Edasseri Alikutty alias Kunhippu v. Perinthallur Muslim Mahallu Committee & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM # PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 7[TH] DAY OF DECEMBER 2021/16TH AGRAHAYANA, 1943 ## C.R.P. NO.548 OF 2011 (AGAINST THE JUDGMENT DATED 19.11.2011 IN OS No.7/2011 OF WAKF TRIBUNAL, KOZHIKODE) ## PETITIONER IN C.R.P.-PLAINTIFF IN SUIT: 1 EDASSERI ALIKUTTY ALIAS KUNHIPPU, MUTHAWALLI OF PADIYATHUKULANGARA JUMA-ATH PALLI, S/O.LATE KUNHALANKUTTY @ UPPAVU, EDASSERI HOUSE, VETTAM PALLIPURAM AMSOM AND PERINTHALLUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. ADDL. EDASSERU UBAID, S/O.LATE KUNHALANKUTTY @ UPPAVU, P2 AGED 52, RESIDING AT VETTAM PALLIPPURAM AMSOM, PERINTHALLUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. (ADDL. PETITIONER IMPLEADED IN THE CRP AS PER ORDER DATED 16.7.2013 IN IA 1336/13) BY ADVS. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.B.SUBRAMANYAN ## RESPONDENTS IN C.R.P.-RESPONDENTS IN SUIT: - 1 PERINTHALLUR MUSLIM MAHALLU COMMITTEE, PERINTHALLUR, REPRESENTED BY ITS SECRETARY, C.K.ABU HAJI, S/O.KUTTU HAJI, RESIDING AT VETTAM PALLIPURAM AMSOM AND PERINTHALLUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676 102. 2 THACHARAKKAL EBRAHIM HAJI, PRESIDENT OF PERINTHALLUR MUSLIM MAHALLU COMMITTEE, RESIDING AT VETTAM PALLIPURAM AMSOM AND PERINTHALLUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676 102. _C.R.P.No.548/2011_ 2 3 THE KERALA STATE WAKF BOARD, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, V.I.P.ROAD, KALOOR, COCHIN - 682 107. ADDL. NOUSHAD ALI, SECRETARY OF PERINTHALLUR MUSLIM R4 MAHALLU SWATHU SAMRAKSHANA SAMITHY, PO PERINTHALLUR. ADDL. ABDUL RAZACK, R5 PRESIDENT OF PERINTHALLUR MUSLIM MAHALLU SWATHU SAMRAKSHANA SAMITHY, P.O.PERINTHALLUR. (ADDL.R4 AND R5 IMPLEADED AS PER ORDER DATED 27.6.2016 IN IA 1120/2016) BY ADVS. SRI.K.PAUL KURIAKOSE, SRI.K.A.ANISH & SRI.T.A.RAFEEK (CHERTHALA) - FOR R1 & R2 SRI.T.SETHUMADHAVAN (SR.), SRI.KODOTH PUSHPARAJAN, SRI.K.JAYESH MOHANKUMAR, SMT.VANDANA MENON & SMT.DEEPA – FOR R4 & R5 SRI.JAMSHEED HAFIZ, SC, WAQF BOARD THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _C.R.P.No.548/2011_ 3 ## **ORDER** _(Dated: 7[th] December, 2021)_ ## BASANT BALAJI, J. The plaintiff in O.S.No.7 of 2011 on the file of the Wakf Tribunal, Kozhikode challenges the order dated 19.11.2011, wherein his suit for permanent prohibitory injunction was dismissed, holding that the plaintiff failed to establish that he is the Muthavalli of the Mosque by succession and the defendants are illegally interfering with the administration of the property. 2. The case of the plaintiff is that, the suit property and several other properties belonged to one Veeran and it was dedicated by Veeran as a Wakf as per registered Wakf deed dated 26.05.1873. Veeran is the great grandfather of the plaintiff and he had constructed a 'Juma-ath Palli' with the help and assistance of the 'Sunni Muslims' in the locality. _C.R.P.No.548/2011_ 4 According to the plaintiffs there is a stipulation in the Wakf deed that the members of the family of Wakif would succeed to the Muthavalliship of the Wakf. Accordingly on the death of the Wakif, his brother Kunhappakutty along with his grandson Veerankutty were functioning as the Muthavalli of the Mosque. Later the father of the plaintiff Kunhalankutty @ Uppavu was the Muthavalli. Thereafter his younger brother Kunheeru was the Muthavalli and Veeravunni @ Bappu, the brother of the plaintiff was the Muthavalli of the Mosque after Kunheeru. Subsequently, Hamsa, the brother of the plaintiff succeeded to the Muthavalliship and on the death of Hamsa on 23.05.2003, the plaintiff being the senior most male member of the family became the Muthavalli of the Mosque in terms of the recitals of the Wakf deed. 3. The case of the plaintiff is that, the certificate issued by the Wakf Board would evidence that as per its records, the plaintiff is the present _C.R.P.No.548/2011_ 5 Muthavalli of the wakf and the defendants 1 and 2 are interfering with the right to administer the wakf as Muthavalli. 