Kerala High Court
Sv.P.Muthu Koya vs S.V.Pookaya Thangal on 17 December, 2009
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 698 of 1999(G)
1. SV.P.MUTHU KOYA
... Petitioner
Vs
1. S.V.POOKAYA THANGAL
... Respondent
For Petitioner :SRI.P.R.VENKETESH
For Respondent :SRI.P.G.PARAMESWARA PANICKER (SR.)
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :17/12/2009
O R D E R
THOMAS P. JOSEPH, J.
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S.A.No.698 of 1999
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Dated this the 17th day of December, 2009.
JUDGMENT
Androth is the largest among 36 Islands which together form the Union Territory of Lakshadweep known for its scenic beauty. It is surrounded by the Arabian Sea and situated about 250 to 400 k.m. west of Kochi. Most of the inhabitants of that Island belong to the Muslim community. Shaikinteveedu Tarwad (for short, "the Tarwad") is one of the ancient Tarwards of the Island which came into existence, as the evidence goes atleast 400 years before this litigation started. A saintly member of that Tarwad, Shaik Mohammed Khasim Valyulla established a Mosque in the property of the Tarwad in the Island of Androth. It is not disputed the Mosque, known as 'Ujra Palli' (for short, "the Mosque") acquired fame in and out of the Island. When strength of the Tarwad increased they divided into four thavazhies - Shaikinteveedu thavazhi, Shaikinteveedu Padippura thavazhi, Shaikinteveedu Puthiyapura thavazhi and Shaikinteveedu Cheriyapura thavazhi about 250 years back. The last two thavazhies - Shaikinteveedu Puthiyapura thavazhi and Shaikinteveedu Cheriyapura thavazhi got extinct, it is not disputed before me and its properties reverted to the two other thavazhies. Later, the remaining two thavazhies got divided into sub-thavazhies. The sub-thavazhies under Shaikinteveedu thavazhi are Nallakkoya Thangal thavazhi, Thangakkoya Thangal thavazhi and Shaik Koya thavazhi. The sub-thavazhies under Shaikinteveedu Padippura thavazhi SA No.698/1999 2 are Muthukkoya thavazhi, Pookkoya thavazhi and Koyamakkoya thavazhi. Shaik Koya thavazhi under Shaikinteveedu thavazhi also has become extinct. Plaintiff No.2 (he died pending proceeding) is a member of Nallakkoya Thangal sub-thavazhi. On his death, respondent Nos.5 to 7 are impleaded as legal representatives. Plaintiff No.4 and defendant No.1 are members of Thangakkoya Thangal sub-thavazhi. Defendant No.1 expired during the pendency of the Second Appeal. Plaintiffs filed a memo stating that defendant No.3 and some of the respondents represent the Sub-thavazhi of defendant No.1. Respondent No.3/defendant No.3 (who was originally plaintiff No.4 and later transposed as defendant No.3) filed objection to the memo stating that he alone is entitled to represent Thangakkoya Thangal sub-thavazhi of defendant No.1. Plaintiff Nos.1 and 5 are members of Muthukkoya sub-thavazhi. On the death of plaintiff No.1 on 22.8.2006 additional appellant No.7 was impleaded as legal representative. Plaintiff No.3 and defendant No.4 are members of Pookkoya sub-thavazhi. Plaintiff No.6 is a member of Koyamakoya sub- thavazhi. Defendant No.2 is the Wakf Board (for short, "the Board"). Defendant No.3 as I stated, is plaintiff No.4 who was transposed as defendant No.3 during the pendency of proceeding in the trial court. In short, plaintiffs and defendant Nos.1 and 3 (as on the date of suit) represented the existing Sub-thavazhies under Shaikinteveedu thavazhi and Shaikinteveedu Padippura thavazhi. Dispute is concerning right of the thavazhies for the spiritual and temporal administration of the Mosque. Plaintiff Nos.1 to 6 (plaintiff No.4 being later transposed as defendant No.3) alleged in the plaint that the Mosque is SA No.698/1999 3 registered under the Wakf Act (then in force) and entered in the Gazette as Sl.No.157. They claimed that plaintiff Nos.1 and 5 are Muthavallies of the Mosque at the time of institution of the suit. Further claim is that the Mosque belong to the Tarwad and was being managed by qualified persons of the Shaikinteveedu thavazhi and Shaikinteveedu Padippura thavazhi (since the other two thavazhies had become extinct). Ratib is a prayer performed in the Mosque, sitting on the Mehra (prayer rug) by the shaik on all Mondays and Fridays and on Id-ul Fitr and Id-ul Azha days. Defendant No.1 who belonged to Thangakkoya Thangal sub-Thavazhi relinquished all his rights in the Mosque to his sub-thavazhi and hence he has no right in the Mosque or to do any activity there. Defendant No.1 is trying to perform Ratib and interfer with the right of the plaintiffs in the Mosque. They said that the Mosque and its administration belonged originally to the Tarwad and that right is now vested in the plaintiffs and other members of the thavazhies excluding defendant No.1 (on account of the relinquishment above referred). Plaintiffs prayed for injunction against defendant No.1 and his men performing Ratib in the Mosque and interfering with the plaintiffs performing Ratib. Later, plaint was amended to incorporate a plea that plaintiffs are Muthavallies of the Mosque and that the said Mosque belonged to the Tarwad of the plaintiffs and defendant No.1. Matters of the Mosque are being looked after by qualified persons belonging to the existing two thavazhies, Shaikinteveedu thavazhi and Shaikinteveedu Padippura thavazhi. In the amended plaint it is also stated that qualified members of those two thavazhies are performing Ratib in the Mosque as per the terms and conditions prescribed SA No.698/1999 4 by them. A prayer for declaration was also incorporated by amendment in the plaint to the effect that the Mosque belonged to the Tarwad, right of management and all other matters are with the plaintiffs, it was so being done by the members of the Shaikinteveedu Tarwad including the plaintiffs, it is required to be done so by the members of the family of the plaintiffs and that defendant No.1 has no right to do so (on account of the relinquishment). Defendant No.1 in answer to the plaint averments as it originally stood denied that he has relinquished right over the Mosque. He also denied that the matters of the Mosque are being looked after by the plaintiffs as pleaded in the plaint. He claimed that he is the seniormost member of the Tarwad and Shaikinteveedu thavazhi under it (he comes under Thangakkoya Thangal sub-thavazhi under Shaikinteveedu thavazhi under the Tarwad) and hence is entitled to conduct the spiritual and temporal administration of the Mosque and perform Ratib. Answering the amended plaint, defendant No.1 contended that it is incorrect to say that matters of the Mosque are being looked after by the thavazhies represented by the plaintiffs.
