K. Musthafa v. Abdul Jabbar A.P. and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932** **RSA.No. 485 of 2010** **----------------------------** **[AS.NO.8/2010 OF SUB COURT, MANJERI, OS.NO.171/2007 OF MUNSIFF'S COURT, PARAPPANANGADI]** **....................** ## **APPELLANT/APPELLANT/PLAINTIFF:** **-----------------------------------------------------** **K.MUSTHAFA, S/O. MAMMED, AGED 38 YEARS, MUTTUYL THADI, CHENAKKALANGADI, THENHIPALAM AMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT.** **BY ADVS. SRI.B.G.BHASKAR, SRI.R.O.MUHAMED SHEMEEM, SMT.NASEEHA SHEMEEM, SRI.P.Z.NIJAZ.** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **--------------------------------------------------------------------** **1. ABDUL JABBAR A.P., AGED 57 YEARS, S/O. AHAMED KUTTY MUSLIAR, PARANTHODI, CHENAKKALANGADI, THENHIPALAM AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT.** **2. T.P.MUHAMMED @ CHINNAKUTTY HAJI, S/O. IMBICHIKOYA, AGED 60 YEARS, MANGATTU HOUSE, AREEPARA, CHENAKKALANGADI, THENHIPALAM AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT.** **3. P.K.FAISAL, AGED 35 YEARS, S/O.K.T.MUHAMMED MASTER, KURUKKANKANDATHIL HOUSE, CHENAKKALANGADI, THENHIPALAM AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT.** **4. ANVAR T.P., AGED 35 YEARS, S/O. LATE IMBICHIKOYA, THEKKORATH HOUSE, KOLATTADU, CHENAKKALANGADI, THENHIPALAM AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT.** - **R1 TO R3 BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE & ADV.SRI.K.M.FIROZ.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/05/2010, THE COURT ON 04/06/2010 DELIVERED THE FOLLOWING:** **R.S.A. NO. 485/2010:** **ORDER ON I.A. NO. 1109/2010 IN R.S.A. NO. 485/2010** **DISMISSED 04/06/2010. SD/- P.BHAVADASAN, JUDGE.** **//TRUE COPY//** **P.S. TO JUDGE.** **Prv.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 485 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of June, 2010. ## **JUDGMENT** The plaintiff in O.S. 171 of 2007 before the Munsiff's Court, Parappanangadi, who had his suit dismissed and which was confirmed in appeal is the appellant. 2. The suit was one for declaration and other ancillary reliefs. The plaintiff claimed to have been authorised to institute the suit by the Hussain Medavoor group of the members of the Chenakkalangadi Sakha of Kerala Naduvathul Mujahideen. It is claimed that the Kerala Naduvathul Mujahideen is a society registered under the Societies Registration Act and it is governed by its bye-laws. The Society consists of four tiers, namely, Sakha at the local level, Mandalam, then the District level committee and finally the State Committee. Going by the bye-laws, the election is to be held once in every three years. The dispute arose between the members of 2 R.S.A.485/2010. Chenakkalangadi Sakha and it split into two factions. One group was known as Abdul Khader Moulavi Group and the other Hussain Madavoor group. That led to a suit as O.S.560 of 2002, which is even now pending. It is claimed that the affairs of the Sakha fell into disarray due to several reasons and finally due to the intervention of the Circle Inspector of Police an interim arrangement was arrived at, whereby the administration of the Sakha was to be carried out by the group which obtained majority in the election to be held in pending final decision in the litigation. The plaintiff claimed that in pursuance of the said agreement, an election was conducted on 4.8.2007, in which 19 votes were cast in favour of Hussain Madavoor group and the other group secured 17 votes. As per the agreement, Hussain Madavoor group is entitled to administer and manage the affairs of the Sakha. However, the defendants, who belong to the other camp began to obstruct the management of 3 R.S.A.485/2010. the Sakha and that led to a minor scuffle on 17.7.2007. Apprehending further trouble from the defendants, the suit was laid. 3. The defendants entered appearance and resisted the suit. It was contended that the suit is not maintainable. The specific contention taken is that the plaintiff was a member of the local Sakha, since he has not renewed his membership in the local Sakha. he is incompetent to file the suit. As he is representing a group, the suit has to be under Order 1 Rule 8. He cannot bring a suit against the Society and its members. The Managing Committee of the Kerala Naduvathul Mujahidheen has a Mosque and a Madrassa, which constitute wakf properties. The Committee is to manage those properties. Being Wakf properties, the suit is barred and the Wakf Tribunal alone has power to decide the matter. The suit relates to the internal management of a registered society. The so-called election having been held contrary to the bye-law is vitiated. The appellant is trying to somehow grab the R.S.A.485/2010. 