Kanchana v. Seethi Marakkarakath Alikoya Wakf and Kerala State Wakf Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR MONDAY, THE 23RD DAY OF OCTOBER 2017 / 1ST KARTHIKA, 1939 **CRP(WAKF).No. 508 of 2017** AGAINST THE JUDGMENT IN O.S.No.56/2011 of WAKF TRIBUNAL, KOZHIKODE DATED 04-05-2017 ## **PETITIONER** (/PLAINTIFF KANCHANA, D/O.SREEBHAI, AGED 61 YEARS, RETD. TEACHER, 17/1363, PULIKKAL PARAMBA, CHINTHAVALAPPU, KASABA AMSOM & DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADV.SRI.AVM.SALAHUDIN ## **RESPONDENTS** /DEFENDANTS: 1. SEETHI MARAKKARAKATH ALIKOYA WAKF A WAKF REGISTERED BEFORE THE kERALA STATE WAKF BOARD (REG.NO.6139/RA) REPRESENTED BY REP. BY ITS MUTHAVALLI, S.V.IMBICHI PATHUMMABI, RESIDING AT PREMIER VILLA, 15/961, MANANTHALAPALAM, KALLAI NAGARAM AMSOM, KOZHIKODE-3. 2. THE KERALA STATE WAQF BOARD REP. BY ITS CHIEF EXECUTIVE OFFICER, KERALA STATE WAKF BOARD, REGIONAL OFFICE, EROTH CENTRE, BANK ROAD, KOZHIKODE-1. KASABA AMSOM & DESOM OF KOZHIKODE TALUK, R1 BY ADV. SRI.K..SANEESH KUMAR (CAEATOR) R1 BY ADV. SRI.A.BALAGOPALAN R1 BY ADV. SRI.A.RAJAGOPALAN R1 BY ADV. SRI.M.S.IMTHIYAZ AHAMMED R1 BY ADV. SMT.P.SEENA R1 BY ADV. SRI.K.SANEESH KUMAR R2 BY ADV. SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON 23-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **C.T.RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ.** -----------------------------------C.R.P.(Wakf)No.508 of 2017 -----------------------------------Dated 23[rd] October, 2017 ## **JUDGMENT** ## **Ravikumar, J.** This revision petition is directed against the judgment and decree dated 4.5.2017 passed by the Waqf Tribunal, Kozhikode in O.S.No.56 of 2011. The revision petitioner herein was the plaintiff and the respondents herein were the defendants, in the said suit. It was a suit for declaration that the order dated 13.06.2011 in proceedings No.F2-7073/08-02 passed by the Chief Executive Officer of the Kerala State Waqf Board is null and void, unenforceable and passed without any jurisdiction. The revision petitioner has also sought for a perpetual prohibitory injunction for enforcing or implementing the above order against her and the plaint schedule property. The grievance of the revision petitioner is that the Tribunal had failed to take into consideration the legal as also factual contentions while passing the impugned judgment. 2. We have heard the learned counsel for the revision petitioner, the learned counsel appearing for the first respondent as also the learned standing counsel for the second respondent. C.R.P.(Wakf)No.508 of 2017 2 3. For a proper consideration and appreciation of the contentions raised to mount challenge against the judgment and decree passed by the Waqf Tribunal it is only appropriate to state the facts of the case, in succinct. In the plaint, it is averred that the plaintiff/revision petitioner herein along with her family members have been residing in a hut constructed in the plaint schedule property belonged to one O.M.Subrahmania Chettiar and others who were occupying the said property as cultivating tenants under the original landlords of the property. It is also averred therein that she has been residing there along with her aunt Santha P Shenoy. The said Santha P Shenoy died in the year 2006 and thereafter she is residing in the said hut and therefore, she is entitled to get ` _kudikidappu_ ' right over the property in terms of the provisions under the Kerala Land Reforms Act (for short `KLR Act'). Earlier, she had filed O.A.No.42 of 2008 before the Land Tribunal, Kozhikode. Admittedly, the said O.A. was dismissed. It is her case that as against the order of dismissal she preferred an appeal as A.A.No.22 of 2015 before the Appellate Authority (LR Kannur) and it is still pending consideration. In short, the contention is that the revision petitioner is entitled to fixity of tenure and _kudikidappu_ right in the hut and the land appurtenant thereto in terms of the provisions of the KLR Act. Obviously, the revision petitioner has also made certain other averments in the plaint. According to her, she had modified and C.R.P.