Kerala High Court
Kerala State Wakf Board vs Dharmapalan And Others on 24 October, 2024
Author: Amit Rawal
Bench: Amit Rawal
2024:KER:78720
CRP(Waqf) 599/2009
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
CRP NO. 599 OF 2009
AGAINST THE ORDER/JUDGMENT DATED 23.10.2007 IN WOS
NO.6/2006 OF WAKF TRIBUNAL, ERNAKULAM
REVISION PETITIONER/1ST RESPONDENT:
KERALA STATE WAKF BOARD
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, VIP
ROAD, KALOOR, KOCHI - 682 017.
BY ADVS.
SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD
SRI.A.A.ABUL HASSAN, SC, WAKF BOARD
SRI.JAMSHEED HAFIZ, SC, WAKF BOARD
RESPONDENTS/PLAINTIFFS & 2ND DEFENDANT:
1 DHARMAPALAN S/O.KARUPPUNNI,
KUTTIYELI, POST ANDATHODU,, CHERAI,
PUNNAYURKULAM, THRISSUR DISTRICT,, PRESENTLY
WORKING AS ABUDABI.
2 MADHAVAN (DIED), S/O. KARUPPUNNI
RESIDING AT KUTTIYEIL, POST ANDATHODU, CHERAI,
THRISSUR DISTRICT.
3 MONOHARAN S/O. KARUPPUNNI
RESIDING AT KUTTIYELI, POST ANDATHODU, CHERAI,
THRISSUR DISTRICT.
4 KAMALAM, D/O. KARUPPUNNI
AND WIFE OF RAGHAVAN, RESIDING AT KUTTIYELI, POST
ANDATHODU, CHERAI, THRISSUR DISTRICT.
2024:KER:78720
CRP(Waqf) 599/2009
2
5 SARASWATHY, D/O. KARUPPUNNI
AND WIFE OF RAVINDRAN, RESIDING AT KUTTIYELI,
POST ANDATHODU, CHERAI, THRISSUR DISTRICT.
6 SUMATHY, D/O. KARUPPUNNI AND WIFE OF
MADHAVAN, RESIDING AT KUTTIYELI, POST ANDATHODU,
CHERAI, THRISSUR DISTRICT.
7 SIDHARTHAN, S/O. KARUPPUNNI
RESIDING AT KUTTIYELI, POST ANDATHODU, CHERAI,
THRISSUR DISTRICT.
8 K. MOHAMMED, S/O. BAPPU
RESIDING AT PATTARUMADATHIL, AYIROOR.P.O,
MALAPPURAM DISTRICT - 679 580.
BY ADVS.
MANU VYASAN PETER
SRI.N.AJITH
SMT.GEETHA P.MENON
SRI.K.JAYAKUMAR SR.
SRI.P.B.KRISHNAN FOR RESPONDENTS
SRI.P.M.NEELAKANDAN
SRI.R.SURAJ KUMAR
P.B.SUBRAMANYAN(K/1145/2009) FOR RESPONDENTS
SABU GEORGE(K/000711/1998)
B.ANUSREE(K/000951/2016)
THIS CIVIL REVISION PETITION HAVING COME UP FOR ORDERS ON
06.09.2024, THE COURT ON 24.10.2024 DELIVERED THE FOLLOWING:
2024:KER:78720
CRP(Waqf) 599/2009
3
O R D E R
EASWARAN S., J.
Kerala State Wakf Board, Ernakulam has come up against the order dated 23.10.2007 of the Wakf Tribunal, Ernakulam allowing O.S.No.6 of 2006.