4 management of the unit. It is conceded that there was an intervention by the police and an interim arrangement was arrived at. However, according to the defendant, the election was not held in terms of the bye-law and therefore cannot be given effect to. There was serious dispute regarding the manner of voting and the votes secured by each of the groups in the so-called election. Pointing out that the plaintiff is not entitled to any relief, they prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and no documents were marked on the side of the plaintiff. The defendants had D.W.1 examined and Exts. B1 to B13 marked. Exts. X1 to X4 series are third party exhibits. On a consideration of the materials before it, the court below came to the conclusion that the suit is bad in several respects and dismissed the same. The matter was carried in appeal by the plaintiff as A.S. 8 of 2010. The R.S.A.485/2010. 5 lower appellate court concurred with the finding of the trial court and confirmed the decree of the trial court. That brings the plaintiff to this court. 5. Learned counsel appearing for the appellants contended that the courts below were not justified in dismissing the suit. None of the grounds relied on to do so are sustainable either on law or on facts. According to learned counsel, in fact the real dispute at the final hearing of the suit was only regarding the postal ballots and the courts below have not addressed themselves to that question. Instead, they have considered other materials which were not relevant for the purpose of deciding the suit. 6. Learned counsel went on to contend that the finding of the court that Order 1 Rule 8 is attracted is without any basis. According to learned counsel, even an individual has a right to assail an act, though several persons may be benefited by the relief he gets. The suit need not be in the representative capacity, since the plaintiff is trying to establish the right which is available to 6 R.S.A.485/2010. him. In support of his claim, learned counsel relied on the decision reported in **Kalyan Singh v. Smt. Chhoti** (AIR 1990 SC 396) and **P.K. Nayar v. Raghava Menon** (1959 KLT 979). It was contended that the courts below were not justified in coming to the conclusion that the plaintiff has not produced the so-called karar entered between the two groups before the police and also that there is no evidence to show that the plaintiff is authorised to institute the suit. According to learned counsel, these facts were not in dispute and the karar had infact been produced and so also the authorisation. Therefore, these grounds are also not available for the trial court to dismiss the suit. It was also contended that at any rate, the defendants are estopped by their conduct in denyjng the rights available to Hussain Madavoor group, who are successful in the election conducted in pursuance to the agreement. In support of his contention, learned counsel relied on the decision reported in **B.L. Sreedhar v. K.M. Munireddy** (AIR 2003 SC 578). Learned counsel went on to point out that the doctrine of R.S.A.485/2010. 7 estoppel is capable of creating a right which can be enforced. It is to be mentioned here that not satisfied with the oral argument advanced before this court, learned counsel for the appellant also preferred argument notes. 7. A caveat had been lodged by the defendants. Senior Counsel Sri. V. Chitembaresh appeared on behalf of the respondents. 8. Learned counsel pointed out that the argument of the learned counsel for the appellant do look attractive, but on a close scrutiny of the pleadings and evidence it can be seen that they are without any basis whatsoever. Learned counsel did not dispute the propositions advanced by the counsel for the appellant. But according to learned counsel, they have no application to the facts of the case. Learned counsel went on to point out that a reading of the plaint would clearly show that the suit was being lodged by the plaintiff as authorised by the Hussain Madavoor group of members and no authorisation was produced or marked in evidence. The so-called karar was also not marked. R.S.A.485/2010. 8 Attention was drawn to the fact that the plaintiff did not go into the box and therefore an adverse inference has to be drawn against him. Learned counsel then went on to point out that the Sakha is governed by the bye-law and any election or any conduct in contravention or violation of the provisions of the appeal cannot be recognized and given effect to. Whatever be the conduct of the members, they cannot justify an action contrary to the provisions of the bye-laws. 9. There seems to be considerable force in the argument advanced by the learned Senior Counsel appearing for the respondents. Copy of the plaint was made available for perusal. 10. It is true that in the decision reported in **Kalyan Singh's case** it was held as follows: _“Any member of a community may successfully bring a suit to assert his right in the community property or for protecting such property by seeking removal of encroachments therefrom. Such a suit need not comply with the_ R.S.A.485/2010. 9 _requirements of O.1, R.8. The suit against alleged trespass even if it was not a representative suit on behalf of the community would be a suit of this category. In this suit 'K' and another claimed that the baghichi was their community property and 'B' was a trespasser. They brought the suit to recover possession from 'B'. The suit was decreed. The rival title claimed by 'B' by adverse possession was negatived. So long as that decree operates, it would be futile to decree the subsequent declaratory suit filed by the brother of 'B'.”