2. In the course of the proceeding in the trial court plaintiff Nos.1 to 3,5 and 6 filed I.A.No.10 of 1990 on 5.5.1990 requesting to transpose plaintiff No.4 as defendant No.3. In the affidavit in support of the application plaintiff Nos. 1 to 3, 5 and 6 stated that though plaintiff No.4 also is a signatory in the plaint he has been won over by defendant No.1 (plaintiff No.4 and defendant No.1 belonged to Thangakkoya thangal sub-thavazhi) and under the influence SA No.698/1999 5 and instigation of defendant No.1, plaintiff No.4 is not co-operating with the other plaintiffs in the conduct of the case, instead, he is moving with defendant No.1 and has even refused to sign the vakalath along with other plaintiffs. In that situation if plaintiff No.4 continued to be as such it would cause irreparable injury to other plaintiffs and hence they requested that plaintiff No.4 be transposed as defendant No.3. Notice of that application was given to plaintiff No.4 also but he did not respond. Defendant No.1 opposed the application. Hence learned Munsiff allowed I.A.No.10 of 1990 on 10.9.1990 and plaintiff No.4 was transposed as defendant No.3. Plaintiff No.4, transposed as defendant No.3 did not file written statement, but remained absent and was set exparte. Defendant No.1 contested the suit. It came out that defendant No.1 who is the seniormost member of the two existing thavazhies was acting as Muthavalli and Shaik who performs Ratib in the Mosque. Learned Munsiff as per judgment dated 31.12.1992 held that the case of plaintiffs that defendant No.1 relinquished his right over the Mosque as per Ext.A2, partition deed is not acceptable since when the Mosque is dedicated to the Wakf, it amounts to dedication to Allah and hence question of defendant No.1 relinquishing his right over the Mosque which has been dedicated to Allah did not arise. Learned Munsiff found that defendant No.1 is entitled to take part in the matters of the Mosque in his capacity as a member of Thangakkoya Thangal sub-thavazhi which is one of the sub-thavazhies under Shaikinteveedu thavazhi and he cannot be injuncted from doing so. Learned Munsiff however declared that right of management and income from the suit property (the Mosque) belongs to the members of the SA No.698/1999 6 different thavazhies of the Tarwad (I stated that of the four thavazhies, two thavazhies ie., Shaikinteveedu puthiyapura thavazhi and Shaikinteveedu cheriyapura thavazhi had become extinct), of plaintiffs and defendant Nos.1 and 3 (the latter being plaintiff No.4 transposed as defendantNo.3) and that the right to hold the office of Shaik in the Mosque belongs to the qualified members of the Tarwad. Defendant No.1, aggrieved by the declaration preferred an appeal. Learned Sub Judge took the view that relief granted by the learned Munsiff is something not asked for by the plaintiffs, plaintiffs proceeded on the basis that they alone (individually) are entitled to administer the affairs of the Mosque, be it spiritual and temporal, laid the suit accordingly, learned Munsiff found that plaintiffs alone are not entitled to do so and hence in that situation learned Munsiff went wrong in granting a declaration that all the members of the thavazhies of plaintiffs and defendant Nos.1 and 3 are entitled to exercise right over the Mosque. That according to learned Sub Judge was beyond the scope of the suit. Holding so the appeal was allowed and the suit was dismissed. That is under challenge at the instance of plaintiffs. Following substantial questions of law are framed for a decision:
i. Where a Mosque is established by a marumakkathayam Tarwad, will not all the qualified members of the thavazhies constituting the Tarwad be entitled to participate in the conduct of the prayers in the Mosque as also share the income derived therefrom?
ii. Where the plaint schedule Mosque is admitted to be established by SA No.698/1999 7 the Tarwad and in the light of Ext.A1, settlement deed between members of the thavazhies (as it then existed) constituting the Tarwad can there be a conferment of an exclusive right on one person viz., defendant No.1 to the exclusion of other members of the Tarwad with regard to the conduct of Ratib and management of the affairs of the Mosque?