2. the facts, in brief, are as follows:
Plaint A Schedule item No.1 comprises ten (10) cents in Survey No.51/9, plaint item No.2 is 62/3 cents in Resurvey No.51 and item No.3 is 51 cents in Resurvey No.51 cents, all of Ponnayurkulam Village, thus having a total extent of 672/3 cents. The said property was initially leased out to one Raman Menon by Muhammed Unni for an annual pattom of Rs.75/- as per registered lease deed. Subsequently, Raman Menon transferred his tenancy right in favour of one Rama Panicker as per document No.1229 of 1965. It was averred that Mr.Kannappan, who is the predecessor in interest of 2024:KER:78720 CRP(Waqf) 599/2009 4 the plaintiffs, was a kudikidappukaran in the property even prior to the entrustment of the property to Raman Menon by Mohammed Unni. On the death of Kannappan, his kudikidappu right devolved upon his son Kuruppunni, father of the plaintiffs, and later to the plaintiffs. The father of the plaintiffs obtained the kudikidappu right from the Land Tribunal and a Certificate of Purchase was issued on 26.05.1970 with respect to plaint item No.1. Thereafter, the father of plaintiffs purchased 62/3 cents (plaint item no.2) adjacent to his kudikidappu property from Rama Paniker as per registered deed No.722/1975. In the meantime, Rama Panicker sold 51 cents of land to Kunhahammed as per sale deed No.722/1 dated 09.06.1975 and later obtained Purchase Certificate No.16448 of 1977. Thereafter the first plaintiff purchased the land covered by the Purchase Certificate from Kunhahammed as per sale deed No.1132/83 which is scheduled as item No.3 in the plaint. Thus the plaintiffs obtained rights over the plaint schedule properties and are in possession and made constructions therein.
2024:KER:78720 CRP(Waqf) 599/2009 5 While so the second defendant filed an application before the Wakf Board alleging that 87 cents of property in Survey No.51/9-10 of Kanikad Amsom, Chavakkad Taluk was dedicated for charitable purpose by one Chekkutty. The complaint was filed by the second defendant as a descendant of Chekkutty for recovery of item No.3 of the plaint schedule property in absolute possession and enjoyment of the plaintiffs as owners. The Wakf Board without considering any of the contentions of the plaintiffs passed order dated 09.11.1999 ordering eviction of the plaintiffs. Aggrieved by the same, the plaintiffs filed O.P.No.32298 of 1999 before this Court and this Court directed the plaintiffs to file a regular suit before the competent authority and accordingly the suit was filed.
3. The Wakf Board entered appearance and filed a written statement contending that the suit is not maintainable and that the property with respect to partition deed No.2027/1914 executed between the legal heirs of Chekkutty, was dedicated as Wakf by late Chekkutty 2024:KER:78720 CRP(Waqf) 599/2009 6 himself, thus, there is a valid Wakf created by him. The lease deed mentioned in the plaint is null and void and that Sri.Mohammed Unni had no right to lease out the property. Since the lease deed is null and void, the subsequent document created is not binding on the Wakf property.
4. On the side of the plaintiffs, Exts.A1 to A13 were marked and the 7th plaintiff was examined as PW1. At the time of evidence, the counsel for the Wakf Board and the second defendant were absent and no cross examination was conducted. Therefore, on the basis of the materials and pleadings on record, the Tribunal framed the following issues:
"1. Whether plaintiffs have any right or title over the plaint schedule properties? Whether Rama Panicker or his predecessors had any alienable right over the property at the time?
2. Whether plaint schedule properties are Wakf properties as alleged by defendants? When was the Wakf created?
3. Whether the purchase certificate issued by Land Tribunal is a valid document? Whether it is binding on a Wakf property?
2024:KER:78720 CRP(Waqf) 599/2009 7
4. Whether the order of the Wakf Board dated 9.11.1999 is binding on the plaintiff? Whether it is liable to be set aside?
5. Whether the suit is barred by limitation?
6. Whether plaintiffs are entitled to the declaration and injunction as sought for?
17. Reliefs and costs."
5. On the basis of the materials on record, the Tribunal came to conclusion that the suit was maintainable and that the predecessor in interest of the plaintiffs had obtained the right of kudikidappu in terms of the provisions contained under the Kerala Land Reforms Act, 1963 and therefore the Purchase Certificate obtained by him was valid in the eyes of law.