_ ## In the decision in **P.K. Nayar's case** it was held as follows: _“Assuming that such an action can be brought only in a representative capacity, Mr.Balakrisha Eradi has not been able to cite any authority to the effect that a decree passed in circumstances like the present is illegal. it was open to the defendant to have raised this objection at the earlier stage, so that, if the objection was sound in law, the plaintiff could have immediately rectified the same. Nor has the appellant been able to satisfy me that there has been any prejudice caused to him by the action_ R.S.A.485/2010. 10 _being allowed to be fought out by the plaintiff alone. I may also, in this connection, refer to the decision of Wort, J., reported in Ramghulam v. Ramkhelawan (AIR 1937 Patna 481). The learned Judge observes at page 482 as follows:_ _“Order 1, R.8, C.P.C. as has been pointed out by a number of decisions, is an enabling section which entitles one party to represent many who have a common cause of action; but it does not force one to represent many if his action is maintainable without the joinder of the other persons. Therefore, the first contention of Mr.Balakrishna Eradi is negatived.”_ One cannot dispute the proposition that an individual can assert his rights even though they may enure to the benefit of several other persons or to a group of persons or to a particular body as such. But a reading of the plaint shows that the plaintiff was not agitating the cause in his individual capacity. The plaintiff has specifically averred that he is authorised by the Hussain Madavoor group to institute the suit. The defendants had specifically disputed that he is competent to institute the suit. It is therefore clear that he 11 R.S.A.485/2010. was instituting the suit on behalf of a group. He has not produced the authorisation by which he is entitled to institute the suit, and going by the averments if he has instituted the suit on behalf of Hussain Madavoor group, naturally Order 1 Rule 8 would be attracted. This is what the courts below have held and there is no reason to interfere with the said finding. 11. The next issue that arises for consideration is whether the defendants are estopped by their conduct from disputing the claims put forward by the plaintiff. It is not in dispute that the administration and management of the Sakha are governed by the bye-laws. There is no case for the plaintiff that the so-called election was carried on in accordance with the provisions of the bye-law. It is extremely doubtful if two groups in a Sakha can agree among themselves to do something in total violation of the bye-laws accepted by the Sakha and such other bodies. The mere fact that a compromise was arrived at, does not give any group any right to do anything in violation of the bye- R.S.A.485/2010. 12 laws. If a thing is to be done in a particular manner, it has to be so done and not in any other way. If one is to accept the proposition that it is possible to vary the provisions of the bye-laws by conduct and consensus between members of a Sakha, that would lead to disastrous results. Then each Sakha or such body can follow its own rules. That cannot obviously be the position. Sakha as well as such other bodies had to scrupulously follow the bye-laws unless they are empowered to do otherwise and there is nothing to show that Sakhas are entitled to deviate from the bye-laws. 12. The defendants had specifically disputed that the plaintiff is a member of the Kerala Naduvathul Mujahidheen. Inspite of this specific contention, there was no attempt on the part of the plaintiff to show that he is a member of Kerala Naduvathul Mujahidheen. The defendants had produced Ext.B11 to show that the list did not contain the name of the plaintiff. R.S.A.485/2010. 13 13. Learned counsel appearing for the appellant pointed out that the defendants have admitted that the plaintiff has voted in the election held as per the karar and also that the ballot papers have been produced. 14. The claim of the appellant that he has voted in the election and the ballot paper itself has been produced are not sufficient. When there is a specific denial of his membership, it is for him to establish that he is a member of the Sakha. It is here that the non-examination of the plaintiff assumes importance. It is contended that the plaintiff is a total stranger and he has nothing to do with the election. Therefore merely because the plaintiff claims to have voted in the election is not a ground to hold that the plaintiff is a member when the defendants had specifically denied the same. There was no attempt on the part of the plaintiff to establish the claim made by him. 15. The courts below have also considered the question whether the suit is barred under the Wakf Act. The courts have come to the conclusion that the Mosque and the 14 R.S.A.485/2010. Madrassa constitute Wakf properties and therefore fall within the ambit of Wakf Act. The Mosque and the Madrassa are properties of which management has to be carried on by the Sakha Committee. 