(Wakf)No.508 of 2017 3 repaired the hut in question. It is her precise case that the property in question where the hut is situated is not a Waqf property and the first respondent Waqf is not a registered Waqf with the Kerala State Waqf Board. She has also taken up a contention that the first respondent got no title or possession over the property and if at all they had obtained registration certificate it must have been obtained by playing fraud on the authorities. It is also contended that herself and her family had been in possession of the hut over 58 years with the knowledge of the owners and intermediaries of the property. The specific contention raised by the revision petitioner before the Board to resist the application filed under Section 54(4) of the Waqf Act was that Chief Executive officer got no jurisdiction to entertain the said application. The first respondent filed a written statement before the Tribunal denying the allegations and raising the following contentions:- The suit is not maintainable as the plaintiff being a tenant in the Waqf property. The property in question was registered as marumpattom No.642/1924 and the contention that the plaint schedule property is one belonged to O.M.Subrahmania Chettiar is not correct. In the proceedings before the Land Tribunal the son of the aforesaid Subrahmania Chettiar namely, Sri.Dandayudhan Chettiar had entered appearance and filed a statement to the effect that the property belongs to the first respondent Waqf. It is to be noted that the said C.R.P.(Wakf)No.508 of 2017 4 written statement filed by the aforementioned Dandayudhan Chettiar was also produced before the Waqf Tribunal. The erstwhile tenant Santha P. Shenoy was granted renewed tenancy in the year 2002 in respect of the building situated in the plaint schedule property for a monthly rent of 650/- and even after the expiry of the period of the₹ said lease and the death of the said tenant viz., Santha P. Shenoy the plaintiff was unwilling to surrender the property despite a specific notice issued by the Mutawalli. The Mutawalli of the first respondent used to collect the rent of the building. For the purpose of terminating the tenancy the first respondent had already sent a notice. The Waqf in question is exempted from the provisions of the Kerala Buildings (Lease and Rent Control) Act. The original tenant is no more and the plaintiff cannot be said to be the legal representative of the original tenant Santha P. Shenoy. In short, according to the first respondent, the plaintiff is an encroacher and therefore, the CEO was justified and duty bound to pass appropriate orders in terms of the provisions under Section 54 of the Waqf Act. 4. The second respondent Waqf Board had also filed a written statement before the Tribunal refuting the contentions raised by the revision petitioner herein and supporting the case of the fist respondent herein. The second respondent had also taken up the contention that as the revision petitioner herself claimed the status of a C.R.P.(Wakf)No.508 of 2017 5 tenant, the suit filed by her ought not have been entertained by the Tribunal in the absence of statutory notice as provided under Section 89 of the Waqf Act. The impugned judgment itself would reveal that based on such rival contentions, the Tribunal had framed the following issues for consideration:- - “(1) Is the suit maintainable ? - (2)Whether Order F2-7073/08-02 dated 13.06.2011 is void ? - (3) Is the prayer for declaration allowable ? - (4) Is the prayer for injunction allowable ? - (5) Reliefs and cost ?” Before the Tribunal, on the side of the revision petitioner, she got herself examined as PW1 and Exts.A1 to A21 were got marked on her side. On the side of the respondents no oral evidence was adduced though Exts.B1 to B15 were got marked. Ext.B16 is a document which was marked subject to proof. 5. Obviously, the Tribunal had jointly considered issue Nos.1 to 4 as they are intrinsically intertwined. A scanning of the impugned judgment would reveal that the Tribunal had arrived at the conclusion that for the purpose of considering the issues involved, the suit is maintainable and obviously, based on such finding, it proceeded to consider with the other issues. As noticed hereinbefore, Ext.A1 was the order which was assailed before the Tribunal. The revision petitioner herein/plaintiff sought for a declaration that it is null and void. It is an C.R.P.