Kerala High Court
Kolayil Mujeeb vs Kannamparambath Saidalavi on 6 December, 2024
Author: Amit Rawal
Bench: Amit Rawal
CRP(WAKF) Nos.231/2017, 527/2017 1
2024:KER:92664
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
FRIDAY, THE 6TH DAY OF DECEMBER 2024 / 15TH AGRAHAYANA, 1946
CRP(WAKF) NO. 231 OF 2017
AGAINST THE JUDGMENT AND DECREE DATED 10.02.2017 IN OS NO.30 OF 2013
OF WAKF TRIBUNAL, KOZHIKODE
REVISION PETITIONER/2ND DEFENDANT:
V.M.ABDUL RAZAK
AGED 67 YEARS
S/O. MOIDEENKUTTY,AGED 67 YEARS,VELPRAM AMSOM, KARINKALLAI
DESOM,POST FAROKE COLLEGE, KOZHIKODE DISTRICT.
BY ADVS.
SRI.BABU KARUKAPADATH
SMT.AMRIN FATHIMA
SRI.MITHUN BABY JOHN
SRI.J.RAMKUMAR
SMT.M.A.VAHEEDA BABU
SRI.P.U.VINOD KUMAR
RESPONDENTS/PLAINTIFFS & OTHER DEFENDANTS:
1 KANNAMPARAMBATH SAIDALAVI
AGED 63 YEARS
S/O. ABDURAHIMAN, AGED 63 YEARS,KUNNAMPARAMBATH HOUSE,VELIPRAM
AMSOM, KARINAKALLAI DESOM,POST FAROKE COLLEGE, KOZHIKODE
DISTRICT.
2 KANNAMPARAMBATH MOHAMMED
AGED 71 YEARS
S/O. KAMMU, AGED 71 YEARS,KODAMPUZHA ,VELIPRAM
AMSOM,KARINAKALLAI DESOM,POST FAROKE COLLEGE,KOZHIKODE
DISTRICT.
3 KERALA STATE WAKF BOARD
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,V.I.P. ROAD,KALOOR,
KOCHI 682 017.
4 M.K. KOYA MOIDEEN
AGED 65 YEARS
S/O. POCKER, AGED 65 YEARS,VELIPRAM AMSOM, KARINAKALLAI
DESOM,POST FAROKE COLLEGE, KOZHIKODE DISTRICT.
5 P. MOHAMMED
AGED 48 YEARS
S/O. ABDULLA, AGED 48 YEARS,PARAMMAL HOUSE,VELIPRAM AMSOM,
KARINAKALLAI DESOM,POST FAROKE COLLEGE, KOZHIKODE DISTRICT.
CRP(WAKF) Nos.231/2017, 527/2017 2
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6 K.P. UMMER
AGED 77 YEARS
S/O. AHAMMED, AGED 77 YEARS,VELIPRAM AMSOM, KARINAKALLAI
DESOM,POST FAROKE COLLEGE, KOZHIKODE DISTRICT.
7 K. KUNHI MOYI
AGED 66 YEARS
S/O. MOHAMMED, AGED 66 YEARS,VELIPRAM AMSOM, KARINAKALLAI
DESOM,POST FAROKE COLLEGE, KOZHIKODE DISTRICT.
8 KOLAYIL MUJEEB
AGED 39 YEARS
S/O. KOYALI, AGED 39 YEARS,VELIPRAM AMSOM, KARINAKALLAI
DESOM,POST FAROKE COLLEGE, KOZHIKODE DISTRICT.
9 KALLIYIL RAFEEQUE
AGED 38 YEARS
S/O. ABOOBACKER, AGED 38 YEARS,VELIPRAM AMSOM, KARINAKALLAI
DESOM,POST FAROKE COLLEGE, KOZHIKODE DISTRICT.
0 M.K. ANVAR SADATH
AGED 42 YEARS
AGED 42 YEARS, S/O. MOHAMMED KOYA,VELIPRAM AMSOM, KARINAKALLAI
DESOM,POST FAROKE COLLEGE, KOZHIKODE DISTRICT.
BY ADVS.
SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD
SRI.T.M.ABDUL LATHEEF
SRI.M.MUHAMMED SHAFI
OTHER PRESENT:
SRI JAMSHEED HAFIZ SC WAQF
THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON 06.12.2024, ALONG
WITH CRP(WAKF).527/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRP(WAKF) Nos.231/2017, 527/2017 3
2024:KER:92664
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
FRIDAY, THE 6TH DAY OF DECEMBER 2024 / 15TH AGRAHAYANA, 1946
CRP(WAKF) NO. 527 OF 2017
AGAINST THE JUDGMENT AND DECREE DATED 10.02.2017 IN OS NO.30
OF 2013 OF WAKF TRIBUNAL, KOZHIKODE
REVISION PETITIONERS/DEFENDANTS 8-10:
1 KOLAYIL MUJEEB
AGED 39 YEARS
S/O.KOYALI, AGED 39 YEARS, VELIPRAM AMSOM, KARINKALLAI
DESOM,P.O FEROKE COLLEGE, KOZHIKODE DISTRICT
2 KALLIYIL RAFEEQUE
S/O. ABOOBACKER, AGED 38 YEARS,VELIPRAM AMSOM,
KARINKALLAI DESOM,P.O FEROKE COLLEGE, KOZHIKODE DISTRICT
3 M.K ANVAR SADATH
AGED 42 YEARS, S/O. MOHAMMED KOYA,VELIPRAM AMSOM,
KARINKALLAI DESOM,P.O FEROKE COLLEGE, KOZHIKODE DISTRICT
BY ADVS.
SRI.M.MUHAMMED SHAFI
SMT.T.RASINI
RESPONDENTS/PLAINTIFFS AND OTHER DEFENDANTS:
1 KANNAMPARAMBATH SAIDALAVI
S/O.ABDURAHIMAN,AGED 60 YEARS, KANNAMPARAMBATH HOUSE,
VELIPRAM AMSOM, KARINKALLAI DESOM P.O, FEROKE COLLEGE,
KOZHIKODE DISTRICT 673 631
2 KANNAMPARAMBATH MOHAMMED
S/O. KAMMU, AGED 68 YEARS, KODAMPUZHA, VELIPRAM AMSOM,
KARINKALLAI DESOM,P.O FEROKE COLLEGE, KOZHIKODE DISTRICT
673 631
CRP(WAKF) Nos.231/2017, 527/2017 4
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3 V.M ABDUL RAZAK
S/O. MOIDEEN KUTTY, AGED 64 YEARS,VELIPRAM AMSOM,
KARINKALLAI DESOM,P.O FEROKE COLLEGE, KOZHIKODE DISTRICT
673 631
4 KERALA STATE WAKF BOARD
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICERV.I.P ROAD,
KALOOR,KOCHI 682 017
5 M.K KOYA MOIDEEN
S/O. POCKEER, AGED 62 YEARS, VELIPRAM AMSOM, KARINKALLAI
DESOM,P.O FEROKE COLLEGE, KOZHIKODE DISTRICT673 631
6 P. MOHAMMED
S/O.ABDULLA, AGED 45 YEARS, PARAMMAL HOUSE, VELIPRAM
AMSOM, KARINKALLAI DESOM,P.O FEROKE COLLEGE, KOZHIKODE
DISTRICT 673 631
7 K.P UMMDER
S/O.AHAMMED, AGED 74 YEARS, VELIPRAM AMSOM, KARINKALLAI
DESOM,P.O FEROKE COLLEGE, KOZHIKODE DISTRICT673 631
8 K. KUNHI MOYI
S/O. MOHAMMED, AGED 63 YEARS, VELIPRAM AMSOM, KARINKALLAI
DESOM,P.O FEROKE COLLEGE, KOZHIKODE DISTRICT 673 631
BY ADVS.
SRI.K.M.FIROZ
SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD
SRI.T.M.ABDUL LATHEEF
SMT.M.SHAJNA
SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD
Jamsheed Hafiz
THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON 06.12.2024,
ALONG WITH CRP(WAKF).231/2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
CRP(WAKF) Nos.231/2017, 527/2017 5
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JUDGMENT
[CRP(WAKF) Nos.231/2017, 527/2017] Amit Rawal, J.
This order shall dispose of two CRP(Wakf) Nos. 231 of 2017 and 527 of 2017 against the common judgment of the Tribunal in OS No.30 of 2013.
2. The case set up by the respondents/plaintiffs in the aforementioned suit was for mandatory and permanent injunction restraining the management of the mosque from their men from demolishing the kabar from Khabaristan around the mosque shown in A schedule and for a direction to remove the unauthorized construction put up the defendants in the Khabaristan and restore the Khabaristan and in case of defualt, by giving permission to the plaintiffs to remove illegal basement as shown in the plaint B. The aforementioned claim was based upon the pleadings that the A schedule property was having an extent of 3 acre 54 cents which was dedicated as waqf by the forefathers of the plaintiffs. Thereafter, a mosque was constructed by the public funds and managed by Karanavans. The graves of the forefathers of the plaintiffs are situated on the south - western portion of the graveyard. The plaintiffs and other members of the tharawad are making regular prayers from the graveyards. The defendants are CRP(WAKF) Nos.231/2017, 527/2017 6 2024:KER:92664 managing the mosque and had came out with a permission from the Regulatory authority as well as building permit for ablution tank / washrooms / toilets which was seriously objected to.
