Alasankutty Haji S/o Vadakke Painkal Moidootty v. Kunhimoideen, Hussain, Sainudheen, Moideenkutty, Abdu, Perumpadappu Juma Ath Palli Paikannur, Kerala Wakf Board and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 16TH DAY OF NOVEMBER 2020 / 25TH KARTHIKA, 1942** ## **CRP.No.543 OF 2009** **AGAINST THE JUDGMENT IN OS 45/2005 DATED 11-12-2008 OF WAKF TRIBUNAL, KOZHIKODE** ## **PETITIONER/PLAINTIFF:** **ALASANKUTTY HAJI S/O.VADAKKE PAINKAL MOIDOOTTY, KATTIPARUTHY AMSOM DESOM, TIRUR TALUK, RESIDING AT 6/449,, VALANCHERY PANCHAYAT.** **BY ADVS. SRI.C.V.MANUVILSAN SMT.VIDYA MANUVILSAN SRI.P.G.SURESH SRI.P.K.KHALEEMUDHEEN** - **RESPONDENTS/RESPONDENTS: 1 KUNHIMOIDEEN, AGED 64 YEARS, S/O.THOZHEUKKATTIL KUNHI KAMMU, NADUVATTOM AMSOM, CHELUR DESOM, TIRUR TALUK.** - **2 HUSSAIN, AGED 49 YEARS S/O.PULIKKEPARAMBIL ASSAINAR, KUTTIPURAM AMSOM,PERSSANNUR DESOM, TIRUR TALUK.** - **3 SAINUDHEEN, AGED 54 YEARS S/O.PUTHENKOLLIL BEERAN KUTTI MUSALIYAR,, KUTTIPPURAM AMSOM, KOLAKKAD DESOM, TIRUR TALUK.** - **4 MOIDEENKUTTY, AGED 44 YEARS S/O.MURUTHODITHOTTATHIL CHERIYA MUHAMMED,, KATTIPARUTHI AMSOM DESOM, TIRUR TALUK.** - **5 ABDU, AGED 49 YEARS SO.KODUNGAZHIVALAPPIL SAODALIKUTTY, KUTTIPPURAM AMSOM, KOLAKKAD DESOM, TIRUR TALUK.** C.R.P.No.543/2009 -2- - **6 PERUMPADAPPU JUMA ATH PALLI PO** **PAIKANNUR, KUTTIPPURAM AMSOM, DESOM REP.BY PALLI COMMITTEE SECRETARY YOONUS SALIM T.P. AGED 35 YEARS, S/O.IJAS, THEKKEPAINIKKAL, PAIKANNUR, KUTTIPPURAM AMSOM, DESOM.** - **7 KERALA WAKF BOARD REP.BY ITS CHIEF EXECUTIVE OFFICER, VIP ROAD, KOCHI, ERNAKULAM.** **ADDL.R8 IMPLEADED:** **8 SAINABA K.V, AGE NOT KNOWN, W/O.LATE ABDU, KODUNGAYIVALAPPIL PAYINKANNIYUR P.O, KUTTIPURAM VIA-679571 KUTTIPPURAM AMSOM, KOLAKKAD DESOM,TIRUR TALUK (ADDL 8TH RESPONDENT BEING THE LEGAL HEIRS OF THE DECEASED 5TH RESPONDENT IS IMPLEADED AS PER THE ORDER DATED 3/11/2020 IN IA NO.2702/2017)** **ADDL.R9 SOUGHT TO BE IMPLEADED:** **9 SADIQUE S/O LATE ABDU, AGED 30 YEARS KODUNGAYIVALAPPIL PAYINKANNIYUR P.O, KUTTIPPURAM VIA-679571 KUTTIPPURAM AMSOM, KOLAKKAD DESOM,TIRUR TALUK. (DELETED) (PROPOSED ADDL 9TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER THE ORDER DATED 3/11/2020 IN IA NO.2702/20017).** **R1 BY ADV. SHRI.M.V.S.NAMPOOTHIRY** **R1 BY ADV. SRI.M.M.SAIDU MUHAMMED SC WAKF BOARD R1, R7 BY SRI.K.SHIBILI NAHA, SC, KERALA STATE WAKF BOARD R7 BY ADV. SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16-11-2020, THE COURT ON 16-11-2020 PASSED THE FOLLOWING:** C.R.P.No.543/2009 -3- ## **ORDER** ## **T.R.Ravi, J.** The plaintiff in O.S.No.45 of 2005 on the file of the Wakf Tribunal, Kozhikode is the petitioner before us. The suit was originally filed before the Munsiff's Court, Tirur as O.S.No.311 of 2000. The plaint was returned for want of jurisdiction and was re-presented before the Wakf Tribunal, Kozhikode. The prayer in the suit is for a mandatory injunction and a permanent prohibitory injunction restraining the respondents from trespassing into the plaint schedule property or making any alteration, or interfering with the peaceful possession and enjoyment of the property. 2. The respondents 1 and 5 filed written statement contending that the suit was not maintainable and that the boundary wall separates the road and the compound of the mosque. The defendants 2 and 3 filed written statement contending that the descriptions of the plaint schedule property C.R.P.No.543/2009 -4- was incorrect, that the sketch produced along with the plaint was incorrect, that the plaintiff was the President of the committee which is managing the mosque and he wanted to widen the road by taking land from the mosque compound and also from the eastern side of the road for which the mutawalli of the mosque was not agreeable and that the suit has been filed without any bonafides. It is contended that the mud wall was demolished by the plaintiff himself. 3. The Tribunal dismissed the suit. It was contended before the Tribunal that since the defendants have not tendered any evidence, an adverse inference has to be drawn against them. The Tribunal found that the plaintiff cannot succeed solely for the reason that the defendant did not lead evidence. It is primarily for the plaintiff to prove his case and that alone can lead to a decree. The Tribunal found that the easement right claimed by the plaintiff has not been proved, that there was nothing to show the existence of a 10 feet wide road, that there is no evidence to prove the usage of such road, if any, for more C.R.P.No.543/2009 -5- than 20 years and that the case of the plaintiff himself is that he is not claiming any relief against the mosque, thus making it evident that the mosque is not the servient owner. The Tribunal found that even if an adverse inference is to be drawn against the defendant, that would not help the petitioner, who has not proved his case. 4. In **Ramesh Gobindram v. Sugra Humayun Mirza Wakf** reported in **[(2010) 8 SCC 726]** , the Apex Court held that whenever a question arises whether “any dispute, question or other matter” relating to “any wakf or wakf property or other matter” falls within the jurisdiction of a civil court, the answer would depend upon whether any such dispute, question or other matter is required under the Act to be determined by the Tribunal constituted under the Act. Hence the only question that can be looked into is whether the dispute involved is one which is required under the Act, to be determined by the Tribunal and regarding every other dispute, the jurisdiction of the civil court will remain. A different chord was struck in some subsequent C.R.P.No.543/2009 -6- decisions. In **Akkode Jumayath Palli Paripalana Committee v. P.V.Ibrahim Haji** reported in **[(2014) 16 SCC 65]** , a two Judge Bench of the Apex Court had taken a view that the Wakf Tribunal has got jurisdiction to entertain a suit for injunction restraining the defendants from interfering with the administration, management and peaceful enjoyment of the mosque and madarsa run by it and all the assets attached to the mosque. That was a case where the High Court had dismissed the suit for want of jurisdiction, relying on **Ramesh Gobindram (supra)** . Subsequently in **Punjab Wakf Board v. Sham Singh Harike** reported in **[(2019) 4 SCC 698],** the Apex Court considered the earlier judgments of the Supreme Court, starting from **Ramesh Gobindram (supra)** and affirmed the decision in **Ramesh Gobindram** . Considering the judgment in **Akkode Jumayath Palli (supra)** , the Apex Court in paragraph 43 of the judgment held as follows: **"43.** The two-Judge Bench of this Court in the above case held the suit to be maintainable in the Wakf Tribunal and noted that the ratio of _Ramesh Gobindram_ [ _Ramesh_ C.R.P.No.543/2009 -7- _Gobindram_ v. _Sugra Humayun Mirza Wakf_ , (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] has been distinguished in _Anis Fatma case_ [ _W.B. Wakf Board_ v. _Anis Fatma Begum_ , (2010) 14 SCC 588 : (2012) 1 SCC (Civ) 773] . But as per ratio of _Ramesh Gobindram_ [ _Ramesh Gobindram_ v. _Sugra Humayun Mirza Wakf_ , (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] unless there is any provision in the Wakf Act, 1995 to entertain the said dispute only then the Wakf Tribunal has jurisdiction, the suit filed for injunction was not maintainable in the above case. Thus, what is held in the above judgment by the two-Judge Bench is not in accord with the ratio of _Ramesh Gobindram_ [ _Ramesh Gobindram_ v. _Sugra Humayun Mirza Wakf_ , (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553]. xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx" 5. Applying the law laid down by the Apex Court, we find that the prayer made in the suit filed by the petitioner does not fall under any category of cases which are required under the Wakf Act, to be decided by the Tribunal. The suit filed by the petitioner before the Tribunal is hence not maintainable before the Tribunal and the remedy of the petitioner was to approach the civil court. Since we find that the suit itself is not maintainable, the appeal has necessarily to be dismissed, leaving C.R.P.No.543/2009 -8- the parties to agitate their disputes before the appropriate civil court. We make it clear that we are not expressing any opinion on the merits of the contentions of the petitioner and the respondents. The parties will bear their respective costs. ## Sd/- **K. VINOD CHANDRAN JUDGE** Sd/- **T.R. RAVI JUDGE** dsn