(Wakf)No.508 of 2017 6 order passed by the Chief Executive Officer attached to the Waqf Board on a petition filed by the Mutawalli of the first respondent Waqf. The Waqf in question is a Waqf Alal-Aulad namely Seethi Marakkarakath Alikoya Waqf. The aforementioned Santha P. Shenoy was occupying a room in the line room bearing No.17/1363 of Nagaram Village. The said property is admittedly comprised in T.S.No.17-15-667. Obviously, the Mutawalli of the first respondent moved the Waqf Board by filing an application under Section 54(1) of the Waqf Act, that culminated in Ext.A1 order dated 13.6.2011, contending that the property is a Waqf property and despite the issuance of notice of termination of the tenancy the revision petitioner is not surrendering the property. The first respondent therefore, sought for removal of the encroachment from the Waqf property. Admittedly, the Waqf Board on receipt of the said application issued notice to the revision petitioner herein as also to Smt.Santha P. Shenoy. It is to be noted that the said application was filed during the life time of Santha P. Shenoy. She breathed her last during the pendency of the proceedings before the Waqf Board. The revision petitioner herein, after entering appearance before the CEO took up the contention that the building and the appurtenant land are not Waqf properties. 6. Evidently, the Tribunal took note of the fact that the plaintiff/revision petitioner herein described herself as a lessee and at C.R.P.(Wakf)No.508 of 2017 7 the same time, she had failed to state how she obtained tenancy over the property in question. The precise contention of the respondents herein was that the Mutawalli had let out the building to Smt.Santha P. Shenoy and the first respondent used to receive the monthly rent of ₹650/- from her and the rent receipts issued thereafter were produced and marked before the Tribunal as Ext.B10 series. They covered the period from September, 2003 to November, 2007. In this context, it is to be noted that the revision petitioner would admit in the written statement filed before the Waqf Tribunal in O.S.No.56 of 2011, which culminated in the impugned judgment as also in this revision petition, that she had been residing in the hut along with Santha P. Shenoy, who died in the year 2007. A scanning of the contentions raised by the revision petitioner all along would reveal that her precise case is that the building and the appurtenant land belonged to one O.M.Subrahmania Chettiar. In this context, it is relevant to note that even then she has not chosen to bring him in the array of parties. The Tribunal took note of the fact that despite making such an assertion the revision petitioner had failed to adduce any evidence before the Tribunal to the effect that O.M.Subrahmania Chettiar got right, title and possession over the property. The first respondent herein evidently, relied on Exts.B3 and B4 Waqf Deed Nos.1408/31 and 661/1933 respectively, executed by one Alikoya. Going by the same, it is evident C.R.P.(Wakf)No.508 of 2017 8 that the said Seethi Marakkarakath Alikoya dedicated this property as a family Waqf. The mode of succession to the office of the Mutawalli was stated in Exts.B3 and B4. The Tribunal on perusing the said documents, more particularly Ext.B5, arrived at the conclusion that Seethi Marakkarakath Alikoya Waqf is a family Waqf and it is registered with the Kerala State Waqf Board with Registration No.6139 in 1983. The Tribunal had arrived at the conclusion based on Ext.B6 series that the building in question was situated in the property belonged to Sri.Seethi Marakkarakath Alikoya who later dedicated the property as a family Waqf. They would reveal that rent was being collected by the Mutawalli in respect of the room bearing No.17/1363 of Nagaram Village. Paragraph 18 of the impugned judgment would reveal that on a careful scrutiny of the documents the Tribunal had arrived at the conclusion that the property wherein building No.17/1363 is situated belonged to Seethi Marakkarakath Alikoya, the first respondent Waqf, in terms of Exts.B3 and B4 and that the property is being managed and administered by the Mutawalli of the said Waqf. Furthermore, the Tribunal came to the conclusion that Mutawalli was collecting rent from Late Smt.Santha P. Shenoy and further that the plaint schedule property is having an extent of 92 cents comprised in T.S.17-5-667 in Kasaba Village. While the revision petitioner contended that there is only a hut situated in the property and that it is an independent house C.R.P.