Kerala High Court
Abdul Salam vs Private Party on 10 September, 2025
Author: Amit Rawal
Bench: Amit Rawal
2025:KER:68446
CRP(WAKF) NO. 28 OF 2022
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
WEDNESDAY, THE 10TH DAY OF SEPTEMBER 2025 / 19TH BHADRA,
1947
CRP(WAKF) NO. 28 OF 2022
AGAINST THE ORDER/JUDGMENT DATED IN OS NO.303 OF 2019
OF WAKF TRIBUNAL, KOZHIKODE
REVISION PETITIONER/PLAINTIFF:
ABDUL SALAM,
AGED 59 YEARS
S/O.MUHAMMED KUNJU, T.V.HOUSE, THAZHAVA,
KARUNAGAPPALLY, KOLLAM. 690 523
BY ADVS.
SHRI.T.H.ABDUL AZEEZ
SRI.K.P.MAJEED
SRI.MOHAMMED SADIQUE.T.A
SHRI.SHANKAR V.
SHRI.K.M.MOHAMMED YUSUFF (M-1323)
RESPONDENTS/DEFENDANTS:
1 THAZHAVA MUSLIM JAMA-ATH MASJID
SRPM P.O., KARUNAGAPPALLY TALUK, KOLLAM, PIN-
690539 REPRESENTED BY ITS PRESIDENT, SHAMSUDHEEN.
2 SHAMSUDHEEN,
AGED 74 YEARS, S/O.KUNJALI HASSAN, PRESIDENT,
THAZHAVA MUSLIM JAMA-ATH MASJID, SRPM P.O.,
KARUNAGAPPALLY TALUK, KOLLAM, PIN-690539.
3 SHIHABUDHEEN,
AGED 44 YEARS, S/O.SALIM, SECRETARY,
THAZHAVA MUSLIM JAMA-ATH MASJID, SRPM P.O.,
2025:KER:68446
CRP(WAKF) NO. 28 OF 2022
2
KARUNAGAPPALLY TALUK, KOLLAM, PIN-690539
4 THE CHIEF EXECUTIVE OFFICER,
KERALA STATE WAQF BOARD, KALOOR,
ERNAKULAM, KOCHI-682017.
5 KERALA STATE WAQF BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
VIP ROAD, KALOOR, KOCHI-682017
BY ADV SRI.T.R.RAJAN
SRI JAMSHEED HAFIZ SC WAQF
THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON
05.08.2025, ALONG WITH CRP(WAKF).29/2022, THE COURT ON
10.09.2025 DELIVERED THE FOLLOWING:
2025:KER:68446
CRP(WAKF) NO. 28 OF 2022
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
WEDNESDAY, THE 10TH DAY OF SEPTEMBER 2025 / 19TH BHADRA,
1947
CRP(WAKF) NO. 29 OF 2022
AGAINST THE ORDER/JUDGMENT DATED IN OS NO.323 OF 2019
OF WAKF TRIBUNAL, KOZHIKODE
REVISION PETITIONER/1ST DEFENDANT:
ABDUL SALAM
AGED 59 YEARS
S/O.MUHAMMED KUNJU, T.V.HOUSE, THAZHAVA,
KARUNAGAPPALLY, KOLLAM. 690523
BY ADVS.
SHRI.T.H.ABDUL AZEEZ
SRI.K.P.MAJEED
SRI.MOHAMMED SADIQUE.T.A
SHRI.K.M.MOHAMMED YUSUFF (M-1323)
SHRI.SHANKAR V.
RESPONDENTS/PLAINTIFFS AND DEFENDANTS 2 AND 3:
1 PRIVATE PARTY
REPRESENTED BY ITS COMMITTEE PRESIDENT,
THAZHAVA VILLAGE, SRPM P.O.,
KARUNAGAPPALLY TALUK, KOLLAM, PIN-690539
2 SHAMSUDHEEN,
AGED 74 YEARS, S/O.KUNJALI HASSAN, PRESIDENT,
THAZHAVA MUSLIM JAMA-ATH MASJID, SRPM P.O.,
THAZHAVA VILLAGE, KARUNAGAPPALLY TALUK,
KOLLAM, PIN-690539.
