court

was correct in holding that the emigrant Muslims from Rajapalayam and other places cannot become the members in the Jamath attached to the

said three suit institutions. The Vaveer Pallivasal or Bava Fakruddin Pallivasal or Big Mosque at no point of time was known as Therku Pallivasal

as contended by the defendants. The Muslim worshippers who are resorting to the said mosque for prayers constitute a Jamath known as Vaveer

Pallivasal Jamath and also known as Cumbum Jamath. Mohideen Andavar Pallivasal is only a vacant place enclosed by dilapidated compound

wall. This was used for Idgah at the time of Bakrid and Ramzan. Mamarathubava Pallivasal is a Darga. This place is situated at two miles away

from Cumbum town and the lands are used as cultivable lands. Cumbum town consists of permanent Muslim residents tracing their nativity for

several centuries. A section of Muslims hailing from Rajapalayam and other places settled at Cumbum and the said persons built a separate

mosque of their own and the said mosque is known as ""New Mosque"" or Masjid-E-Illahi"". For the above Pallivasal persons who made sojourn to

Cumbum town constitute as a Jamath of the Pallivasal. The permanent residents had no concern with the above said Pallivasal and they do not

belong to that jamath. Similarly, the persons who had made a sojourn to Cumbum had nothing to do with the suit mosques and they do not also

belong to the Vaveer Pallivasal Jamath.

Vaveer Pallivasal and Mohideen Andavar Pallivasal were under the administration and Management of Jathi (Caste) Nattanmaikkarar of the

Muslims of Cumbum, assisted by the representatives of Khanmars and Levais (Priests). Both Vaveer Pallivasal and Mohideen Andavar Pallivasal

were under the sole management of the hereditary Muthavalli and Vaveer Pallivasal only, who was the jathi Nattanmai of the Muslims of Cumbum.

The hereditary Muthavalli C.Mohammed Meera Levai registered the Pallivasals under the Wakf Act, 1954, and was carrying on as Muthavalli

paying contributions to the Wakf Board upto 1963 and there afterwards due to the advanced age and ill-health, he could not carry on his duties as

Muthavalli and hence he resigned.

According to the customs and practice which obtained force of law among the Jamathars, the family of CMohammed Meera Levai is having

special hereditary rights. The said family was mainly responsible for the construction of the Pallivasals and practically they were the founders.

Further that family was functioning as caste Nattanmai hereditarily. The Office, of Nattanmai carries with its special duties and responsibilities and

also showing of special honours on all occasions in the Mosque as well as in the community. They have been managing the mosque and their affairs

as hereditary representatives of the community. Because of their meritorious service to the community and the mosque the family of Khans arealso

permitted to take part in the management of the mosque and in the communal affairs. They also enjoy special rights and honours in the community.

The report filed by M/s. N.P.M. Meeran and M. Heera would amply prove thesame. Unfortunately in the suo motu scheme settled on 17.8.1968

by the Special Officer for Wakfs, the long-standing and customary rights of the family of Nattanmai and Khans were not taken into consideration

and their rights had been ignored. In such circumstances, the plaintiffs as representatives of Jamathars attached to the Vaveer Pallivasal, which

would include the other two Pallivasals sent notices to the special officer on 21.3.1970, 25.3.1970 and 21.9.1970 demanding to set aside the suo

motu scheme settled in W.A. No. 9 of 1968 on 17.8.1968 and to frame a new scheme by notifying the proposals to the persons interested in the

aforesaid pallivasals. In the meanwhile, the Wakf Board also proceeded to conduct the election. In the election one T. Syed Mohammed and his

henchmen were elected. No legal procedure was adopted for holding the election. Everything was done behind the back of the entire Jamathars

attached to the three Pallivasals. Hence plaintiffs filed a writ petition in the High Court in W.P. No. l070of 1969 and obtained a stay order for

holding election. Subsequently, the interim stay petition was heard and a considered order had been passed on 16.9.1970 directing the Wakf

Board to hold a fresh election within 2 months and also directed that one of the Wakf Inspectors should take possession and administer the affairs

as an interim measure. The statement contained in the counter filed by the Special Officer in the writ petition would tantamount to giving permission

to file a civil suit.

The fact that Cumbum Muslims joined together to give welcome address to the dignitaries would not go to show that there is only one Jamath

in which the descendants and heirs of immigrant Muslims from Rajapalayam were also , members of that Jamath. The fact that Rajapalayam

Muslims have also given chits recommending sums to poor would not go to show that they are also members of Cumbum Jamath with right to

vote. It is after considering all these aspects, the trial court set aside the suo motu scheme framed by the Special Officer for Wakf and directed to

frame a single scheme for all the said three institutions excluding the emigrant Muslims of Rajapalayam origin house taking part in the administration

of the institutions. In order to support his contention the learned Counsel also relied upon various decisions. Therefore, the learned Counsel

submitted that the judgment and decree rendered by the trial court is perfectly justifiable on the materials available on record.

