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Judgment
K. Sampath, J.—The defendants who lost before both the courts below are the appellants. The respondent. filed suit O.S.No. 1068 of
1978 before the District Munsif, Sattur, for declaration and injunction and for recovery of compensation of Rs. 400, alleging as and sold the same
of Rs. 400. The respondent gave a police complaint to Sivakasi Police, who advised the respondent to file a civil suit. The suit was therefore
instituted.
The first appellant filed a written statement and an additional written statement and they were adopted by the second appellant. The contents of
the same were as follows:
The description of the property in the plaint was not correct. The respondent was not a trustee of the Thaikkal Trust and he was not entitled to sue.
He should prove the existence of such a trust. The inams granted had been resumed by the Government. It was not correct to state that the suit
property was granted to the said trust in 1866 under title deed No. 531. It was granted only to Muthulla Sahib Mosque. There was no list of
properties granted with details of survey number or extent. There was no document of title in favour of the respondent with regard to the suit
property. The ceremonies referred to in the plaint were conducted by the Muslim Community and not by the trust. The first appellant Pallivasal was
managing the entire property including the suit property for several decades. The respondent was a member of the first appellant''s jamath. The
pallivasal raised a compound wall surrounding the Mosque and the tomb in 1924 and there were a common pathway and entrances and there
were no separate gateways and entrances. The first appellant Pallivasal had provided electric light for the tomb and the charges were paid only by
the Pallivasal. The compound wall was raised by the Pallivasal at its expense. There was no diving fence demarcating the properties. The suit
property was always in favour of the first appellant Pallivasal. The suits O.S.Nos. 5 of 1959 and 87 of 1960 were not known to the first appellant.
There was no lease to Ammena Bevi on 20.7.1962. The suit property was not in Door No. 41 and Door No. 41 was not assigned in the name of
Muthulasha Sahib Thaikkal. Pallivasal was not a party to the suit O.S.No. 87 of 1960. There was no question of res judicata. The trees belonged
to the Pallivasal and each year the trustee of the Pallivasal used to cut the branches and sell them. The report to the Police had been done falsely by
the respondent. There was a water tank and the leaves used to fall in the water tank and the branches therefore had to be cut every year. The suit
property was worth Rs. 40,000 and the Munsif Court, Sattur, had no jurisdiction and the court fee paid was not correct. Under the Wakf Act no
suit could be filed without agitating before the Wakf Board or impleading the Board in the suit. The suit was not maintainable under the Wakf Act,
1954. No measurement had been given by the respondent nor pymash number or devadaya number of survey number. No details had been given
for the creation of the trust. The suit property was included in O.S.No. 76 of 1988 and that suit ended in favour of the jamath. The suit was bad
for non-joinder of necessary parties.
The learned Principal District Munsif, framed appropriate issues and found that the Munsif Court had pecuniary jurisdiction to try the suit, that
the court fee paid was correct, that Muthulasha Sahib Thaikkal Trust had title to the suit property that the respondent was in possession of the suit
property and that he was a trustee and entitled to sue. The learned District Munsif, had also found that there was no evidence to show that the suit
property was a Wakf Property and Section 6 of the Wakf Act had no application to the facts of the case and therefore no notice u/s 57 of the
Wakf Act was necessary. He also held that the decision in O.S.No. 87 of 1960 would not operate as res judicata and bind the first appellant. The
respondent was also entitled to compensation of Rs. 400. So holding the learned District Munsif decree the suit as prayed for by his judgment and
decree dated 28.1.1982.
On appeal by the appellants in A.S.No. 33 of 1982 to the Subordinate Judge''s Court, Srivilliputhur, the learned Subordinate Judge by his
judgment and decree dated 22.6.1983 confirmed the decision of the trial court and dismissed the appeal. Aggrieved the present second appeal has
been filed.
At the time of admission of the second appeal the following substantial questions of law were framed for consideration:
(1) Whether the plaintiff could claim title on the basis of title deed No. 531 dated 10.4.1866 when the same has been resumed by proceedings of
the Board of Revenue as early as 1980?
(2) Whether the plaintiff could claim title to the plaintiff schedule property when they have not questioned Gazette Notification in 1959 u/s 6(1) of
the Act? and
(3) Whether the list of Wakfs published u/s 5(1) of the Wakf Act has become final and conclusive?
The appellants have also filed an application under Order 41, Rule 27 of the CPC for reception of additional documents. The documents sought to
be filed are: (1) Xerox copy of the extract of the Inams ''B'' register, and (2) patta (original) relating to T.S.No. 90 and T.S.No. 91 Sivakasi. In
support of the application for reception of additional documents, in paragraphs 5 and 6 it is stated as follows:
Though I have pleaded in the written statement in the suit that title deed 531 has been resumed, I could not get an authenticated copy of the
proceedings. I have now got a true copy of the Inam ""B'' Registrar which would show that the same has been resumed as per proceedings
B.P.No. 466, dated 10.2.1934 and R.Dis.No. 2679/ 30, dated 3.3.1981 and I crave leave to file the same as additional document which would
prove that the plaintiff had absolutely no title to the property. I state that I have also obtained patta from the Settlement Authorities, Sivakasi, and I
crave leave to file the same also as an additional document.
