Ayamu Haji and others v Siddique Jumath Palli and Kerala Wakf Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 CRP.No. 1059 of 2003() ---------------------OS.73/2001 of WAKF TRIBUNAL & III ADDITIONAL DISTRICT JUDGE, KOZHIKODE .................... REVN. PETITIONERS: (PLAINTIFFS) ------------------------------ 1. AYAMU HAJI, S/O.THOOMBATH THAZHEKKATHU KUNHAHAMMED, PARAPPUR AMSOM DESOM, THIRURANGADI TALUK. 2. BROTHER, MOIDEENKUTTY, -DO- -DO- 3. BROTHER, AHAMMEDKUTTY, -DO- -DO- 4. BROTHER, HAMZA, -DO- -DO- BY ADVS. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENTS: (DEFENDANTS) ------------------------- 1. SIDDIQUE JUMATH PALLI, PARAPPUR AMSOM DESOM, THIRURANGADI TALUK, REPRESENTED BY ITS MUTHAVALLI KUNHAHAMMED, S/O.THOOMBATH PUTHEMPEEDIKAKKAL KUNHALAVI, PARAPPUR AMSOM DESOM. 2. CHIEF EXECUTIVE OFFICER, KERALA WAKF BOARD, ERNAKULAM. BY ADVS. SRI.K.RAMACHANDRAN FOR R1 SRI.P.RAMACHANDRAN FOR R1 SRI.P.A.ABDUL JABBAR, SC, WAKF BOARD FOR R2 SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD FOR R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/06/2008 ALONG WITH WPC NO. 31606 OF 2004, THE COURT ON 23.9.2008 PASSED THE FOLLOWING: ORDER IN C.M.P. NO. 2494 OF 2003 IN C.R.P. NO. 1059 OF 2003. DISMISSED 23.9.2008 Sd/-(KURIAN JOSEPH, JUDGE) Sd/-(HARUN-UL-RASHID, JUDGE) ## **KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------C.R.P.NO.1059 OF 2003** ## **& W.P.(C)NO. 31606 OF 2004** **----------------------------------------------------------------** Dated this the 23rd day of September, 2008 ## **O R D E R** ## **Harun-Ul-Rashid, J.** C.R.P. No.1959 of 2002 is directed against the judgment dated 15.2.2003 in O.S. No.73 of 2001 on the file of the Wakf Tribunal, Kozhikode. By the said judgment and decree, the Tribunal dismissed the suit. 2. The revision petitioners are the plaintiffs in the suit. The suit was filed for prohibitory injunction. It was subsequently amended by inserting the prayers for mandatory injunction and alternatively for recovery of possession of the plaint schedule properties on the strength of the plaintiffs' title. Mandatory injunction was sought for to remove seven sheds allegedly put by the defendants in the property pending the suit. It is claimed by the plaintiffs that the plaint schedule property belonged to them and that the defendants have no manner of right or title over the said property. The plaintiffs based their claim of title on the basis of the title C.R.P. NO.1059/2003 & W.P.(C) NO.31606/2004 2 deeds in their favour. 3. In the written statement filed by the first defendant, it is contended inter alia that the plaintiffs have no manner of right or possession over the properties, that the title deeds relied on by the plaintiffs do not confer any title on them, that the plaint schedule properties are Wakf properties of Parappur Theke Juma ath Mosque and that being Wakf properties, the same cannot be alienated, partitioned or sold. It is also contended that an application was made for registration of the Mosque and other properties including the plaint schedule Wakf properties, that the Wakf Board after making the necessary enquiries in this regard, registered the plaint schedule properties as Wakf property on 29.12.1969, that a Gazette notification was also issued regarding the registration of the Wakf and that the Wakf including the plaint schedule properties are continuously being managed for the last 97 years. 4. The second defendant/Wakf Board also, in their written statement, denied the averments contained in the plaint and contended that the properties in question were declared as Wakf in favour of Parappur Thekke Juma ath Palli as per partition deed of 1903. It is also contended C.R.P. NO.1059/2003 & W.P.(C) NO.31606/2004 3 that the Wakf Commissioner who had conducted the survey had reported about the said fact in the report dated 15.7.1959 and subsequently, the Mosque and its properties were registered with the Wakf Board in the year 1969. It is also pleaded that the Wakf Board approved the muthavalliship of the first defendant as the muthavalli. The Wakf Board also pleaded that from 1903 onwards the plaint schedule properties are in the possession and management of the mosque and that the plaintiffs have no right or title over the said properties. 5. The suit was filed for prohibitory injunction and later amended into one for mandatory injunction directing the defendants and their men to remove the unauthorised construction in the plaint schedule properties and to restore the properties into its original position. The plaintiffs have also sought recovery of possession of the plaint schedule properties on the strength of their title in case the court finds that the plaint schedule properties are in the possession of the defendants. The defendants mainly contended that the suit is not maintainable before the Wakf Tribunal and that the Wakf Tribunal did not have the jurisdiction to entertain a suit of this nature. The Wakf Tribunal held that it had the jurisdiction to decide the issue regarding the nature of the property as a Wakf. C.R.P. NO.1059/2003 & W.P.