Kerala High Court
Darul Huda Masjid Mahallu Committee vs Unknown on 6 November, 2020
Author: T.R.Ravi
Bench: K.Vinod Chandran, T.R.Ravi
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 6TH DAY OF NOVEMBER 2020 / 15TH KARTHIKA, 1942
CRP.No.262 OF 2007
AGAINST THE JUDGMENT IN OS 167/2001 DATED 07-10-2006 OF
WAKF TRIBUNAL, KOZHIKODE
PETITIONERS/DEFENDANTS 1 TO 4 BEFORE THE WAKF TRIBUNAL:
1 DARUL HUDA MASJID MAHALLU COMMITTEE
PRESENT PRESIDENT K.T.MUHAMMEDUNNI,
S/O. POLIYEDATH KOLATTATHODIYIL CHEKKUNNI,, OTHALUR
AMSOM DESOM, PONNANI TALUK.
2 DARUL HUDA MASJID MAHALLU COMMITTEE
PRESENT VICE PRESIDENT P.K.MOIDUNNI,
S/O. POLIYADETH KUNHALI, OTHALUR AMSOM DESOM,,
PONNANI TALUK.
3 DARUL HUDA MASJID MAHALLU COMMITTEE
PRESENT VICE PRESIDENT HAMEED MOULAVI,
S/O. KOLATTATHODIYIL MUHAMMED, RESIDING AT,
PADICHATTUM MURI, OTHALUR AMSOM DESOM,
PONNANI TALUK.
4 DARUL HUDA MASJID MAHALLU COMMITTEE
PRESENT SECRETARY ALIKUTTY MOULAVI,
S/O. POLIYEDATH KOLATTATHODIYIL MOIDUNNI,, OTHALUR
AMSOM DESOM, PONNANI TALUK.
BY ADVS.
SRI.V.V.ASOKAN (SR.)
SMT.S.AMINA
SRI K.I.MAYANKUTTY MATHER
RESPONDENTS/PLAINTIFFS 1 TO 9, 11 TO 15, 18, 20, 22 TO 27,
29 TO 31 AND THE 5TH DEFENDANT BEFORE THE WAQF TRIBUNAL:
CRP Nos.262/2007 & 267/2007 -2-
1. KOKKUR JUMA MASJID COMMITTEE PRESIDENT
KUNHALAN HAJI, S/O. MANAMKANDATH MOIDUNNI HAJEE,
OTHALUR AMSOM, KOKKUR DESOM,
PONNANI TALUK.
2. KOKKUR JUMA MASJID COMMITTEE VICE
PRESIDENT, ASHARAF, S/O. MANAN KANDATH ABDUL HAQUE HAJI,
OTHALUR AMSOM, KOKKUR DESOM,
PONNANI TALUK.
3. KOKKUR JUMA MASJID COMMITTEE VICE PRESIDENT,
ABOOBACKER, S/O. PAVITTAPURAM KANDANKULANGARA
CHERIYAKUTTY ALIAS ANU,
OTHALUR AMSOM DESOM,
PONNANI TALUK.
4. KOKKUR JUMA MASJID COMMITTEE SECRETARY
HYDROSE, S/O. PAVITTAPURAM KANDAMKULANGARA KOYASSAN,
OTHALUR AMSOM DESOM, PONNANI TALUK.(SUBSTITUTED)
(THE DESCRIPTION OF THE 4TH RESPONDENT SUBSTITUTED AS
KOKKUR JUMA MASJID COMMITTEE SECRETARY - ABDULLAKKUTTY,
THEKKATHUVALAPPIL HOUSE, KOKKUR, PONNANI TALUK. - AS
PER ORDER DATED 06.03.2012 IN IA 529/2012.)
5. KOKKUR JUMA MASJID COMMITTEE JOINT SECRETARY,
ABDULLAKUTTY, S/O. THEKKATH VALAPPIL ABDU,
OTHALUR AMSOM DESOM, PONNANI TALUK.(SUBSTITUTED)
(THE DESCRIPTION OF THE 5TH RESPONDENT SUBSTITUTED AS -
KOKKUR JUMA MASJID COMMITTEE SECRETARY HAMEED,
S/O.KARUVANVALAPPIL MOHAMMED, OTHALUR AMSOM, PONNANI
TALUK - AS PER ORDER DATED 06.03.2012 IN IA 529/2012.
6. KOKKUR JUMA MASJID COMMITTEE JOINT SECRETARY
SECRETARY, KAITHAVALAPPIL MAMMU HAJI, OTHALUR AMSOM,
KOKKUR DESOM, PONNANI TALUK.(DIED) (THE NAME OF THE 6TH
RESPONDENT KAITHAVALAPPIL MAMMU HAJI IS CORRECTED AND
SUBSTITUTED AS - AZEEZ, S/O.KAITHAVALAPPIL MAMMU HAJI,
OTHALUR AMSOM, KOKKUR DESOM, PONNANI TALUK - AS PER
ORDER DATED 13.06.2007 IN IA 1385/07.)
7. KOKKUR JUMA MASJID COMMITTEE TREASURER,
ABDULLAKUTTY, S/O. KOLIKKARA THEKKATH VALAPPIL
CRP Nos.262/2007 & 267/2007 -3-
MUHAMMED, OTHALUR AMSOM DESOM,
PONNANI TALUK.
8. KOKKUR JUMA-MASJID COMMITTEE MEMBER
MUHAMMED ALIAS KUNHIPPA, S/O. KOTTAPPURATH VALAPPIL,
KUNHAMMU, OTHALUR AMSOM DESOM,
PONNANI TALUK.
9. KOKKUR JUMA MASJID COMMITTEE MEMBER
KODIYIL ABDU, S/O. KUNHAMUNNI, OTHALUR AMSOM,
KOKKUR DESOM,
PONNANI TALUK.
