IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 6TH DAY OF MARCH 2018 / 15TH PHALGUNA, 1939 CRP(WAKF).No. 268 of 2017 -------------------------AGAINST THE JUDGMENT IN OS(WAKf) 35/2014 of WAKF TRIBUNAL, KOLLAM DATED 30-03-2017
REVISION PETITIONER(S)/PLAINTIFFS
1 ABOOBACKER AGED 65 YEARS, S/O. P.M. MAMMU, ALACKKAL, WARD NO.13, HOUSE NO.529, MUHAMMA P.O, ALAPPUZHA.
2 MUHAMMED HUSSAIN, AGED 60 YEARS, S/O. UMER SAHIB, CHENGALAKKATTUVELI, WARD NO.8, HOUSE NO. 925, MUHAMMA, ALAPPUZHA.
3 ABDUL AZEEZ, AGED 59 YEARS, S/O. MUHAMMADALI,6 VELIYIL, WARD NO. 8, HOUSE NO.529, MUHAMMA, ALAPPUZHA. 4 KAMARUDEEN, AGED 54 YEARS, S/O. IBRAHIMKUTTY, PATTARUPARAMBU, WARD NO. 8, HOUSE NO. 853 - A, MUHAMMA, ALAPPUZHA. 5 KABEER, AGED 50 YEARS, S/O. MAMMU, ALACKKAL, WARD NO.8, HOUSE NO.210-A, MUHAMMA, ALAPPUZHA.
BY ADVS.SRI.T.M.ABDUL LATIFF SRI.A.ABDUL LATHEEF
## RESPONDENT(S)/DEFENDANTS:
1. MUHAMMA MASJIDATHUL MUHAMMADIYA SANGHAM JAMA-ATH REPRESENTED BY ITS GENERAL SECRETARY, MUHAMMA MASJIDATHUL MUHAMMADIYA SANGAM, JAMA-ATH, MUHAMMA, ALAPPUZHA DISTRICT, PIN - 688 523.
2. HANAZ, AGED 45 YEARS, S/O. KOYA, KATTIPARAMBIL,
GENERAL SECRETARY, MUHAMMA MASJIDATHUL MUHAMMADIYA SANGAM, JAMA-ATH, MUHAMMA, ALAPPUZHA DISTRICT, PIN - 688 523.
3. K.K. NASSAR, AGED 48 YEARS, S/O. KUNJUMUHAMMED, KOCHUVELIYIL, WARD NO.8, HOUSE NO. 896, MUHAMMA MASJIDATHUL MUHAMMADIYA SANGAM, JAMA-ATH, PRESIDENT, PIN-688523
4. SALEEM, AGED 41 YEARS, S/O. SULAIMAN, KARUVANPARAMBU, MUHAMMA MASJIDATHUL MUHAMMADIYA SANGAM, JAMA-ATH, JOINT SECRETARY, PIN-688523.
5. RIJAS, AGED 30 YEARS, S/O. ABDUL BASHEER, KOCHUVELIYIL, WARD NO.8, HOUSE NO. 896, MUHAMMA MASJIDATHUL MUHAMMADIYA SANGAM, JAMA-ATH TREASURER, PIN-688 523.
6. NASSAR,AGED 51 YEARS, S/O. ABDULKARIM, PALATHARA, WARD NO.11, HOUSE NO.61, MUHAMMA, ALAPPUZHA DISTRICT, PIN - 688 525.
7. SHANAVAS, AGED 35 YEARS, S/O. SHERIEF,KANIYAMPARAMBU, WARD NO.8, HOUSE NO. 855, MUHAMMA, ALAPPUZHA DISTRICT, PIN - 688 525.
8. THE CHIEF EXECUTIVE OFFICER,
KERALA STATE WAKF BOARD, KALOOR, ERNAKULAM, KOCHI - 682 017.
R1-R7 BY ADV. SRI.A.SHAFEEQUE (KAYAMKULAM)
R8 BY ADV. SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD
THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON 06-03-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING.
## **C.T. RAVIKUMAR & MARY JOSEPH, JJ. ========================== C.R.P.(Wakf) No.268 OF 2017 ==========================** Dated this the 6[th] day of March, 2018
## **ORDER**
_Ravikumar, J._
This revision petition is directed against judgment dated 30.3.2017 passed by the Wakf Tribunal, Kollam in O.P.(Wakf) No.35/2014. Plaintiffs therein are the revision petitioners and the defendants therein are the respondents herein. The said suit was filed seeking a permanent prohibitory injunction restraining the respondents
1 to 7 viz., defendants 1 to 7 from making any construction on or causing any damage to the plaint schedule property. The further prayer was for mandatory injunction directing respondents 1 to 7 to restore the wall separating the jama ath and its courtyard.
2. Before the Tribunal, the first revision petitioner was examined as PW1 and one Najim was examined as PW2. On their side, Exts.A1 to A5 were got marked. No oral or documentary
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evidence was adduced by the respondents/defendants. The Advocate Commissioner was examined as CW1 (PW3) and the mahazars prepared by the Commissioner were got marked as Exts.C1 and C2 respectively. The Tribunal had elaborately considered the evidence on record and dismissed the suit. Aggrieved by the said order, this revision petition has been filed.