6. More pertinently, the Tribunal also came to the conclusion that there was no evidence to show that the property was a Wakf property at any point of time. Tribunal further found that even before coming into the force of the Wakf Board, there was no evidence to show that the property in question was a wakf property. On consideration 2024:KER:78720 CRP(Waqf) 599/2009 8 of these facts, the Tribunal decreed the suit and order dated 09.11.1999 passed by the Wakf Board in Petition No.11 of 1997 was set aside, and it was declared that the plaintiffs have title over plaint A schedule item Nos.1 to 3 properties and the same are not Wakf properties and issued a permanent prohibitory injunction against the Wakf Board restraining them from interfering with the peaceful possession of item Nos.1 to 3 of the plaint schedule properties and further restrained the Wakf Board from registering the plaint A schedule item Nos.1 to 3 as Wakf properties. Aggrieved by the aforesaid judgment and decree, the first defendant - Wakf Board has come up before this Court in revision.
7. We have heard Sri.Jamsheed Hafiz, learned Standing Counsel appearing for the Wakf Board and Sri.P.B.Subramanyan, learned counsel appearing for the respondent Nos.1, 3 to 7.
8. Before proceeding with the appeal, we are constrained to note certain glaring defects in the Revision 2024:KER:78720 CRP(Waqf) 599/2009 9 Petition. It was brought to the notice of the Court by the learned counsel for the 1st respondent that the second respondent had already died at the time when the revision petition was filed. By order dated 18.01.2010, this Court directed the revision petitioner to implead legal heirs of the deceased second respondent and thereafter again by order dated 22.07.2011 granted a further period of two weeks to cure the defects. On 24.02.2016 also, two weeks' time was granted as the last chance to take steps against the second respondent. Finally, by order dated 03.06.2024, taking note of the order passed on 24.02.2016, time was granted for the revision petitioner to take steps against the deceased second respondent.
9. We are constrained to know that till today, no steps have been taken against the deceased second respondent. Hence, the facts that the revision petition being filed against a dead person and steps not being taken for fourteen (14) years would certainly lead to the conclusion that the revision petitioner is not interested in proceeding 2024:KER:78720 CRP(Waqf) 599/2009 10 with the matter. On that count alone the revision is liable to be dismissed.
10. However, before proceeding to consider the case on merits we need to see whether the revision petitioner has made out a case for condonation of delay. C.M.Application No.1379 of 2009 has been filed by the revision petitioner seeking for condonation of delay of 647 days. On a perusal of the affidavit accompanying the application for condonation of delay, it is seen that the order was passed by the Wakf Tribunal on 23.10.2007. It is further stated that the application for getting a certified copy of the order of the Tribunal was filed only on 21.01.2009. The stamp papers were called on 28.1.2009 and produced only on 31.1.2009. The certified copy was received on 7.2.2009. Thereafter, the records for filing of the case were entrusted to the Standing Counsel in the High court in March 2009 and that on his request additional documents were given to him on 25.5.2009. The affidavit, however, does not show that when the Standing Counsel required the Wakf Board for the 2024:KER:78720 CRP(Waqf) 599/2009 11 additional documents and what was the nature of the documents and its relevancy for preferring the revision before this Court. It is stated that thereafter the revision was prepared and sent to the Board. However, it is not clear when the revision was sent for approval. Even though it is stated that an explanation was called for by the Board from the earlier Counsel, no document is produced before this Court to prove the same. We must necessarily notice that the revision petitioner received the certified copy on 7.2.2009. However, the revision petition was filed on 10.11.2009, and reason for the delay caused for the period between 7.2.2009 and 10.11.2009 has not been explained at all.
11. It is now settled law that each day's delay has to be properly explained. Even if we are to assume that each day's delay need not be answered precisionaly, we cannot but notice that there is no explanation for the delay between 7.2.2009 and 10.11.2009. Furthermore, the Board was callous in their approach and has not taken steps to effect 2024:KER:78720 CRP(Waqf) 599/2009 12 notice on the legal representatives of the deceased 2nd respondent. On a cumulative assessment of the entire facts as stated above, we are of the considered view that no sufficient ground has been made out for this Court to condone the delay of 647 days in filing the revision petition and hence the application for condonation of delay is liable to be dismissed. Consequently, the Revision Petition is also liable to be dismissed.