10. KOKKUR JUMA MASJID COMMITTEE MEMBER
SAKKARIYA, S/O. POLIYODATH KANHANGATT VALAPPIL MOOSA
HAJI, OTHALUR AMSOM DESOM,
PONNANI TALUK.
11. KOKKUR JUMA MASJID COMMITTEE MEMBER
KUNHUMON, S/O. KANHANGATT VALAPPIL BAPPU, OTHALUR
AMSOM, KIZHIKKARA DESOM,
PONNANI TALUK.
12. KOKKUR JUMA MASJID COMMITTEE MEMBER
HAMZA, S/O. VATTEKKATT VALAPPIL ABDUL,
OTHALUR AMSOM DESOM, PONNANI TALUK.
13. KOKKUR JUMA MASJID COMMITTEE MEMBER
KUNHUMUHAMMED, S/O. KOLIKKARA PALIYIL ABDULLA,,
OTHALUR AMSOM, DESOM,
PONNANI TALUK. (*DIED)
14. KOKKUR JUMA MASJID COMMITTEE MEMBER
HYDRU ALIAS KUNHIPPA, S/O. KOLIKKARA VALIYIL ENU
MUSALIYAR, OTHALUR AMSOM DESOM, PONNANI TALUK.
(*DIED)
15. KOKKUR JUMA-MASJID COMMITTEE MEMBER
ABOOBACKER, S/O. MECHINATTAVALAPPIL MUHAMMEDKUTTY,
OTHALUR AMSOM, KOKKUR DESOM,
PONNANI TALUK.
CRP Nos.262/2007 & 267/2007 -4-
16. KOKKUR JUMA MASJID COMMITTEE MEMBER
MUHAMMED, S/O. (PAVITTAPURATH) MARAYIL VEETTIL,
KUNHI MOIDU, OTHALUR AMSOM DESOM,
PONNANI TALUK.
17. KOKKUR JUMA MASJID COMMITTEE MEMBER
ABDURAHIMAN, S/O. KOKKADATH VALAPPIL MOIDUNNI,
OTHALUR AMSOM, KOKKUR DESOM,
PONNANI TALUK.
18. ABDULLAKUTTY S/O. UDINIKUTTIYIL
IBRAHIM, OTHALUR AMSOM, DESOM,
PONNANI TALUK.(*DIED)
19. SHAMSUDDIN S/O. ILLATHU VALAPPIL MAMU
OTHALUR AMSOM, KOKKUR DESOM, PONNANI TALUK.
20. HAMEED S/O. KARUVAN VALAPPIL MUHAMMED
OTHALUR AMSOM, DESOM,
PONNANI TALUK.
21. ABDULLA @ UNNI S/O. THEKKETHIL MEPPURAM
(PAVITTAPURAM)MUHAMMED, OTHALUR AMSOM DESOM,,
PONNANI TALUK.
22. EBRAHIM S/O. PALLIYARAKKAL KUNHIPPA
OTHALUR AMSOM, DESOM,
PONNANI TALUK.
23. MUHAMMED ALI S/O. MALLUMMAL VALAPPIL
ABDU, OTHALUR AMSOM DESOM,
PONNANI TALUK.
24. KUNHI BAPPU S/O. KOPPATVALAPPIL MOIDU
OTHALUR AMSOM, DESOM,
PONNANI TALUK.
25. KADER S/O. CHERUKAVILAYIL MUHAMMEDUNNI
OTHALUR AMSOM, KOLIKKARA DESOM,
PONNANI TALUK.
CRP Nos.262/2007 & 267/2007 -5-
26. KERALA WAKF BOARD REP. BY THE
SECRETARY, BROADWAY,
ERNAKULAM.
(IT IS RECORDED THAT RESPONDENTS 6,13,14 18 ARE EXPIRED
AND NO FUTHER STEPS NEED BE TAKEN IN THE MATTER
CONSEQUENT ON THE DEATH OF THOSE RESPONDENTS AT THE
RISK OF THE PETITIONER vIDE ORDER DATED 06-03-2012 IN
IA 528/2012)
R1 BY ADV. SRI.K.ANAND
R1 TO R7, 9 TO 15, 17 TO 21, 23 TO 25 BY SRI MILLU DANDAPANI
SMT.SUMATHI DANDAPANI(SR.)
R1 BY SRI.P.A.ABDUL JABBAR, SC, WAKF BOARD
R1-2, R26 BY SRI.A.A.ABUL HASSAN, SC, WAKF BOARD
R1 BY ADV. SRI.M.M.SAIDU MUHAMMED SC WAKF BOARD
R1 BY SRI.K.SHIBILI NAHA, SC, KERALA STATE WAKF BOARD
R26 BY ADV. SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
22-10-2020, ALONG WITH CRP.267/2007, THE COURT ON 06.11.2020
PASSED THE FOLLOWING:
CRP Nos.262/2007 & 267/2007 -6-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 6TH DAY OF NOVEMBER 2020 / 15TH KARTHIKA, 1942
CRP.No.267 OF 2007
AGAINST THE JUDGMENT IN OS 166/2001 DATED 07-10-2006 OF
WAKF TRIBUNAL, KOZHIKODE
REVISION PETITIONER/PLAINTIFF BEFORE THE WAQF TRIBUNAL:
DARUL HUDA MASJID MAHALLU
COMMITTEE,PRESENT PRESIDENT K.T. MUHAMMEDUNNI,
S/O.POLIYEDATH KOLATTATHODIYIL CHEKKUNNI,
OTHALUR AMSOM DESOM, PONNANI TALUK.
BY ADVS.