It is contended by learned Senior Advocate, Shri M.C.Sen for the plaintiffs that first appellate court was under a mis-impression that the trial court granted relief which was not asked for. First appellate court failed to take note of the amendment carried out in the plaint and the declaration prayed for by way of amendment. Learned Senior Advocate contended that a reading of the plaint with the relief sought by amendment would eloquently show that it is not a case of the plaintiffs trying to establish any individual right for themselves over the Mosque but, they were only enforcing the right of the existing two thavazhies under the Tarwad of which plaintiffs and defendant Nos.1 and 3 are members. According to the learned Senior Advocate, injunction was sought against defendant No.1 not in his capacity as representing the Thangakkoya thangal sub-thavazhi to which he belonged but personally against him on account of relinquishment of his right as per Ext.A2. Relief sought against defendant No.1 did not mean that plaintiffs were denying right of Sub-thavazhi to which defendant No.1 belonged. It is also contended by the learned Senior Advocate that so far as prayer for injunction is concerned, that has become infructuous on account of death of defendant No.1 during the pendency of Second Appeal and hence what remained is only the prayer for declaration. It is contended that SA No.698/1999 8 first appellate court was not justified in holding that learned Munsiff has granted a relief which is not asked for and at any rate, it was within the power of the court to mould relief taking into account relevant facts and circumstances so far as it did not result in any prejudice to defendant No.1. So far as the present stand of defendant No.3 (originally, plaintiff No.4) is concerned, though he has been transposed as defendant No.3 as per order on I.A.No.10 of 1990 he has not opted to contest the suit against the plaintiffs and instead, remained exparte. He did not challenge the decree passed by the learned Munsiff. In that situation, defendant No.3 cannot now be heard to say that averments in the plaint are not correct. Learned Senior Advocate prayed that the decree granted by the trial court be restored. Shri Shyam Padman, learned counsel for defendant No.3 (originally plaintiff No.4) contended that the suit is not maintainable in view of the bar under Section 85 of the Wakf Act, 1995 (for short, "the Act") the civil court having no jurisdiction to entertain a challenge to the performance of Ratib in the Mosque, these issues are required to be decided by the Board and the Tribunal constituted under the Act and hence the suit is liable to be dismissed as not maintainable. It is contended by learned counsel that though defendant No.3 did not file written statement consequent to his transposition as such, he is entitled to contest the appeal in his capacity as legal representative of deceased defendant No.1 as he belongs to the Thangakkoya Thangal sub- thavazhi. At any rate, defendant No.3 has filed written statement in the Second Appeal with I.A.No.2778 of 2009 to accept the same. Learned counsel requested that the application may be allowed and the written statement be SA No.698/1999 9 accepted. It is also the contention of learned counsel that plaint proceeded on the basis that plaintiffs (plaintiff No.4 was later transposed as defendant No.3) alone are entitled to deal with the affairs of the Mosque which has been found to be incorrect by the learned Munsiff and hence the consequence should have been a dismissal of the suit. According to learned counsel, spiritual and temporal administration of the Mosque is vested only with Thangakkoya Thangal sub-thavazhi of which defendant No.3 is a member, it is the seniormost members of that sub-thavazhi who were functioning as Muthavalli and Shaik performing Ratib in the Mosque. But, since the plaint proceeded on the assumption that plaintiffs alone are entitled to perform the said obligation there was no occasion for defendant No.1 or after transposition for defendant No.3 to contend that the thavazhi of himself and defendant No.1 alone had the right to perform such administrative and religious functions. In that situation learned Munsiff was not justified in granting a declaration which was not prayed for or was not in issue in the suit and that prejudiced the defence of defendant Nos.1 and 3. Learned counsel contended that in the above circumstances first appellate court is justified in interfering with the judgment and decree of the learned Munsiff and non-suiting the plaintiffs.