(Wakf)No.508 of 2017 9 and not a part of the line building, the first respondent Mutawalli contended that it is a line building having six rooms in occupation of the Waqf. Paragraph 20 of the impugned judgment would reveal that the Tribunal also took note of Ext.B11 which is a report of the Special Revenue Inspector attached to Kozhikode Land Tribunal in the proceedings in O.A.No.42/2008. The said document was marked without the objection of the revision petitioner herein/plaintiff. In Ext.B11, what is stated regarding the nature of the building in question is that it is one of the line rooms in a row of six rooms and it is numbered as 17/1363. Evidently, the revision petitioner herein had produced Exts.A5 to A8 viz., ration cards. They would go to show that the revision petitioner herein was residing along with one Santha P.Shenoy. Evidently, the fact that in all those documents Smt.Santha P. Shenoy was shown as the head of the family was also taken into consideration by the Tribunal. At the same time, though she had claimed that Santha P. Shenoy is her aunt, at the time of evidence she deposed that Santha P. Shenoy is none-other than his father's elder brother's daughter. Going by the recital in paragraph 22 of the impugned judgment, while being examined as PW1, the revision petitioner had conceded to the effect that she is not the legal heir of Santha P Shenoy. But, according to her, she is the legal representative. C.R.P.(Wakf)No.508 of 2017 10 7. Certain other aspects were also taken into account by the Tribunal. In O.A.No.42/2008 filed before the Land Tribunal, originally, the Mutawalli of the first respondent was not a party. In fact, one Dandayudhan who is the son of O.M.Subrahmania Chettiar alone was arrayed as the respondent. The statement of the said Dandayudhan Chettiar before the Tribunal was marked as Ext.B16, subject to proof. The Mutawalli of the first respondent got impleaded only as supplemental second respondent before the Tribunal. Ext.B12 is the order passed by the Land Tribunal. As per the same, the O.A. was dismissed. As noticed hereinbefore, the said Dandayudhan Chettiar was impleaded by the revision petitioner herein as the sole respondent in the proceedings before the Land Tribunal. But, at the same time, while being examined as PW1 before the Waqf Tribunal she deposed that she got no idea as to how Dandayudhan Chettiar derived the right and title over the property. She had deposed thus:- “ദണണ്ടായയധനന് എങ്ങനനയണ്ടാണന് വസന്സയവവില്‍ അവകണ്ടാശശം കവിടവിയനസനന് ” എനവിക്കറവിയവിÜï. Evidently, the Tribunal took note of the aforesaid aspects while passing the impugned judgment dated 4.5.2017. Upon analysing the aforesaid aspects as also the evidence on record the Tribunal found that the revision petitioner herein was not even in a position to establish as to what was her right over the property. The Tribunal also held that the C.R.P.(Wakf)No.508 of 2017 11 right of ` _kudikidappu'_ which she had claimed was turned down by the Land Tribunal. It is the consideration of all such contentions and evidence on record that led to the dismissal of the aforesaid Original Suit. 8. Before us the learned counsel appearing for the revision petitioner contended that the status of the revision petitioner is that of a tenant. But, at the same time, it is stated that they constructed a hut in the said property while it was in the possession of O.M.Subrahmania Chettiar who then holding that property as a cultivating tenant under the original landlord of the property. Ext.B10 series of documents produced by the first respondent would reveal that Santha P. Shenoy was paying rent at the rate of 650/-. Exts.B4 and B5 would reveal₹ that the first respondent is a family Waqf and a conjoint reading of Exts.B3, B4 and B10 would reveal that the Mutawalli of the first respondent Waqf was receiving rent in respect of the building in question from Late Smt.Santha P. Shenoy. In such circumstances, it can only be taken that Santha P Shenoy was the original tenant and she was effecting payment of rent at the rate of 650/-. The case of the₹ revision petitioner is that she was living along with the said Santha P. Shenoy. Exts.A5 to A8 ration cards would reveal that Santha P. Shenoy was shown as the head of the family in occupation of the building No.17/1363. Even going by the case of the revision petitioner, C.R.P.(Wakf)No.508 of 2017 12 Smt.Santha P. Shenoy was the head of the family and in such circumstances, the question is what is the independent right of the revision petitioner herein to claim ` _kudikidappu'_ right. There is nothing on record to show that even Santha P. Shenoy had raised any claim of ` _kudikidappu_ ' right during her life time and at the same time, the aforementioned documents would reveal that the relationship between the first respondent Waqf and Late Smt.Santha P. Shenoy was that of landlord-tenant. In this context, it is relevant to refer to the decision of a learned Single Judge of this Court in **Raju** v. **Soman (1995 (1) KLT 222).** It is to be noted that in the said judgment in paragraph 6, the following recital from the judgment in **Mariyam** v. **Xavier (1971 KLT 709)** rendered by Krishna Iyer, J. was referred to as hereunder:- “The law would reduce itself to an absurdity if every man, woman and child in a hut begins to set up an independent kudikidappu right merely because the master of the household has taken permission to occupy and the others are inhabiting the house along with him.” After referring to the decision in **Mariyam's** case (supra) and also two other decisions of this Court viz., in **Perila Janardhanan** v. **Vellachi Chinna (1972 KLT 207)** and in **Balammal** v. **Vasanthakumari (1984 KLT 137)** , it was held in **Raju's** case (supra) that a person inhabiting in a building based on the relationship with the head of the family cannot be said to be in independent occupation which is an essential requirement for qualifying him to claim the right of C.R.P.(Wakf)No.508 of 2017 13 _kudikidappu_ . In this case, the very pleadings of the revision petitioner herein before different forums viz., Waqf Board, Waqf Tribunal as also before this Court would reveal that her precise case is that Santha P. Shenoy was in occupation of the building and along with her she had been residing in the building in question. Exts.A5 to A8 are the records produced by the revision petitioner herself before the Tribunal. They would go to show that the head of the family was Santha P. Shenoy. At the same time, it is to be noted that before the Tribunal, the revision petitioner herself would admit that the said Santha P. Shenoy is her father's elder brother's daughter. In the said circumstances, in the light of the decision in **Raju's** case (supra) the revision petitioner cannot be heard to contend that she was in independent occupation of the building in question. There cannot be any doubt with respect to the position that an independent occupation of a hut is an essential requirement for qualifying a person to claim the right of _kudikidappu_ . In the light of the very case of the revision petitioner, she cannot be heard to contend that she is having an entitlement to claim right of _kudikidappu_ especially when her claim in that regard was dismissed by the Land Tribunal in O.A.No.42 of 2008. 9. In the aforesaid contextual situation, the question is whether the pendency of the appeal before the appellate authority as A.A.No.22 of 2015 can be taken as a reason for interfering with the C.R.P.(Wakf)No.508 of 2017 14 impugned judgment. A learned Single Judge of this Court in **Taikandy Thekkumbalath Madhavi Amma and Others** v. **M.N.Kesavn (2008** **(1) KHC 951)** dealt with the circumstances wherein the Court is not bound to make reference of the question of tenancy to Land Tribunal. The situations were enumerated after referring to the decision of the Hon'ble Apex Court viz., in **Thomas Antony** v. **Varkey** ( **2000 (1) KLT 12 (SC))** . In the said decision, it was held that if a defendant raised a contention that he came into possession of the property in question after 1.4.1964 and claimed that he is entitled to fixity of tenure, under the Land Reforms Act, the plea raised by the defendant is hit by Section 74 of the Land Reforms Act which provides that after the commencement of the Kerala Land Reforms Act, no tenancy could be created and that any such tenancy created will be invalid. When such an invalid lease is put forward as a defence, even on making a reference to the Land Tribunal, that authority would not be in a position to hold that the defendant is a cultivating tenant entitled to fixity of tenure. In short, it was held that in such circumstances, such a question need not be referred to the Land Tribunal. In this context certain other aspects also assume relevance. Though at one point of time the revision petitioner took up the contention that one O.M.Subrahmania Chettiar was the owner of the property, it is evident that deviating the said contention she had also stated that he was a C.R.P.