Mammunhi vs P.M. Abdul Hameed on 7 August, 2024

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Kerala High Court

Mammunhi vs P.M. Abdul Hameed on 7 August, 2024

The petitioner in the above revision petition is the plaintiff before the Waqf Tribunal, Kozhikkode. O.S.No.42/2012 was instituted for a declaration that Waqf Deed No.2346/2007 of SRO, Manjeswar is null and void.

2. The facts, in brief, are as follows:

The plaint schedule property having an extent of 2.69 acres comprised in RS No.65/2010 of Manjeswar Village belonged to the father of the petitioner on a tenancy right. It is contended that after his death, the property devolved upon the legal heirs, his wife and seven children, including the plaintiff. Later they obtained jenmam right as per SM proceedings No.383/1971 of the Land Tribunal, Kasaragod. Since then, they are in 2024:KER:61296 CRP(WAKF) NO. 162 OF 2016 4 possession and enjoyment of the aforesaid property. According to the plaintiff, defendants are the office bearers of Masjidul Bilal Masjid, Vamannur, and were on cordial terms with the plaintiff. The plaintiff was a regular visitor to the Mosque on every Friday. Defendants 1 and 3 approached the plaintiff in the 3rd week of May, 2007 and requested him that he would be an attesting witness to the registration of the bye- law of the administrative committee of the Masjid. He had acceded to the request and consequently was taken to the office of the scribe and then to the Sub Registrar's Office, Manjeswar at where thumb impression and signature on the document were obtained on 22.5.2007. Subsequently, when the plaintiff visited the Masjid for prayers as usual in the 1st week of June, 2007, he was told that he had gifted his undivided right over the plaint schedule property to the aforesaid Masjid. According to the petitioner, it was only then he realised that he was cheated by the defendants.

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3. The defendants entered appearance and filed a joint written statement denying all the averments in the plaint. According to them, the petitioner/plaintiff, his mother and siblings had no tenancy right over the plaint schedule property. The father of the plaintiff was employed in the Masjid and was permitted to cultivate without any condition for payment of the lease amount. Subsequently, the defendants came to know that the plaintiff and siblings had obtained a purchase certificate in respect of the Waqf property. So they filed a petition before the Waqf Board under Section 52 of the Waqf Act asking them to surrender the property to the Board. The Waqf Board had already passed an order to the effect that the Waqf property was illegally alienated and directed the Chief Executive Officer to take steps to cancel the certificate by proceedings dated 11.9.2007. Since the plaintiff realised that he was illegally holding the property, at the instance of the mediators, prepared to vacate the premises and executed a Waqf Deed in 2024:KER:61296 CRP(WAKF) NO. 162 OF 2016 6 favour of the respondents.

4. On the basis of the rival contentions, the Tribunal framed the following issues:

"8. On the basis of the rival contentions, following issues were framed by my learned predecessor-

(1) Whether the document no.2346/07 of SRO Manjeshwar is null and void? (2) Is the declaration sought for allowable?

(3) Reliefs and costs"

5. The Tribunal, on an analysis of the findings raised before it, came to the conclusion that the petitioner/plaintiff is not an illiterate person and that the defendants had examined the scribe who had attested the Waqf Deed and found that the Waqf Deed was validly executed and hence dismissed the suit. Aggrieved by the aforesaid dismissal, the plaintiff has approached this Court by way of present revision petition.

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6. We have heard Sri.P.Chandrasekhar, learned counsel appearing for the petitioner, and Sri.K.M.Firoz, learned counsel appearing for respondents 1, 3 & 4. The 5th respondent is represented by Sri.Jamsheed Hafiz.

7. The learned counsel for the petitioner reiterated the contentions raised before the Waqf Tribunal. According to the petitioner, he was an illiterate person and therefore, he did not exactly know about the scope of the Waqf Deed, which was executed by him. Hence, the suit was laid before the Tribunal for setting aside the document.

8. On the other hand, Sri.K.M.Firoz, learned counsel appearing for respondents 1, 3 & 4 contended that the defendants were successful in establishing that the Waqf Deed was validly executed. In fact, they had examined the scribe of the document and also an additional witness to substantiate the claim that the Waqf Deed was validly executed. It is also pointed out that on the contrary there was no evidence on 2024:KER:61296 CRP(WAKF) NO. 162 OF 2016 8 behalf of the plaintiff, except his interest of testimony. Hence, it is prayed that the revision petition may be dismissed.

9. We have considered the rival submissions raised across the bar and have perused the documents on record.

The challenge in the suit before the Tribunal is regarding the validity of the Waqf Deed. It is true that the plaintiff had contended that he did not exactly know about the contends of the Waqf Deed. In order to establish the aforesaid contention, it was incumbent upon the plaintiff to have proved that the execution of the Waqf Deed was not within his domain or he should have lead evidence to point out that the execution of the Deed was under vitiating circumstances. However, on the contrary, it has to be noted that the defendants examined the scribe of the document as well as one of the attestors to the Waqf Deed. DW1 is the attestor and DW2 is the scribe of the document. The examination at the scribe and attestors would certainly prove the execution of the Waqf Deed. Therefore, the 2024:KER:61296 CRP(WAKF) NO. 162 OF 2016 9 plaintiff failed to discharge his duty and the fact that except his interest of testimony, no other evidence is forthcoming to his side to prove the non-execution of the Waqf Deed, we are of the considered view that the Tribunal was perfectly justified in dismissing the suit. We see no illegality or infirmity in the order passed by the Waqf Tribunal. Accordingly, the revision petition fails and the same is dismissed. No order as to costs.

Sd/-

AMIT RAWAL JUDGE Sd/-

EASWARAN S. JUDGE jg

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