3. I have to consider the argument related to the transposition of defendant No.3 as such from his original position as plaintiff No.4. I referred to the averments in I.A.No.10 of 1990 whereby plaintiff Nos.1 to 3 wanted plaintiff No.4 to be transposed as defendant No.3 and as per which the order transposing plaintiff No.4 as defendant No.3 was passed. Rule 1A of Order 23 SA No.698/1999 10 of the Code of Civil Procedure (for short, "the Code") brought in by the Amendment Act (104 of 1976) provides for transposition of a defendant as a plaintiff when a suit is withdrawn or abandoned by the plaintiff and the defendant applies to be transposed as a plaintiff under Rule 10 of Order 1 of that Code. In such circumstances having due regard to the question whether applicant has a substantial question to be decided "as against any other defendant", the court may order transposition of a defendant as a plaintiff. This Court in Dr.Suresh Babu v. Dr. T.K. Chandrasekharan and others (2009 (4) KHC 638) dealing with that power of court has stated that in such circumstances question to be considered is whether the defendant who seeks transposition as a plaintiff has a substantial question to be determined as against the remaining defendants in the suit and that if the defendant establishes the same, transposition has to be allowed. The question arose whether in the absence of an enabling statutory provision court could order a plaintiff to be transposed as a defendant. In Narayanan v. Manjadimoodu Coir Co-op. Society (1985 KLT 893), this Court referring to the provisions of Rules 1 and 2 of Order 1 of the Code held that question of transposing a plaintiff as a defendant does not arise as it is impermissible. Learned Judge took the view that the Code only permits transposition of a defendant as a plaintiff and that too, under certain circumstances. That was a case where plaintiffs alleged that one among them changed sides. This Court held that in such a situation the court was bound to order separate trial even though, what plaintiffs requested for was SA No.698/1999 11 a transposition of the plaintiff who sailed with the defendants. A Division Bench of this Court in Janadas v. Vedanayagam (2004 (3) KLT 425) held that even de hors provisions of Order 23 Rule 1 A of the Code a court is not powerless, which has the inherent power as well and under Order 1 Rule 10 of the Code to transpose a plaintiff as a defendant in appropriate cases. That was a case where plaintiffs sued for partition and separate possession of their share of the family properties jointly. In the course of the suit it appeared that one of the plaintiffs was not co-operating with the other plaintiffs. Other plaintiffs wanted the non-co-operating plaintiff to be transposed as a defendant so that his share could be allotted to him separately. Division Bench held that the power for transposition of even a plaintiff as a defendant, even in the absence of a provision like Order 23 Rule 1A of the Code is available to the court. In the concluding paragraph of the judgment it was observed, "In the above view of the matter, we are of the opinion that a plaintiff can be transposed as a defendant. The next question is that so far as this suit is concerned, whether it is possible. The Court below declined to grant the relief on the ground that it was only to overcome the objection with respect to valuation.
According to us, this should not have been taken into consideration even if it is made in order to confine the case to the Munsiff Court. There is nothing wrong for the plaintiffs asking for it. Hence, we are of the view that the application ought to have been allowed."
(emphasis supplied) A reading of the decision would show that the Division Bench was upholding SA No.698/1999 12 the power of court to order transposition of a plaintiff as a defendant in appropriate cases depending on the facts and circumstances of the case. I am unable to understand from the decision that in any and every case unmindful of the facts involved a plaintiff could be transposed as a defendant. It has to depend on the facts and circumstances of the case. In the case before the Division Bench there was no dispute between the plaintiffs and the non-co- operating plaintiff so far as demand for partition was concerned but it is only that they did not want their share to be jointly allotted to them along with that of the non-co-operating plaintiff. Hence he was requested to be transposed as a defendant and the Division Bench allowed that. The question whether a plaintiff could be transposed as a defendant should depend largely on the facts of the case involved. In 'Legal Thesaurus, Deluxe Edition' by William C.Burton, the word 'transpose' is given the meaning "convert (change use), convey (transfer), displace (replace), move (alter position)". P.Ramanatha Aiyar in his 'Advanced Law Lexicon', 3rd Edition given the word the meaning "revive the order or change the place of". The expression 'transpose' as explained above only means changing from one side to another side and does not contemplate taking a stand opposite to the stand already taken. In re Mathews: Oates v. Mooney ((1905) 2 Ch.Div. 460) it was held that in case of difference between co-plaintiffs proper course is to make an order that the name of one of them should be struck out as plaintiff and added as a defendant. Hence when a co-plaintiff is not able to agree with the other plaintiffs so far as contentions raised are concerned, the proper course is not to transpose him as a defendant SA No.698/1999 13 but to strike out his name as plaintiff and add him as a defendant so that he could take up defences appropriate to his character as a defendant if necessary by explaining how he happened to be a signatory to the plaint.
4. As per the averments in the affidavit in support of I.A.No.10 of 1990 what I find is that plaintiff No.4 (transposed as defendant No.3) was not co- operating with other plaintiffs in the conduct of the case and he refused to sign vakkalath along with other plaintiffs at the instance or instigation of defendant No.1. I am not able to understand from I.A.No.10 of 1990 that according to the remaining plaintiffs, plaintiff No.4 (transposed as defendant No.3) disowned the averments in the plaint. Hence transposition of plaintiff No.4 as defendant No.3 cannot be said to be illegal. Plaintiff No.4 who was transposed as defendant No.3 could either elect to remain as a defendant supporting the other plaintiffs having verified and signed the plaint along with them or assume the character of a defendant by filing a written statement with the leave of the court and explaining the circumstances under which he happened to be a signatory in the plaint. That has not been done by defendant No.3. Instead, he elected to remain silent as against the plaint averments and was set exparte. Defendant No.3 continued in that state until the death of defendant No.1 during the pendency of this appeal. It is after the death of defendant No.1 that defendant No.3 broke his silence and raised a contention that the suit is not maintainable and that plaintiffs are not entitled to the reliefs prayed for. That in my view is not permissible. Defendant No.3 continues to be a signatory to the plaint. So far as he has not disowned it, he is bound by it even as a transposed defendant. SA No.698/1999 14 According to the learned counsel for defendant No.3, in his capacity as representing the sub-thavazhi to which defendant No.1 belonged defendant No.3 is entitled to contest the appeal. But defendant No.3 though represents the sub-thavazhi to which defendant No.1 also belonged, cannot for reasons stated above disown the averments in the plaint to which he is a signatory so far as plaintiffs do not set up a case against what they have pleaded in the plaint and affecting interests of the thavazhi defendant No.3 represents.