3 SHIHABUDHEEN,
2025:KER:68446
CRP(WAKF) NO. 28 OF 2022
4
AGED 44 YEARS,
S/O.SALIM, SECRETARY,
THAZHAVA MUSLIM JAMA-ATH MASJID, SRPM P.O.,
KARUNAGAPPALLY TALUK, KOLLAM, PIN-690539.
4 AHMED KOYA MOULAVI,
S/O.HASSANKUNJU MOULAVI, AGED 74 YEARS,
PLANTHOTTATHU VADAKKETHARAYIL, THAZHAVA VILLAGE,
KARUNANAGAPPALLY TALUK, KOLLAM DISTRICT. 690523
5 KERALA STATE WAQF BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
VIP ROAD, KALOOR, KOCHI-682017
THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON
10.09.2025, ALONG WITH CRP(WAKF).28/2022, THE COURT ON
10.09.2025 DELIVERED THE FOLLOWING:
2025:KER:68446
CRP(WAKF) NO. 28 OF 2022
5
ORDER
[CRP(WAKF) Nos.28/2022, 29/2022] Amit Rawal, J.
1. This order shall dispose of two C.R.P(Wakf) bearing Nos.28 of 2022 and 29 of 2022 arising out of the common judgment and decree dated 07.03.2022 whereby suit bearing number O.S.No.303 of 2019 (first suit) titled as Abdul Salam v. Thazhava Muslim Jama-ath Masjid and Others preferred by the petitioner (in both petitions) has been dismissed and another suit O.S.No.323 of 2019 (second suit) preferred by the respondents/defendants has been decreed in part, declaring a document bearing No.3312/1999 dated 08.10.1999 Exts.A2/B2 to be invalid in law with a further declaration that the first defendant in the second suit who is the plaintiff in the first suit has no right over the Wakf property whereas the other reliefs for declaration and injunction have been declined.
2. Succinctly the facts in brief for adjudication of the controversy are given under:
2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 6 Petitioner, who is the plaintiff in the first suit claimed declaration that the plaint A schedule property measuring 24 sq. metres is not Wakf but consists of the 'Kabar' (graves) of his parents and brother. 1st defendant is the Thazhava Muslim Jama-ath Masjid represented by president Sri.Shamsudheen, and consequential prayer of injunction restraining the defendants therein from causing obstruction or interference in respect of plant A schedule property. Pleading was based on facts that the Petitioner - plaintiff is the member of 1st defendant - Jama-ath, registered with the Kerala state Wakf Board and defendant Nos.2 and 3 are the office bearers of the Jama-ath. Thazhava Muslim Jama-ath having a Darul Aman Mosque, Darul Salam Mosque about half kilometre away from Thazhahava, two Thaikavus and Khabarsthan in the compound of Darul Salam Mosque. Plaint A schedule property having an extent of 24 sq. metre, is the first item in the exchange deed executed on 08.10.1999 between the plaintiff and the Khatheeb Ahmed Koya Moulavi, son of 2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 7 Hassankunju Moulavi, in possession and enjoyment of the plaintiff whereas plaint B schedule property having the same extent of 24 sq. metre, is item No.2 in the exchange deed executed in favour of Darul Aman Mosque in the name of Ahmed Koya Moulavi, son of Hassankunju Moulavi, given in exchange of item No.1. plaint C schedule property having an extent of 5 cents belonging to the plaintiff was given as Wakf to Darul Aman Mosque, in the name of Ahmed Koya Moulavi as per the document dated 03.11.1994. Though no mutation was effected, the property stood in the name of plaintiff. On the eastern side of the Darul Aman mosque, 12 cents of the property was also dedicated as Wakf by the family of the plaintiff - petitioner and the remaining property is being used for the activities of the trust in the name of plaintiff's father, who died on 13.06.1999. His body was buried in the said property adjacent to the Mosque property and there are two other graves which were prepared by his father spending considerable amount. One grave was meant for his father and the other for his mother 2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 8 and another one was meant for the person who died first in the family. Mother died in the year 2006 and her body was also buried in the second grave. Thereafter, his brother Sadhudheen Moulavi also died and buried in the third Khabar. All the graves are having six (6) feet height from the ground level and situated in the plaint A schedule property. Realising the fact that plaint A schedule property was included in the Wakf in the year 1994, the exchange deed in 1994 was executed and B schedule property was given in exchange of A schedule property to the Jama-ath. However, later on the defendants attempted to close the way to the graves by installing a 'Kanikka Vanchi' in order to collect money from the public and initiated steps to conduct Urus Nercha. In fact, the Wakif in 1994 did not have any intention to give plaint A schedule property to the Darul Aman Mosque.
