Ashraf Marutheri v. Nambiathankund Jumaeth Palliy Mahallu Committee & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **FRIDAY, THE 24TH DAY OF FEBRUARY 2012/5TH PHALGUNA 1933** **CRP.No. 504 of 2011 ( ) ----------------------OS.53/2007 of WAKF TRIBUNAL, KOZHIKODE** **PETITIONER/PLAINTIFF IN O.S.53/2007-WAKF TRIBUNAL,KOZHIKODE -----------------------------------------------------------** **ASHRAF MARUTHERI, S/O.AMMAD, AGED 38 YEARS, TRADER, RESIDING AT MARUTHERI NARIPATTA AMSOM, CHEEKUNNU DESOM, POST CHEEKUNNU VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE** **BY ADVS.SRI.B.KRISHNAN** **SRI.R.PARTHASARATHY SRI.RAJESH V.NAIR SMT.SEEMA** **RESPONDENTS/DEFENDANTS IN O.S.53/2007-WAKF TRIBUNAL,KOZHIKODE** **-------------------------------------------------------------** **1. NAMBIATHANKUND JUMAETH PALLI MAHALLU COMMITTEE, POST CHEEKUNNU - 673511.** **2. THIRUVATTERI KUNHAMMAD HAJI, S/O.PALLIKKUTTY, TRADER, AGED 65 YEARS NARIPATTA AMSOM, CHEEKUNNU DESOM POST CHEEKUNNU - 673511, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** **3. VATTAKUTTIYADI IBRAHIM, S/O.KUNHABDULLA HAJI, AGED 55 YEARS, TRADER NARIPATTA AMSOM, THINUR DESOM, POST THINUR - 673507 VATAKARA TALUK, KOZHIKODE DISTRICT KERALA STATE.** **4. MURINGOLI AMMAD, S/O.MOIDEEN, AGED 58 YEARS, NARIPATTA AMSOM, THINUR DESOM POST THINUR - 673507 VATAKARA TALUK KOZHIKODE DISTRICT, KERALA STATE.** **5. JALEEL MANIKKOTH, S/O.KUTTIALI HAJI, AGED 35 YEARS, NARIPATTA AMSOM, CHEEKUNNU DESOM, POST CHEEKUNNU, VATAKARA TALUK KOZHIKODE DISTRICT - 673511, KERALA STATE.** **2** ## **CRP NO. 504/2011** **6. THE CHIEF EXECUTIVE OFFICER, WAKF BOARD, ERNAKULAM - 682017.** **R1 & 2 BY ADVS.SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V R4 & 5 BY SRI.MANSOOR.B.H. BY SRI.A.A.ABUL HASSAN, SC, WAKF BOARD** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **SD** ## **THOTTATHIL B.RADHAKRISHNAN & C.T.RAVIKUMAR, JJ.** ----------------------------------C.R.P.No.504 of 2011 -----------------------------------Dated this the 24[th] day of February, 2012 ## **JUDGMENT** ## Thottathil B.Radhakrishnan,J. - 1.The plaintiff in a suit for prohibitory injunction filed before the Wakf Tribunal, Kozhikode is the revision petitioner. It is pointed out by the learned counsel for the plaintiff that though the relief claimed is perpetual prohibitory injunction, such claim is made on the strength of title and hence, the relief has been valued under Section 27(a) of Act X of 1960. 2. The Tribunal had dismissed the suit on 7.9.2010. That judgment was set aside by this Court and the matter remitted for consideration in the light of the contents of the said remand order dated 28.8.2010 in CRP.496/10. CRP.504/11 2 - 3.Thereafter, Exts.C3 Commissioner report and C4 sketch were brought on record and the plaintiff again tendered evidence. The Tribunal dismissed the suit holding that the plaintiff did not establish the existence of a private graveyard. The plaintiff is ,therefore, before us in revision. - 4.Learned counsel for the revision petitioner argued that the materials on record abundantly show that the plaintiff's father and his paternal grandfather had right to claim that a portion of the property in question is a private burial ground, completely under their control and the impugned findings in this regard is erroneous. He further argued that the plea of the defendants that the allegation that public has contributed to the purchase of the property and other attendant allegations of the defendants, are not proved at all, and therefore, it ought to be held that the plaintiff's version stands. On this premise, it was argued that the existence of a burial ground of a private nature is, in no manner, affected by the mere fact that the bodies of a few CRP.504/11 3 dead, not belonging to the family of the plaintiff, was buried there. It is pointed out that the stand of the plaintiff is that burial of any person other than members of the family has been done with the consent of the head of the family concerned, including the plaintiff, and earlier, his paternal grandfather and father. - 5.Per contra, learned counsel for the contesting respondents argued that there is absolutely no situation enabling the plaintiff to claim independent right over any portion of the plaint schedule property. It is pointed out that the fact of the matter remains that the materials on record abundantly show that persons not belonging to the family of the plaintiff were buried and such persons having been buried in the socalled private burial ground area, if at all that ground had the character of a private ground, that no more subsists and it has to be treated as one open as a public ground for burial. It was further argued that there is no legal infirmity in the appreciation of evidence by the Tribunal and there is CRP.504/11 4 no justification for any interference with the Tribunal's order in exercise of the revisional authority under the proviso to Section 83(9) of the Wakf Act, 1955. 6. We may first proceed to notice the jurisdictional limitation. Sub-section 9 of section 98(3) of the Wakf Act provides that no appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal. Thus there is an express exclusion of any appeal on Tribunal's order. This specific exclusion has to be treated as salutary and indicating against any interference, as if this is a court of appeal. The said section stands with a proviso that the High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may deem CRP.504/11 5 fit. The Tribunal is constituted for the determination of any dispute, question or other matter relating to wakf or wakf property under the Act and every Tribunal is to consist of one person, who shall be member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class I. After providing for the constitution of such a Tribunal, the legislature, in its wisdom, expressly barred any appeal, clearly indicating thereby that the scope of the revision that is available under the proviso to subsection 9 of section 83 is not one equivalent to an appellate remedy. Hence, the exercise of examining the records relating to any dispute, question or other matter has to be confined only to such dispute, question or other matter which has been determined by the Tribunal and the examination is only for the High Court satisfying itself as to the correctness, legality or propriety of such determination. - 7.Bearing the aforesaid in mind, we will now proceed to the basic facts and