Kerala High Court
Irshad Noor Mohammed Sait vs Sebastian Joseph on 3 June, 2025
Author: Amit Rawal
Bench: Amit Rawal
OP (WAKF) Nos.9 & 7 OF 2025 -1- 2025:KER:38879
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 3RD DAY OF JUNE 2025 / 13TH JYAISHTA, 1947
OP (WAKF) NO. 9 OF 2025
AGAINST THE ORDER DATED 07.04.2025 IN I.A.NO.5 OF
2025 IN W.O.A. NO.38 OF 2023 OF WAKF TRIBUNAL, KOZHIKODE
ARISING OUT OF THE ORDER DATED 20.05.2019 IN E.P. NO.685
OF 2008 OF WAKF BOARD, ERNAKULAM
PETITIONER(S)/THIRD RESPONDENT IN I.A.:
IRSHAD NOOR MOHAMMED SAIT,
AGED 68 YEARS,
SON OF NOOR MOHAMMED SAIT, 520/1, NO.2 ZION
NAGAR, NEAR CPL, MELAPALAYAM, XAVIER COLONY
EXTENTION, TAMIL NADU, PIN - 627005
BY ADVS.
SRI.P.M.ZIRAJ
SHRI.IRFAN ZIRAJ
RESPONDENT(S)/PETITIONER AND SECOND AND FIRST RESPONDENT
IN I.A.:
1 SEBASTIAN JOSEPH
SON OF JOSEPH T.P., THAYYIL HOUSE, KADAPPURAM,
OP (WAKF) Nos.9 & 7 OF 2025 -2- 2025:KER:38879
PALLIPURAM, ERNAKULAM, PINCODE, PIN - 683515
2 KERALA STATE WAQF BOARD
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
VIP ROAD, KALOOR, KOCHI, PIN - 682017
3 THE SECRETARY,
FAROOQ COLLEGE MANAGING COMMITTEE,
FAROOQ, KOZHIKODE, PIN - 682005
BY ADVS.
SRI JAMSHEED HAFIZ, SC, WAQF
SRI.RAHUL VENUGOPAL
SRI.SARUN RAJAN
SHRI.E.C.AHAMED FAZIL
SHRI.HAMDAN MANSOOR K.
THIS OP (WAKF) HAVING COME UP FOR ADMISSION ON
03.06.2025, ALONG WITH OP (WAKF).7/2025, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
OP (WAKF) Nos.9 & 7 OF 2025 -3- 2025:KER:38879
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 3RD DAY OF JUNE 2025 / 13TH JYAISHTA, 1947
OP (WAKF) NO. 7 OF 2025
AGAINST THE ORDER DATED 07.04.2025 IN I.A.NO.6 OF
2025 IN W.O.A. NO.38 OF 2023 OF WAKF TRIBUNAL, KOZHIKODE
PETITIONER(S)/PETITIONER/1ST RESPONDENT:
KERALA STATE WAQF BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER
(IN CHARGE) A. HABEEB, S/O ABDULLA KOYA VIP
ROAD KALOOR KOCHI, PIN - 682017
BY ADV.
SRI.JAMSHEED HAFIZ, SC
RESPONDENT(S)/RESPONDENTS/APPLICANT & RESPONDENTS 2 TO 3:
1 SECRETARY FAROOQ COLLEGE MANAGING COMMITTEE,
FAROOQ, KOZHIKODE, REPRESENTED BY ITS SECRETARY
K.V. KUNHAMMED KOYA, S/O AHAMMED HAJI, AGED 83
YEARS, RESIDING AT MAKALPARAMBA KOZHIKODE
TALUK, KOZHIKODE DISTRICT, PIN - 673009
2 IRSHAD SAIT N.M.,
S/O NOOR MUHAMMED SAIT HOUSE NO. 13/638,
CHULLIKKAL KOCHI, ERNAKULAM DISTRICT,
PIN - 682005
OP (WAKF) Nos.9 & 7 OF 2025 -4- 2025:KER:38879
3 SEBASTIAN JOSEPH
S/O JOSEPH T.P THAYYIL HOUSE, KADAPPURAM
PALLIPPURAM ERNAKULAM, PIN - 683515
BY ADVS.
