CRP(WAKF) No. 8 of 2016

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE S.V.BHATTI`** ## **`&`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` WEDNESDAY, THE 16[TH] DAY OF MARCH 2022 / 25TH PHALGUNA, 1943 ``` ## **`CRP(WAKF) NO. 8 OF 2016`** ## **`OS 20/2013 OF WAKF TRIBUNAL, KOZHIKODE`** ## **`PETITIONER/S:`** ``` RUKHIYA, AGED 61 YEARS D/O.LATE KADEESABI, SAFA HOUSE, EAST NADAKKAVU, KACHERI AMSOM DESOM, KOZHIKODE-673006. ``` ``` BY ADVS. SRI.K.P.BALASUBRAMANYAN SRI.NIRMAL. S SMT.VEENA HARI ``` ## **`RESPONDENT/S:`** - `1 AYISHABI, AGED 65 YEARS, D/O.LATE ALIKOYA HAJI, PULIKKAL PUTHIYA PURAYIL HOUSE, FRANCIS ROAD, NEAR T.B.CLINIC, P.O.KALLAI, NAGARAM AMSOM DESOM, KOZHIKODE TALUK-673003.` - `2 USMANKOYA, AGED 58 YEARS S/O.LATE ALIKOYA HAJI, PULIKKAL PUTHIYA PURAYIL HOUSE, FRANCIS ROAD, NEAR T.B.CLINIC, P.O.KALLAI, NAGARAM AMSOM DESOM, KOZHIKODE TALUK-673003.` - `3 KERALA WAKF BOARD, REPRESENTED BY CHIEF EXECUTIVE OFFICER, VIP ROAD, NEAR KALOOR STADIUM, KOCHI, ERNAKULAM-682017.` ``` BY ADVS.SRINATH GIRISH ``` - `SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD V.NAMITHA/SHRI.JAMSHEED HAFIZ, SC, WAQF BOARD` ## **`OTHER PRESENT:`** ``` THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON 16.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRP(WAKF) NO. 8 OF 2016 ``` -2- # **S.V.BHATTI & BASANT BALAJI, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - ## **C.R.P.(WAKF) No.8 of 2016** - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - ## **O R D E R** (Dated this the 16[th] day of March 2022) ## Basant Balaji J., The plaintiff in O.S. No.20 of 2013 on the files of the Wakf Tribunal, Kozhikode is the petitioner herein. The petitioner filed a suit for declaration that assignment deed No.1208/07 of SRO Chalappuram executed by respondent Nos.1 and 2 does not have any bearing on the plaint schedule property, a family wakf and also for a permanent prohibitory injunction restraining the 2[nd] respondent from executing any further document on the basis of the said assignment deed. 2. The plaint averments in brief is as follows:- The plaint schedule property belonged to one Kunhimoyin ``` CRP(WAKF) NO. 8 OF 2016 ``` -3- Kutty by virtue of document No.1267/1930. Subsequent to his death, his right over his property devolved on his wife Ithayumma, daughter Imbichi Pathu and Kunheethin Kutty. The undivided right of Kunheethin Kutty was assigned to Moidu Haji as per document No.38/1935. Subsequently, the undivided right of the property of Moidu Haji and Ithayumma was assigned to one Alikoya as per document No.874/1944. By Wakf document No.1054/1948, Alikoya and Imbichi Pathu dedicated the property to Wakf. Regarding the appointment of mutawalli, the recitals in the document were clear and consequently, on the death of Imbichi Pathu in 2008, the first respondent being the eldest member of the tharawad, became the mutawalli of the wakf. The second respondent is the brother of the first respondent. The first respondent with some others had assigned a portion of the wakf property to the second respondent by assignment deed No.1208/07. The first respondent being the mutawalli has no right to assign the said property and the said document is void _abinitio._ On ``` CRP(WAKF) NO. 8 OF 2016 ``` coming to know about the execution of the documents, notice was issued by the petitioner to the respondents demanding cancellation of the same. Though notice was received, reply was sent raising false allegations. 3. The second respondent filed a written statement denying the fact that the plaint schedule property is a wakf property as contended by the petitioner. The wakf deed is not acted upon and the plaint schedule property was never enjoyed as the wakf property. The petitioner has no right over the plaint schedule property and she is not eligible for the mutawalliship. The respondents along with others filed O.S. No.41 of 2009 before the Tribunal for declaration with regard to the nature of the plaint schedule property. In the said suit, the Tribunal found that the plaint schedule property is not a wakf property and it is liable for partition. Hence, the respondents raised a contention that the suit is barred by _resjudicata_ and estoppel. 4. The Tribunal raised three issues. Firstly, as to whether the plaint schedule property is a wakf, whether the ``` CRP(WAKF) NO. 8 OF 2016 ``` -5- plaint schedule property is entitled for any declaration and lastly, order as to reliefs and costs. 