16. Learned counsel appearing for the appellant pointed out that the courts below have erred in law in coming to such a conclusion. Madrassa, by no stretch of imagination, can be treated as a Wakf property and it is also pointed out that the society had been in existence long before the Mosque had come into existence. It could not be said that the Society falls under the Wakf Act. 17. Learned counsel appearing for the respondents on the other hand pointed out that a reading of Exts. B1 and B2 will clearly show that the Mosque and the Madrassa are Wakf properties. There is no substance in the contention of the appellant that it is not so. R.S.A.485/2010. 15 18. It is felt that it is not necessary to decide this issue because the suit has to fail on other grounds. The fate of the suit does not depend upon the decision on this issue and it is only of academic interest in the context of the present case. 19. Obviously since the plaintiff has not examined himself, it could not be said that the averments in the plaint have been established. As already stated the mere fact that he claims to have voted in the election is not sufficient to hold that he is a member of the Sakha. May be that the karar and the authorisation have been produced along with the plaint. May be also that they form part of the pleadings. But the pleadings are not evidence. Those documents ought to have been marked by examining the plaintiff himself. For reasons best known to the plaintiff he chose to keep away from the box. As rightly pointed out by the learned counsel for the respondents, that necessitate an adverse inference to be drawn against him. One may have a look at the prayer in the plaint. It reads as follows: R.S.A.485/2010. 16 _“The plaintiff therefore prays for a declaration that the Hussain Madavoor group in the Chenakkalangadio Sakha, (now consisting of 19 members) is entitled to manage the affairs of the Chenakkalangadi Sakha till the final disposal of the litigation regarding the control and administration of the society called Kerala Naduvathul Mujahideen and for a consequential injunction restraining the defendants and their supporters from interfering with or obstructing the administration and management of the affairs of the Chenakkalangadi Sakha, its institutions and properties by the Hussain Madavoor Group._ As rightly pointed out by the Senior Counsel for the respondents the prayer is very vague in as much as the litigation which is intended has not been specified. A general statement that the relief may be granted till the disposal of the litigation is too vague. There may be litigation after litigation and an omnibus prayer cannot be granted. R.S.A.485/2010. 17 20. The result is that none of the allegations in the plaint have been established. Apart from the said fact, merely because a karar had been entered into at the behest of the police does not enable the members of the Sakha to deviate from the provisions of the bye-law and devise their own procedure. 21. Learned counsel appearing for the appellant drew the attention of this court to the decision of this court in W.P.(C) 35052 of 2007 dated 19.3.2009. The courts below took the view that since the suit is hit by the provisions of the Wakf Act, it may not be maintainable. That was challenged before this court. This court observed as follows: _“The election was conducted on 4.8.2007 and it is submitted that the committee took charge. The decision taken by the Appellate Court on the basis of the decisions reported in Pookoya Haji v. Cheriya Koya (2003(3) KLT 32) and Madeena Masjid v. Kerala Jama Ath Islami Hind (2007(3) KLT 800) is not correct. The bar under Section 85 of the Wakf Act is confined to the questions to be_ R.S.A.485/2010. 18 _decided by the Tribunal and with respect to other matters the jurisdiction of the civil court is not barred. Section 9 of the C.P.C. states that the civil court shall have jurisdiction to try all the suits of a civil nature except the suits of which their cognizance either expressly or impliedly barred. The finding of the Appellate Court that the subject matter of the suit confers jurisdiction on the Wakf Tribunal and that there is express bar under Section 85 of the Wakf Act for the civil court to entertain the suit is illegal and the finding is against the pleadings and the law.”_ It was therefore contended that the ground that the mosque and Madrassa fall within the ambit of Wakf Act is not justified. 22. A reading of the above quoted paragraph will show that this court has finally bring on the issue whether the Wakf Act will apply or not. That was left to be decided on the basis of the evidence adduced in the case. This court only observes that at that stage it may not be possible to R.S.A.485/2010. 19 say that the suit is barred under the provisions of the Act. It is already stated that it is unnecessary to go into that question because the suit has to fail on other grounds. In the result, this appeal is without merits and it is dismissed in limine. **P. BHAVADASAN, JUDGE** sb. R.S.A.485/2010. 20 ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 485 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** **04.06.2010**