SRI.V.V.ASOKAN
SMT.S.AMINA
SRI K.I.MAYANKUTTY MATHER
RESPONDENTS/DEFENDANTS 1, 2, 4 TO 6, 8 TO 13, 15 TO 19, 21
TO 30 & 32 TO 35 BEFORE THE WAQF TRIBUNAL:
1 KUNHALAN HAJI
S/O. MANAMKANDATH MOIDUNNI HAJI,
AGRICULTURIST,KOTHUR DESOM, OTHALUR AMSOM,
PONNANI TALUK.
CRP Nos.262/2007 & 267/2007 -7-
2 ASHRAF,
S/O. MANAMKANDATH ABDUL HAQUE HAJI,
AGRICULTURIST, KOTHUR DESOM,OTHALUR
AMSOM,PONNANI TALUK.
3 HAMEED,
S/O. THANOLAKKAD AYAMU, OTHALUR AMSOM,
KOTHUR DESOM, PONNANI TALUK.
4 ABDULLAKUTTY,
S/O. THEKKATHVALAPPIL (KOLIKKARA) MUHAMMED
MUSALIAR, AGRICULTURIST, OTHALUR AMSOM, PONNANI
TALUK.
5 ALI,
S/O. KANIYIL CHEKKUNNY, AGRICULTURIST, OTHALUR
AMSOM, DESOM, PNNANI TALUK.
6 SAKKARIYA,
S/O. KUNJENGATT VALAPPIL MOOSA HAJI,
BUSINESS ,OTHALUR AMSOM DESOM, PONNANI TALUK.
(*DIED)
(DEATH OF RESPONDENT NO.6 VIDE MEMO DATED
4.3.2014 RECORDED VIDE ORDER DATED 7.4.2016)
7 KUNHIMON,
S/O. KANHENGATT VALAPPIL BAPPU, BUSINESS,
OTHALUR AMSOM, KOZHIKKARA DESOM, PONNANI TALUK.
8 HYDROSS,
S/O. KANDAMKULANGARA(PRAVITTAPURAM) KOYASSAN,
OTHALUR AMSOM, DESOM, PONNANI TALUK (*DIED).
9 ABOOBACKER,
S/O. KANDAMKULANGARA, CHERIYANKUTTY @ ENU,
AGRICULTURIST, OTHALUR AMSOM, DESOM, PONNANI
TALUK.
10 KUNHI MUHAMMED,
S/O.VALIYIL ABDULLA AGRICULTURIST, OTHALUR
AMSOM DESOM, PONNANI TALUK.(*DIED).
CRP Nos.262/2007 & 267/2007 -8-
11 KUNHIPPA,
S/O. VALIYIL ENU MUSALIYAR, BUSINESS, OTHALUR
AMSOM DESOM, PONNANI TALUK.(DIED)
12 MOOSAKUTTY,
S/O. KANICHATHAVALAPPIL MOIDU, SWASTHAM,OTHALUR
AMSOM DESOM, PONNANI TALUK.(DELETED).
( RESPONDENT 12 DELETED FROM PARTY ARRAY AS PER
ORDER DATED 25.7.2007 IN IA.NO.1779/07.
13 MUHAMMED,
S/O. KANICHATH VALAPPIL MOIDU, SWASTHAM,OTHALUR
AMSOM DESOM, PONNANI TALUK.
14 ABOOBACKER,
S/O.MECHINATH VALAPPIL MUHAMMEDKUTTY,
AGRICULTURIST, OTHALUR AMSOM DESOM, PONNANI
TALUK.
15 KUMBATH VALAPPIL HAMEED,
(FATHER'S NAME NOT KNOWN), SWASTHAM,OTHALUR
AMSOM DESOM, PONNANI TALUK.
16 KUNHIPPA,
S/O. MAYANVEETTIL (PAVITTAPURAM) KUNHI MOIDU,
DRIVER,OTHALUR AMSOM DESOM, PONNANI TALUK.
17 ABOOBACKER,
MENATH VALAPPIL MELETHIL AHAMMEDUNNI,
SWASTHAM,OTHALUR AMSOM DESOM, PONNANI TALUK.
18 ABDURAHIMAN,
S/O. KAVUKKODATH VALAPPIL MOIDUNNI, SWASTHAM,
OTHALUR AMSOM DESOM, KOKKUR DESOM,
PONNANI TALUK.
CRP Nos.262/2007 & 267/2007 -9-
19 ABDULLAKUTTY,
S/O. UDINIKUTTIYIL EBRAHIM, AGRICULTURIST,
OTHALUR AMSOM DESOM, PONNANI TALUK.(DIED).
(DEATH OF RESPONDENTS 8,10,11 AND 19 RECORDED
AND DECLARED THAT NO FURTHER STEPS ARE TO BE
TAKEN IN THE MATTER, CONSEQUENT ON THE DEATH OF
THOSE RESPONDENTS, AT THE RISK OF THE
PETITIONER AS PER ORDER DATED 06.3.2012 IN IA.
530/2012 IN CRP 267/2007.
20 THEKKATH VALAPPIL ABDULLAKUTTY,
S/O. ABDU, AGRICULTURIST, OTHALUR AMSOM DESOM,
PONNANI TALUK.
21 KODIYIL ABDU,
S/O. KUNHAVUNNI, BUSINESS,OTHALUR AMSOM DESOM,
PONNANI TALUK.
22 ILLATH VALAPPIL SHAMSUDDIN,
S/O.MAMU, BUSINESS,OTHALUR AMSOM KOKKUR DESOM,
PONNANI TALUK.
23 VATTEKATT VALAPPIL HAMZA,
S/O. ABDU, BUSINESS,OTHALUR AMSOM DESOM,
PONNANI TALUK.
24 THEKKETHIL MELEPURAM ABDULLA ALIAS UNNI,
S/O. MUHAMMED, OTHALUR AMSOM DESOM, PONNANI
TALUK.