12. It is pertinent to mention that the revision petitioner had filed C.M.Application No.1/2024 to condone the delay of 5206 days in filing application to set aside abatement against the deceased 2nd respondent and also to implead the legal heirs of the deceased 2nd respondent. We have by separate order passed today, dismissed the said application, since no satisfactory explanation was caused to condone the delay in filing the application for setting aside the abatement. It is seen that as early as in the year 2010, the revision petition stands abated as against the 2nd respondent. This is also one of the reasons which persuaded 2024:KER:78720 CRP(Waqf) 599/2009 13 us not to proceed with the revision petition any further.
13. Although we are not inclined to condone the delay in filing the revision petition, in order to find out whether there is any merit in the contentions raised in the revision petition, we closely scrutinized the facts, which led to the passing of the impugned order, with an intention to see as to whether the revision petitioner has made out a case so as to warrant a liberal approach on the condonation of delay.
14. Indisputedly, the plaintiffs had set up the title independently based on the entrustment of the properties to the predecessor in interest as a kudikidappukaran. On the death of Sri.Kannappan, his kudikidappu right devolved upon the father of the plaintiffs, namely Karuppunni. It is admitted before us that Sri.Karuppunni obtained the purchase certificate in terms of provisions contained under Section 72 of the Land Reforms Act, which conclusively proves the title of the property in his favour. As a matter of fact, it assumes little significance as to whether subsequently the property was purchased by the plaintiffs 2024:KER:78720 CRP(Waqf) 599/2009 14 from one Sri.Rama Paniker, who had obtained lease hold rights. The Tribunal after analysing the evidence on record had found that plaint schedule item Nos.1 comprising of ten (10) cents, item No.2 comprising of 62/3 cents and item No.3 comprising of 51 cents originally belonged to the predecessor of one Sri.Mohammed Unni as per Ext.A1 partition deed. Sri.Raman Menon had obtained the property as per the Patta Chit, Ext.A2, from Muhammad Unni. It has also come out in evidence that the predecessor of the plaintiffs, Sri.Kannappan, was residing as kudikidappukaran in the plaint schedule property. Though by Ext.A3 Sri.Raman Menon had transferred the right over the property in favour of Sri.Rama Panicker on 27.04.1965, Sri.C.Karuppunni, the only son of Sri.Kannappan, was entitled to purchase the kudikidappu rights over the property. It has also come out in evidence that as per Ext.A5, Sri.Rama Panicker had transferred a certain extent of property in favour of Sri.Karuppunni. The remaining extent of the property was subsequently transferred by 2024:KER:78720 CRP(Waqf) 599/2009 15 Sri.Rama Panicker in favour of Sri.Kunhahammed as per Ext.A6 and later Sri.Kunhahammed obtained Purchase Certificate in respect of item No.3 of the plaint schedule property in the year 1977. After obtaining Ext.A7, the remaining extent of the property was transferred in the name of the first plaintiff by Ext.A8 sale deed dated 26.09.1983. It is not clear as to how the Wakf Board entertained the application filed by Sri.K.Muhammed after a lapse of considerable time stating that there is encroachment in respect of the Wakf properties. Admittedly, before the passing of Ext.A10 order, which was challenged before the Tribunal, there was no registration cost in respect of the Wakf property. In the absence of any evidence before the Tribunal to show that the plaint schedule properties are Wakf properties, the revision petitioner had no authority much less jurisdiction to entertain a complaint from the second defendant and pass Ext.A10 order. Thus, in our considered view, the Tribunal rightly entertained the suit and decreed the same.
2024:KER:78720 CRP(Waqf) 599/2009 16 As an upshot of these discussions, we find that there is no merit in the revision petition. Accordingly, the revision petition has to fail. Consequently, both the C.M.Application No.1379/2009 filed seeking to condone the delay in filing the revision petition and the revision petition are dismissed. No order as to costs.
Sd/-
AMIT RAWAL JUDGE Sd/-
EASWARAN S. JUDGE vv/jg