## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN**
**TUESDAY, THE 24TH DAY OF SEPTEMBER 2019 / 2ND ASWINA, 1941**
## **RSA.No.1410 OF 2004(A)**
**AGAINST THE JUDGMENT AND DECREE DATED 21-03-2003 IN AS 49/1999 OF II ADDITIONAL SUB COURT,KOZHIKODE**
**AGAINST THE JUDGMENT AND DECREE DATED 21-12-1998 IN OS 190/1978 OF ADDITIONAL MUNSIFF COURT, KOZHIKODE-I**
## **APPELLANT/APPELLANT/PLAINTIFF:**
**1 KARIMBANAKKAL POCKER, SON OF SAIDALAVI, NEDELATHPARAMBIL THAMASAM (REPRESENTING THE IDIYANGARA MOSQUE MAHAL MUSLIM INHABITANTS), NAGARAM AMSOM AND DESOM OF KOZHIKODE TALUK, KOZHIKODE DISTRICT. (DIED)**
## **[LHR IMPLEADED]**
- ***2 ABDUL LATHEEF V.P., AGED 57, S/O.LATE MR.KARIMBANACKAL POCKER, RESIDING AT RAFSA MANZIL, ACHUNDAM PURATHU, MATHRA, GURUVAYOORAPPAN COLLEGE P.O., KOZHIKODE-673 014.**
**(LEGAL HEIR OF THE DECEASED SOLE APPELLANT IS IMPLEADED AS ADDL.APPELLANT NO.2 AS PER THE ORDER DATED 19.07.2018 IN IA.2022/2018)**
**BY ADVS. SRI.G.S.REGHUNATH SMT.RASHEELA BASHEER**
## **RESPONDENTS/RESPONDENTS/DEFENDANTS 2 TO 7 & 9:**
- **1 SECRETARY,SAMASTHA KERALA JAM IYYATHUL ULAMA SANGHAM, MARCUS COMPLEX, I.G. ROAD, KOZHIKODE4.**
- **2 IDIYANGARA YUVA SAHITHI SAMAJAM, TREASURER P.K.AHAMMED KOYA HAJI'S SON KUHAMMED, KOYA, KUMADI VEEDU, KOZHIKODE.**
- **3 SECRETARY, KERALA WAKF BOARD, ERNAKULAM.**
**RSA.No.1410 OF 2004(A) 2**
- **4 SECRETARY KOZHIKODE IDIYANGARA PALLIPARIPALANA COMMITTEE, NAGARAM AMSOM AND DESOM OF KOZHIKODE TALUK.**
- **5 PRESIDENT, KOZHIKODE IDIYANGARA PALLIPARIPALANA COMMITTEE, NAGARAM AMSOM AND, DESOM OF KOZHIKODE TALUK.**
- ****6 K.V.AHAMMED KOYA, SON OF IMBICHIKOYA MOLLA, METHALAKADIKA HOUSE, FRANCIS ROAD, CHEMMANGAD IN NAGARAM AMSOM, AND DESOM OF KOZHIKODE TALUK.(DIED)**
## **ABATED***
**** APPEAL AGAINST 6TH RESPONDENT IS STOOD AS ABATED AS PER ORDER DATED 18/06/2019 IN REGULAR SECOND APPEAL.**
- **7 KOZHIKODE IDIYANGARA PALLIPARIPALANA COMMITTEE BY ITS SECRETARY, NAGARAM AMSOM AND DESOM OF KOZHIKODE TALUK.**
- **8 K.V.THITHIBI WIFE OF KATHRIKOYA MOLLA, SULFIKAR MANZIL, IDIYANGARA NAGARAM, AMSOM AND DESOM OF KOZHIKODE TALUK.**
- **R2 BY ADV. SRI.K.M.FIROZ**
- **R1,R4,R5,R7 BY ADV. SRI.P.K.MOHAMMED PUZHAKKARA R2 BY ADV. DR.K.B.MUHAMED KUTTY SR. R3 BY SRI.P.A.ABDUL JABBAR, SC, WAKF BOARD R3 BY SRI.K.SHIBILI NAHA, SC, KERALA STATE WAKF BOARD**
- **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON**
- **24.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**RSA.No.1410 OF 2004(A) 3**
## **JUDGMENT**
The plaintiff came up with this appeal aggrieved by the decree granted by the First Appellate Court and the Trial Court in dismissing a suit for declaration that the B schedule property belongs to the Wakf. B schedule constitutes 8 cents of property being the southern portion of a large extent. The remaining extent scheduled separately as A schedule in the plaint having an extent of 21.39 cents. It is the case of the plaintiff that these two properties were originally held by Wakf and there is a mosque in that property. The first defendant's father was the Muthavalli and after his demise the defendant became the Muthavalli of the Wakf, while so the 7[th] defendant, his brother had executed Ext.B1 document of the year 1962 in favour of wife of first defendant, the 8[th] defendant by which the