25 KARUVAN VALAPPIL HAMEED,
S/O. MUHAMMED,OTHALUR AMSOM DESOM, PONNANI
TALUK.
26 PALLIYARAKKAL IBRAHIM,
S/O. KUNHIPPA, DRIVER, OTHALUR AMSOM DESOM,
PONNANI TALUK.
27 KALLUMMAL VALAPPIL MUHAMMEDALI,
S/O. ABDU, BUSINESS, OTHALUR AMSOM DESOM,
PONNANI TALUK.
CRP Nos.262/2007 & 267/2007 -10-
28 KOPPATT VALAPPIL KUNHUBAPPU,
S/O. MOIDU, COOLIE, OTHALUR AMSOM DESOM,
PONNANI TALUK.
29 CHERUKKA VILAYIL KODER,
S/O. KOLIKKARA MUHAMMEDUNNI, EMPLOYEE, OTHALUR
AMSOM DESOM, PONNANI TALUK.
ADDL.R30 IMPLEADED
30 THE WAKF BOARD ,KOZHIKODE
IS SUO MOTU IMPLEADED AS ADDL.R30 AS PER ORDER
DATED 16/09/2020 IN CRP 267/2007.
R1,2,4, 6 to 11, 14, 18 to 25, 27 to 29
BY ADV. SRI.MILLU DANDAPANI
R30 BY ADV. T.K SAIDALIKUTTY
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 22-10-2020, ALONG WITH CRP.262/2007, THE COURT ON
06.11.2020 PASSED THE FOLLOWING:
CRP Nos.262/2007 & 267/2007 -11-
"CR"
ORDER
(Dated this the 6th day of November, 2020) T.R.RAVI, J.
The dispute involved in these revision petitions is regarding the right of management of a Wakf property. O.S.No.166 of 2001 was filed by the revision petitioner herein before the Wakf Tribunal, Kozhikode praying for a permanent prohibitory injunction restraining the respondents from obstructing the management of the plaint schedule property. O.S.No.167 of 2001 was filed by the respondents herein seeking a decree of recovery of possession of the plaint schedule property.
2. The properties originally belonged to Ahammed Abdul Haleem who executed a Wakf deed in 1954. He managed the wakf till his death. As per the Wakf deed, his male children are entitled to manage the wakf and if he left no male children, the management of the Wakf property has to be done by the Palli CRP Nos.262/2007 & 267/2007 -12- Karnavan of the Kokkur Juma Mosque; the plaintiff in O.S.No.167 of 2001. The Wakif died without leaving any children, and hence according to the Kokkur Juma Mosque Committee, they alone have the right to manage the property. It is on the above basis that O.S.No.167 of 2001 has been filed.
3. According to the revision petitioners, the right of management of the masjid vested upon a committee which included a member of the family of the Wakif. They contended that they alone have the right to manage the property. According to the revision petitioners, even though the Wakf deed was executed in 1954, due to the existence of a temple, the construction of a mosque as intended by the Wakif, did not materialise. In 1957, another property on the northern side was given from the family of the Wakif as a Wakf, wherein a mosque and a madrassa were constructed and the same are functioning there. During partition of the properties, the property wherein the mosque situated was dedicated as a Wakf. Later in 1965-66, the above mosque was converted into a Jama-ath mosque. It is CRP Nos.262/2007 & 267/2007 -13- contended that the property was being managed by the Darul Huda Masjid Committee even during the lifetime of the Wakif himself. It is further submitted that since the Wakif was happy with the functioning of the committee, he had handed over the original documents relating to the plaint schedule property to the committee. According to the revision petitioners, they have been managing the property for more than 30 years and the respondents who are residing in the same locality were aware of the above facts.
4. Both the suits were tried together. The Tribunal found that the recitals in Exhibit A1 Wakf deed would show that the plaintiffs in O.S.No.167 of 2001 have got the right to manage the property and hence are entitled to a decree of recovery of possession. As a consequence, O.S.No.166 of 2001 filed by the revision petitioners has been dismissed. It is against the judgement in the above two cases that these revision petitions filed.
5. Heard Sri Mayankutty Mather on behalf of the revision CRP Nos.262/2007 & 267/2007 -14- petitioners, Senior Advocate Smt.Sumathi Dandapani instructed by Sri Roy Thomas (Muvattupuzha), on behalf of the party respondents and Sri T.K.Saidalikutty, learned Standing Counsel on behalf of the Wakf Board.
6. The counsel for the revision petitioner has raised a contention that the prayer in the suit filed by the respondents though worded as recovery of possession is in fact for removing the revision petitioners from the property on the ground that they are not authorised to remain in possession, which comes within the meaning of the term encroachment. It is contended that such a suit is not maintainable before the Wakf Tribunal. He contends that Section 54 of the Wakf Act confers jurisdiction on the Chief Executive Officer (hereinafter refered to as CEO) of the Board to determine such disputes. According to him, the jurisdiction of the Tribunal is akin to an appellate jurisdiction and the same is to be exercised after a definite finding has been entered into by the CEO. The Counsel submits that if the above contention finds favour with this Court, there is no necessity to CRP Nos.262/2007 & 267/2007 -15- go into the merits of the contentions of the parties. Reliance is placed on the judgements of the Hon'ble Supreme Court in Ramesh Gobindram vs Sugra Humayun Mirza Wakf reported in [(2010) 8 SCC 726] and M.P.Wakf Board vs Subhan Shah and others reported in [(2006) 10 SCC 696], that of a Full Bench of this Court in Alappuzha Muhiyideen Masjid Association and others vs Abdulkhader and others reported in [2011(1) KHC 578], that of a Division Bench of this Court in Thayyil Kunhimohammed Haji and others vs Darul Huda Islamic Academy and others reported in [2008(1) KHC 396] and that of a Single Judge of this Court in Abdul Rahiman Musaliar vs Muhammed Sahib reported in [2002(3) KLT 742]. The Counsel also refers to a judgment of the High Court of Andhra Pradesh in Adapapa Venkata Reddy v. Revenue Divisional Officer and others reported in [2004(3) ALT 486] in support of the contentions.