4. The defendants 1 and 2 filed a written statement admitting the execution of the Wakf deed 1579/1873 by Edassery Veeran dedicating the properties as wakf. Veeran himself was the Muthavalli of the Mosque. After his death, the property covered by wakf deed were alienated except the Mosque, and khabarstan and huge amounts were misappropriated by the persons who managed the wakf properties. There was total mismanagement of wakf properties. Meanwhile, Mosque was dilapidated and little bit away from the earlier Mosque a new Mosque was built by the congregation and the plaintiff and their predecessors are not the Muthavalli of the Mosque. Properties which were dedicated by Veeran as per the wakf deed was with a stipulation that income shall be used for paying remuneration to the Katheeb, Mukri or the servants of _C.R.P.No.548/2011_ 6 the Mosque and the plaintiff used to pay salaries to katheeb and Mukri. All other payments to the other employees of the Mosque like Imam and Mukri and other servants are paid by the committee. The Wakf Tribunal on an appreciation of the oral as well as the documentary evidence came to the definite finding that the plaintiff has failed to establish that he is the Muthavalli of the Mosque by succession and that the defendants are interfering with the administration of the property and the suit was dismissed. 5. Heard the counsel on either side. 6. O.S.No.7 of 2011 is admittedly a suit for permanent prohibitory injunction, restraining the defendants therein from interfering with the administration of the Wakf property. The claim of the petitioners is that, he is the Muthavalli by succession as per the wakf deed, but he could not prove before the Wakf Tribunal that he is the Muthavalli of the Mosque by succession. The Tribunal _C.R.P.No.548/2011_ 7 dismissed the suit solely for the reason that he could not prove before the Tribunal that he is the Muthavalli. The suit filed by the petitioner was only for injunction simplicitor. The question whether the petitioner is the Muthavalli or not can be decided only in a comprehensive declaratory suit. So far, the petitioners have not approached the Tribunal with such a comprehensive suit. The Tribunal was right in dismissing the suit because the plaintiff in that case failed to prove that he is the Muthavalli. On going through the judgment of the Wakf Tribunal, we find, there is no illegality or impropriety in the order passed, but at the same time, we find that the question of Muthavalliship can be decided only in a comprehensive declaratory suit before the Wakf Tribunal if the petitioner is so advised. 7. In the decision reported in _**Kalukurumban v. Sarojini Amma**_ **(1997 (1) KLT 481)** , this Court held as follows: _C.R.P.No.548/2011_ 8 _“It is to be noted that the prayer in the earlier suit was for an injunction and it was dismissed on the ground that identity was not proved. Thus, the second suit for declaration of title and recovery of possession is not barred by resjudicata since the cause of action in both the suits are distinct as held by the apex court in the decision reported in AIR 1993 SC 1756 (Sri.Inacio Martins v. Narayan Hari Naik). The same view is supported by the decision of this court as reported in 1981 KLT 700 (Kalliani v. Appellate Authority”_ . In the present case, the question before the Tribunal was in respect of the permanent prohibitory injunction. Though the first issue raised by the court below was “whether the plaintiff is the Muthavalli of the Wakf as claimed” in view of the decision cited supra the question can be decided only in a comprehensive suit for declaration. Though we are confirming the impugned order of the Wakf Tribunal in this revision, we leave open the right of the petitioner to file a comprehensive suit for declaration whether the plaintiff is the Muthavalli of the Wakf properties or not. _C.R.P.No.548/2011_ 9 In the result, C.R.P is disposed of confirming the judgment of the Wakf Tribunal, Kozhikode but giving liberty to the petitioner to file a comprehensive suit for declaration if so advised. _Sd/-_ S.V.BHATTI, JUDGE _Sd/-_ BASANT BALAJI, JUDGE ss