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S.SHANKAR versus SHEIK MANIYAM

High Court of Madras

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S.Shankar v. Sheik Maniyam - Crl. O.P. No.5578 of 2005 [2007] RD-TN 2582 (2 August 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



Dated: 02.08.2007

Coram

The Hon'ble Mr. Justice R.REGUPATHI

Crl. O.P. No.5578 of 2005 & Crl. M.P. No.2112 of 2005 and

Crl. R.C. No.676 of 2005 & Crl. M.P. No.4280 of 2005 Crl. O.P. No.5578 of 2005:

~~~~~~~~~~~~~~~~~~~~~~~~~

S.Shankar ..Petitioner Vs

1. Sheik Maniyam Masjid~e~Khairunnissa Muslim Jamath represented by its President Abdul Kareem

S/o.Nagoor Maideen

No.3

Arunachalam Garden

Karampakam

Porur

Chennai 600 116.

2. The Inspector of Police

E 4

Maduravayal Police Station

Chennai East District. ..Respondent Crl. R.C. No.676 of 2005:

~~~~~~~~~~~~~~~~~~~~~~~~

Mr.S.Elumalai ..Petitioner Vs

1. The Sub Divisional Executive Magistrate and Sub Collector Ponneri.

2. E.Kairunnisa Muslim Jamadh

Porur

Chennai 116. ..Respondent Crl.O.P. No.5578 of 2005 filed under Section 482 of the Code of Criminal Procedure to call for the records in R.C. No.2146/2004/A2 on the file of the Sub-Divisional Magistrate, Sub Collector, and quash the order dated 09.03.2005 passed in proceedings No.2146/2004/A2. Crl.R.C. No.676 of 2005 filed under Sections 397 & 401 of the Criminal Procedure Code as against the order dated 07.02.2005 passed by the first respondent in R.C. No.2146 of 2004. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - For petitioner in the Crl. O.P. :

Mr.R.Thiyagarajan, Senior Counsel for M/s.Aiyar and Dolia. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - For petitioner in the Crl. R.C.:

Mr.Sathyanarayanan, for Mr.K.Elango - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - For R 2 in the Crl.O.P. & R 1 in the Crl. R.C.:

Mr.Hasan Mohamed Jinnah, Govt. Advocate (Crl. Side) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - For R 1 in the Crl. O.P. & R 2 in the Crl.R.C.:

Mr. Ashok Kumar, Senior Counsel for Mr.Nistar Ahmed. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - COMMON ORDER



Questioning the legality and correctness of the orders dated 07.02.2005 and 09.03.2005, passed by the Sub-Divisional Executive Magistrate and Sub-Collector, Ponneri, under Section 145 Cr.P.C., the above Criminal Revision Case and the Criminal Original Petition have been filed by the petitioners.