SMT.T.K.SREEKALA
SRI.P.M.ZIRAJ
SRI.RAHUL VENUGOPAL
SMT.NISHA GEORGE
SMT.S.PARVATHI
SMT.NIKITHA SUSAN PAULSON
SHRI.ANAND GEO
SHRI.K.I.MAYANKUTTY MATHER (SR.)
SRI.GEORGE POONTHOTTAM (SR.)
SMT.KAVYA VARMA M. M.
SHRI.IRFAN ZIRAJ
THIS OP (WAKF) HAVING COME UP FOR ADMISSION ON
03.06.2025, ALONG WITH OP (WAKF).9/2025, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
OP (WAKF) Nos.9 & 7 OF 2025 -5- 2025:KER:38879
JUDGMENT
[OP (WAKF) Nos.9/2025, 7/2025] AMIT RAWAL, J.
This order shall dispose of two original petitions, preferred against two interim orders, one rejecting the prayer made by the Wakf Board for summoning the record of the old suit and another, allowing the impleadment of one Sebastian Joseph as a party in W.O.A.38 of 2023.
2. The facts for adjudication of the aforementioned O.P.s, in brief, are as under:
An Enquiry Peition bearing No.685 of 2008 was initiated against M.S.Naseer Sait, M.S.Subaida Bai, Irshad Sait N.M. and Secretary, Farooq College Managing Committee, Kozhikode, on the basis of the report of the Chief Executive Officer, alleging that 404.76 Acres of land under the possession of Farooq College by virtue of Wakf deed No.2115 of 1950 of S.R.O. Kuzhuppalli have been alienated without obtaining the permission of the OP (WAKF) Nos.9 & 7 OF 2025 -6- 2025:KER:38879 Board and subsequent registration of the same with a view to repossess the alienated properties under Section 52 of the Waqf Act, 1995. It is pertinent to mention here that the Farooq College, having the possessory rights, had transferred the property in favour of Sebastian Joseph and Joseph Benny, Antoney and Irshad Sait. All the aforementioned persons were not the parties in the enquiry proceedings and ultimately, vide order dated 20.05.2019, the Executive Officer noticed that the Wakf deed was executed by Muhammed Siddique Sait in favour of Farooq College for running a college as per Islamic System where it was specifically stated that property was handed over to Farooq College as Wakf and the intention was to create a wakf for religious, pious and charitable purposes. Noticing that the property to be Wakf, directed the Farook College -4th respondent Mutawalli to submit an application for registration under Section 36 of the Wakf Act within fifteen(15) days from the date of receipt of the order and in case such OP (WAKF) Nos.9 & 7 OF 2025 -7- 2025:KER:38879 application is not submitted, the Junior Superintendent of Kerala, State Wakf Board, was directed to suo motu register the property covered by the Wakf deed bearing No.2155 of 1950 of SRO, with a further direction to the CEO to take steps to trace out the properties in the name of Farooq College and also to initiate actions under Section 52 or 54 of the Waqf Act to recover the Wakf properties which were alienated without proper sanction of the Board.
3. Against the aforementioned order, three matters came to be filed, (1) W.O.A.No.38 of 2023 against registration (2) O.A.No.7 of 2023 by Secretary, Farooq College Managing Committee, against the order declaring the property to be the Wakf (3) W.O.A.No.102 of 2025 by M.K.Venu, K.A.Jolly, Watson and Raju.
4. In pending W.O.A. No.38 of 2023, Kerala State Wakf Board submitted an application bearing number I.A.No.6 of 2025 under Order XIII Rule 10 and Section 151 of the Code of Civil Procedure to call OP (WAKF) Nos.9 & 7 OF 2025 -8- 2025:KER:38879 for the records of O.S.No.53 of 1967 from the Subordinate Judges Court, Paravur, which has been dismissed vide order dated 07.04.2025 in the following manner:
"This petition filed under Order XIII Rule 10 and Section 151 of the Code of Civil Procedure to call for all the case records pertaining to O.S.No.53/1967 from the Hon'ble Subordinate Judges Court, Paravur.