3. Defendant Nos.1 to 3 in the first suit contested by raising plea of maintainability and also disputed the possession and enjoyment of the plaint A 2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 9 schedule property as alleged by the plaintiff much less exchange deed of plaint A schedule property for plaint B schedule property. Simultaneously also filed second suit No.323 of 2019 whereby the exchange deed was challenged and claimed consequent relief of injunction.
4. The factum of three graves in the Wakf property was not denied much less the Wakf deed by the Wakifs vide document bearing No.3343/94 was also admitted and alleged that the plaintiff in the family had no specific right in Khabarsthan in plaint A schedule property. Defendant No.4 - Chief Executive Officer of the Wakf Board also filed a written statement and admitted the fact of registration of the Jama-ath and its properties with the Board as 3607/RA by pointing out that the alienation of the Wakf property by way of exchange was without sanction of the Board and denied that plaintiff had any right over the plaint A schedule property and prayed for dismissal of the suit. On the basis of variance in the pleadings, learned Tribunal in the first suit framed the following issues:
2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 10
1) Whether the plaint schedule property is not a waqf property ?
2) Whether the plaintiff has title to the plaint schedule property ?
3) Whether the plaintiff is entitled to a decree for prohibitory injunction sought for ?
4) Reliefs and costs ?
5. In the second suit filed by the defendants in O.S.No.323 of 2019 as plaintiffs, a declaration qua document No.3312/99 exchange deed pertaining to the B schedule property was sought alleging it to be void ab initio with a further declaration that the plaintiff in the first suit and defendant No.1 in the second suit did not have any right over the plaint B schedule property which also form the part of the A schedule property and sought restraint against him and his men from causing any obstruction on the premise that it is a Jama-ath registered with the Wakf Board having a bye-law whereas plaintiff Nos.2 and 3 are the Mutawallis of the Jama-ath. Plaint A schedule property was given as 2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 11 Wakf by virtue of document No.3343/94 by the plaintiff in the first suit and defendant No.1 in the second suit in favour of Jama-ath and second defendant at that time was Imam of the Darul Aman Mosque. It is in that background, document was executed in favour of defendant No.2 in the second suit on behalf of the plaintiff - Jama ath. Both defendant Nos.1 and 2 in the second suit colluded and executed exchange deed dated 08.10.1999 registered as 3312/99 which was a fraudulent act and void whereas the father of defendant No.1 in second suit was a respectable person and scholar and as per his will, his dead body was buried in plaint A schedule property much less his wife as well as of his younger son's body. But the plaintiff in the first suit and defendant No.1 in the second suit did not have any right to take or collect any income from the plaint A schedule property. The Wakif who was arrayed as a defendant No.2 in second suit remained ex parte and the Wakf Board did not file any written statement. Plaintiff in the first suit and defendant No.1 in second suit contested the suit by taking 2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 12 the same plea as taken in the first plaint and on the basis of the variance in the pleadings, Tribunal in civil suit No.323 of 2019 framed following issues:
1) Whether the document No.3312/1999 S.R.O., Ochira is invalid in law ?
2) Whether the 1st defendant has any right over the plaint schedule property ?
3) Whether the plaintiffs are entitled to a decree for declaration sought for ?
4) Whether the plaintiffs are entitled to a decree for prohibitory injunction sought for ?
5) Reliefs and costs ?