(Wakf)No.508 of 2017 15 cultivating tenant under the original landlord. In short, it was the contention that Santha P. Shenoy started occupying the hut after constructing it while the property was in occupation of the said Subrahmania Chettiar as a cultivating tenant. The case borne out from Exts.B3, B4 and B10 series as also the absence of any cogent evidence to buttress the aforesaid contention would only strengthen the case of the respondents that Santha P. Shenoy was only a tenant under the Waqf. It is also to be noted that though the correctness of Ext.B10 series of rent receipts were disputed by the revision petitioner herein while being examined as PW1, she admitted that she has not even seen Ext.B10 series of rent receipts. In such circumstances, when the head of the family viz., Santha P. Shenoy was not having any right to claim the status of a cultivating tenant or _kudikidappu_ right, how can the revision petitioner claim any such independent right. 10. It is also the admitted case of the revision petitioner that after the death of Santha P. Shenoy, from 2007 onwards she had not been paying rent. When Santha P. Shenoy was admittedly occupying the building as a tenant and had been paying rent, as is evident from Ext.B10 series, the facts that the revision petitioner herein continued in occupation of the said building, but at the same time, failed to effect payment of the rent, her continued occupation of the said building even after the expiry of the lease period and her failure to C.R.P.(Wakf)No.508 of 2017 16 surrender the vacant possession of the same despite the termination of the tenancy by issuing notice by the first respondent, would reveal that she is an encroacher in the said Waqf property. Then, the question for consideration is whether the Tribunal was right in holding that she was an encroacher, liable to be proceeded in the light of the provisions under Section 3(ee) of the Waqf Act,1995 and Rule 2(ha) of the Kerala Wakf Rules, 1996. Section 3(ee) of the Waqf Act reads thus:- - “ **3(ee)** “encroacher” means any person or institution, public or private, occupying waqf property, in whole or part, without the authority of law and includes a person whose tenancy, lease or licence has expired or has been terminated by mutawalli or the Board.” Rule 2(ha) of the Kerala Wakf Rules, 1996 reads thus:- “ **2(ha)** `encroachment' in relation to any wakf premises means occupation by any person of the Wakf premises without authority for such occupation and includes the continuance in occupation by any person of the wakf premises after the authority whether by way of grant or has been determined for any reason whatsoever, and includes any construction, alteration or addition carried out to the building without the authority;” Referring to those provisions, a Division Bench of this Court in ## **Raphimon** v. **Kerala State Wakf Board (2016 (4) KLT 509)** held that a person who is occupying a Waqf property after the expiry of the period of the lease is an encroacher. In the light of the aforesaid decisions as also the aforesaid provisions, we do not find any reason to hold that the Tribunal went wrong in finding that the revision petitioner C.R.P.