2. Heard. The petition is dismissed.
Parties directed to get the certified copies from the court concerned. No costs."
5. The said order is stayed by this Court in O.P.(Wakf) No.7 of 2025. Similarly, in W.O.A.No.38 of 2023, an I.A.No.5 of 2025 was preferred by Mr.Sebastian Joseph for including him as respondent on the ground that he is a subsequent purchaser of land on the basis of transfer/alienation by the Farooq College. The said application has been allowed vide Ext.P8 order dated 07.04.2025, which is under challenge in O.P.(Wakf)No.9 of 2025, which is also under stay.
OP (WAKF) Nos.9 & 7 OF 2025 -9- 2025:KER:38879
6. It is pertinent to mention here that one Mr.Antoney V.L. had also submitted an application, I.A. 9 of 2025 in O.A No.38 of 2023 and I.A.No.1 of 2025 in O.P.Wakf No.9 of 2025 for impleadment.
7. Mr.Joseph Benny has also filed two interim applications bearing Nos.1 and 2 of 2025 for impleadment and vacation of the interim order on similar grounds, as been taken by Mr.Antoney V.L. The record which was sought to be summoned by the Kerala Wakf Board was in respect of a proceeding conducted in O.S.No. 53 of 1967 with the following memo of parties:
"Plaintiff:-
Ferook College Managing committee, Ferook College, Eranad Taluk - Represented by its Secretary Hajee P.I.Kunhamed Kutty, residing at Calicut - died Additional 2 impleaded.
Additional 2:- M.V.Hydrose, S/o Ahamed Sahib, Kasava Amsom Desom, Kozhikode Taluk, Additional Second Plaintiff impleaded as per Order dated 20-7-1968 on I.A. 581/68.
Defendants:
1. Yakko, S/o Ouseph, Valiaveettil residing in Munambam Muri, Kuzhuppilly Village.
2. Seemon, S/o Thomman Kunju of Valiaveettil residing at do. 3. Joseph, S/o Thomman of OP (WAKF) Nos.9 & 7 OF 2025 -10- 2025:KER:38879 Panakkal, residing at do.
4. Lucy, W/o Cheekku of Vadakkeveettil, residing in do
5. Markos, S/o Ouseph of Valiaveettil, residing in do
6. Pethrukutty, S/o Yohannan of Valiaveettil, residing in do
7. Cheekkukutty, S/o Ouseph of Valiaveettil residing in do
8. George, S/o Cheekkukutty of Valiaveettil residing in do
9. John S/o Bavachan of Kattuparambil, residing in do
10. Joseph, S/o Rockey of Kurisumakal residing in do
11. Meenkamma, W/o Joseph of Panakkal residing in do
12. Krishnan, S/o Ayyappan of Kalangara residing in do
13. Rockey, S/o Thomman Kunju of Mavunkal residing in do
14. Marie, W/o Joseph of Valiaveettil, residing in do
15. Rookey. S/o Achampi of Panakkal residing in do
16. Chavaro, S/o Devassy of Padamattummel residing in do
17. Joseph. S/o Rockey of Pallipparambil residing in do
18. Augustinjukutty, S/o Bastian of Vadakkevettil, residing in do
19. Mathew Kochuvareed of Olattupurath, Munambam Muri, kuzhuppully.
20, Velayudhan, S/o Velunny, Kattungasseril, Munambam Muri, do
21. Karthiayani, W/o Velunny of do. do.
22. Velayudhan Vava, Pokalathuparambil do. Muri.
OP (WAKF) Nos.9 & 7 OF 2025 -11- 2025:KER:38879
23. Emily, W/o Joseph, residing at Palliparambil, Munanmbam Muri, Kuzhippilly.
24. Leena, D/o Joseph of do. (Minor).
25. Baby, D/o Joseph of do.
(Minor).