3. When this revision petition came up for admission, this Court issued notice on admission to the respondents. Consequently, Adv.A.Shafeeque entered appearance on behalf of respondents 1 to 7 and Adv. T.P. Sajid, the learned standing counsel entered appearance for the 8[th] respondent.
4. We have heard the learned counsel on both sides. Essentially, the contention of the revision petitioners-plaintiffs is that the plaint schedule property is a khabarstan wherein the bodies of their forefathers were burried. It is in such circumstances that they sought for permanent mandatory injunction as mentioned hereinbefore. Evidently, the party respondents contested the suit and contended that the petition schedule property is not a khabarstan. They have also
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taken up a contention that no exclusive right to maintain a separate portion of Khabarstan for burrying a particular family could be claimed. It is their further contention that the plaint schedule property was a vacant land whereon bushes and building waste were put and they were now, cleared. That apart, they contended that going by islamic principles, a khabarstan is not a place of worship. As noticed hereinbefore, besides the oral testimony of PWs1 and 2, the Advocate Commissioner was also examined. Essentially, the precise case of the revision petitioners/plaintiffs is that a khabarstan viz., plaint schedule property lies on the northern side of the mosque. According to them, it is in the said khabarstan that their forefathers were burried. The mandatory injunction was sought for alleging that a wall which was in existence separating the mosque and courtyard was demolished by the defendants/respondents using JCB. In order to establish their case, a Commission was taken out. The Commission after conducting inspection filed Ext.C1 report. While being examined as CW1 Commissioner, he had deposed in tune with his report viz., Ext.C1. Going by the report and the evidence of CW1, no such khabarstan is
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seen on the northern side of the mosque. It is specifically stated in the report that a khabarstan situates on the southern side of the mosque. It is so specifically stated in Ext.C1 report as well. So also, the report and the evidence of CW1 would reveal that there was no wall separating the mosque and the courtyard which was allegedly demolished. The evidence on record would reveal that the Commissioner could not find that such a wall was in existence. In the light of the evidence which is elaborately discussed by the Tribunal, it entered into the conclusion that the revision petitioners- plaintiffs had failed to establish that such a wall was in existence separating the mosque and its courtyard. Consequently, the Tribunal held that when there is no such evidence, the contention that the wall was demolished cannot be said to be established and acted upon. As regards the rejection of the prayer for permanent prohibitory injunction, mainly two reasons have been assigned by the Tribunal. The Tribunal held that the descriptions in the plaint is insufficient to identify the plaint schedule property. Before dealing with the said question, we are of the view that it is only apropos to refer to the description of the plaint
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schedule property in the plaint for a proper consideration of the concurrent findings. The plaint schedule property is detailed in the plaint as the property comprised in Sy.No.240/3, Charamangalam muri, Thaneermukku thekku village having 1.5 metre width towards the northern side and western side of madrassa situated at the northeast portion except 5 metre with pathway. It is to be noted that total extent of the property in block No.35 wherein the Jama ath situates is
77.206 cents. It is also very relevant to note that while describing the plaint schedule property viz., the place which according to them was the khabarstan, its extent was not specifically stated in the plaint. When the property in question belonging to the first respondent/first defendant is having an extent of 77.206 cents comprised in Sy.No.240/3, without pointedly specifying the extent and giving the exact and correct description regarding the boundaries, none can identify the property properly. From the description which was given in the plaint, we do not find any reason to hold that the conclusion arrived at by the Tribunal that the description would not enable identification of the plaint schedule property is a perverse conclusion
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warranting an interference. That apart, going by the very precise case of the revision petitioners, the khabarstan situates on the northern side of the mosque. At the same time, the evidence of PW3 (CW1) and also the report submitted by him viz., Ext.C1 would reveal that no khabarstan situates on the northern side of the mosque whereas there is a khabarstan situating on its southern side. In such circumstances, we do not find an error or perverseness in the findings of the Tribunal. When once it is evident from the evidence on record that there is no khabarstan on the northern side of the mosque or at the western side of the madrassa, it can only be held that the revision petitioners had failed to establish that there was a khabarstan on the northern side of the mosque or at the western side of the madrassa. The jurisdiction available to this Court as against a judgment passed by a Wakf Tribunal is nothing but revisional power under the proviso to section 83(9) of the Wakf Act, 1995. In the light of the proviso to section 83(9), it can only be said that the power available to this Court is to call for and examine the records for the purpose of satisfying as to the correctness or legality or propriety of such determination. This Court
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considered the scope of such revisional power under proviso to section 83(9) in the decision in **T.P.Kunhikoyamutty & Anr. v. A.P.Muhammed Kutty & Anr.[ 2017(4) KLJ 756]** . It was held that in a revision filed under sub section 9 of section 83, the High Court is not exercising any appellate jurisdiction and therefore, the High Court is not expected to sit in appeal over the findings of facts arrived at by the Wakf Tribunal in such orders. We have already arrived at the conclusion that the appreciation of evidence as also the conclusion arrived at by the Tribunal based on the evidence on record could not
be said to be perverse or against the weight of evidence or a finding arrived at without any evidence. In such circumstances, this revision petition must fail and accordingly, it is dismissed. No order as to costs. **Sd/-**
**C.T. RAVIKUMAR (JUDGE)**
## **Sd/-**
**MARY JOSEPH**
**(JUDGE)**
**spc/**
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