2. Learned Senior Counsel for the petitioner in Crl.O.P. No.5578 of 2005 submits that the property in dispute is an agricultural land to an extent of 3 acres in Survey No.187 at Vanagaram Village; that civil dispute was pending with regard to the property between the petitioners and the Porur Sheik Maniyam Masjid-e-Khairunnissa Muslim Jamath (in short 'Jamath'); and that both the trial court as well as the first appellate court upheld the claim of the petitioners finding that they are the owners of the property and also in possession of the same, however, the High Court set aside the said finding, whereupon, the aggrieved parties/petitioners moved the Supreme Court and, after hearing both the parties, by order dated 03.10.2002 in Civil Appeal No.5334 of 1993, the Supreme Court set aside the Judgment of the High Court by holding that the High Court committed a serious mistake of law in interfering with the concurrent finding on fact recorded by the trial court as well as the first appellate Court to the effect that there never existed a public mosque in the disputed land. Learned Senior Counsel also pointed out the relevant portion of the Judgment of the Apex Court, which reads as under: " The question whether there ever existed a public mosque in the disputed land is essentially a question of fact and it can never be termed as a substantial question of law. The trial court as well as the appellate court concurrently held that the plaintiff-respondents had failed to establish that there was a public mosque. Further both the courts inter alia found that:(1)non-mention of disputed mosque as a wakf property in Ex.B1, the Gazette publication dated 17.12.1958 containing the list of wakfs existing at the time in Chengalput District, that (2) the absence of reference to any mosque in Ex.B2, the Settlement Register Extract, Ex.B3, Inam Register Extract, Ex.B4, Inam Title Deed lead to the conclusion that there never existed any public mosque, that there was no dedication of building for the purpose of public mosque by the original founder and that the land was never used as a public mosque or the Muslim community have ever used the land as a burial ground. Curiously enough, the High Court after re-appraising the evidence held that the possibility of a building having been erected initially which served as a mosque could not be ruled out. This was speculative and conjectural finding. The High Court has not recorded any definite finding that earlier there existed a public Mosque. In absence of such a finding no relief could have been granted to the plaintiffs. Since the very approach of the High Court in allowing the appeal was contrary to law, this appeal deserves to be allowed. Consequently the judgement is set aside and the appeal is allowed. No costs." According to the learned Senior Counsel, even after the Order of the Supreme Court passed on 03.10.2002 in favour of the petitioner, the members of the Jamath were disturbing the peaceful enjoyment of the property by the petitioners, resulting in filing of a complaint dated 06.03.2004, wherein, it is stated as follows: " My father Thiru.Elumalai Chettiar Purchased the property in Sheik Maniyam, Vanagaram village bearing Survey No.187, through court auction in the year 1935, in the year 1864, this property is an inam property for the personal benefit of the inamdar. Later on 23.9.1889 this property was gifted by a gift deed by the inamdar to Haji Mohammed Habibullah Basha. On 15.3.1917 Md. Habibulla sold this property to Mr.Annia Naidu. On 1.5.1919, the official Assignee of Madras High Court had sold this property by court auction to Mr.Jaganatha Pillai and on 31.10.1935 my father had purchased this property by court action. In the year 1980, there was partition in my family and portion of this land was allotted to me. In the year 1970 Ryotwari patta was issued to me. I am enjoying this property without encumbrance upto 1971 nearly for 36 years after my father purchased the property. In the year 1971, about five muslims entered into my property and offered worship to a dilapidated structure saying it as a mosque. I had objected it. They got a ex-parte interim injunction from the Poonamallee Munsiffs court restraining me interfering in worship in the dilapidated structure surrounded by an area of 17,000 sq.ft in survey No.187/3. In the year 1982, the Munsiffs Court of Poonamallee had confirmed my title and held that the dilapidated structure is not a mosque and the grave yard is not a mosque public grave yard. The Muslims gone for appeal in the Court of Subordinate Judge at Chengalpatttu, where the above judgment was confirmed. ..... I have been prevented from peacefully enjoying my property by the said persons who have no manner of right over the same and I do not want my children to continue with the same struggle and to safeguard my interests over the properties by fencing the same and therefore, in the said circumstances, I have to fence my property and necessary protection should be given to fence my property to safeguard my land from the land grabbers. So. I request you to take necessary action against the trespassers belonging to the Porur Sheik Maniyam. E. Kairunnisa Muslim Jamadh and stop their illegal activities. May, I therefore, request you to do the needful in the matter." It is pointed out that on the said complaint, the Inspector of Police, Maduravoyal Police Station, requested the Sub Divisional Executive Magistrate on 07.01.2005 to initiate proceedings under Section 145 Cr.P.C. against both the parties, whereupon, preliminary order has been passed on the same day ordering the parties to maintain status quo and, after hearing party-A/petitioners and Party-B/Jamath, the impugned orders dated 07.02.2005 and 09.03.2005 came to be passed. Pointing out the above aspects, learned Senior Counsel submits that after the order passed by the Supreme Court in favour of the petitioners, such a requisition should not have been made by the Inspector of Police and the impugned orders passed in subsequence thereof by the Sub Divisional Executive Magistrate and sub-Collector are erroneous and illegal. He further submits that the dispute with regard to possession of the property has been decided by the Apex Court once and for all, that being so, the Sub Divisional Executive Magistrate, instead of protecting the petitioner's interest, who possess the orders of the Supreme Court in his favour, erroneously passed the impugned orders; hence, the same are liable to be quashed. Learned counsel for the Revision Petitioner also made submissions in line with that of the learned Senior Counsel.