5. Learned counsel then requested that I.A.No.2778 of 2009 may be allowed and the written statement filed by defendant No.3 may be accepted. Application is opposed by plaintiffs and supporting respondents. According to them, at this belated stage such a request cannot be allowed. Learned Senior Advocate appearing for plaintiffs has placed reliance on the decision in Kodi Makku Naicker and another v. Agathiappa Goundar and others (AIR (36) 1949 Madras 622) to buttress his contention that at this stage defendant No.3 shall not be permitted to file a written statement. In the decision (supra) it has been held that on the failure of a defendant to file written statement on the day fixed by the court or before the date on which issues are framed, he has no right at all to file a written statement. The court may grant to such defendant by way of indulgence or if the court thinks that a written statement is necessary, permission to file a written statement. Having regard to the contentions attempted to be set up by defendant No.3 at this belated stage having remained silent at all relevant times and considering averments in the plaint and nature of contentions defendant No.1 has set up, I am not SA No.698/1999 15 persuaded to think that any indulgence could or need be shown to defendant No.3 to file written statement in the Second Appeal after about 19 years of his being transposed as a defendant and remaining mute on the issues. Hence I.A.No.2778 of 2009 will stand dismissed. I will refer to the arguments advanced by learned counsel, Shri Shyam Padman based on the contentions raised by defendant No.1.
6. Defendant No.1 has not pleaded that the suit is not maintainable on account of any provision in the Act in force on the date of institution of the suit. But the argument of learned counsel, Shri Shyam Padman concerns the jurisdiction of the court. Hence I shall consider the contention regarding maintainability of this appeal based on Section 85 of the Act. That provision barred jurisdiction of the Civil Courts with respect to any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under the Act to be determined by a Tribunal. The Act came into force on 01.01.1996. The suit was instituted on 02.06.1987 at a time when the Act of 1954 was in force. There is no dispute that as on the date of institution of the suit, no question of bar of suit arose in view of provisions of the Act then in force. Right and forum of appeal have to be decided as on the date of institution of the suit, in this case on 02.06.1987. As on that day an appeal to the first appellate court and Second appeal to this Court lay from the decree passed in the suit. None of the provisions of the Act in force at the relevant time took away that right of appeal or Second Appeal. Section 32 of the Act deals with power and function of the Board. Sub-section 2(g) deals with power of the Board "to SA No.698/1999 16 appoint and remove Muthavallies in accordance with the provisions of" the Act. Section 63 stated that it is only when a vacancy arose in the office of Muthavalli of a Wakf and there is none to be appointed under the terms of the deed of the Wakf or, where the right of any person "to act as Muthavalli" is disputed that the Board may appoint any person to "act as Muthavalli" for such period and on such conditions as it may think fit. From Section 63 of the Act it is clear that the Board has no power "to appoint a Muthavalli" permanently but can only appoint a person "to act as Muthavalli" for such period as referred to therein. Dealing with the jurisdiction of the civil court vis-a-vis the provisions of the Act this Court held in Adam Aboobacker Sait v. Kerala Wakf Board and others (1982 KLT 823) that under Section 42 of the old Act (corresponding to Section 63 of the Act) power of the Board is only to appoint a person to "act as Muthavalli" when a vacancy in the office of the Muthavalli arose. Same view was taken by a Division Bench in Kerala Wakf Board v. Alam Aboobaker Sait (1987 (1) KLT 313). A Division Bench of this Court has taken the view that Section 85 of the Act does not oust jurisdiction of the civil court to adjudicate on pending proceeding. (See Muhammed Sahib v.
Mohammed Ibrahim (2007 (2) KLT 56). The Supreme Court also has taken the same view in Sardar Khan and others v. Syed Najmul Hassan (seth) and others ((2007) 10 SCC 727). In Ali Haji v. Alima (1996 (2) KLT 997) though dealing with the bar of jurisdiction of the civil court SA No.698/1999 17 under the Family Courts Act it was held that a notification constituting a family court will not oust jurisdiction of the civil court and that civil courts have jurisdiction to entertain matters required to be dealt with by the Family Courts under the Family Courts Act till the notification nominating a Judge as Presiding Officer is published. There is no contention that on the date of presentation of the first appeal, any Judge had been notified to act as a Tribunal. There is also no provision in the Act which states that the pending proceedings, be it in the trial or appellate court have to be transferred to the Tribunal constituted under the Act. Appeal and Second Appeal are continuation of the original lis. Hence the contention that this Court has no jurisdiction to consider the Second Appeal has to fail.