7. The Senior Counsel appearing for the respondents on the other hand submits that the question relating to CRP Nos.262/2007 & 267/2007 -16- maintainability is raised for the first time before this Court and that no such contention was taken either before the Wakf Tribunal or even in the Memorandum of Revision before this Court. She further submits that even the pleadings in the case does not specifically raise such an issue. It is contended that such a contention ought not to be entertained at this stage after the passage of so many years. On merits of the contention, she contends that the suit is not one for removal of encroachment under Section 54 of the Wakf Act, so as to necessitate a proceeding before the CEO. According to her, the suit is one of recovery of possession simpliciter and the respondents have no case that the revision petitioners are encroachers on the land. According to her, the relief is sought for only on the basis of the recitals in the Wakf deed which specifically says that the right to manage shall come vested in the respondents, on the happening of the event contemplated in the Wakf, that is, the Wakif leaving behind no successors. Reliance is placed on the judgments of the Apex Court in Board of Wakf, West Bengal v. Anis Fatma CRP Nos.262/2007 & 267/2007 -17- Begum and another reported in [2010(4) KLT 765], Punjab Wakf Board vs Pritpal Singh and another in Civil Appeal No. 8194 of 2013, Rajasthan Wakf Board v. Devki Nandan Pathak and others reported in [(2017)14 SCC 561], and Division Bench decisions of this Court in Norman Printing Bureau, Kozhikode v. P.M.Mammu Haji and another reported in [2013(3)KHC 798], Muthulakshmi Ammal v. Seethimarakkarakath Alikoya Wakf & another reported in [2016 (3) KLJ 312] and Kerala State Wakf Board v. Rajesh reported in [2016 (3) KLT 164] to contend that the Wakf Tribunal has jurisdiction to entertain a suit for possession. The Senior Counsel submits that a suit for possession and mesne profits is different from a suit for eviction of encroachers.
8. In order to appreciate the contentions of the parties, it will be useful to extract the statutory provisions contained in the Wakf Act, 1995 as they stood prior to the amendments made in the year 2013. The suits in these revisions are admittedly filed prior to 2013.
CRP Nos.262/2007 & 267/2007 -18-
"Section 7. Power of Tribunal to determine disputes regarding Wakf:
(1) If after the commencement of this Act, any question or dispute arises, whether a particular property specified as Wakf property in a list of Wakfs is Wakf property or not, or whether a Wakf specified in such list is a Shia Wakf or a Sunni Wakf, the Board or the muthawalli of the Wakf or any person aggrieved by the publication of the list of the Wakf under Section 5 therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final.
xxxxx xxxxx xxxxx xxxxxx Section 54. Removal of encroachment from wakf property. (1). Whenever the Chief Executive Officer considers whether on receiving any complaint or on his own motion that there has been an encroachment on any land, building, space or other property which is Wakf property and, which has been registered as such under this Act, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling upon him to show cause before a date to be specified in such notice, as to why an order requiring him to remove the encroachment before the date so specified should not be made and shall also send a copy of such notice to the concerned Mutawalli. (2) The notice referred to in sub-section (1) shall be served CRP Nos.262/2007 & 267/2007 -19- in such manner as may be prescribed.
(3) If, after considering the objections, received during the period specified in the notice, and after conducting an enquiry in such manner as may be prescribed, the Chief Executive Officer is satisfied that the property in question is Wakf property and that there has been an encroachment on any such Wakf property, he may, by an order, require the encroacher to remove such encroachment and deliver possession of the land, building, space or other property encroached upon to the mutawalli of the Wakf (4) Nothing contained in sub-section (3) shall prevent any person aggrieved by the order made by the Chief Executive Officer under that sub-section from instituting a suit in a Tribunal to establish that he has right, title or interest in the land, building, space or other property:
Provided that no such suit shall be instituted by a person who has been let into possession of the land, building, space or other property as a lessee, licensee or mortgagee by the mutawalli of the Wakf or by any other person authorised by him in this behalf.
Section 83(1). The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a Wakf or Wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals.CRP Nos.262/2007 & 267/2007 -20-
xxxxx xxxxx xxxxx xxxxxx Section 85. Bar of jurisdiction of Civil Court:- No suit or other legal proceedings shall lie in any Civil Court in respect of any dispute, question or other matter relating to any Wakf, Wakf property or other matter which is required by or under this Act to be determined by a Tribunal.
