Chenicheri Pandara Valappil Musthafa v. Mukkunnan Aboobacker Haji and Janab T.B. Abdul Sathar Haji

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN WEDNESDAY, THE 15[TH] DAY OF JUNE 2022 / 25TH JYAISHTA, 1944** **RSA NO. 1123 OF 2006** **AGAINST THE JUDGMENT IN OS 169/1994 OF MUNSIFF COUR, KANNUR AS 103/2000 OF PRINCIPAL DISTRICT COURT, THALASSERY** **-----** ## **APPELLANT/APPELLANT/PLAINTIFF:** CHENICHERI PANDARA VALAPPIL MUSTHAFA S/O.LATE BEERAN, AGED 56 YEARS, COOLIE, R/A PAPPINISSERI, NEAR ESI HOSPITAL, KANNUR. BY ADV SRI.P.U.SHAILAJAN ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 MUKKUNNAN ABOOBACKER HAJI, FATHER'S NAME NOT KNOWN, AGED 65 YEARS, NEAR SUB REGISTRAR'S OFFICE, BALIAPATTAM, BALIAPATTAM AMSOM DESOM, KANNUR DISTRICT. 2 JANAB T.B. ABDUL SATHAR HAJI, S/O.OTUPURAKKAL MOOSAN, AGED 51 YEARS, SECRETARY, VALAPPATTANANAM MUSLIM WELFARE ASSOCIATION, REGD.NO.417/83, BALIAPATTAM, KANNUR. BY ADVS. SRI.C.KHALID SRI.K.MOHAMED ALI SRI.T.P.SAJID THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07.06.2022, THE COURT ON 15.06.2022 DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R. S. A. No.1123 of 2006** **= = = = = = = = = = = = = = = = = = Dated this the 15[th] day of June, 2022** ## **J U D G M E N T** The plaintiff in the suit is the appellant. The suit is one for declaration of title of the plaintiff's Tarwad over the plaint schedule Makham, and for prohibitory injunction to restrain the defendants from interfering with its management. 2. The plaint schedule property is Makham. The plaintiff claims that the plaint schedule property belongs to his family as per Ext.A1 partition deed dated 04.02.1943, and that in Ext.A1 partition deed, the plaint schedule Makham is kept in common for worship by the Tarwad members. The plaintiff alleges that the plaint schedule was forcibly taken possession of by the defendants who are the President and Secretary of a Muslim Welfare Association. It is accordingly that the suit is filed. The defendants contended that the plaint schedule property was part of a larger extent of R. S. A. No.1123 of 2006 **==> picture [34 x 9] intentionally omitted <==** property acquired by the Government in the year 1973 in connection with construction of an approach road and bridge. A section of the Muslim community got the plaint schedule property back from the Government, it being a place of worship, and ever since it is owned and managed by the Muslim Welfare Association represented by the defendants. The plaintiff nor his family have any right over the plaint schedule property, is the contention. 3. The suit was originally decreed concurrently by the trial and first appellate courts. In SA 201/1998 filed by the defendants, the decree and judgment were set aside and the suit was remanded back to the trial court for disposal de novo. Thereafter, the suit was decreed by the trial court. The trial court held against the title of the plaintiff. It further directed the defendant, to reconstitute the Managing Committee in the manner stated therein, including a representative of the plaintiff’s family also. Dissatisfied by the decree, the plaintiff filed AS 103/2000 before the District Court. R. S. A. No.1123 of 2006 -: 3 :- However, the District Court interfered with the judgment of the trial court and dismissed the suit holding it to be barred under the provisions of the Waqf Act, 1995. It is challenging the same, that the present appeal has been preferred. 4. Heard learned counsel on either sides on the following substantial questions of law:- (1) Is the finding of the lower appellate court that the suit is barred by virtue of Section 85 of the Waqf Act, 1995 correct in law? (2) Is the finding of the courts below that plaint schedule property was the subject matter of land acquisition proceedings, based on materials? (3) How is the administration of the plaint schedule Makham to be conducted? 5. Section 85 of the Waqf Act, 1995 reads thus:- _**“85. Bar of jurisdiction of Civil Court, revenue Court and any other authority** .― No suit or other legal proceeding shall lie in any Civil Court, revenue Court and any other authority_ R. S. A. No.1123 of 2006 **==> picture [34 x 9] intentionally omitted <==** _in respect of any dispute, question or other matter relating to any waqf, waqf property or other matter which is required by or under this Act to be determined by a Tribunal._ ” 6. The Waqf Act, 1995 came into force with effect from 01.01.1996. A conjoint reading of Sections 6(1) and 6(5) of the Waqf Act, 1995 makes it clear that, no suit on an issue as to whether a particular property specified as waqf property in the list of auqafs is waqf property or not, shall be maintainable in a civil court on and from the date of commencement of the Waqf Act,1995 (01.01.1996). Sub-section 5 of Section 7 stipulates that the bar of jurisdiction of the civil court will not affect any pending suit or appeal. The present suit was instituted on 21.03.1994 that is, prior to the coming into force of the Waqf Act, 1995. Therefore, the Civil Court which is already in seizin of the suit has jurisdiction to adjudicate on the same. The law on the above has been laid down by the Apex Court in R. S. A. No.1123 of 2006 -: 5 :- ## _**Sardar Khan & Ors. v. Syed Najmul Hasan (Seth) and Ors. [2007 (10)**_ _**SCC 727]**_ . The Apex Court held thus:- _“On a conjoint reading of sub-section (5) of S.7 and S.85, the result would be that the Act will not be applicable to the pending suits or proceedings or appeals or revisions which have commenced prior to 1.1.1996, i.e., coming into force of the Waqf Act, 1995.”