7. Now I shall come to the crucial question involved in the case. Learned counsel for defendant No.3 contended that for appointment as Shaik (the spiritual head who is to perform Ratib sitting in the Mehra) certain qualifications are prescribed. Learned counsel invited my attention to the relevant passages in "A short Account of the Laccadive Islands and Minicoy" by T.H.Ellis, I.C.S., "Grand Masters of Sufism" (traslated by Shaykh Taner Ansari) and " Lakshadweep History, Religion and Society" by Theodore P.C. Gabriel. Attempt of learned counsel is to show that the 'Mosque' referred to in this case is not just like any other Mosque established elsewhere in the country, has its own tradition and the Shaikship has to go to the qualified persons as referred to in the texts above stated. The trial court only declared right of the thavazhies and that the right to hold office of Shaik belongs to the qualified members of the SA No.698/1999 18 Tarwad. Question involved is only whether that finding is correct and whether first appellate court is justified in non suiting the plaintiffs. It is unnecessary in the present proceeding to go into the questions as to who among the members of the thavazhies should be the Muthavalli or Shaik and what should be his qualifications as such questions do not come within the scope of the suit. I make it clear that I am not going into those matters in this appeal.
8. Though it is contended by learned counsel for defendant No.3 that plaint averments are to the effect that plaintiffs alone (persons named as plaintiffs in the plaint excluding plaintiff No.4 who has been transposed as defendant No.3) are entitled to administer the Mosque temporaly and spiritually and relief has also been sought accordingly and though learned counsel has taken me through the evidence given by PW1, I am afraid such an interpretation cannot be given to the averments in the plaint. It is seen from the plaint that plaintiffs came representing the existing two thavazhies under the Tarwad. It is also clear from the plaint averments and at any rate after amendment of the plaint that reliefs are sought for on behalf of members of the two thavazhies which were in existence then, ofcourse excluding defendant No.1. But that was on the specific allegation that by Ext.A2, defendant No.1 has relinquished 'his' right over the Mosque in favour of other members of the sub-thavazhi. In paragraph No.3-A of the plaint brought in by amendment it is stated that right to administer and perform religious rites in the Mosque is to the plaintiffs and to the sub-thavazhies which they are representing (which include the sub-thavazhi of defendant Nos.1 and 3) and the declaration prayed for is that the Mosque SA No.698/1999 19 belonged to the Tarwad (original Tarwad), right of management and all other matters are with the plaintiffs (ie. representing the two existing thavazhies), it was so done by the members of the Shaikinteveedu and that it is to be so done by the members of the 'family' of the plaintiffs. Learned counsel for defendant No.3 invited my attention to the meaning of the word 'family' ( ) given by Gundart. The word ' ' is defined as 'family, household'. From the above, attempt made by learned counsel is to show that when the plaintiffs stated that administration of the Mosque was being done by the members of the 'family of the plaintiffs' it only meant ' Nallakkoya Thangal sub-thavazhi'. But I am unable to appreciate that argument since at the time of amendment of the plaint defendant No.3 continued as plaintiff No.4, he belonged to the Thangakkoya Thangal sub-thavazhi which is one of the sub-thavazhi under the Shaikinteveedu thavazhi and he was transposed as defendant No.3 only later.
9. Whatever be the interpretation now attempted to be given by learned counsel for defendant No.3, defendant No.1 who filed written statement and additional written statement contesting the plaint averments has understood the plaint averments as indicating that plaintiffs are seeking reliefs not for themselves personally but on behalf of the two thavazhies represented by them (including defendant No.3 as plaintiff No.4). This is clear from his contentions in the written statement and additional written statement. (See paragraph Nos.3 and 5 of the written statement dated 20.8.1987 and paragraph No.3 of additional written statement dated 18.06.1989) Defendant No.1 contended that case of the plaintiffs (including defendant No.3 who then was plaintiff No.4) that SA No.698/1999 20 matters concerning the Mosque are being done by the members of the two thavazhies is not correct. Defendant No.1 has understood the plaint averments as meaning that relief is claimed by the plaintiffs representing the two thavazhies and not in their individual capacity. The above view of mine gets support from the judgment of learned Munsiff. Additional issue No.6 framed for a decision is whether the Mosque and properties were in the management of members of the common Tarwad or, it was managed by the sub-thavazhi of defendant No.1 alone. In paragraph Nos.19 to 22 of the judgment learned Munsiff has referred to the contention of plaintiffs that the right is claimed for the thavazhies represented by them.
10. So far as the relinquishment allegedly made by defendant No.1 as per Ext.A2 is concerned, trial court found against it. Plaintiffs have not challenged that part of the judgment of trial court. Moreover, that relief has become infructuous due to the death of defendant No.1 during the pendency of this appeal. Then the question is only whether the Mosque was being administered, spiritually and temporaly by the members of the Tarwad or, it vested with the thavazhi of defendant Nos.1 and 3 alone as learned counsel for defendant No.3 would now contend. Though defendant No.1 has a case that Thangakoya Thangal (of his thavazhi) who was the Shaik and Muthavalli entrusted the job to him at a time when the former was unable to perform the job due to old age sickness, he has no case that it was because that right vested in his thavazhi alone. There is no contention raised by defendant No.1 in his written statements that the right is vested with his thavazhi or the Thangakkoya SA No.698/1999 21 Thangal sub-thavazhi to which he belonged. True, common evidence shows that Muthavalli and Shaik of the Mosque was Attakkoya Thangal followed by Thangakkoya Thangal and then defendant No.1, all belonging to the Thangakkoya Thangal sub-thavazhi. It is true that at one point of time PW1 denied that defendant No.1 was the seniormost member of the Shaikinteveedu thavazhi (under which their sub-thavazhies came) during the time defendant No.1 acted as Muthavalli and Shaik but the evidence would show, as rightly found by the learned Munsiff that during the time Attakkoya Thangal, Thangakkoya Thangal and defendant No.1 acted as Muthavalli and Shaik they were seniormost members of the Tarwad. From the mere fact of those three persons coming from the same sub-thavazhi holding the post of Muthavalli and Shaik, in the above circumstances I am unable to hold that Muthavalliship or Shaikship vested with that sub-thavazhi (of defendant Nos.1 and 3).