So also, while adopting the arguments advanced by the learned Counsel appearing for the first respondent herein, the learned Counsel S.M.

Amjath Nainar, appearing for respondents 2 to 9, who are defendants 6 to 11 in the suit drew our attention to Section 15 of the Wakf Act and

also the evidence rendered by D.Ws. 1 to 3. The learned Counsel also drew our attention to the report filed by the commissioner. Thus, the

learned Counsel pointed out that there is no justification on the part of the Special Officer to frame suo motu scheme separately for each of the

institutions, that too without nptice to the interested person and the members of the Jamath against the prevalent custom and usage.

The learned Counsel Mr. Haja Nazuriddin appearing for the second respondent reiterated what is stated in the written statement filed by the

Special Officer for Wakfs. Thus, we have heard the submissions made by the learned Counsel appearing for the appellants as well as the

respondents.

The points that arise for consideration in this appeal are:

Whether the trial court was correct in setting aside the suo motu scheme framed by the Special Officer, Wakf Board?

Whether the trial court was correct in giving direction to frame a single consolidated schedule for the three suit Pallivasals: and

Whether the trial court was correct in excluding that Section of the Muslim residents of Cumbum town whose forefathers have migrated to this

town from Rajapalayam and other places from participating in the management and administration of the three suit pallivasals?

Point No. 1 : The fact remains that C. Mohammed Meeran Levai resigned from the office of Muthavalli in the year 1963. The Wakf Board

directed him to hand over the account books to one Hajee Mohammed Meeran Rowther, who was appointed as an interim Muthavalli.

Mohammed Meeran Rowther did not belong to the group of Plaintiffs. Ex.A-13 is the copy of the order passed by the Wakf Board appointing

Mohammed Meeran Rowther as interim Muthavalli. Mohammed Meeran Rowther also resigned from the office of Muthavalli. Thereafter, the

Wakf Board appointed Thiruvalargal N.PM.Meeran and M. Heera to enquire into the affairs of the Wakf and submit a report. Ex.A-14 is the

copy of the order passed by the Wakf Board for the abovesaid direction. They visited Cumbum, made enquiries and filed their report. Again, the

Wakf Board appointed one T. Syed Mohammed (D-5) and S.P.Abdul Rehman the President and Secretary of Dharmaparipalana Sangam,

Cumbum respectively as Muthavalli of this Wakf. The complaint of the respondents/ plaintiffs was that the Wakf Board did not give any notice to

the interested persons in the Jamath and the Wakfs before making such appointments. This order created disappointment and dissatisfaction

among the Muslim members in Cumbum Jamath. Ex.A-15 is the letter sent by the Jamath to the Wakf Board. Objection letters were also sent by

A. Pappathu Rowther and the Jamath on 13.9.1965 and 15.9.1965 respectively. It remains to be seen that dispute arose between the Secretary

and the President of Dharmaparipalana Sangam and that they passed resolutions against each other.

It is at this juncture W.A. No. 9 of 1968 was filed by T. Syed Mohammed the president of Cumbum Dhamaparipalana Sangam, u/s 15 of the

Wakf Act, 1954. The respondents are APapathu Rowther and P.A.Peer Mohammed All Baque. On 26.10.1966 the son of Peer Syed was

married. He insisted on the marriage being registered in the old register. The Pesh Imam had instructed to register the marriage in the new register.

Therefore Peer Syed dispensed with the service of Pesh Imam. On 27.10.1966 the first respondent''s son got married, and the Pesh Imam (the

second respondent) directed to enter the marriage in the old register without entering in the new register. Therefore, the said T. Syed Mohammed

filed the present petition praying for renewal of the second respondent and for an order to restrain the first respondent from interfering with the day

to day affairs of the Mosque. A counter was filed refuting the allegations made in the petition and a reply statement was also filed. Petitioner

examined himself as P.W. 1. H.Allah Pichai was examined as P.W.2. Peer Mohammed was examined as R.W. 1. Exs.P-1 to P-26 were marked

as petitioner''s exhibits. Respondents also filed Exhibits, which were marked as Exs.R-1 to R-3. While disposing of this petition W.ANo.9 of

1968, the Special Officer, Wakf Board came to the conclusion that the Sangam does not enjoy the confidence of the local public. Therefore, he

felt that this is a fit case in which he should settle a scheme of management for this wakf. Accordingly, the Special Officer settled the suomotu

scheme for the management of the three suit Pallivasals.