6. Both the parties in support of their respective claims besides examining the oral evidence also placed on record the following exhibits:
Plaintiff's Witness PW1 25.02.2020 : Abdul Salam, S/o.Muhammed Kunju PW2 07.12.2020 : Ragu, S/o. Kumaran PW3 07.12.2020 : Yousuf Kunju, S/o.Bava Kunju Plaintiff's Exhibits :
2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 13 A1 ................... : Bylaw approved in the year 2002 A2 08.10.199 : Document No.3312/99 of S.R.O. Ochira A3 21.01.2014 : Tax receipt A4 03.12.1994 : Document No.3343/94 of S.R.O. Ochira A5 11.12.2019 : Reply obtained from electrical section Manappally under R1 Act.
A6 20.07.2009 &: Letters from Secretary Thazhava
19.09.2004 Muslim Jama-ath (2 numbers)
A7 ................... : Notice
A8 23.08.2018 : Copy of complaint filed before
Assistant Commissioner of Police
Karunagappally
A9 24.03.2018 : Sketch and connected documents
obtained from Village Officer.
Defendant's witness :
DW1 25.08.2021 : Shihabudheen, S/o.Salim
Defendant's Exhibits :
B1 03.11.1994 : Documents No.3343/1994 of S.R.O.
Ochira
B2 08.10.1999 : Documents No.3312/1999 of S.R.O.
Ochira
Court Exhibits :
C1 22.10.2018 : Mahasar report regarding schedule A
by Advocate commissioner
C1(a) 22.10.2018 : Mahasar report regarding Khabar stan
2025:KER:68446
CRP(WAKF) NO. 28 OF 2022
14
C1(b) 22.10.2018 : Mahasar report regarding south gate
C1(c) 22.10.2018 : Mahasar report regarding West gate
C1(d) 22.10.2018 : Mahasar report regarding Vanchi
C1(e) 22.10.2018 : Mahasar report
7. Learned Tribunal did not agree with the contention of the plaintiff in first suit ie., petitioner in both the revision petitions, though noticed that the dead bodies of the father, mother and brother have been buried in the plaint A schedule property and Mkhbara consist of 24 sq. metre (Re.Sy. No.493/3 and Old Sy.No.7655) which was given by the Wakif after the execution of the Wakf deed in 1994 in exchange of other parcel of land to compensate the Jama-ath and possession of the property did not remain with the plaintiff, therefore, the execution of the exchange deed by the Wakif, without the consent of the Jama-ath, was illegal and declared it as void ab initio. Other factor which weighed in the mind of the Tribunal was the report of the commissioner which reflected that there are graves in the plaint A schedule property much less existence of a 2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 15 passage/way to the plaint A schedule property but the property in item No.1 (plaint schedule property) was never intended to be retained in possession, the suit filed by the respondent qua declaration holding the document i.e., exchange deed 3312/99 partly decreed to be null and void.
It is in that background, two revision petitions, as noticed above, have been filed.
8. Sri.T.H.Abdul Azees, learned counsel appearing on behalf of the petitioner in both petitions - plaintiff in the first suit and defendant No.1 in second suit - raised following submissions:
I. No doubt plaint A schedule property and graves in the said property is included in the Wakf deed 1994. It was a mistake by the Wakif at the relevant point of time and after realising the fact, an exchange deed was executed whereas A schedule property was kept absolutely in the possession of the plaintiff in the first suit and no other person had any right over the possession in the absence of any mutation in favour of 2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 16 the beneficiary. In exchange an exact extent of property has been given as B schedule property. There is a way on the eastern side of the Arabic College situated in the petitioner - plaintiff in the first suit whereas the defendant/plaintiff (in the second suit) tried to close the said passage in order to obstruct the entry to the Khabars of the father, mother and brother.