I state that the above documents could not be obtained at the trial of the suit or at the appellant stage and as such I could not file the same. A
perusal of the same would clearly show that the title to the property belongs only to the Mosque and that the Muthulla Sha Thaikkal has absolutely
no title to the suit property and if the documents filed herewith are not received as additional documents, the appellants would be put to irreparable
loss and hardship and the valuable property attached to the Mosque would be taken away by an individual for his personal requirements.
A counter has been filed and in paragraph 5 it is stated as follows:
As regards the allegations in paragraphs Nos. 5 and 6 of the second petitioner''s affidavit, I respectfully state that the petitioners have not made out
a case for the production of additional evidence at this stage. Admittedly the petitioners have not been able to produce any authenticated copy of
Inam B'' Register. The other documents are also of no significance since the Muthulla Sha Saheb Trust had in any event perfected its title to the
property long prior to institution of the suit by being in exclusive possession and enjoyment of it as part of the Thaikka ever since 1866. The
petitioners are not entitled to file some new and unauthenticated documents as additional evidence at this belated stage and that too without any
proof about their truth and genuineness.
So far as the application for reception of additional evidence is concerned, the learned Counsel for the appellants relies on the decision in
Inderam Mansaram and Another Vs. Ramdin Bhagwant Prasad and Others, and submits that additional evidence can be admitted by appellate
court to do complete justice between parties. In Arjan Singh v. Kartar Singh, (1951) 2 SCR 258 referred to in the judgment of the Madhya
Pradesh High Court, the Supreme Court has observed as follows:
The discretion to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitation specified in
Order 41, Rule 27, C.P.C. If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such
evidence, it would be a case of improper exercise of discretion and the additional evidence so brought on the record would have to be ignored and
the case decided as if it was non-existent.
Unless some inherent lacuna or defect becomes apparent while examining the evidence as it stands, then that would be a legitimate occasion for the
application of the rule regarding reception of additional evidence under Order 41, Rule 27. The true test is therefore whether the appellate court is
able to pronounce judgment on the materials before it without taking into consideration on the additional evidence sought to be adduced.
Absolutely no allegation is found in the affidavit in support of the application as to why those documents were not produced before the trial court
or the lower appellate court. Even the basic requirements as set out in the provision, viz., Order 41, Rule 27 are absent in the affidavit. The first of
the documents sought to be produced purports to be a xerox copy of the Inam ''B'' register. In the absence of production of the Original, it cannot
be taken into consideration. So far as the patta is concerned, it has been obtained after the suit. In the circumstances, I am of the clear view that no
case has been made out for reception of additional evidence at the stage of the second appeal. Having regard to the materials on record, the
document$ sought to be produced will not in any way advanced the case of the appellants.
It is next contended by the learned Counsel for the appellants that Ex.B-1, dated 22.1.1979 which is a certified copy of the proforma issued by
the Secretary, Tamil Nadu Wakf Board, Madras, has not been taken into consideration by the courts below and if it had been done by the courts
below, it would have clearly established the case of the appellants. As rightly pointed out by the learned Counsel for the respondent that Ex.B-1 is
after the suit and no reliance at all can be placed on the same. The courts below have adverted to Ex.B-1 and in fact the trial court has referred to
the admission made by the second appellant as D.W.1 that in Ex.B-1 there was a clear recital to the effect that the respondent was the trustee of
Muthullasha Sahib Thaikkal and that Thaikkal was a separate entity and the inamdhar was the respondent''s father. Apart from Ex.B-1, the courts
below have adverted to the several documents relied on by the respondent and come to the conclusion that the suit property belonged to
Muthulasha Sahib Thaikkal under an Inam Grant and mat the first appellant Mosque had nothing to do with the Thaikkal. It is pointed out by the
learned Counsel for the appellants that there were resumption proceedings in the year 1930. May be there were resumption proceedings, but there
was absolutely no material to show that pursuant to the resumption proceedings, the respondent lost possession of the property at any time. It is
also to be noted as pointed out by the learned Counsel for the respondent that no proceedings had been taken u/s 43 of the Wakf Act, 1954 and
in these circumstances, even assuming that the property belonged to a Wakf, still since the appellants have no right or claim with regard to the suit
property, the courts below were perfectly justified in accepting the case of the respondent. The decision of the courts below has been reached on
an appreciation of oral and documentary evidence and sitting in second appeal it is not open to this Court to interfere with a concurrent finding of
fact.
In the result, the substantial questions of law are answered against the appellants and the second appeal is dismissed. However, there will be
no order as to costs.