Therefore, it remains to be seen that before framing the suo motu scheme, no notice was given to the interested parties in the jamath and the

mosque. The interested parties were not heard. Only the petitioner and the respondents in W.A.No.6 of 1968 alone were heard. If the Special

Officer was dissatified with the management of the Sangam he ought to have heard the opinion of the interested persons in the Jamath and the

Mosque, for further cause of action in this matter, Which he has not done. The Jamath and the mosque were not parties to the abovesaid

proceedings. The issues involved in the abovesaid application is also entirely a different one. In similar circumstances the Mysore High Court in the

case of Abdulsab Rajasab Guledgud and Others Vs. Mohiboobsaheb Patel and Others, , held as under: ""Framing of a scheme without hearing six

out of eight trustees of a mosque is illegal and must be set aside. They are parties affected within proviso to Section 15(2)(d) and it is imperative on

the part of the Wakf Board to hear them before settling a scheme for the Mosque."" Therefore, without notice to the interested persons, the Special

Officer while disposing of the Wakf Application No. 9 of 1968 ought not to have framed a suo mow scheme. Hence the suo mow scheme framed

by the Special Officer is against all the established procedures and norms. Hence, the trial court was correct in setting aside the suo motu scheme

framed by the Special Officer in Ex.A-16. Therefore we confirm the finding of the trial court.

Point No. 2 : There are three Pallivasals in Cumbum town including Uthamapuram and they are Vaveer Pallivasals, Mohideen Andavar

Pallivasals and Mamarathu Bava Pallivasals. In Vaveer Pallivasal Jumma on Fridays and prayers for five times a day are conducted. Before the

construction of the new Mosque or ""Masjid-E-Ilahi"", all the Muslim inhabitants of Cumbum town usually resort to this Mosque for prayers. The

Muslim worshippers of this Mosque constitute a Jamath known as Vaveer Pallivasal alias Cumbum Jamath. In so far as the Mohideen Andavar

Pallivasal is concerned, it is only a vacant place of land surrounded by incompleted compound wall. The pallivasal building has become ruined,

dilapidated and destroyed and hence there has not been any worship in the said Pallivasal for several decades. This was used for Idgah at the time

of Bakrid and Ramzan. But as the place was not spacious another place is being used as Idgah. Mamarathu-bava Pallivasal is not a Pallivasal, but

it is a Durga in memory of a saint. In this Pallivasal what remains now is only a vacant land which is used for cultivation. There was no trace of any

Pallivasal within living memory.

The Wakf Board framed three separate schemes for the said Pallivasals. The Special Officer Wakf Board created three separate Jamaths for

these three Pallivasals, on the basis of territorial limit. These Pallivasals viz., Vaveer Pallivasal, and Mohideen Andavar Pallivasal were under the

administration and management of Mr. C. Mohammed Meeran Levai assisted by the representatives of Khanmars and Levais, till he resigns in the

year 1963. The Mamarathu Bava Pallivasal is also under the control and administration of the Vaveer Pallivasal.But common Jummas on Fridays

and five prayers a day were not conducted in the other two Pallivasals. There was no building for Mohideen Andavar Pallivasal and Mamarathu

Bava Pallivasal. The Muslim residents belonging to Hanafi School of Islam constituted the Jamath of these Pallivasals.

After several petitions were sent to the Wakf Board, the Board appointed a committee of two members of the then Wakf Board Thiruvalargal

N.P.M. Meeran and M. Heera u/s 22 of the Wakf Act. These two members after making elaborate enquiries filed their report. After due and

proper enquiries, the Board framed a single scheme for all the three Pallivasals in W.A. Nos. 58 to 61 of 1963 by its order dated 15.12.1963. The

Wakf Board passed an order for selecting a Managing Committee for the three Pallivasals. The Board treated all the three Pallivasals as a single

unit. The Board also directed a common committee of 7, members for all the three Pallivasals were to be elected from the electors comprising of

Vaveer Pallivasal Jamath, Thus, in the beginning the Wakf Board itself accepted and recognised that the three Pallivasals are only one unit and that

there was only a common jamath for all the three Pallivasals. So also, as per the order dated 12.9.1965 the Wakf Board directed one S.P. Abdul

Rehman and T.Syed Mohammed said to be the President and Secretary of the Muslim Dharmaparipalana Sangam Cumbum to take charge of the

abovesaid three Pallivasals and their properties subject to the Control of the Wakf. It is only thereafter while disposing of W.A. No. 9 of 1968 on

17.8.1968, the Special Officer ofthe Wakf Board framed the above said three suo motu schemes for the said three Pallivasals.

W.A. No. 9 of 1968 was not filed for framing of a scheme for the administration of the Wakf. Only parties to the application alone were heard

in that proceedings. Therefore, the suo motu schemes were framed without proper notice to the persons interested in the Jamath and the mosques.