II. In fact, the Wakif had no intention to give plaint A schedule property to the mosque but mistakenly included in the Wakf deed of 1994. It is in that background, a declaration was sought claiming that plaint A schedule property of 24 sq. metres given in exchange by the Wakif belonged to the plaintiff (in the first suit) and not a part of Wakf property. III. Learned Tribunal ought to have found that there was no prohibition in exchanging A schedule property which did not vest in the Jama-ath as the Wakif had no intention to dedicate the portion of the property 2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 17 where the graves of the family are situated. Exchange is also permissible in 1999 as prohibition was introduced in the amendment Act of 27 in 2013. IV. While creating a valid dedication, there must be a divestment of ownership i.e., the actual delivery of possession whereas the possession remained with the plaintiff as, no mutation, of property mentioned in the Wakf deed by the Wakif, was executed, in favour of the beneficiaries.
V. Plaintiffs in the second suit and defendants in the first suit have not been able to place on record any material with regard to the averments in a particular paragraph of suit alleging fraud and misrepresentation as the provision of Order VI Rule 4 of the Code of Civil Procedure have not been complied in stricto sensu for the reason that mere assertion in the pleadings cannot prove the same in the absence of any cogent evidence. In other words, no evidence has been placed on record in support of the pleadings much less 2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 18 the ingredients of fraud are conspicuously wanting and in support of the aforementioned, relied upon the following case laws; Sukhdei (Smt) (dead) by LRS v. Bairo (dead) and Others [(1999) 4 SCC 262] and Chandro Devi and Others v. Union of India and Others [(2017) 9 SCC 469] VI. Plaintiffs in the second suit and defendants in the first suit have failed to place on record any material that the Wakif who executed Wakf in 1994 had no authority to execute the exchange property as no loss had been caused to the Jama-ath, for, have been compensated by exchange of an area measuring 24 sq. meters.
VII. Plaintiffs in the second suit have miserably failed to examine the witnesses of exchange deed to show that it was fraudulent and the execution of the document was based upon the collusion between the defendant Nos.1 and 2 in the second suit.
9. On the other hand, learned counsel 2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 19 appearing on behalf of the respondents in both CRPs supported the findings and submitted that Mosque was having 12 cents of property on the eastern side of the above said property which was transferred by the family members of the plaintiff in the first suit. But failed to prove on record the possession of the property particularly 24 sq. metre of which subsequently exchanged and cannot be permitted to take claim possession in the absence of mutation as it does not confer any title. Khatheeb had no authority to execute the exchange deed from the property received by Wakf in 1994 in lieu of another parcel of land.
10. Absence of Ahmed Koya Moulavi -
defendant No.2 in the second suit is a testimony of apparent fraud and collusion. Therefore, the strict provisions of Order VI Rule 4 cannot be taken into consideration. Even the Wakf Board was also not intimated regarding the said exchange. Defendant No.2 in the second suit executed the exchange deed without the knowledge and consent of the defendants in the first suit and plaintiffs in the second suit. Such 2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 20 circumstances, impelled the defendants in the first suit to file Civil Suit No.323 of 2019 (second suit) for declaration of the exchange deed bearing No.3312/99 to be not legally sustainable and void ab initio. Payment of tax would not prove that the executor of the Wakf retained possession. Even if the commissioner had inspected the property and found that there was grave, that does not show the possession of the plaintiff remained in tact even after having executed the Wakf property in the year 1994 comprised in Sy.No.493/3. The property was already divested with the Wakf and therefore, in the absence of any condition in the Wakf, exchange was nullity in the eyes of law. Plaintiff in the first suit and defendant No.1 in the second suit did not have any title over the plaint A and B schedule property being Wakf property. If the law before the amendment did not permit the exchange of property without the permission of the Wakf Board, all transaction of such nature would be void and prayed for dismissal of the revision petitions.
11. We have heard the learned counsel for the 2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 21 parties and appraised the paper books.