9. The matters which are required to be determined by a Tribunal under the Wakf Act are specified in various provisions of the Act. Sections 6 and 7 relate to the question whether a property is a Wakf property or whether the Wakf is a Shia or Sunni Wakf. Section 32 deals with the setting aside of a scheme of management, framed by the Board. Section 33 deals with an appeal to the Tribunal by a mutawalli or other persons aggrieved by an order of the CEO for recovery of any amount of property. Sections 35 and 38 deal with instances where the CEO can approach the Tribunal. Section 39 is an instance where the Board can prefer an application before the Tribunal for recovery of possession of any building or place which was being used for any religious purpose or instruction or for charity and which has ceased to be used for that purpose. Section 40 deals with CRP Nos.262/2007 & 267/2007 -21- appeals to the Tribunal from orders of the Board. Section 48 deals with an application against the order of the Board for recovery of any amount from the mutawalli or any other person on the basis of an auditor's report. Section 51 deals with applications filed before the Tribunal by the mutawalli or persons interested in the Wakf, for permission to sell Wakf property or for utilisation or investment of amount realised by sale, exchange or mortgage of Wakf property. Sections 64, 67 and 69 are instances where a person can approach the Tribunal against the order of the Board relating to management of the Wakf. Sections 52, 73, 83 and 94 also deal with instances where the Tribunal can be approached on different counts. None of the above provisions provide for approaching the Tribunal for recovery of possession of a property, by a person claiming to be entitled to possession. Recovery of possession has however, been dealt with in Section 33(3) of the Act. For the purpose of examining whether any loss or damage has been caused to Wakf property due to the negligence of the mutawalli in performance of his duties, the CEO CRP Nos.262/2007 & 267/2007 -22- is empowered to inspect the Wakf properties and all records and documents pertaining to the same. If on such inspection, it appears to the CEO that there has been any misappropriation, misapplication or fraudulent retention of any Wakf property, the CEO can under Section 33(3) issue notice to the mutawalli to show cause why such property can be directed to be restored and after determination of the issue, direct the person responsible to restore such property. The only other provision which relates to removing a person from possession is contained in Section 54 of the Wakf Act, which relates to removal of encroachment.
10. The Wakf Act, 1995 underwent substantial changes by the amendments brought in by the 2013 amending Act. Section 83 was amended to confer powers on the Tribunal to determine disputes relating to eviction of a tenant, rights and obligations of the lessor and the lessee etc. Section 54 was amended taking away the power of the CEO to pass orders to remove encroachment and relegating the matter to the Tribunal, by CRP Nos.262/2007 & 267/2007 -23- means of an application by the CEO. The definition clause was amended to include a definition for the word "encroacher", to mean a person or institution, public or private, occupying wakf property, in whole or part, without the authority of law, including a person whose tenancy, lease or licence has expired or has been terminated by mutawalli or the Board. Since the dispute involved in these revision petitions relate to proceedings prior to the amendment, we are not called upon to deal with the scope of the amendments made by the 2013 Act.
11. We will now refer to the decisions relied on by the parties and which were rendered prior to the amendment in 2013. A Single Judge of this Court in Abdul Rahiman Musaliar (supra), after detailing the several provisions in the Wakf Act like Sections 6, 7, 32(3), 54(4), 33(4), 38(7), 39(3), 40(2), 48(2), 51(5), 52(4), 64(4), 67(4), proviso to 67(6), 69(3), 73(3), 83(2) and 94, held that only such matters which are required to be decided specifically by the Tribunal are taken out from the jurisdiction of the Civil Court. The learned Judge held CRP Nos.262/2007 & 267/2007 -24- that management of the affairs of the mosque is not specifically dealt with in any of the above provisions. A different view was taken by another learned Single Judge of this Court in yet another decision. The matter came up for consideration before a Division Bench of this Court in Aliyathammada Beethathabiyyupura Pookoya Haji v. Pattakkal Cheriyakoya reported in [(2003) 3 KLT 32]. The Division Bench held that if the reasoning of the learned Judge is upheld it will be restricting the jurisdiction of the Tribunal considerably, thereby narrowing the scope and ambit of Section 83 read with Section 85 and other related provisions. In paragraph 12 of the judgment, the Division Bench held as follows:
"12. We are therefore, of the considered view that the words any dispute, question or other matters relating to Wakf or Wakf property under Section 85 are wide enough to take in within its sweep not only matters which are specifically conferred on the Tribunal by the various provisions of the Act but also any dispute, question or any other matter relating to any Wakf or Wakf property since those powers have also been conferred on the Tribunal by the Wakf Act itself. On examining the scheme of the Act CRP Nos.262/2007 & 267/2007 -25- and various provisions we are of the view that the intention of the legislature is to resolve all disputes by one machinery and forum provided in the Act itself, that is, the Wakf Tribunal and not by the civil Courts in the State."
12. The correctness of the above decision of the Division Bench came up for consideration before the Hon'ble Supreme Court in Ramesh Gobindram (supra). The Hon'ble Supreme Court specifically overruled the decision in Pookoya Haji (supra), to the extent it runs counter to the decision in Ramesh Gobindram (supra). The Apex Court held that from a conjoint reading of the provisions of Sections 6 and 7 it is clear that the jurisdiction to determine whether or not a property is a wakf property or whether a wakf is a Shia wakf or a Sunni wakf rests entirely with the Tribunal and no suit or other proceeding can be instituted or commenced in a civil court in relation to any such question after the commencement of the Act and that the bar is not absolute so as to extend to other questions that may arise in relation to the wakf property. The Supreme Court held that the civil court's jurisdiction is excluded only in cases where the CRP Nos.262/2007 & 267/2007 -26- matter in dispute is required under the Act to be determined by the Tribunal and that the words "which is required by or under this Act to be determined by a Tribunal" in Section 85 holds the key to the question whether or not all disputes concerning the wakf or wakf property stand excluded from the jurisdiction of the civil court. The Apex Court in the above said case was considering the question whether a suit for eviction can be laid before the Tribunal. The conclusion arrived at by the Court is stated in paragraph 35 of the judgment, which is extracted below:
"35. In the cases at hand, the Act does not provide for any proceedings before the Tribunal for determination of a dispute concerning the eviction of a tenant in occupation of a wakf property or the rights and obligations of the lessor and the lessees of such property. A suit seeking eviction of the tenants from what is admittedly wakf property could, therefore, be filed only before the civil court and not before the Tribunal."
13. Regarding the effect of Section 83 the Apex Court held that there is nothing in Section 83 to suggest that it pushes the exclusion of the jurisdiction of the civil courts beyond what has CRP Nos.262/2007 & 267/2007 -27- been provided for in Section 6(5), Section 7 and Section 85 of the Act and that it simply empowers the Government to constitute a Tribunal or Tribunals for determination of any dispute, question of other matter relating to a wakf or wakf property which does not ipso facto mean that the jurisdiction of the civil courts stands completely excluded by reasons of such establishment.