11. As I have already stated the Mosque was established by a saintly member of the Tarwad, as the evidence goes more than 400 years back. Even as DW1 (defendant No.1) would admit the thavazhies came into existence only 250 years back. That means for about 150 years after establishment of the Mosque, its spiritual and temporal administration was carried on by the members of the Tarwad and not of the thavazhies. It is after 150 years of establishment of the Mosque that the thavazhies came into existence. It is not explained how and in what manner Muthavalliship and Shaikship were transferred from the Tarwad to the thavazhi or sub-thavazhi of defendant Nos.1 and 3 exclusively. In the absence of any such plea or evidence, reason SA No.698/1999 22 persuades me to hold that administration, spiritual and temporal was continued by the members of the thavazhies and sub-thavazhies as it was done by the members of the original Tarwad. Evidence let in by defendant No.1 is not sufficient to displace the above view. Evidence produced by defendant No.1 is that at a time when he was the Muthavalli, he had acted on behalf of the Mosque. Documents produced by defendant No.1 would show that during the time he performed either as a Muthavalli or Shaik, he had availed leave to go to various places to collect timber for repair and other works connected with the Mosque. He has been paying the electricity charges during the relevant time. On the side of plaintiffs, Exts.A1 is produced. That is a settlement deed dated 8.8.1933 signed by Attakkoya Thangal (karanavan of defendant No.1), Koya Thangal, Koya Kunhibi and Abdul Khader Koya. They represented the four thavazhies (as it then stood) and stated that dispute over performance of Ratib in the Mosque has been settled by them (representing the four thavazhies) and that Ratibb is to be performed in the manner stated in Ext.A1. Ext.A1 would show that Attakkoya Thangal who represented Shaikinteveedu thavazhi (thavazhi under which the sub-thavazhi of defendant Nos.1 and 3 comes) was to perform Ratib as was being done before, and in his absence it was to be performed by the nephew of Koya Thangal who represented Shaikinteveedu Puthiyapura thavazhi. Such other arrangements are also made in Ext.A1 for performance of Ratib. Ext.A8 is a consent letter dated 19.8.1933 from Attakkoya Thangal of Shaikinteveedu thavazhi and Koya Thangal of Shaikinteveedu Padippura thavazhi acknowledging Ext.A1, settlement regarding SA No.698/1999 23 performance of Ratib in the Mosque. They said that they have no objection in Attakkoya Thangal of Shaikinteveedu Puthiyapura thavazhi performing Ratib in the absence of Attakkoya Thangal of Shaikinteveedu thavazhi. Ext.A6 shows that the settlement as per Ext.A1 was accepted by the court of Amin and the petition pending in that court was closed on 8.8.1933.
12. So far as Ext.A1 is concerned, learned counsel for defendant No.3 would contend that it is only a temporary arrangement and that even Ext.A1 would show that the right to perform Ratib was not available to the thavazhi members but it was being done by Attakkoya Thangal of the sub-thavazhi of defendant Nos.1 and 3 and that other persons referred to in Ext.A1 were to perform Ratib only in the absence of Attakkoya Thangal. The word 'absence' referred to in Ext.A1 cannot be understood as mere temporary absence. Ext.A1 shows that the performance of Ratib in the Mosque was allowed to be performed by members of all the thavazhies. I am also not able to understand from Ext.A1 that it was only a temporary arrangement. It is pointed out by learned counsel for defendant No.3 from Ext.B13, proceedings of the Sub Divisional Magistrate the circumstances under which the dispute arose. That only indicated the dispute between the parties or the different sub-thavazhies and has no bearing on the decision of this case.