## **RSA.No.1410 OF 2004(A) 4**
B schedule property was given to her in lease. This document was styled as a 'karaima' a lease based on an earlier oral lease obtained from the father. Subsequently, the 8[th] defendant applied for getting purchase certificate over the property in OA No.3366 of the year 1975 and Ext.B2 Purchase Certificate was granted in favour of the 8[th] defendant. Written statement was submitted raising the said contention. It is thereafter the suit was proceeded with and ended in dismissal in both the Trial Court and the First Appellate Court. Aggrieved by the said decree and judgment, the plaintiff came up with this appeal.
2. The main contention raised by the plaintiff/appellant is that he is a beneficiary of Wakf. The plaint schedule property constitute a mosque and landed property. It was held by Wakf from the year 1961 onwards by entering into the register kept by them. It was also
## **RSA.No.1410 OF 2004(A) 5**
submitted that the execution of Ext.B1 Karaima deed by the brother of the then Muthavalli, the first defendant, who is the 7[th] defendant herein in favour of the wife of then Muthavalli, the 8[th] defendant is a collusive act. Further it was also submitted that this document was executed on the premise that the executant had obtained an earlier oral lease over the property for which no evidence worth the name was adduced. Ext.B2 also assailed stating that it is the result of fraud committed by the first defendant in collusion with the 8[th] defendant. As such, it has no legal effect and relied on the legal position laid down by the Apex Court in
## _**A.V.Papayya sastry and others v. Govt of A.P**_
_**[(2007) 4 SCC 221].**_ Paragraph 22 of the said judgment brought to the notice of this court in support of his argument.
3. It is really a second round litigation.
Originally the suit was dismissed on the ground
## **RSA.No.1410 OF 2004(A) 6**
of maintainability and it was confirmed by the First Appellate Court and the matter was taken up before this court in SA.948/1986 and this Court by its judgment found that the suit is maintainable and not hit by Section 92 of CPC or Section 55 of the Wakf Act. The suit was filed in a representative capacity in compliance of the mandate under Order 1 Rule 8 CPC and after obtaining leave. It was initially dismissed by the Trial Court and the First Appellate Court, on the ground that the suit as framed is not maintainable under Section 92 CPC and Section 55 of the Wakf Act as well. This was reversed by this court in SA No.948/1986 and the matter was remanded back to the Trial Court for fresh disposal. So, it was again came up before the Trial Court, wherein also the plaintiff failed and the suit resulted in dismissal. In appeal also it was confirmed. The present appeal was preferred against the concurrent finding rendered by both the courts below.