3. Per contra, learned Senior Counsel for the B-party/Jamath submits that, in spite of the verdict of the Supreme Court, the Muslim Community is entitled to possess and enjoy the property inasmuch as a suit has been filed in O.S. No.100 of 2005 by the Jamath before the Wakf Tribunal/ Principal Subordinate Judge; thus, till the suit is decided by the Wakf Tribunal, the respondent-B party must be allowed to perform their prayers. He states that the petitioners-A party prevented the members of the Jamath from performing the prayers, thereby giving rise to a dispute and as a result of which, the impugned orders came to be passed, wherein, it has been mentioned that status quo must be maintained till the Tribunal decides the issue.

4. By way of answering the above submission, learned Senior Counsel for the petitioner states that, on earlier occasions, approval of the Wakf Board has been sought for to file a suit in respect of the property in dispute, for which, the Board declined. He relies on the resolution of the Wakf Board dated 23.07.2003, wherein it has been stated thus: " As the tenor of the petitioner during the enquiry seems to be only to pursue the other remedies contrary to the decision of the Supreme Court, the Board cannot grant approval to any committee to enable them to overreach the orders of the Hon'ble Supreme Court. The judgement of the Hon'ble Supreme Court is conclusive on the issue and the Board is of the view that no purpose will be served if the committee is approved when the purpose for seeking approval is to agitate the matter once again, it is clear that such a step would only lead to further complications. It would be inappropriate for the Board to appoint a committee in the management of a non existent Mosque and a burial ground which is said to be the Wakf that is to be administered. The Board is of the considered view that approval cannot be granted to the committee. There is no other valid reason put forth by the Petitioner for seeking approval of the committee."

5. Learned Senior Counsel for the B-party by way of controverting such submission, states that an appeal has been filed against such order passed by the Wakf Board and in the meantime, the leader of the B party in his capacity as President of the Jamath, filed the suit, which is pending consideration. According to him, till such time the Tribunal disposes of the suit one way or the other, status quo must be maintained; hence, the orders impugned may not be disturbed.

6. I have heard the rival submissions advanced on either side and also perused the materials available on record. As could be seen, the Apex Court, after taking into consideration various aspects of the matter, ultimately held that the petitioners were in possession and enjoyment of the property. As soon as the order was passed by the Supreme Court, no further steps have been taken by the B-party or even the Wakf Board. It is only after the complaint given by the A-party, seeking for protection from the Inspector of Police, such a requisition has been made by the Inspector of Police without application of mind and properly appreciating the tenor of the Order passed by the Supreme Court. The order of the Supreme Court has been neither discussed nor referred to in the impugned orders. Merely because a second suit has been filed, an order cannot be passed by the Executive Magistrate to maintain status quo till the disposal of such suit. The term status quo may have to be explained in the given set of facts involved here. The order of the Supreme Court was passed on 03.10.2002, confirming the findings of the trial court as well as the first appellate court; hence, it goes without saying that after the date of the order passed by the Supreme Court, the only presumption could be that the petitioners have been in possession of the property and in that context only, status quo would be viewed. Had the members of the B-party been in possession of the property on the strength of the order of the Supreme Court and the petitioners made an attempt to evict them, then, it may be said that B party were in possession of the property. But, as per the complaint given to the police, it appears that the petitioners-A party were already in possession of the property and since their possession was attempted to be disturbed by the members of the B- party, the complaint has been given, seeking for protection. In such circumstances, possession with the A party cannot be disputed and the orders passed by the Executive Magistrate become irrelevant.

7. It is made clear that in the pending suit filed by the B-party, the Court may decide the issues one way or the other and in the event of getting a positive order in their favour, the B-party is always at liberty to go near the property in dispute. Till such time, possession of the property by the A party cannot be interfered with by them. In this view of the matter, the impugned orders dated 07.02.2005 and 09.03.2005, passed by the Sub Divisional Executive Magistrate and Sub-Collector, Ponneri, are quashed. Both the Criminal Original Petition and the Criminal Revision Case are ordered and the connected Miscellaneous Petitions stand closed. JI.

To

1. The Sub Divisional Executive Magistrate and Sub Collector Ponneri.

2. The Inspector of Police

E 4

Maduravayal Police Station

Chennai East District.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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