So also, no hearing was given before framing the abovesaid suo moto scheme. All the established procedures and the norms were violated in

framing the suo moto scheme. Further, the earlier conduct of the Wakf Board shows that the Board was always treating all the three suit Pallivasals

as one unit for the purpose of administration. While so, consider that it is improper on the part of the Special Officer, Wakf Board to frame the

three separate suo moto schemes for the said three suit Pallivasals. So also, the Special Officer, Wakf Board was not correct in creating there

jamaths for the three Pallivasals on the basis of territorial limit. This will create further sub-division and fragmentation in Cumbum town, among the

Muslim population. This will also lead to serious consequences. At any costs, such consequences should not be permitted to take place in the

interest of Muslim public. Thus, considering the facts appearing on this aspect we are of the opinion that the trial court was correct in setting aside

the three suo moto Schemes framed by the Special Officer and directing the Wakf Board to frame one single consolidated scheme for the three

suit Pallivasals. Accordingly, we are not inclined to interfere with these findings of the trial court on the aspect. Thus, the findings of the trial court

on this aspect is confirmed.

Point No. 3: the real dispute in this appeal that has got to be decided is whether a section of the Muslim residents of Cumbum town whose

forefathers have migrated to this town from Rajapalayam and other places are entitled to participate in the management and administration of the

three suit Pallivasals. According to the appellants, the desire of the plaintiffs respondents to deprive that section of the Muslim residents of

Cumbum whose forefathers have migrated to Cumbum from Rajapalayam and other places about 70 or 100 years ago of the right to participate in

the management and administration of the suit mosque is only an expansion of an aggressive partisan attitude which may be described as a modified

form of the sons of the soil theory. It was submitted by the appellants that the claim of the plaintiff respondents to exclude descendants of Muslim

migrated from Rajapalayam from taking part in the administration and management of the suit mosques is illegal, unjust and unconstitutional.

On the other hand, the case of the plaintiffs respondents is that the native Muslim residents of Cumbum alone constituted the jamath which is

common to three suit Pallivasals and the emigrant Muslims whose forefathers came and settled in Cumbum about a century ago from places like

Rajapalayam are not members of the Jamath entitled to vote and participate in the administration of the institution. Further, apart from the

permanent Muslim residents of Cumbum tracing their nativity for several centuries, a Section of Muslims hailing from Rajapalayam and the other

places settled at Cumbum. They are having a separate mosque, known as ''New Mosque'' or ''Masjid-E- Ilahi. For the above Pallivasal persons

who made sojourn to Cumbum town constitute as Jamath of the Pallivasal. The permanent residents had no concern with the above Pallivasal.

They do not belong to that Jamath. Similarly, the people who came from Rajapalayam and other places had nothing to do with the suit mosque and

they do not also belong to the suit Jamath.

In order to support their claim, the plaintiffs respondents examined as many as four witnesses and filed 66 documents. C. Mohammed Meeran

Levai was examined as P.W. 1. He is aged about 85 years. P.W.2 is the first plaintiff P.W.3 is Kadhar Mohammed aged about 67 years is

another native of Cumbum. P.W.4 is also a member of the Cumbum Muslim Jamath and he is a retired Deputy Superintendent of Police.

According to the evidence tendered by these witnesses. Vaveer Pallivasal is in existence for the past 300 years. P.W. 1 and his ancestors were the

hereditary Muthavalli of this Vaveer Pallivasal. P.W. 1 himself was the Muthavalli for these Pallivasals from 1919 to 1963. Mohideen Andavar

Pallivasal and Mamarathu Bava Pallivasal are also under the control and Adrnini-stration of the hereditary Muthavalli of Vaveer Pallivasals. There

are no buildings either in Mohideen Andavar Pallivasal or in Mamarathu Bava Pallivasal. No worships or prayers are conducted in these two

Pallivasals. The suit items 7 and 8 are properties belonging to Mohideen Andavar Pallivasals. the suit items 7 to 9 were in possession of Levai,

who belonged to the jamath of Vaveer Pallivasals and that suit items 1 to 6 belong to Vaveer Pallivasal. The Jamath attached to Vaveer Pallivasal

had been controlling and managing all the three Pallivasals jointly. Muslims who have migrated to Cumbum from Rajapalayam have built a separate

mosque for them. Ex.A-12 is the pro forma report sent to the Wakf Board about this newly built mosque. The native Muslims of Cumbum are not

permitted to take part in the administration of the new mosque. The New Mosque was built by the Rajapalayam Muslims, The native Muslims of

Cumbum town did not make any contribution to the jamath attached to the New Mosque. The Jamath attached to the Vaveer Pallivasal comprised

of the permanent native residents of Muslims of Cumbum and that Muslims whose forefathers have migrated from Cumbum to Rajapalayam cannot

be called as permanent native resident of Cumbum. The new Pallivasal or mosque built about 30 years ago by the Muslims of Rajapalayam is

controlled by the Jamath attached to that Mosque, and that the native residents of Cumbum town never allowed the Rajapalayam Muslims to take

part in the administration and management of the suit mosques. The Muslims attached to the Jamath of Cumbum were collecting commission or

tharagu from paddy and grain merchants and mutton stall keepers and that is the income for the suit mosques. Tharagu was collected only from the

Muslims attached to the Jamath of Vaveer Pallivasal and that the successful bidder is not entitled to collect such commission from Rajapalayam

Muslims.