12. Order VI Rule 4 of Code of Civil Procedure leaves no manner of doubt that whenever a party asserts fraud and misrepresentation, has to give the details of each and every act and lead evidence in support of the same. It is a matter of record that the exchange deed is of 1999 executed by the defendant No.2 in the second suit, the then Khatheeb, was witnessed by the witnesses. However, the plaintiffs in the second suit and defendants in the first suit miserably failed to prove the ingredient without examining the witnesses. Moreover, no other witnesses has been examined or any oral evidence or documentary evidence has been placed on record to establish that the Khatheeb did not have any power to execute the exchange deed in the year 1999 like resolution or authorisation, much less even an iota of evidence that Khatheeb was not having charge at the relevant point of time. These are the basic ingredients for seeking a declaration qua an exchange deed. The Tribunal in our considered view failed to appreciate that when 12 cents 2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 22 of land and subsequently 5 cents of land had been dedicated to the Jama-ath through Khatheeb, but inadvertently the grave of his father, mother and brother was also included in the same and in order to protect the sentiments and emotions compensated the Wakf by giving another parcel of land and took in exchange only 24 sq. metres of land. This could not be an issue of dispute as there is no short fall of any portion of the land. It is true that vide amendment in the Act in 2013 vide Act No.27, the property of the Wakf cannot be alienated in any manner much less in exchange would be a void document, however, prior to amendment was treated to be voidable. It is totally incomprehensible how and in what manner the defendants in the first suit and plaintiffs in the second suit were aggrieved of the exchange deed in the absence of any short fall of land. Non intimation to the Wakf Board of the said exchange cannot be fatal keeping in view the peculiar facts and circumstances of the case. We cannot remain oblivious of the fact that the entire land i.e., 12 cents and 5 cents and thereafter, exchange of 2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 23 24 sq. metre did not belong to the respondents herein but to the dedicator.
13. The law with regard to proving of the ingredients, giving the details of each and every acts of the fraud and misrepresentation is not only required to be pleaded but has to be proved in accordance with law. However, defendants in the first suit and plaintiffs in the second suit miserably failed to discharge the onus by not complying with the provision of Order VI Rule 4. For the sake of brevity paragraph No.11 of the plaint reads as under: (English translation) The matters described in paras 2 to 5 of the plaint are incorrect, and the documents described in the said plaint, which were created by the 1st defendant, are correct. It is incorrect to state that the 1st defendant, in collusion with the 2nd defendant, fraudulently created the document and concealed this information from the plaintiffs. The statement that the document created by the 1st and 2nd defendants is not valid, and that it is a fraudulent transaction, is also incorrect. There was no need to seek the knowledge or consent of the plaintiffs to create the said document. The plaintiffs' request to declare document number 3312/99 as void ab initio is not worthy of consideration. The statements in para 4 2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 24 of the plaint are incorrect and are also based on the desire and wish of the 1st defendant's father. The 1st defendant created the said documents. Para 5 of the plaint is incorrect. There was a path to enter the A schedule property, but the plaintiffs obstructed and closed it using fraudulent means. The plaintiffs created the obstruction and carried out fraudulent activities as part of their efforts to generate illegal income. Therefore, the plaintiffs are not entitled to any of the declarations they have requested in the plaint. The matters stated in the plaint submitted by the 1st defendant should also be considered as part of the plaintiffs' dispute in this case, and the plaint should be dismissed. The plaintiffs are not entitled to any permanent injunction order in their favor."
14. In support of the aforementioned findings, we rely paragraph No.8 of the judgment cited at the instance of the petitioner in Sukhdei (supra) as well as paragraph Nos.6 and 7 of the Chandro Devi and Others (supra).
Paragraph No.8 Sukhdei (supra) We have heard the learned counsel for the parties and perused the record. We are unable to agree with the findings and conclusions arrived at by the High Court. We are of the opinion that the High Court was wrong in coming to the conclusion that the pleading as to fraud was either not in conformity with Order VI Rule 4 of C.P.C. or 2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 25 was insufficient so as to reject the plea of the defendants. We have deliberately extracted the amended plea of the defendants regarding fraud. It is clearly stated in the amended written statement that Kirayanama dated 8th April, 1958 was not voluntarily executed by Smt.Parago and that fraud has been practised upon her regarding the execution of the Kirayanama. It is contended that the plaintiff being a shrewd lawyer and money lender agreed to advance the loan desired by Smt. Parago against hypothecation of the house which is of a value of not less than Rs.10,000/- and Smt. Parago being a simple and honest woman with no clever wits and proper understanding believed the words of the plaintiff that the document in question was being executed as a security for a loan of Rs.1500/- and got the same executed. It is specifically alleged that Smt.Parago executed the document of 8th April, 1958 as a document of mortgage because she was told so and she understood it to be so and she did not sign the document as a sale deed and that the plaintiff fraudulently and by a deceitful device to dupe the said Parago got a sale-deed executed. It is also stated that Parago did not consciously and voluntarily with full understanding and independent advice executed any sale deed and that the document of 8th April,1958 is tainted with fraud and is illegal and inoperative. There can be no quarrel in regard to the requirement of law as found in Order VI Rule 4 which merely requires that if fraud is being pleaded, the particulars necessary for establishing the fraud should be stated in the pleadings. In our opinion, the pleading, as extracted above, comes within the requirement of Order VI Rule 4 and there is no shortfall in the said pleading as held by the High Court.