13. Ext.A3 is the survey notice dated 5.8.1970 issued to the Muthavallies of the Mosque belonging to the Shaikinteveedu thavazhi and Shaikinteveedu Padippura thavazhi (the other two thavazhies are not mentioned SA No.698/1999 24 in Ext.A3 since at that time it became extinct). Ext.A4 is the gazette dated 25.6.1968 under Section 5(2) of the Wakf Act, 1954 showing the list of Wakfs. In Sl.No.157, it is not disputed, reference is to the Mosque in question and states that it has seven (7) Muthavallies (four belonging to the Sahikinteveedu thavazhi and three belonging to the Shaikinteveedu Padippura thavazhi, the only two thavazhies which were existing then). Ext.A4 will not show that the Mosque belonged to the thavazhi or sub-thavazhi of defendant Nos.1 and 3 alone. Ext.A9 is a petition by one Aboosalakkoya of Shaikinteveedu thavazhi (under which the sub-thavazhi of defendant Nos.1 and 3 comes) presented before the Court of Amin. There, it is stated that office of Shaik is being filled up by the four heirs of the Tarwad. Complaint is that Pookkoya Thangal of Shaikinteveedu thavazhi without knowledge of others entrusted the office of Shaik (in Thangalthara) to his younger brother which according to the petitioner in Ext.A9 was not proper. Hence he prayed that office of Shaik in Thangalthara be occupied as in the case of the Mosque in question (Ujra Palli). True, Ext.A9 does not pertain to the Mosque in question. But, Ext.A9 indicates that office of Shaik in the Mosque in question was being occupied by the members of different thavazhies. Ext.A13 is a complaint dated 27.02.1987 before the Sub Divisional Magistrate to which defendant No.3 (original plaintiff No.4) is also a party. There, it is stated that the Mosque belonged to the original Tarwad and it is registered with the Wakf (as referred to in Ext.A4). It is stated in Ext.A13 that since defendant No.1 has by Ext.A2 relinquished his right over the Mosque, he has no right over it. Ext.A13 to which defendant No.3 is a SA No.698/1999 25 party specifically says that the mosque belonged to all the thavazhies. In the light of Ext.A13 also defendant No.3 cannot now contend that only his sub- thavazhi has right over the Mosque. Ext.B18 relied on by learned counsel for defendant No.3, the abstract of register of Wakf issued on 28.8.1990 will not in any way advance the case of defendant No.1. DW1 has admitted that the Mosque was registered in the name of his Karanavan, Thangakkoya Thangal who then was the seniormost member of all the four thavazhies. He has admitted that at the time of Ext.A1, Attakkoya Thangal (who is a party in Ext.A1) was the seniormost member of the Tarwad. He has also admitted that in Ext.A1 all the seniormost members of the respective thavazhies are signatories, that settlement is concerning conduct of Ratib in the Mosque and that the directions contained in Ext.A1 are correct . To the question whether there is any document to show that only the sub-thavazhi of defendant No.1 (and defendant No.3) has right to administer the Mosque, DW1 answered in the affirmative and pointed to Ext.A1. According to DW1, plaintiffs and defendant Nos.3 and 4 have no right to be the Shaik because they did not possess sufficient experience (and not for any other reason such as any of them belonged to other thavazhies). The oral and documentary evidence show that the Mosque was established by a saintly member of the Tarwad and its temporal and spiritual matters were being attended to and administered by the members of the Tarwad. After the thavazhies came into existence about 150 years after the establishment of the Mosque, members of the thavazhies took up that responsibility. Evidence on record shows that the practice continued even as on the date of institution of the SA No.698/1999 26 suit. Attakkoya Thangal, Thangakkoya Thangal and defendant No.1 though performed as Muthavallies and Shaiks of the Mosque, that was not in their individual capacity or as members of their sub-thavazhi alone but as seniormost members of all the thavazhies and as qualified persons. In the circumstances, contention now raised by defendant No.3 that the Mosque belonged to his sub- thavazhi which alone was administering it cannot be sustained. (Plaintiffs filed I.A.No.2141 of 2009 and defendant No.3 filed I.A.Nos.2777 of 2009 and 2832 of 2009 to receive additional evidence. I have gone through the documents produced. I do not consider that those documents are necessary for decision of the questions raised in this appeal. Hence those applications will stand dismissed).
14. Now coming to the reliefs prayed for by the plaintiffs, I stated that relief of injunction has become infructuous consequent to the death of defendant No.1. Decree of learned Munsiff refusing to grant injunction on the finding that Ext.A2 is not sufficient to hold that defendant No.1 has relinquished his right over the Mosque was not challenged by the plaintiffs and that part of the decree has become final. Hence that prayer no more survives for consideration. What remained is only the declaration prayed for. It would appear that learned Munsiff also was under an impression that having regard to the relief prayed for in the suit a moulding of relief is needed and accordingly observed that plaintiffs are given a "modified decree". In my view the issue of moulding or granting a "modified decree" as the learned Munsiff puts it did not arise since the declaration granted by the learned Munsiff is substantially in tune SA No.698/1999 27 with the declaration prayed for by amendment of the plaint. First appellate court appears to have been under a wrong impression that the relief of declaration granted is as against the averments in the plaint. The first appellate court has not properly bestowed its attention to the amendment made to the plaint and the relief portion. On going through the judgments under challenge, evidence on record and hearing learned counsel on both sides, I am satisfied that first appellate court was not legally correct in interfering with the relief of declaration granted by the trial court. The substantial questions of law framed are answered accordingly.
Resultantly, Second Appeal succeeds. Judgment and decree of the first appellate court are set aside and that of the trial court are restored. All interim orders passed by this Court in the Second Appeal are vacated. Parties shall suffer their respective cost in the Second Appeal.
THOMAS P.JOSEPH, Judge.
cks SA No.698/1999 28 Thomas P.Joseph, J.
S.A.No.698 of 1999 JUDGMENT 17th December, 2009.