On the other hand, the defendants also examined their witnesses in order to support their version. D.W. 1 is Wakf Board Inspector. It is the

evidence of D.Ws.2, 3 and 4, that the Muslim residents of Cumbum whose forefathers have migrated to Cumbum have also been contributing to

the funds of the suit Pallivasals that they have also been participating in the deliberation of the Vaveer Pallivasal''s Jamath, that the plaintiffs are now

unjustly seeking to exclude them from the Jamath and the PaHivasals. Mohammed Rowther was examined as D.W. 2. He is aged about 75 years.

He had been living in Cumbum for the past 50 or 60 years. His father came to Cumbum from Rajapalayam about 90 years ago. At that time, there

is only one Muslim Jamath in Cumbum known as Cumbum Jamath and he had also been paying tharagu to the suit Pallivasals. He filed Exs.B-7 to

B-26 to show that he was paying tharagu to Therku Pallivasal, which is also known as Vaveer Pallivasal. Exs.B-7 to B-26 are entries in day books

and corresponding ledgers. The entries are from 1948 to 1957. D.W.2 states that he wrote these accounts. It is the case of D.W.2. that even the

Muslims who had migrated from Rajapalayam like him have been making contributions to the Jamath of Vaveer Pallivasal and therefore they have

also a right to take part in the management and administration of these three PaHivasals. D.W. 4 is one Mohammed Sharbuddin aged about 51

years, he is the 4th defendant in the suit. He stated that his parents came to Cumbum from Rajapalayam about 30years before he was born.

According to him, his forefathers came to Cumbum in 1885. He is also paying tharagu or commission to Vaveer Pallivasal, which is also known as

Peria Pallivasal. He also made contributions for putting up constructions and purchasing properties for the Vaveer Pallivasal. According to his

evidence, Muslims who have migrated to Cumbum from Rajapalayam and other places have also a right to take part in the management and

administration of the Vaveer Pallivasal. He had also marked his account books. Exs.B-27 to B-32 are the entries made in the account books

showing the payment of Tharagu to suit Pallivasals. D.W.3 is one C.K.A.K. Rowther. He also stated in his evidence that he paid tharagu to

Vaveer Pallivasal for purchasing land in constructing the compound wall. He also claims to have paid tharagu to Vaveer Pallivasal. It is pointed out

that D.W. 2 is the father of the third defendant.

During the course of hearing our attention was drawn to various decisions in the matter of elucidating the issue arising on this aspect. One such

decision was reported in the case of Mohammed Ismail Ariff v. Ahmed Moolia Dawood AIR 1916 P.C. 132 : 1.L.R.43 Cal. 1085 : 31 M.L.J.

250 : 43 I.A. 127 : 25 I.C. 30. According to the facts arising in that case, a trust deed executed in November, 1872 for the purpose of divine

worship by all Sunni Mohamadans vested the control and management of the mosque solely in Rhanderias. The Privy Council on considering the

facts and in the circumstances of this case held that the Rhanderian Section of the worshippers, all other conditions being equal were preferably

entitled to the management of the mosque. Similarly while considering the power of the court in deciding a matter like this, the Privy Council in the

abovesaid decision held as under:

Therefore, that in settling a scheme of management the question was not one involving the determination of conflicting rights, but the consideration

of the best method for fully and effectively carrying out the purpose of the trust. Section 539 vested a very wide discretion in the court, and giving

effect to its provisions and appointing new trustees and settling a scheme the court was entitled to take into consideration not merely the wishes of

the founder, so far as they can be ascertained, but also the past history of the institution, and the way in which the management had been carried on

heretofore in conjunction with other existing conditions that might have grown up since its foundation. The Court also had the power of giving any

directions and laying down any rules which might facilitate the work of management, and, if necessary, the appointment of trustees in the future.

So also, the Kerala High Court in the case of Kuthukutty Kunhali''s son Kunhalavi Musaliar and Others Vs. Pakkath Enu''s son Abdulla and

Others, , in similar circumstances held that:

The fundamental idea of a Wakf is that the property is vested in the Almighty and unless there is a power reserved to the settlor to change the

character and object of the wakf, he has no power to do so. If at all there is any power in that behalf in any person it is in the Kazi whose place is

now taken by the civil courts in the country. If it is more advantageous to the public to whom the mosque is dedicated that there should be a

deviation from the object of the founder, there must be the sanction of the Kazi for the same. The Civil Court having taken the place of the Kazi

must take into consideration all the relevant circumstances and come to a conclusion whether the interest of the public to whom the mosque is

dedicated require that there should be a deviation from the original user which alone was in the contemplation of the founder.