5. On the side of the petitioner, PW1 was examined and Exts.A1 and A2 were marked. On the side of respondents, there was no oral evidence, but the second respondent produced copy of the judgment and decree in O.S. No.41 of 2009. The respondents, after filing of the written statement and producing the copy of the judgment and decree, did not appear when the case was posted for evidence. 6. The Tribunal on an appreciation of the oral as well as documentary evidence, came to a conclusion that the petitioner is not entitled to a decree and suit was dismissed. Against the said decree and judgment, this Revision Petition is filed. 7. Counsel for the revision petitioner Adv.K.P. Balasubramanian submitted that the said O.S.No.41 of 2009 was filed by the respondents in a collusive manner, without impleading the petitioner or anyone interested and ``` CRP(WAKF) NO. 8 OF 2016 ``` -6- hence, by practicing fraud on Court, the said judgment is obtained, which is void _abinitio._ It was also contended that the decision in the O.S. is not binding on the petitioner and other heirs of Khadeesabi and hence, the suit is not barred. 8. The counsel for the respondents, Adv.Srinath Girish submitted that O.S. No.41 of 2009 conclusively proves the fact that the plaint schedule property is a wakf property and the said order of the Wakf Tribunal has attained finality as any of the respondents has not taken up the matter before this Court challenging the findings arrived at. So the petitioner cannot contend that the plaint schedule is not a wakf property as the said finding has attained finality. 9. It is true that there is a judgment and decree in O.S. No.41 of 2009 which was filed by the defendants along with others and there is a definite finding by the Tribunal that the plaint schedule property in the present suit is not a wakf property. But the petitioner or any other heirs of Khabeesabi were not parties to the suit and hence, the ``` CRP(WAKF) NO. 8 OF 2016 ``` -7- judgment is not binding on them. The respondents did not produce any oral or documentary evidence, or even mounted the box. They have produced a copy of judgment in O.S. No.41 of 2009 along with a written statement. The Tribunal relied on the judgment of the Apex Court in **Mayadevi v. Lalta Prasad (AIR 2014 SC 1356),** wherein it was held that:- “ _The failure to file written statement, thereby bringing Order 8 Rule 10 of CPC into operation, or the factum of defendant having been set exparte, does not invite a punishment in the form of automatic decree both under Order 8 Rule 10 CPC and on the invocation of Order 9 of CPC, the court is duty bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted.”_ It is seen that the petitioner or any of the heirs of Khabeesabi were not parties to the suit in O.S.No.41 of 2009. So any finding entered in respect of the plaint schedule property will not be binding on the petitioner. ``` CRP(WAKF) NO. 8 OF 2016 ``` -8- Hence the petitioner is entitled to challenge that the plaint schedule property is a wakf property. The Tribunal mainly relied on the judgment and decree produced by the respondents and entered into a finding that the judgment and decree in O.S. No.41 of 2009 has attained finality and it is binding on the petitioner. On going through the judgment of the Tribunal, we are of the opinion that the said finding is not correct mainly because the petitioner or any other heirs of Khadeesabi were parties to the suit and hence, the judgment is not binding on them. Taking into consideration of the relevant circumstances, as well as the declaration sought for and since the one issue is whether the plaint schedule property is a wakf or not and the finding entered by the Tribunal solely relying on the judgment in O.S. No.41 of 2009, we are of the opinion that the matter has to be remitted to the Tribunal for fresh disposal, afford opportunity to both the parties as commensurate to the issues. In the result, this Revision Petition is allowed, setting ``` CRP(WAKF) NO. 8 OF 2016 ``` -9- aside the judgment and decree of the Tribunal and the case is remitted to the Wakf Tribunal for fresh consideration, in accordance with law. The Tribunal shall take all endeavours to dispose of the case, as expeditiously as possible and at any rate, within a period of six months from the date of receipt of a copy of this order. Needless to state that the petitioner as well as the respondents shall be given ample opportunity of adducing evidence, if they wish to do so. **sd S.V.BHATTI, JUDGE** **sd BASANT BALAJI, JUDGE** _dl/_