materials of the litigation in hand. CRP.504/11 6 8. The plaintiff's case is that the suit property, measuring around 21.5- cents, was acquired by his paternal grandfather Marutheri Othiyil Kunhabdulla Haji by virtue of Exts.A1 and A2 sale deeds of 1952 and 1955 and thereafter, he constructed a mosque there. Until his demise in 1972, he was the mutawalli of the said mosque and following his death, the plaintiff's father became mutawalli. According to the plaintiff, the first defendant committee was formed and registered as a society to manage the plaint schedule property and the right of the first respondent is only to manage the mosque and the right of the plaintiff to continue as mutawalli is a hereditary right. He alleges that following his predecessor-in-interest, including that of his grandfather, he has the exclusive right to use a portion of the plaint schedule property as a family graveyard. Even in the plaint, it was attempted to be explained that a few deserving outsiders were permitted to be buried in the said private burial ground. The relief sought for is essentially to preserve such right to hold that partition of the suit property CRP.504/11 7 as a private burial ground. 9.The defendants, impeaching the plaintiff's claim, contended, among other things, that the plaintiff and his father had no right of management in their individual capacity and though the plaint schedule property was purchased in the name of the paternal grandfather of the plaintiff, it was acquired with funds of the community. Thereafter, the community contributed for the construction of the mosque; following which, the same was managed by Marutheri Othiyil Kunhabdulla Haji and one Vattakuttadi Kunhabdulla Haji as joint mutawalli. Defendants also pleaded that there was an application for registration of the wakf property before the wakf Commissioner and later in 1978, the first defendant society was formed under the Societies Registration Act for the administration of the mosque and the entire properties, including the plaint schedule property. The first defendant asserted possession through its members and also administration of the plaint schedule property. It CRP.504/11 8 was also asserted that the property is used for burying dead bodies of Muslims coming within the mahallu and no portion of it is reserved for the family members of the plaintiff. - 10.After the plaintiff lost in the first round, he clarified before this Court in the course of the earlier revision that he confines his prayer for injunction only as regards the graveyard portion of the plaint schedule property and not as regards the mosque. - 11.The materials on record after the remand are Exts.C4 rough sketch and C3 Commissioner's report. The Commissioner visited different locations of the plaint schedule property and also the adjacent properties which admittedly belongs to the first defendant Masjid committee. There is no demarcation between the plaint schedule property and the adjacent property which is in the hands of the defendants. Similarly, there is also no identifying land mark to segregate the so-called private graveyard which the CRP.504/11 9 plaintiff claims, from the remaining portion of the suit property or the adjacent property. The exclusiveness of the plaintiff's claim is only as regards the right to regulate the burials in the area which he calls as the private graveyard and to confine its user to be with the members of the plaintiff's family and also to permit user of that to deserving persons at the choice of the plaintiff. The Commissioner has, in his report, stated that the local people who were available at the time of visit had given divergent versions, including that some of their relatives were buried in the graveyard of the plaintiff and as to whether that was with or without the permission of the plaintiff or the Mahallu Committee. Whether it was advisable for the Commissioner conducting local inspection, to collect such data from the local people is one thing. But the fact of the matter remains that the commissioner's report is part of the record under the provisions of the Code of Civil Procedure and neither the defendants nor the plaintiff tried to impeach the statements of the Commissioner. Reading the depositions of PW1 and CRP.504/11 10 DW1 in the light of the above, the proved fact on the totality of the materials and circumstances is to the effect that human remains of persons not belonging to the family of the plaintiff were buried in the area which the plaintiff calls as private graveyard. 12. Learned counsel referred to the decision of the Apex Court in **Syed Mohammed Salie Labbai (Dead) by L.Rs.** v. **Mohammed Hanifa (Dead) by L.Rs.** [AIR 1976 SC 1569] to state that once a dedication is made, it takes the characteristic of a wakf. Under Mohammedan law, the graveyards may be of two kinds; a family or private graveyard and a public graveyard. A graveyard is a private one which is confined only to the burial of corpses of the founder, his relations or his descendants. In such a burial ground, no person who does not belong to the family of the founder is permitted to bury his dead. On the other hand, if any member of the public is permitted to be buried in a graveyard and this practice grows so that it is proved by CRP.504/11 11 instances adequate in character, number and extent, then the presumption will be that the dedication is complete and the graveyard has become a public graveyard where the Mohammedan public will have the right to bury their dead. It is also well settled that a conclusive proof of the public graveyard is the description of the burial ground in the revenue records as a public graveyard. 13. Examination of Exts.C3 and C4 and the evidence of PW1 and the testimony of the first defendant in the backdrop of the pleadings where the plaintiff stands to admit that human remains (dead bodies) of persons who are not members of the family lie buried in the property, which he claims as a private graveyard, in the light of the aforesaid, leads only to the conclusion that the impugned order of the Tribunal does not warrant interference in exercise of authority under Section 83(9) of the Wakf Act. We do not find any infirmity which warrants interference in terms of such revisional authority. CRP.504/11 12 In the result, the revision petition fails. The same is accordingly dismissed. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- C.T.RAVIKUMAR, Judge. kkb.25/2.