Another decision on this aspect brought to our notice was that rendered in the case of Haji Mohd. Sayeed and Others Vs. Abdul Ghafoor and

Others, . According to the facts appearing in that case:

Members of Ahl-e-Hadis sect residing in a town brought a suit in a representative capacity claiming injunction against the members of Hanafi sect

residing in the same town, also in a representative capacity, to restrain them from interfering with the rights of the plaintiffs to offer prayers in a

congregation of their own and according to their own rituals, in certain mosque in the town.

On these facts it was found that,

Since 1915 the Hanafis had been holding congregational prayers in the said mosque, that they had been throughout supervising, controlling and

managing the said mosque and that, accordingly, the right to hold congregational prayers vested in them. It was further found that since a long time

past in the town there had prevailed a practice under which the Hanafis and the Ahl-e-Hadis had been performing their congregational prayers

separately in their congregational prayers separately in their respective mosques, and the said practice being ancient certain and reasonable it had

the force of a local custom.

On these findings, the Allahabad High Court held that the plaintiffs are not entitled to the reliefs asked for.

A careful perusal of all these decisions, would go to show that the decision in each case depends upon its own facts.

This is a litigation involving the interest of the Muslim General Public in Cumbum town. The suit was filed in the representative capacity. Each

side examined four witnesses. In a matter like this, the question is whether these four people on each side really reflect what is actually prevailing in

the minds of the Muslim population in Cumbum town. In fact, we advised the parties to settle the dispute among themselves amicably with the help

of elders in the locality. But they expressed their inability to do so. Under such circumstances, we have no other alternative but to decide the issue

arising in this appeal on the basis of the oral evidence tendered by the witnesses and the documents filed. It remains to be seen that Vaveer

Pallivasal is in existence from the time immemorial. In this Pallivasal ''Jumma'' on Fridays and five time prayers a day are being conducted. All the

Muslim inhabitants of Cumbum belonging to Hanafi school of Islam, invariably resort to the said Pallivasal alone for their prayers before the

construction of the new mosque or Masjid-E-Ilahi, about 30 or 40 years ago. There are two other Pallivasals in the Cumbum town namely

Mohideen Andavar Pallivasal and Mamarathu Bava Pallivasal. Mamarathu Bava Pallivasal is only a Darga. No regular prayers are conducted in

these Pallivasals. These two Pallivasals have no buildings of their own. They are only vacant lands. Mohideen Andavar Pallivasal is being used for

Idgah at the time of Bakrid and Ramzan, but as the place was not sufficient, another plot is being used for Idgah. Therefore, admittedly before the

construction of the New Mosque or Masjid-E-Ilahi, there was only one Pallivasal in Cumbum town that is Vaveer Pallivasal.

According to the appellants, their forefathers came from Rajapalayam about a century ago. This fact was not specifically denied by the

plaintiffs respondents. Therefore, before the New Mosque was built up all the Muslim residents of Cumbum including the emigrant Muslims from

Rajapa- layam and other places would have resorted to Vaveer Pallivasal for their congregational prayers. Even according to the

plaintiffs/respondents, the immigrant Muslims also used to come to Vaveer Pallivasal for their prayers. It is not the case of the plaintiffs respondents

that there were two Jamaths in Cumbum town before the New Mosque was built up: Further, it is impossible to believe that the Muslim residents

of a particular place who used to resort to a particular mosque for their prayer and who belonged to the same Hanafi School of Islamic faith,

remained idle without attaching themselves in the Jamath belonging to that mosque. As a matter of practices no one, who is not a member of a

particular jamath ever enters the mosque belonging to it, without having invited to do so or obtaining leave, and without confirming, within the

premises of the mosque, to the amenities reserved by the member of that Jamath in possession of the mosque. Further, there is no documentary

evidence to show that Muslims belonging to Rajapalayam origin were not the members of the Cumbum Jamath and they never took part in the

administration of Vaveer Pallivasal before the New Mosque was built up. The plaintiffs filed as many as 66 documents. These documents relate to

the period from 1957 to 1978. Documents earlier to 1957 were not produced even though according to them C. Mohammed Meeran Levai and

his forefathers were looking after the administration of the Vaveer Pallivasal and Cumbum Jamath from time immemorial. If the documents like

account books maintained by the Muthavalli prior to 1957 were produced that would throw some light on this issue arising in this case. The non-

production of the documents prior to 1957 by the plaintiffs respondents in a way support the version put forward by the Lappellants/defendants.

This kind of dispute relating to the separation and segregatiln of Muslims belonging to Rajapalayam origin from the so-called native residents of

Cumbum appears to have emerged only after the New Mosque was built up. There is also no documentary evidence on record to show that this

kind of dispute was in existence prior to the construction of the new mosque.