2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 26 Paragraph Nos.6 and 7 Chandro Devi and Others (supra)
7. The main argument raised on behalf of the appellant by Shri Rajeev Dhavan, learned senior counsel appearing for the appellant is that the judgments of both the learned Single Judge as well as the Division Bench are based on a letter dated 4th September, 2008. On the top of this letter the words 'DGL' in capital letters are typed and, according to the appellant, this means 'Draft Government Letter'. It is urged that this letter, which was only a draft letter, was held out to be the guidelines of the Government and based on this letter the learned Single Judge as well as the Division Bench dismissed the writ petitions. According to the appellant, this was a fraud committed by the Union of India upon the court and since this is a fraud, the whole action based on this fraud is vitiated. There can be no dispute with the proposition that if there is fraud, which leads to passing of a judgment, then fraud vitiates all actions taken consequent to such fraud and this would mean that the judgment would be set aside. However, before setting aside the judgment, we must come to the conclusion that the action was fraudulent. Every wrong action is not a fraudulent action. Assuming that the letter dated 4th September, 2008 was only a draft letter, it does not mean that this letter was fraudulently introduced by the Union of India. In the letter placed before the court the word 'DGL' find mention. It may be true that the counsel for the Union of India did not inform the court that the words 'DGL' stood for 'Draft Government Letter', but, it is equally true that even the counsel for the appellant did not make any efforts to find out what the 2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 27 words 'DGL' stood for. Even the Court did not look into this aspect.Fraud has to be pleaded and proved. Mere allegations of fraud made for the first time in this Court are not sufficient. We are not, in any manner, approving the action of the Union of India in putting forth this letter before the Court. However, it cannot be said that this improper act is a fraudulent action on the part of the Union of India. The learned Single Judge as well as the Division Bench did place reliance on this letter and since this letter is now said to be a draft government letter only, we may ignore it for the purposes of deciding this case. Even if we were to ignore this letter, the appellant cannot benefit. We may point out that clause 17 of the Standard Operating Procedure (for short 'SOP') dated 10th August, 2001, which even as per the appellant was applicable, reads as follows :
"17. Renewal of licence deed: Renewal of licence deed will be done on the recommendation of residential associations, which will be obtained three months in advance from the date of expiry of licence deed by DDA & QMG, Station. HQ Delhi Cantt. If the recommendations are in favour of allottee, then the Station Commander may renew the licence deed for the subsequent year. However, the licence deed may be terminated at any time by the Station Commander at his discretion."
For the reason aforementioned, the judgment of the Tribunal is not sustainable and is hereby set aside. Suit 2025:KER:68446 CRP(WAKF) NO. 28 OF 2022 28 bearing No.303 of 2019 (first suit) is decreed and injunction is granted declaring the plaintiff in first suit as the owner of 24 sq. metres mentioned in plaint A schedule property. Respondents are restrained from causing obstruction and interference for peaceful enjoyment of land mentioned therein. Resultantly, second suit, No.323 of 2019 seeking declaration of exchange deed of 1999 is hereby dismissed. Decree sheet is ordered to be prepared. Revision petitions stand allowed.
Sd/-
AMIT RAWAL, JUDGE Sd/-
P. V. BALAKRISHNAN, JUDGE nak