26. Sebastian, S/o Joseph of do. (Minor).
27. Kochuthressia, D/o Joseph of do. (Minor). Additional defendants 23 to 27 impleaded as the order dated 16-11-1968, on I.A. 841/68 and 23rd defendant is the guardian of minor defendants 24 to 27 as per the same order."
8. O.S.No. 53 of 1967 was a civil suit for injunction filed by the Farooq College against the defendants who were interfering into the peaceful possession of the plaintiff. However, one issue with regard to the nature and character of a land to be a Waqf or gift deed was framed as Issue No.3.
9. The aforementioned issue was decided in paragraph No.43 of the aforementioned judgment in the following manner:
"43. Issue No.3 Ext P30 waqf deed is contended to be not binding on the defendants. Since it relates to the plaint schedule property wherein the defendants are residing it is OP (WAKF) Nos.9 & 7 OF 2025 -12- 2025:KER:38879 binding on them as well. The learned counsel for the defendants would argue that even after the execution of Ext P13 Siddik Sait continued in possession and there was no transfer to the plaintiff. It has not be remembered that Ext Po is a waqf deed and not a gift deed and that waqf inter vivos is completed by a mere declaration of endowment by the owner. No transfer of physical possession is necessary to complete a waqf. I therefore find that Ext P30 is binding on the defendants, and the property in their occupation."
10. On perusal of the same, it is evident that there was no adjudication as to whether it was a Wakf deed or a gift deed, though in the order dated 20.05.2019, Chief Executive Officer passed the order treating it to be a Wakf property. In other words, judgment dated 12.07.1971 in Original Suit No.53 of 1967 was not looked into. It is also a matter of record that the aforementioned judgment dated 12.07.1971 was assailed before this Court in Appeal Suit No.685 of 1971 and this Court vide judgment dated 30.09.1991 dismissed the appeal. In other words, the question of OP (WAKF) Nos.9 & 7 OF 2025 -13- 2025:KER:38879 title and its definition was left open.
11. Now the question which arise before us is, whether the impleading application, pending before the Tribunal as well as decided by the Tribunal at the behest of the parties interested in the property on the basis of the transfer/alienation conducted by the Farooq College, would be maintainable or can be challenged only by way of an independent suit or proceedings. Order 1 Rule 10 of the Code of Civil Procedure, on plain and simple reading, do not lead to any confusion and clearly deciphers that a party interested can be impleaded in the party array. However, when the title is under cloud, necessity arises to claim declaration as provided under Section 34 of the Specific Reliefs Act. In those circumstances, the remedy for affected party is to claim a declaration on any of the grounds either on the basis of the previous findings, order of 20.05.2019, or on any other available grounds.
12. Similarly, the manner and mode in which OP (WAKF) Nos.9 & 7 OF 2025 -14- 2025:KER:38879 the application under Order XIII Rule 10 of the Code of Civil Procedure has been dismissed is also not acceptable and sustainable in the eyes of law as it does not reflect any discussion referred to the pleadings, cross pleadings, as well as the arguments. The Tribunal is manned by the its members and one of the member is a sitting District Judge. It is not expected from a Judicial Officer to pass the orders in a slip shod manner.
13. In our considered view, the impleadment application at the behest of the Antoney V.L and Joseph Benny would not be maintainable for the reason that they have independent right to assail the order, as, one of the parties, Joseph Benny, has not preferred any O.A. so far but it has been preferred at the behest of their residents of the locality. They are at liberty to either join themselves in the pending suit filed by the residents or in an independent suit as the cause of action starts as and when the title is under cloud. Limitation and cause of action would only arise when the title is under cloud and OP (WAKF) Nos.9 & 7 OF 2025 -15- 2025:KER:38879 particularly , the period spend in moving the application has to be excluded for the purpose of deciding the controversy as indicated above. Accordingly, OP(WAKF)No. 9 of 2025 is allowed. The order allowing the impleadment of Mr. Sebastian Joseph is set aside with the liberty aforementioned.