## **RSA.No.1410 OF 2004(A) 7**
4. The nutshell of the argument advanced by the learned counsel for the appellant is with respect to the validity of Ext.B2 purchase certificate. It was assailed on the ground that the then Muthavalli was not made as a party to the proceedings and Wakf was also not made as party to the proceedings. It was also submitted that it was obtained in collusion with the then Muthavalli, the first defendant herein as it was obtained in the name of his wife, the 8[th] defendant and it was obtained by playing fraud. The existence of Ext.B2 purchase certificate and its issuance in an O.A proceedings in favour of
the 8[th] defendant was raised by way of defence in the written statement. The purchase certificate
was also produced and let in evidence. Even
after the submission of written statement, the plaint was not amended, incorporating any
pleading raising any claim of fraud played in obtaining Ext.B2 purchase certificate. No
relief was sought in the plaint either to set
## **RSA.No.1410 OF 2004(A) 8**
aside the purchase certificate, Ext.B2 or to declare that it is not binding on them or right, title or interest over the B schedule property. On the other hand, the main argument advanced is that, it is not binding on the Wakf as the Muthavalli was not made as a party to the proceedings. Admittedly, the first respondent in the proceedings is none else the first defendant herein who was the then Muthavalli of the Wakf. Ofcourse, it is true that his status is not shown as Muthavalli representing the Wakf. But, the second respondent in the proceedings is none else the Wakf board, the authority having superintendence over the Wakf property. That itself show and satisfy the status of the first respondent. There are only two respondents in the proceedings, the person who holds the office of Muthavalli as the first respondent and the Wakf board, the statutory authority having superintendence over the property. The mere fact that he has not
## **RSA.No.1410 OF 2004(A) 9**
contested the application may not itself sufficient to gather any inference of fraud played especially when there is no pleading to that effect. It is settled that in the matter of a document of execution or issuance when it was assailed on the ground of fraud it should be pleaded and proved. No such pleading worth the name was raised either in the plaint and no amendment was submitted or effected after the submission of the written statement and no replication was also submitted raising any pleading of fraud in obtaining Ext.B2 purchase certificate. No relief sought in connection with Ext.B2 purchase certificate. In fact, no challenge was raised against Ext.B2 purchase certificate. The fact that it was not contested by the then Muthavalli, first defendant may not itself take away the sanctity attached to the proceedings and the resultant issuance of Ext.B2 purchase certificate. The Wakf board, the competent authority having superintendence over
## **RSA.No.1410 OF 2004(A) 10**
the Wakf property and its affairs also made as party to the proceedings. So, the very fact that it was obtained uncontested itself will not constitute fraud and it cannot be substituted in the place of fraud. The absence of pleading and the relief sought against Ext.B2 purchase certificate is so fatal to the case advanced by the plaintiff. No challenge was raised regarding Ext.B2 purchase certificate before the Land Tribunal and no appeal was also preferred. A subsequent reference made under Section 125(3) of Kerala Land Reforms Act was rejected by the Land Tribunal on the ground of res judicata in view of issuance of earlier purchase certificate which has become final and conclusive. In the present suit, the same was not brought under challenge by raising any pleading of fraud or by incorporating a relief either to set aside the document or to declare it as not binding.
5. An attempt was made by the learned counsel for the appellant that in so far as fraud is concerned, if it was played before a competent
## **RSA.No.1410 OF 2004(A) 11**
court, the entire proceedings would stand as
vitiated and the purchase certificate would be a nullity in the eye of law by relying on the decision rendered by the Apex Court in **A.V.Papayya**
**Sasthry'** s case (supra). It is not pleaded anywhere in the plaint any fraud played even after the submission of written statement showing issuance of purchase certificate. No appeal was preferred before the competent authority challenging the issuance of purchase certificate either by raising fraud or any other vitiating ground. No application
was also submitted before the Land Tribunal who had
issued the purchase certificate challenging the same as a nullity on any ground of fraud by the plaintiff or any other person. In fact, in the
proceedings, the Muthavalli of the Wakf and the
authority having superintendence over it, the Wakf
Board are parties and as such the issuance of
purchase certificate became final and conclusive.
In the present suit, no relief sought either to declare the same as null and void or to set aside
the same and no pleading was also raised regarding
**RSA.No.1410 OF 2004(A) 12**
any fraud played. The concurrent finding rendered by both the courts below thus deserves no interference.
The appeal fails, dismissed. No costs.
msp
**Sd/P.SOMARAJAN JUDGE** //TRUE COPY// P.A. TO JUDGE