Thus on a careful consideration of all these facts arising on this aspect, we hold that the Muslims whose forefathers came from Rajapalayam

and other places, were also used to take part in the administration and management of the suit Pallivasals in the past and therefore their right to

take part in the administration and management of the suit Pallivasals in the present and future cannot be taken away or abridged or obstructed by

the native Muslim residents of Cumbum town. Likewise, they are also entitled to be the members of the suit Pallivasal''s jamath. At the same time,

we cannot forget that there came into existence a new mosque or Masjid-E-Ilahi in Cumbum town built by the Muslims of Rajapalayam origin and

it was alleged that the said mosque is also having a Jamath of its own. Further the New Mosque is a Mohalla Mosque and On that the Muslims of

Rajapalayam origin cannot be excluded from Cumbum Town Jamath. Another contention made by the plaintiffs respondents in this appeal was that

they were not given any right to take part in the administration and management of the New Mosque or Masjid-E-Ilahi. It appears that this demand

was not made by the plaintiffs respondents before any authority in the past at any point of time. Since the Muslims of Cumbum origin did not make

any contribution to the construction, of the New Mosque they cannot claim any right in the administration of the New Mosque. Further they

themselves stated that they never used to resort to the New Mosque for their prayers. Therefore, the native Muslims of Cumbum origin cannot

make a claim to take part in the administration and management of the New Mosque. In fact, it is for the plaintiffs respondents to establish their

case on their own evidence. They cannot depend upon the defects found in the defendant''s case. In the instant case, the plaintiffs respondents

were unable to establish that the Muslims of Rajapalayam origin did not take part in the administration and management of the suit Palli vasals prior

to the construction of the new mosque, nor were they able to prove with convincing documentary evidence that the plaintiffs/respondents were

carrying on with the administration and management of the suit Pallivasal prior to the construction of the New Mosque, excluding the Muslims of

Rajapalayam Origin.

In such circumstances taking into consideration the new development that came into existence in Cumbum at large we hold that the residents of

Cumbum whose forefathers came from Rajapalayam and other places are entitled to take part in the administration and management of the suit

Pallivasals and the Jamath in the following manner:

(1) Any Cumbum resident, whose forefathers came from Rajapalayam can be a member either in the Jamath attached to the suit Pallivasals or to

the Jamath attached to the New Mosque or Masjid-E-Ilahi and he cannot be a member in both the Jamaths at the same time.

(2) Any Cumbum resident whose forefathers came from Rajapalayam can take part in the administration and management of either the suit

Pallivasals or in the management and administration of the New Mosque (Masjid-E-Ilahi) and he cannot take part in the administration and

management of both at the same time.

Accordingly, we answer this question in the abovesaid manner.

Yet another point raised in this appeal was that there has been a long standing well established and recognised custom and practice which

obtained the force of law, that among the Jamathars, the family of C. Mohammed Meeran Levai is having special hereditary rights. The family of C.

Mohammed Meeran Levai used to enjoy special honours within and outside the Pallivasal. The family of Khanmars and Levais used to assist them

in the administration of the Pallivasals. Therefore, this custom should be recognised while appointing the Muthavalli to the suit Pallivasals.

However, the appellants defendants submitted that there is no such custom or practice prevalent in Cumbum as alleged. Muthavallis used to be

selected by Cumbum Jamath as and when vacancy arose. According to them; there is no hereditary right to hold the office of Muthavalli Further

the appellants pointed out that showing honour to any individual inside the Mosque is against Islamic faith. According to them, such custom was not

proved with cogent evidence. They submitted that persons not belonging to the family of C. Mohammed Meeran Levai such as (1) S.P.

Mugudharan Rowther, (2) M. Peer Mohammed, (3) Peria Levai alias Mohammed Meeran Levai and some others were Muthavallis of suit

Pallivasals in their own times.

On this aspect our attention was drawn to a decision reported in the case of Hajee Sheikh Ali Mohammed and Others Vs. Mohemmed Yusuf,

, wherein the Orissa High Court held as under:

Lastly, the plaintiffs relied generally on the legal position - about which there is no dispute - that the Mohammadan Law does not favour the right to

act as muthawalli becoming heritable; in other words, appointment is the rule and inheritance is the exception that, therefore, if heredity fails then

the defendants herein have no basis for their alleged claim to Muthawal-liship of the Mosque; that in the present case, no such custom, that the

Muthawalliship was heritable, has been pleaded in defence.

Similarly in the matter of appointing Muthavalli to a Wakf in the case of Khagum Khan and Another Vs. Mohamed Ali Sahib and Another, , Subba

Rao, Chief Justice, enumerated the following three modes of appointment:

Ordinarily there are three modes by which a person may trace his right to be a Muthavalli; they are (i) appointment by the Wakf or by some

person expressly authorised by the Wakf to appoint and in the absence of any person so authorised; (ii) appointment by the executor of the Wakf

and in the absence of such an appointment; (iii) appointment by the Court. Apart from these, the appointment may also be made by a congregation

in the case of institution confined to a particular sect in a particular locality. Phatmadi v. Abdulla Musa Sait AIR 1914 Mad. 714 and Bijoy Gopal

Mukherjee v. Krishna Mahichi Debi 19 Cal 203 relied on.

