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CIVIL     APPEAL     NOS.     2232-2233     OF     2002   

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NOS.     2232-2233     OF     2002   

TAMIL NADU WAKF BOARD                      Appellant (s)

                VERSUS

SYED ABDUL QUADER & ORS.                   Respondent(s)

J      U      D      G      M      E      N      T   

R.M.     Lodha,     J.   

We have heard learned counsel for the parties.

2. The present appellant –  Tamil Nadu Wakf Board –  

alongwith Aminjikarai Mosque and Burial Ground represented  

by its Secretary (hereinafter referred to as 'plaintiffs')  

filed a suit for a declaration that the suit property was a  

Wakf property and for directing S.A. Rasool, since deceased  

and now represented by his legal representatives, who are  

respondent Nos. 2, 4, 5(i) to (iii), 6, 8 and 9, referred  

to as the legal representatives of the original defendant,  

to hand over vacant possession of the suit property to the  

plaintiffs.  

3. The case of the plaintiffs was that the suit  

property (land and superstructure) was a Wakf property  

known as Aminjikarai Mosque and burial ground.  The suit

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property had been surveyed and published in the Fort St.  

George Gazette on May 20, 1959 and the said notification  

had not been questioned by any one.  The suit property was  

leased out to the father of the original defendant by the  

then Muthavalli in 1921. Earlier the original defendant  

paid rent to then Muthavalli but thereafter no rent had  

been paid and he asserted his title over the property.

4. The legal representatives of the original  

defendant set up the defence that they were governed by  

Madras City Tenants' Protection Act, 1921 (for short, '1921  

Act') as amended from time to time and in the absence of  

any notice under Section 11 of the 1921 Act, the suit was  

not maintainable. It was their case that the superstructure  

did not belong to the Wakf and, therefore, the Wakf Board  

was not the owner of the superstructure. They further  

stated that they had made an application under Section 9 of  

the 1921 Act for sale of the land on which superstructure  

had been built by their predecessor in title and as lessees  

they were entitled to purchase the land from the  

plaintiffs.

5. On the basis of the pleadings of the parties,  

diverse issues were framed.  The parties let in their  

evidence.  After hearing the parties, vide judgment and  

decree dated July 16, 1981, the trial court decreed the  

plaintiffs' suit.

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6. The legal representatives of the original  

defendant preferred an appeal challenging the judgment and  

decree of the trial court. The first appellate court, by  

its judgment dated February 22, 1984, dismissed the appeal  

and affirmed the decree passed by the trial court. As  

regards superstructure, the legal representatives of the  

original defendant were allowed to remove it.

7. The legal representatives of the original  

defendant preferred Second Appeal before the High Court.  

The High Court, after hearing the parties, by its judgment  

dated September 23, 1998, allowed the Second Appeal and set  

aside the judgment and decree of the two courts below and  

remanded the matter to the trial court to proceed further  

with the application made by the legal representatives of  

the original defendant under Section 9 of the 1921 Act.

8. The plaintiffs filed a Review Petition seeking  

review of the judgment dated September 23, 1998. In the  

Review Petition, it was brought to  the notice of the High  

Court that by virtue of Section 3 of the Madras City  

Tenants' Protection (Amendment) Act, 1994 (for short, '1994  

Amendment Act'), the rights and privileges of the legal  

representatives of the original defendant had ceased to be  

enforceable and their application under Section 9 of the  

1921 Act had abated.

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9. The Review Petition was dismissed by the High  

Court on April 28, 1999.  This is how the present Civil  

Appeals, by special leave, have arisen.

10. Section 9 of the 1921 Act, to the extent it is  

relevant, reads as under :

“SECTION 9. APPLICATION TO COURT FOR DIRECTING  THE LANDLORD TO SELL LAND –  (1)(a)(i) Any  tenant who is entitled to compensation under  section 3 and against whom a suit in ejectment  has been instituted or proceeding under section  41 of the Presidency Small Cause Courts Act,  1882, taken by the landlord may, within one  month of the date of the publication of Madras  City Tenants Protection Amendment Act, 1979 in  the Tamil Nadu Government Gazette or of the  date with effect from which this Act is  extended to the municipal town, township or  village in which the land is situate or within  one month after the service on him of summons,  apply to the Court for an order that the  landlord shall be directed to sell for a price  to be fixed by the Court, the whole or part of  the extent of  and specified in the  application.