14. The correctness of the decision in Pookoya Haji (supra) had also been doubted and referred to a Full Bench and the Full Bench of this Court in the decision in Alappuzha Muhiyudeen Masjid Association (supra) held that the decision in Pookoya Haji (supra) has been overruled in Gobindram (supra). The Full Bench however, also considered the question whether the Tribunal has original jurisdiction to frame a scheme for management of wakfs and held that the appellate authority has only appellate jurisdiction and that the concept of the original jurisdiction and appellate jurisdiction vesting in one and the same person offends the fundamental CRP Nos.262/2007 & 267/2007 -28- rules of judicial procedure. The Full Bench held that the Tribunal did not have jurisdiction to entertain the application for framing a scheme.
15. The Senior Counsel advanced an argument relying on the decisions in Anis Fatma (supra) and Pritpal Singh (supra) to contend that the Wakf Tribunal has jurisdiction to entertain a suit for recovery of possession. The contention is raised relying on the wording of Section 83 of the Act which says "determination of any dispute, question or other matter relating to a wakf or wakf property", which according to the Counsel has a wide connotation. In Anis Fatma (supra) the Hon'ble Supreme Court considered Ramesh Gobindram (supra) and found that the decision in Ramesh Gobindram relates to eviction proceedings and since the case in Anis Fatma (supra) did not relate to eviction proceedings, the decision was distinguishable. In Pritpal Singh (supra), the Hon'ble Supreme Court found that the High Court in that case has misdirected itself in treating a suit for possession and mesne profits as a suit for ejection, to CRP Nos.262/2007 & 267/2007 -29- hold that the Tribunal has no jurisdiction. On the above finding, the appeal was allowed by the Apex Court and the case was remitted to the High Court for reconsideration.
16. The above contention cannot be sustained in the light of the later decision of the Hon'ble Supreme Court in Punjab Wakf Board v. Sham Singh Harike and another reported in [(2019) 4 SCC 698], where the entire issue was considered in detail, with reference to the earlier decisions. Two appeals were considered by the Hon'ble Supreme Court. The dispute in these revision petitions are similar to the dispute involved in Civil Appeal No.93 of 2019 before the Hon'ble Supreme Court.
17. In C.A.No.93 of 2019, the appellant Punjab Wakf Board, claiming to be owner of the property measuring 29 kanals 9 marlas comprised in Khewat No. 224, Khatauni No. 277, Khasras Nos.55, 56, 57, filed Suit No.2 of 2007 in the Court of Wakf Tribunal, Ludhiana for possession of the property and for permanent injunction restraining the respondent from interfering and changing the nature of the property. It was contended that CRP Nos.262/2007 & 267/2007 -30- the respondent had taken the property on yearly lease, which was not renewed after 1996-97 and that the Wakf Board cancelled the lease on 5.12.1998. It was contended that notice to that effect was served on the respondent and that after cancellation of the lease, the possession of the defendant over the suit property became illegal. Relying on Anis Fatma (supra), it was contended by the appellant that since the suit was one for possession it was maintainable before the Wakf Tribunal and that the dictum in Ramesh Gobindram (supra) can be distinguished. On the question whether the decision could have been distinguished, the Hon'ble Supreme Court in paragraph 39 observed as follows:-
"39. It is to be noticed that although the two-Judge Bench in the above case has observed that the judgment of Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] is distinguishable but the ratio of the judgment of Anis Fatma Begum [W.B. Wakf Board v. Anis Fatma Begum, (2010) 14 SCC 588 : (2012) 1 SCC (Civ) 773] as can be culled from para 10 of the judgment, sounds a substantially different note from Ramesh Gobindram case CRP Nos.262/2007 & 267/2007 -31- [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] . The two-
Judge Bench in Anis Fatma Begum case [W.B. Wakf Board v. Anis Fatma Begum, (2010) 14 SCC 588 : (2012) 1 SCC (Civ) 773] held: (SCC pp. 590-91) "10. ... The words "any dispute, question or other matters relating to a wakf or wakf property" are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a wakf or wakf property can be decided by the Wakf Tribunal."
18. In paragraph 53 of the decision, the Apex Court observed that coming to Section 83 which relates to bar of jurisdiction of civil court, the relevant words are "any dispute, question or other matter relating to a wakf or wakf property"
which is required by or under this Act to be determined by the Tribunal and held that the bar of jurisdiction of civil court is confined only to those matters which are required to be determined by the Tribunal under this Act. The court then went on to consider whether the issue raised in the suit or proceeding CRP Nos.262/2007 & 267/2007 -32- is required to be decided under the 1995 Act by the Tribunal, under any provision or not. In paragraph 74 of the judgment, the Hon'ble Supreme Court held as follows:-
"74. Now coming to Civil Appeal No. 93 of 2019 (Punjab Wakf Board v. Teja Singh), the suit was filed by the Wakf Board for possession of suit property and injunction in the Tribunal. The above suit was fully covered by the ratio laid down by this Court in Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] . The High Court relying on Ramesh Gobindram case [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] has allowed the revision petition filed by the defendant. We do not find any error in the order of the High Court allowing the revision petition filed by the defendant directing the plaint along with documents was returned to be presented before the appropriate court i.e. the civil court. We uphold the above order of the High Court. In the result, this appeal deserves to be dismissed."
19. In the light of the above judgment of the Hon'ble Supreme Court, we have no hesitation to hold that the suit for possession, as sought to be made out by the Senior Counsel for CRP Nos.262/2007 & 267/2007 -33- the respondents, was not maintainable before the Tribunal and ought to have been agitated before the Civil Court.