We are also apprised of the principles that Mohammedan Law does not recognise any right of inheritance to the office, of Muthavalli. But the

office may become hereditary by custom in whith case the custom should be followed [See Page 233 of Mulla ''s Principles of Mohammadan

Law]

In order to establish such custom prevailing in Cumbum the plaintiffs/respondents examined four witnesses. But so far as the documentary

evidence is concerned, they did not produce any document prior to 1957. They do not have any document to show that the forefathers of C.

Mohammed Meeran Levai were the founders of suit Pallivasals. They relied on the report filed by N.P.M. Meeran and H.Heera to show that such

customs were prevalent in Cumbum. But even according to the plaintiffs respondents this report was not made available to them by the Wakf

Board. In fact, it is the categorical statement of P.W.2 that the Wakf Board failed to produce the report inspite of their notice. Therefore, there is

no documentary evidence on the side of the plaintiffs/respondents to support their version that there is a custom as stated above. Custom should be

ancient and uninterrupted one. Unless they prove their right to hold the office of Muthavalli hereditarily by cogent and convincing evidence, they are

not entitled to the same. The trial court simply accepted the oral evidence tendered by the plaintiffs'' witnesses and refused to accept the oral

evidence and documents filed by the defendants and their witnesses without assigning any acceptable reason. The approach and appreciation of

the evidence by the trial court on this aspect appears to be unconvincing and unacceptable. As already pointed out that it is for the

plaintiffs/respondents to prove their case with independent evidence that there is such custom prevalent in Cumbum. But they are unable to prove

their case on this aspect. Therefore, we are unable to accept the plea put forward by the plaintiffs/respondents that such kind of custom was

prevalent in Cumbum town. Hence we set aside the finding of the trial court that there was such custom among the native Muslims of Cumbum in

appointing Muthavalli to the suit Pallivasals hereditarily. Thus the family members of C. Mohammed Meeran Levai are not entitled to claim the

office of Muthavalli to the suit Pallivasals by hereditary right. It is the Cumbum town jamath, which is entitled to select the Muthavalli to the suit

Pallivasals as and when the occasion arises.

The appellants/defendants further contended that the suit is not maintainable since it is barred by limitation. According to the

appellants/defendants the suit ought to have been filed within one year from 17.8.1968. But the suit was filed on, 2.11.1970. The counsel for the

plaintiffs/respondents pointed out that Article 100 of Limitation Act applies only to orders from Officer of Government and that it does not apply to

this case. In the present case, Article 113, the residuary article will alone apply according to the plaintiffs/respon-d6nts. It remains to be seen that

the plaintiffs/ respondents are not parties before the Wakf Board. In fact, Article 100 will apply only to proceedings between the parties. The

order was passed not between the parties. Further, the Special Officer, Wakf Board represented the Wakf Board. The order was passed u/s 15

of the Wakf Act. Therefore, Article 100 will not apply to the facts of this case. The trial court gave convincing reasons to come to the conclusion

that the suit is in time. We are in conformity with the findings given by the trial court on this point. Therefore, we are not inclined to interfere with

the same.

Another point raised by the appellants was that the suit is bad for want of sanction u/s 92 C.P.C. The amendment to Section 55(2) of the

Wakfs Act clearly shows that the consent of the Wakf Board alone would be adequate for filing the suit. The decision in Mohammed Jacoo Sait

Vs. District Collector of Trichur District and Others, , is an authority on this point. Plaintiffs/respondents sent Ex.A-17 notice to the Wakf Board

on 20.3.1970 praying permission for filing the suit. Admittedly, no reply was given. In the writ petition a counter was filed by the Wakf Board in

which it was stated that if the plaintiffs are aggrieved by the order passed by the Wakf Board, the remedy is to file a civil suit for setting aside the

scheme. The trial court came to the conclusion that there is sufficient materials on record to satisfy the conditions provided u/s 55(2).of the Act. On

a perusal of the findings of the trial court on this aspect we find that there is no infirmity in the finding given by the trial court on this aspect.

Accordingly, we are not inclined to interfere with the same.

Another ground in this appeal raised by the appellants/defendants was that the plaintiffs are not entitled to sue in the representative capacity.

We have heard both the sides on this point. We have seen the findings given by the trial court on this aspect. The reason given by the trial court in

holding that the plaintiffs are entitled to file the suit in the representative capacity appears to be quite convincing and reasonable. Hence we are not

inclined to interfere with the same.

In the result, the appeal is partly allowed to the above said extent. There will be no order as to costs.