xx xx xx xx”   

11. 1921 Act came to be amended by the 1994 Amendment  

Act.  Section 3 of the 1994 Amendment Act reads as under:-

“Section 3. Certain pending proceedings to  abate.-Every proceeding instituted by a tenant  in respect of any land owned by any religious  institution or religious charity belonging to  Hindu, Muslim, Christian or other religion and  pending before any court or other authority or  officer on the date of the publication of this  Act in the Tamil Nadu Government Gazette,  shall, in so far as the proceeding relates to

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any matter falling within the scope of the  principal Act, as amended by this Act, in  respect of such land, abate, and all rights and  privileges which may have accrued to that  tenant in respect of any such land and  subsisting immediately before the said date  shall in so far as such rights and privileges  relate to any matter falling within the scope  of the principal Act, as amended by this Act,  cease and determine  and shall not be  enforceable:

Provided that nothing contained in this  section shall be deemed to invalidate any suit  or proceeding in which a decree or order passed  has been executed or satisfied in full before  the said date.”

12. The provision contained in Section 3 of the 1994  

Amendment Act leaves no manner of doubt that all proceedings  

initiated by tenants under 1921 Act in respect of lands  

owned by religious institutions or religious charities  

belonging to Hindu, Muslim, Christian or other religion and  

pending before courts or authorities or officers on coming  

into force of 1994 Amendment Act have abated and the tenants  

in respect of such lands have ceased to have any enforceable  

rights.  By virtue of Section 3 of the 1994 Amendment Act,  

whatever rights and privileges the tenants had in respect of  

the lands mentioned therein stood determined.  The  

expression 'Every proceeding' is too wide to include the  

proceedings initiated by the tenants under Section 9 of the  

1921 Act.

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13. In view of Section 3 of the 1994 Amendment Act,  

the application made by the legal representatives of the  

original defendant being Interlocutory Application No.  

16520 of 1973 under Section 9 of the 1921 Act which is said  

to be pending before the trial court does not survive and  

by operation of law that application has abated. It is  

strange that when Second Appeal was heard by the High  

Court, none of the parties brought to the notice of the  

learned Judge the provisions of the 1994 Amendment Act. In  

the Review Petition, the provisions of the 1994 Amendment  

Act were expressly referred to but the learned single Judge  

referred to Section 2 only and did not advert to Section 3  

at all. The omission to consider Section 3 of the 1994  

Amendment Act has rendered the impugned judgment and  

impugned order legally unsustainable.

14. The requirements of main Section 3 of the 1994  

Amendment Act are fully met in the present case but  

unfortunately this aspect was not considered by the High  

Court on both occasions, while disposing of Second Appeal  

as well as Review Petition. The Interlocutory Application  

No. 16520 of 1973 made by the legal representatives of the  

original defendant has abated by operation of law and does  

not survive for consideration by the trial court.  The

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central reason of the impugned judgment dated September 23,  

1998 had been the pendency of the application made by the  

legal representatives of the original defendant under  

Section 9 of the 1921 Act but that reason noted in the  

impugned judgment even did not exist on that date in view  

of Section 3 of the 1994 Amendment Act. As noted above, by  

virtue of Section 3 of the 1994 Amendment Act all rights  

and privileges (including the right to purchase the land  

from the plaintiffs under Section 9 of the 1921 Act) that  

the legal representatives of the original defendant had in  

respect of the suit property in terms of 1921 Act had been  

extinguished and ceased to be enforceable.

15. It is not possible to sustain the impugned  

judgment dated September 23, 1998.  As a result of this,  

the order dated April 28, 1999 also has to go.  

16. We, accordingly, allow these Appeals and set aside  

the impugned judgment dated September 23, 1998 and the  

order dated April 28, 1999. Second Appeal No. 640 of 1986  

titled “Kathija Bi & Ors. Vs. The Tamil Nadu Wakf Board &  

Others” is restored to the file of the Madras High Court  

for fresh hearing and disposal in accordance with law.

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17. Since the matter is very old, we expect the High  

Court to hear and decide the Second Appeal expeditiously  

and preferably within six months of the receipt of the  

order of this Court. No costs.

.......................J. ( R.M. LODHA )

NEW DELHI; .......................J. OCTOBER 9, 2012 ( ANIL R. DAVE )