(C) NO.31606/2004 4 6. The contention raised by the defendants regarding the maintainability of the suit is that the plaint schedule properties were registered in the year 1969 and the same was notified in the Gazette in the year 1982 as per Section 5(2) of the Wakf Act and, therefore, the suit challenging the registration of such Wakf and inclusion in the list of Wakf should have been filed within one year from the date of publication of the list of Wakfs in the Gazette as per Section 6(1) of the Wakf Act. It is contended that since the properties are included in the list of the Wakf as early as in 1982, the present suit filed by the plaintiffs in the year 1999 for mandatory injunction and recovery of possession is not maintainable in law. The defendants have also raised a contention that the plaintiffs are not entitled to file and maintain the present suit for mandatory injunction and in the alternative for recovery of possession without challenging the registration of the property as Wakf property and its inclusion in the list of Wakf as notified in the Gazette. The crux of the contention of the defendants is that after publication in the Gazette, the list of Wakf and registration of its property and the nature of the properties as Wakf have become final and that unless and until the same is challenged within one year from the date of notification of the list of Wakfs, no suit is C.R.P. NO.1059/2003 & W.P.(C) NO.31606/2004 5 maintainable in this regard. Learned counsel for the revision petitioners brought to our attention to the decision reported in **Muslim Wakfs Board,** **Rajasthan v. Radha Kishan, A.I.R. 1979 S.C. 289** and contended that the revision petitioners right, title and interest in the property cannot be put in jeopardy merely because the property is included in the list. According to him, such a person is not required to file a suit for declaration of title within a period of one year. The special rule of limitation laid down in the proviso to sub-section (1) of Section 6 of the Wakf Act is not applicable to him. In other words, the list published by the Board of Wakfs under sub-section (2) of Section 5 can be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year. Paragraphs 37 and 39 of the decision referred to above reads as follows: **==> picture [228 x 11] intentionally omitted <==** The very object of the Wakf Act is to provide for better administration and supervision of wakfs and the Board has been given powers of superintendence over all wakfs which vest in the Board. This provision seems to have been made in order to avoid prolongation of triangular disputes between the Wakf Board, the mutawalli and a person interested in the wakf who would be a person of the same community. It could never have been the intention of the legislature to cast a cloud on the right, title or interest of persons who are not Muslims. That is, if a person who is C.R.P. NO.1059/2003 & W.P.(C) NO.31606/2004 6 non-Muslim whether he be a Christian, a Hindu, a Sikh, a Parsi or of any other religious denomination and if he is in possession of a certain property his right, title and interest cannot be put in jeopardy simply because that property is included in the list published under sub-s. (2) of S. 5. The Legislature could not have meant that he should be driven to file a suit in a Civil Court for declaration of his title simply because the property in his possession is included in the list. Similarly, the legislature could not have meant to curtail the period of limitation available to him under the Limitation Act and to provide that he must file a suit within a year or the list would be final and conclusive against him. In our opinion, sub-sec. (4) makes the list final and conclusive only between the Wakf Board, the mutawalli and the person interested in the wakf as defined in Section 3 and to no other person. 39. It follows that where a stranger who is a non-Muslim and is in possession of a certain property his right, title and interest therein cannot be put to jeopardy merely because the property is included in the list. Such a person is not required to file a suit for declaration of title within a period of one year. The special rule of limitation laid down in proviso to sub-s. (1) of Sec. 6 is not applicable to him. In other words, the list published by the Board of Wakfs under sub-s. (2) of S. 5 can be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises." C.R.P. NO.1059/2003 & W.P.