20. The only other aspect which has to be considered is whether the respondents should be relegated to the civil court or to pursue their remedies under Section 54 of the Act. In order to convince us that the suit is only for possession simpliciter and not for ejectment or removal of encroachment under Section 54, the learned Senior Counsel has referred us to the plaint preferred before the Tribunal. As we have already held, if the suit is one for possession simpliciter, the remedy of the respondents is not before the Wakf Tribunal and has to be agitated before the Civil Court.
21. We have read through the entire plaint and we are not in a position to accept the contention of the Senior Counsel that the suit is one for possession simpliciter. The entire plaint proceeds on the basis that the revision petitioners have been in possession of the Wakf property and managing the Darul Huda Mosque without any authority and were fraudulently keeping the CRP Nos.262/2007 & 267/2007 -34- respondents away from the management. The nature of possession of the revision petitioners is stated to be unauthorised, by trespass, and by fraud. We find it difficult to understand the prayer for possession in such circumstances as a prayer for recovery of possession simpliciter. Such a relief could be in the nature of removing encroachment, which specifically falls under the purview of Section 54, particularly since by the amendment made in 2013, the word "encroacher" was defined in Section 3(ee) to mean any person or institution, public or private, occupying wakf property, in whole or part, without the authority of law and including a person whose tenancy, lease or licence has expired or has been terminated by muthawalli or the Board. It is for the respondents to decide whether they want to move the civil court with a suit for eviction or the Chief Executive Officer of the Board under Section 54, for removal of encroachment.
22. The counsel for the revision petitioners has a contention that the suit filed by the respondents, which is for CRP Nos.262/2007 & 267/2007 -35- removal of encroachment, cannot be filed at the first instance before the Tribunal and that prior to the amendment made in 2013, the parties who seek such a relief should approach the CEO of the Board. It is then for the CEO to pass orders, after being satisfied that the properties are Wakf property and that the person in possession is an encroacher. He submits that only if the CEO passes an order on such an application, the aggrieved person can approach the Tribunal. That is to say that the jurisdiction of the Tribunal is more in the nature of an appeal than in the nature of an original jurisdiction. The question therefore is whether the jurisdiction to entertain an appeal against an order of the CEO regarding removal of encroachment, can confer jurisdiction on the Tribunal to entertain such a dispute at the first instance. We first refer to M.P. Wakf Board wherein the Hon'ble Supreme Court found that the power to frame a scheme for the wakf was vested with the Board and not on the Tribunal. It was held "Where a statute creates different authorities to exercise their respective functions thereunder, CRP Nos.262/2007 & 267/2007 -36- each of such authority must exercise the functions within the four corners of the statute" (para 28). We also refer to the judgment of the Full Bench in Alappuzha Muhiyideen Masjid Association (supra), wherein the court was considering Section 69 of the Wakf Act. Under Section 69, the Board is vested with the power to frame a scheme for the proper administration of a Wakf. The section provides that a person aggrieved by a scheme framed by the Board can file an appeal before the Tribunal. The Full Bench was considering a case where the suit for framing the scheme was filed before the Tribunal. The Court held that the nature of the jurisdiction of the Tribunal in such matters is appellate jurisdiction and that the appellate authority has only appellate jurisdiction which is distinct from the original jurisdiction. The court further held that the "idea that original jurisdiction and appellate jurisdiction is one and the same offends the fundamental rules of judicial procedure" and found that the Tribunal did not have jurisdiction to entertain the suit. Applying the above principle, we agree with the contention of the counsel CRP Nos.262/2007 & 267/2007 -37- for the Revision petitioners that even if the suit filed by the respondents is to be treated as a suit for removal of encroachment, the same could not have been filed before the Tribunal at the first instance.
23. The learned Senior Counsel then relied on another Division Bench decision of this Court in Mechery Vijayakumar v. Kinassery Yateem Khana [2020 (1) KLJ 978] to impress upon us that there is no bar in a Muttawalli of a wakf from approaching the Tribunal directly. The declaration is with respect to the position as avaialble after the amendment of 2013; which inter-alia would enable eviction of a tenant, after expiry of lease period deeming him to be an encroacher. By that amendment Section 54 also stood amended and the CEO while was conferred with the power to evict by himself, has now been relegated to the Tribunal. Prior to amendment the CEO was the authority at the first instance to order eviction of an encroacher from which order any one prejudiced could approach the Tribunal with a suit. After amendment the CEO on being satsfied that the property on which CRP Nos.262/2007 & 267/2007 -38- encroachment is alleged, is a wakf; there should be a suit filed before the Tribunal for eviction by the CEO. This does not expressly or impliedly bar a Muttawall from initiating a suit directly before the Trbunal was the ratio. This has no application to the present suit, which is one filed before the amendment.
24. We therefore allow the revision petitions. The decree in O.S.No.167 of 2001 is set aside and the suit is dismissed as not maintainable before the Tribunal; whether it be for recovery of possession or removal of encroachment, if it is the latter as the provision stood prior to 2013. In so far as the suit filed by the revision petitioner, admittedly they are in possession of the property. The judgment in O.S.No.166 of 2001 is set aside and the suit is decreed restraining the respondents therein from obstructing the management of the plaint schedule property by the revision petitioners; unless in accordance with law. It is made clear that this judgment will not in any way prejudice the right of the respondents to prefer a petition/suit for the same reliefs before the appropriate forum. The decree granted in O.S.No.166 CRP Nos.262/2007 & 267/2007 -39- of 2001 will not in any way stand in the way of the adjudication of the claim of the respondents on the basis of the recitals in the Wakf Deed executed by Sri Ahamed Abdul Haleem in 1954, by such appropriate forum.
Sd/-
K. VINOD CHANDRAN JUDGE Sd/-
T.R. RAVI JUDGE dsn