E. Sundaresa Chettiar Vs. N.R. Abdul Azeez and Others
EmailAppeal: Civil Appeal No. 5334 of 1993
Petitioner: E. Sundaresa Chettiar
Respondent: N.R. Abdul Azeez and Others
Apeal: Civil Appeal No. 5334 of 1993
Judges: V.N. KHARE, ASHOK BHAN & ARUN KUMAR, JJ.
Date of Judgment: Mar 10, 2002
Head Note:
CIVIL LAW
Property – Claim for injunction restraining defendant from inter-fering with the right of offering worship – Property in question purchased by the appellant’s father in 1935 in court auction and since then under the possession of the appellant’s family – Respondent filing representative suit claiming right to offer worship on the ground that a mosque existed earlier on the land and also claiming right to use the land as burial ground – Trial court and first appellate court negativing the claim of the respondent and dismissing the suit – High Court on second appeal decreeing the suit – Validity. Held High Court not having record-ed any definitive finding that earlier there existed a public mosque, it erred in granting the relief sought by the respondent. High Court’s finding being speculative and conjectural, not sustainable. (Para 4)
JUDGEMENT:
ORDER
1. The respondents herein brought a suit in representative capac-ity for injunction restraining the defendant-appellant herein from interfering with the right of offering worship on the land comprised in survey no. 187. The case of the plaintiff-respond-ents was that on disputed land there existed a dilapidated mosque which was subsequently fallen down. On the premise that once a mosque, always a mosque, the respondents claimed right to offer worship on the land and also to use it as burial ground. The case of the appellant was that the land was purchased by his father in court auction in the year 1935 and since then they have been in possession over the land. It was denied that there was any mosque much less a public mosque existed on the said plot of land. The trial court, after considering the entire evidence on record, recorded a finding of fact that there never existed any mosque on the said plot of land. Consequently, the suit was dismissed .The said decree of the trial court was affirmed by the first ap-pellate court. However, plaintiff’s second appeal was allowed by the High Court and the suit stood decreed. It is against the said judgment of the high Court, the defendant is in appeal before us.
2. Learned counsel appearing for the appellant urged that the High Court committed a serious mistake of law in interfering with the concurrent finding of fact recorded by the courts below that there never existed a public mosque on the disputed land and, therefore, the order deserves to be set aside. We find merit in the contention.
3. The High Court framed the following questions of law for deciding the second appeal on merit:
“Whether the disputed structure in s.no. 187 is a public mosque and if so whether the appellant plaintiffs and other Muslims are to be protected from interference
by the defendant in offering worship therein?”
4. The question whether there ever existed a public mosque in the disputed land is essentially a question of fact and it can never by 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 exhibit. B1, the gazette publication dated 17.12.1958 containing the list of wakfs existing at the time in Chengaleput district, that, (2) the absence of reference to any mosque in exhibit. B2, the settlement register extract, exhibit. B3, Inam register extract, exhibit.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 reappraising the evidence held that the pos-sibility 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 plain-tiffs.
5. Since the very approach of the High Court in allowing the appeal was contrary to law, this appeal deserves to be allowed. Consequently the judgment is set aside and the appeal is allowed. No costs.
1. The respondents herein brought a suit in representative capac-ity for injunction restraining the defendant-appellant herein from interfering with the right of offering worship on the land comprised in survey no. 187. The case of the plaintiff-respond-ents was that on disputed land there existed a dilapidated mosque which was subsequently fallen down. On the premise that once a mosque, always a mosque, the respondents claimed right to offer worship on the land and also to use it as burial ground. The case of the appellant was that the land was purchased by his father in court auction in the year 1935 and since then they have been in possession over the land. It was denied that there was any mosque much less a public mosque existed on the said plot of land. The trial court, after considering the entire evidence on record, recorded a finding of fact that there never existed any mosque on the said plot of land. Consequently, the suit was dismissed .The said decree of the trial court was affirmed by the first ap-pellate court. However, plaintiff’s second appeal was allowed by the High Court and the suit stood decreed. It is against the said judgment of the high Court, the defendant is in appeal before us.
2. Learned counsel appearing for the appellant urged that the High Court committed a serious mistake of law in interfering with the concurrent finding of fact recorded by the courts below that there never existed a public mosque on the disputed land and, therefore, the order deserves to be set aside. We find merit in the contention.
3. The High Court framed the following questions of law for deciding the second appeal on merit:
“Whether the disputed structure in s.no. 187 is a public mosque and if so whether the appellant plaintiffs and other Muslims are to be protected from interference
by the defendant in offering worship therein?”
4. The question whether there ever existed a public mosque in the disputed land is essentially a question of fact and it can never by 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 exhibit. B1, the gazette publication dated 17.12.1958 containing the list of wakfs existing at the time in Chengaleput district, that, (2) the absence of reference to any mosque in exhibit. B2, the settlement register extract, exhibit. B3, Inam register extract, exhibit.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 reappraising the evidence held that the pos-sibility 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 plain-tiffs.
5. Since the very approach of the High Court in allowing the appeal was contrary to law, this appeal deserves to be allowed. Consequently the judgment is set aside and the appeal is allowed. No costs.