(C) NO.31606/2004 7 It is clear from the principles stated above that the said decision is not applicable to the case on hand. 7. The Wakf Registration Certificate Extracts, namely Exts.B2 and B65 produced by the defendants are to the effect that two items of properties comprised in R.S. No.203/1 and R.S. No.185/3A were notified in the Gazette dated 23.11.1982. The third item of property comprised in Survey No.203/8 was notified only in the year 2001. On the basis of the contentions raised, according to the defendants, the petition for mandatory injunction and recovery of possession on the strength of title is not maintainable. 8. The suit as such now filed is not one challenging the inclusion of the properties in the list of Wakf as per Section 5 of the Wakf Act. Going by the pleadings in the suit, the suit was filed for declaration of title on the strength of the title deed. This cannot be held to be a suit under Section 6 (1) of the Wakf Act. There is no averment in the plaint that the suit properties are not Wakf properties and therefore, the inclusion of the said properties in the list of Wakf is illegal. So long as the suit is not filed under Section 6 of the Wakf Act and not within time, the suit is not C.R.P. NO.1059/2003 & W.P.(C) NO.31606/2004 8 maintainable in law. Section 5 of the Wakf Act provides that a property can be included in the list of Wakf only after necessary enquiry is made by the Wakf Board and when the Board is satisfied regarding the nature of the property as a Wakf, the same will be published in the official gazette by including the property in the list of Wakf. If the property is wrongly included in the list of Wakf and notified as Wakf property, the remedy available to a person is under Section 6 of the Wakf Act. He can challenge the action of the Wakf Board and contend that the property included in the list of Wakf is not Wakf property and that it was mistakenly included in the list of Wakf and notified by the Wakf Board in the official gazette. Such a suit can be filed only before the expiry of one year from the date of publication of the list of Wakfs. The time limit has already expired as stated above. Moreover, the suit is not of the nature contemplated under Section 6 of the Wakf Act. The inclusion of properties in the list of Wakfs can be challenged only in a suit preferred by the plaintiffs challenging the inclusion and subsequent gazette notifications. In such circumstances, no suit for mandatory injunction and recovery of possession on the strength of the plaintiffs' title can be entertained by the Wakf Tribunal in respect of properties which are included in the list of Wakfs. Therefore, the findings entered by the Wakf Tribunal that the suit is not C.R.P. NO.1059/2003 & W.P.(C) NO.31606/2004 9 maintainable is a finding validly made by the Tribunal. We, therefore, find no reason to interfere with the findings entered by the Wakf Tribunal. Hence, the Civil Revision Petition is without merit. 9. W.P.(C) No.31606 of 2004 is a connected matter filed challenging Exts.P1, P4 and P8 orders and for a direction to the 4th respondent to receive land tax from the petitioner in respect of the property comprised in R.S. Nos.185/3A, 203/1 and 203/8 of Parappur Village. 10. Claiming title over the property in question, the petitioner approached the third respondent requesting to receive tax from him. The 5th respondent in the Writ Petition set up a rival claim in respect of the property claimed by the petitioner. The third respondent by Ext.P1 order directed the Village Officer to receive tax from the 5th respondent. The petitioner filed appeal against Ext.P1 order and the Appellate Authority as per Ext.P4 confirmed the said order. Thereafter, the petitioner approached the first respondent challenging Ext.P4 order. The first respondent rejected the contention of the petitioner by Ext.P8 order. 11. In the light of the decision taken by the Wakf Tribunal, C.R.P. NO.1059/2003 & W.P.(C) NO.31606/2004 10 Kozhikode in O.S. No.73 of 2001 that the suit is not maintainable which is confirmed by this Court in the order in C.R.P. No.1059 of 2003 heard along with this Writ Petition, the writ petitioner is not entitled to any of the reliefs sought for in the Writ Petition. In the result, C.R.P. No.1059 of 2003 and W.P.(C) No.31606 of 2004 are dismissed. It is made clear that this order does not bar the plaintiffs from approaching other forum, if any, available to them for redressing their grievance. There will be no order as to costs. ## **(KURIAN JOSEPH, JUDGE)** **(HARUN-UL-RASHID, JUDGE)** **sp/** C.R.P. NO.1059/2003 & W.P.(C) NO.31606/2004 11 **KURIAN JOSEPH & HAURN-UL-RASHID, JJ.** **C.R.P. NO. 1059/2003 & W.P.(C)NO.31606/2004** **O R D E R** **23rd September, 2008** C.R.P. NO.1059/2003 & W.P.(C) NO.31606/2004 12