(Wakf)No.508 of 2017 17 is an encroacher and therefore, in sustaining the order of the CEO of the Waqf Board for removal of the encroachment. The learned counsel appearing for the revision petitioner when faced with such a position contended that since the Waqf in question is a Waqf Alal-Aulad the provisions of the Waqf Act, 1954 are not applicable to it. In fact, to buttress the said point the learned counsel relied on a Full Bench decision of this Court in **Lakshmanan** v. **Mohamood (1992 (1) KLT 85 (F.B))** . We are afraid, the said contention cannot be sustained in the light of the said decision. The learned counsel virtually wanted to consider us a particular sentence in paragraph 8 of the decision in isolation, to canvass the said point. But, on a careful consideration of the decision of the Full Bench in the said case, it is evident that the Full Bench was considering the validity of a notification issued under Section 25 of the Kerala Buildings (Lease & Rent Control) Act, 1965 whereunder exemption in respect of buildings owned by the Waqf registered under the Waqf Act was granted, under the provisions of the Rent Control Act. The question was whether the exemption thus granted would be applicable to Waqf-alal-aulad (family Waqf). In paragraph 8 of the said judgment this Court held that Waqf Act, 1954 recognised Waqf-alalaulad as a Waqf registered for the purpose of Muslim law. Evidently, the learned counsel was trying to canvass the position that in the said judgment there is a recital to the following effect:- “ a Wakf-alal-aulad C.R.P.(Wakf)No.508 of 2017 18 simpliciter is outside the scope of the Act as it originally stood.” But, it is to be noted that in the very next sentence of the very same paragraph this Court took note of the fact that by the Amendment Act 69/84, Waqf-alal-aulad, though in general Muslim law can be a valid Waqf, for the purpose of the Waqf Act it will be a Waqf only to the extent the property is dedicated to any purpose recognised by the Muslim law. After considering all such aspects it was held that the exemption granted in respect of buildings owned by a Waqf registered under the Waqf Act, 1954 with the Kerala State Waqf Board would be applicable to Waqf-alal-aulad (family Waqf). In other words, the exemption granted to Waqf-alal-aulad (family Waqf) in terms of the said notification was held as valid. In the case on hand, the Tribunal has already arrived at the conclusion that the property in question is a Waqf property registered with the Waqf Board and the head of the family along with whom the revision petitioner resided namely, Santha P. Shenoy, was only a tenant under the first respondent Waqf. She continued to stay in the hut till 2006. The revision petitioner who admitted the relationship with the said person in the aforementioned manner cannot contend that she inherited the right of Santha P. Shenoy. If at all, Santha P. Shenoy was having any right to claim _kudikidappu_ we have already found that Santha P. Shenoy had never claimed _kudikidappu_ right and at the same time, she was only a tenant C.R.P.(Wakf)No.508 of 2017 19 and she continued payment of the rent fixed in the year 2002 till April, 2006 and it is the case of the first respondent that after her death the revision petitioner continued to pay the rent till April, 2007. We have already found that a notice was issued to the first respondent for terminating the tenancy. That apart, even going by the case of the revision petitioner, she was not paying the rent from December, 2007 onwards. In the aforesaid circumstances, in the light of the decision in **Raphimon's** case (supra) it is evident that the revision petitioner is an encroacher. When that be so, the invocation of the power under Section 54 by the CEO to pass the order which was impugned before the Tribunal and sustainment of the said order by the Waqf Tribunal cannot be said to be an order warranting interference invoking the powers under the proviso to Section 83(9) of the Waqf Act. There is no illegality, impropriety or incorrectness which warrants interference in exercise of the said power. In short, the revision petition is liable to fail. 11. When we are about to dismiss this revision petition the learned counsel for the revision petitioner submitted that taking into account the age of the revision petitioner, who is a sexagenarian, some time may be granted for vacating the building in question. In such circumstances, 10 months' time is granted to the revision petitioner for vacating the room occupied by her. Needless to say that arrears of rent, C.R.P.(Wakf)No.508 of 2017 20 if any, shall be paid by the revision petitioner. So also, she shall continue to pay the rent during such continuance at the admitted rate. Subject to the above, this revision petition is dismissed. Sd/- **Judge** **C.T.RAVIKUMAR** Sd/- **B.SUDHEENDRA KUMAR Judge** TKS // true copy // Sd/P.S. To Judge