3. The defendant No.2 filed written statement and contested the aforementioned claim on the ground that it was a very ancient mosque and its origin can be traced to more than two centuries back. His forefathers had dedicated the property as Waqf. It was being administered and managed by the senior most male members. But there was a need of construction of the aforementioned ablution and toilet and it was a necessity for raising the construction. The ablution tank of the mosque was previously situated inside the mosque building. Since the members of the mahal had increased and therefore it was not sufficient to meet the requirements due to the persistent demand of the worshipers, the then mutawalli decided construct a separate structure attached to the mosque building. Therefore the permission from the concerned Grama Panchayath and another authority was taken.
4. The 3 rd defendant, the Wakf Board also filed a written statement contending that the suit was not maintainable for want of notice under Section 89 of the Wakf Act. It was contended that the Chief Executive Officer had granted the sanction for the construction of the ablution tank on 7.3.2012, therefore their CRP(WAKF) Nos.231/2017, 527/2017 7 2024:KER:92664 conduct was in accordance with the Waqf Act and Rules.
5. During the pendency of the suit supplemental defendants 4 to 7 were impleaded as per the order passed in I.A No.618 of 2013 and filed a joint written statement alleging that they are the mahal members and beneficiaries of the Waqf. Since the parties were at variance, the learned Tribunal framed the following issues:
1. Whether the construction of ablution tank on the graveyard is illegal?
2. Whether the plaintiffs are entitled for a mandatory injunction?
3. Whether the plaintiffs are entitled for an injunction as sought for?
4. What is the order as to reliefs and costs?
6. Parties to the lis had examined the following witnesses and brought on record the documents.
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7. On analysis of the findings, the learned Tribunal decreed the suit and restrained the 2nd defendant and other persons acting under him by way of a mandatory injunction to demolish the partly constructed ablution tank in the B schedule property at the cost of the plaintiffs and further restrained along their men from putting up any construction on the graves situated in the plaint A schedule property.
8. The contention of the petitioners, before us was that once they had obtained the permission the suit as such was not CRP(WAKF) Nos.231/2017, 527/2017 9 2024:KER:92664 maintainable in the absence of any challenge. Even the Waqf Board had also noticed the prayer in a correct perspective as per the provisions of the Act by granting the sanction for construction of the ablution tank.
9. Learned Tribunal did not notice the fact that the plaintiffs had approached with the malafide intention as the present ablution tank and the minar of the mosque are situated at the kabar of the father of the 2nd plaintiff which has not been challenged by the 2 nd plaintiff till date. The Tribunal has also not noticed the fact that the Commissioner did not find any wrong with the sanction granted by the Board.
10. We have heard the learned counsel for the parties and appraised the paper book and of the view that there is no force on merit in the aforementioned contentions for the reason that the Commissioner permitted by this Court when dug out a the portion of the plaint schedule property traced out the remnants of the graves such as meezan stones in the presence of the defendants and the plaintiffs. But the plea of the defendants that it was a survey stone could not be substantiated by any documentary evidence.
11. The dignity of the forefathers and the family has to be maintained. In case any action on behalf of the outsider or management of the waqf, as in the instant case, like construction of CRP(WAKF) Nos.231/2017, 527/2017 10 2024:KER:92664 the ablution tank and washrooms is attempted, courts are meant for protection of rights. The Advocate Commissioner on 9.9.2023 also inspected the premises and prepared the report C1 and C1(a) and found that the plaint A and B schedule property was comprising of the mosque and other appurtenants. The graves are found in the A schedule property but not in the B schedule property. It was also found that the mosque was surrounded by the graves but there was no graves inside the mosque. All such material weighed in the mind of the Tribunal while decreeing the suit. We are of the view that such a sensitive issue leading to the sentiments of the devotees as well as the members of the Jama-ath have to be respected and taken care of while undertaking the task as has been noted in the case. We do not find any illegality and perversity in the order under challenge. No ground for interference is made out. Revision petition is dismissed. We make it clear that there shall be not any problem for the management to construct the new ablution tank on a place where does not have any graves.
Sd/-
AMIT RAWAL, JUDGE Sd/-
sab K. V. JAYAKUMAR, JUDGE