14. The order rejecting the application, challenged in O.P.(Wakf) No.7 of 2025 is hereby set aside. O.P.(Wakf)No.9 of 2025 is allowed with a direction to the Tribunal to decide the application afresh, keeping in view the fact that there had already been an adjudication at the behest of the plaintiff in O.S.No.53 of 1967, which in our considered view, would have a direct bearing on the adjudication of the pending W.O.A.No.38 of 2023 and O.A.No.7 of 2023 and W.O.A.No.102 of 2025.
It is made clear that all the cases, i.e., O.A.No.7 of 2023, W.O.A.No.38 of 2023 and W.O.A.No.102 of 2025 are to be clubbed and decided together and in case new OP (WAKF) Nos.9 & 7 OF 2025 -16- 2025:KER:38879 suit is there, that will also be decided. Accordingly, the applications stands disposed off.
Sd/-
AMIT RAWAL JUDGE Sd/-
MURALEE KRISHNA S. JUDGE vv OP (WAKF) Nos.9 & 7 OF 2025 -17- 2025:KER:38879 APPENDIX OF OP (WAKF) 7/2025 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE W.O.A 38/2023 BEFORE THE WAKF TRIBUNAL DATED 25.06.2023 EXHIBIT P2 TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT, PETITIONER HEREIN DATED 14.10.2024 IN W.O.A. 38/ 2023.
EXHIBIT P3 TRUE COPY OF THE APPLICATION FOR IMPLEADING AS I.A 5/2025 IN W. O.A 38/2023 BEFORE THE WAKF TRIBUNAL DATED 05.03.2025 EXHIBIT P4 TRUE COPY OF THE COUNTER TO I.A 5/2025 IN W.O.A 38/2023 BEFORE THE WAKF TRIBUNAL DATED 24.03.2025 EXHIBIT P5 TRUE COPY OF THE ORDER IN I.A 5/2025 IN W.O.A 38/2023 BEFORE THE WAKF TRIBUNAL DATED 07.04.2025 EXHIBIT P6 TRUE COPY OF THE I.A 6/2025 IN W.O.A 38/2023 BEFORE THE WAKF TRIBUNAL DATED 10.03.2025 EXHIBIT P7 TRUE COPY OF THE ORDER IN I.A 6/2025 IN W.O.A 38/2023 BEFORE THE WAKF TRIBUNAL DATED 07.04.2025 EXHIBIT P8 TRUE COPY OF THE PRINT OUT OF THE CASE HISTORY FROM THE ECOURTS WEBSITE FOR THE CASE W.O.A 38/2023 BEFORE THE WAKF TRIBUNAL RESPONDENT ANNEXURES ANNEXURE I A COPY OF THE JUDGMENT DATED 27.02.2025 IN W.P(C) NO. 20086 OF 2024 AND CONNECTED CASE PASSED BY THIS HONOURABLE COURT.
OP (WAKF) Nos.9 & 7 OF 2025 -18- 2025:KER:38879 APPENDIX OF OP (WAKF) 9/2025 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF ORDER DATED 20.05.2019 IN E.P 685/2008 PASSED BY THE SECOND RESPONDENT EXHIBIT P2 TRUE COPY OF ORIGINAL APPLICATION IN W.O.A 38 OF 2023 DATED 24.06.2023 EXHIBIT P3 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE SECOND RESPONDENT 14.10.2024 EXHIBIT P4 TRUE COPY OF COUNTER DATED 06.04.2025 FILED BY THE PETITIONER EXHIBIT P5 TRUE COPY OF I.A NO.5 OF 2025 IN W.O.A 38 OF 2023 EXHIBIT P6 TRUE COPY OF COUNTER FILED BY THE SECOND RESPONDENT IN I.A NO.5 OF 2025 EXHIBIT P7 TRUE COPY OF COPY OF COUNTER FILED BY THE PETITIONER IN I.A NO.5 OF 2025 EXHIBIT P8 TRUE COPY OF ORDER DATED 07.04.2025 IN I.A NO.5 OF 2025 IN W.O.A 38 OF 2023 RESPONDENT EXHIBITS EXHIBIT-R1(A) A true copy of the Judgment in A S No 600 of 1971 Before the Hon ble High Court of Kerala at Ernakulam dated 30 9 1975