Darul Huda Masjid Mahallu Committee vs Unknown on 6 November, 2020
7. The Senior Counsel appearing for the respondents on
the other hand submits that the question relating to
CRP Nos.262/2007 & 267/2007 -16-
maintainability is raised for the first time before this Court and
that no such contention was taken either before the Wakf
Tribunal or even in the Memorandum of Revision before this
Court. She further submits that even the pleadings in the case
does not specifically raise such an issue. It is contended that
such a contention ought not to be entertained at this stage after
the passage of so many years. On merits of the contention, she
contends that the suit is not one for removal of encroachment
under Section 54 of the Wakf Act, so as to necessitate a
proceeding before the CEO. According to her, the suit is one of
recovery of possession simpliciter and the respondents have no
case that the revision petitioners are encroachers on the land.
According to her, the relief is sought for only on the basis of the
recitals in the Wakf deed which specifically says that the right to
manage shall come vested in the respondents, on the happening
of the event contemplated in the Wakf, that is, the Wakif leaving
behind no successors. Reliance is placed on the judgments of the
Apex Court in Board of Wakf, West Bengal v. Anis Fatma
CRP Nos.262/2007 & 267/2007 -17-
Begum and another reported in [2010(4) KLT 765], Punjab
Wakf Board vs Pritpal Singh and another in Civil Appeal
No. 8194 of 2013, Rajasthan Wakf Board v. Devki Nandan
Pathak and others reported in [(2017)14 SCC 561], and
Division Bench decisions of this Court in Norman Printing
Bureau, Kozhikode v. P.M.Mammu Haji and another
reported in [2013(3)KHC 798], Muthulakshmi Ammal v.
Seethimarakkarakath Alikoya Wakf & another reported in
[2016 (3) KLJ 312] and Kerala State Wakf Board v. Rajesh
reported in [2016 (3) KLT 164] to contend that the Wakf
Tribunal has jurisdiction to entertain a suit for possession. The
Senior Counsel submits that a suit for possession and mesne
profits is different from a suit for eviction of encroachers.