_ 7. Therefore, the finding of the lower appellate court that the suit is barred by virtue of the provisions of the Waqf Act, 1995, is liable to be set aside and I do so. Substantial question of law No.1 is thus answered in favour of the appellant. 8. The plaint schedule property is situated in Sy. No.63/4 of Baliapattanam village. Exts.A4 and A5 Gazette Notifications relate to the acquisition of property by the Government for construction of an approach road. The notifications include Sy.63/4. The location of the plaint schedule property is shown in Ext.A6 sketch prepared by the Public Works Department in connection R. S. A. No.1123 of 2006 -: 6 :- with the acquisition. Though the plaintiff contends that the plaint schedule property was excluded from the acquisition proceedings, there is absolutely no material to prove the same. In spite of having had an opportunity to adduce further evidence pursuant to the order of remand passed by this Court in S.A. 201/1998, the plaintiff failed to produce materials to substantiate his case of, exclusion of the plaint schedule property from the acquisition proceedings. On the other hand, the Government Orders, Exts.A7 and A8, would indicate otherwise. The said Government Orders show that the plaint schedule property was also subject matter of acquisition but the Government did not utilise the same and permitted carrying out of rituals in the Makham with a rider that, no developmental activities shall be carried out in the property. The courts below have appreciated the entire evidence on record including the aforementioned documents, and negatived the contention of the plaintiff that the plaint schedule property R. S. A. No.1123 of 2006 **==> picture [34 x 9] intentionally omitted <==** was exempted from acquisition proceedings. The finding of the courts below are based on materials. I do not find any error of law in the finding so entered. Substantial question of law No.2 is thus answered against the appellant. 9. It has been concurrently found by the courts below, on materials, that neither the plaintiff nor the defendants have title over the plaint schedule Makham. It is beyond challenge that the Government permitted rituals to be conducted in the Makham. The Makham contains the mortal remains of a member of the plaintiff - Chenicheri Pandara Valappil Tarwad. A section of the Muslims in the locality, formed an association and had the plaint schedule Makham registered as a Waqf. Though neither the plaintiff nor the defendants have title over the plaint schedule property, as acceded to by the Government, the same is in the possession of the defendants who is managing it as a place of worship. In the order of remand dated 12.11.1998 in S.A. 201/1998, R. S. A. No.1123 of 2006 -: 8 :- this Court had ordered that, if after remand it is found that the plaint schedule property was acquired under the Land Acquisition Act and that the title vests with the State, arrangements need to be made for proper administration of the Makham. The direction reads thus:- _“..... If the court finds that the land was acquired under the Land Acquisition Act and the title is with the State, it will be for the court to decide as to what arrangement should be made for the proper administration of the Makham. The court cannot wash of its hands of that responsibility considering that the court is the parens patriae of charities.”_ As directed by this Court in the order of remand in S.A.201 of 1998, arrangement needs to be made for proper administration of the waqf. It is presently being administered by the defendants. The Makham contains the mortal remains of a member of the plaintiff’s - Chenicheri Pandara Valappil - Tarwad. It is only appropriate that the plaintiff’s family be given representation in its administration. Section 32 (2)(d) R. S. A. No.1123 of 2006 -: 9 :- empowers the Board to settle schemes for management of a waqf. Either of the parties can approach the Board for settling a scheme for administration of the Makham. Substantial question number (3) is answered accordingly. In the result, the Regular Second Appeal is allowed. It is held that neither the plaintiff nor the defendants have title over the plaint schedule Makham. The parties are relegated to their remedy before the Waqf Board in terms of Section 32(2)(d) of the Waqf Act for settling a scheme for administration by including a member of the plaintiff’s family also. Parties to bear their respective costs. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge