Noorul Huda Madrassa Committee represented by President and General Secretary vs Kelothpoyil Ammad Haji, Vannathankandy Andru Haji, and The Kerala State Wakf Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 23RD DAY OF JUNE 2017/2ND ASHADHA, 1939 CRP(WAKF).No. 278 of 2012 () ----------------------------- AGAINST THE JUDGMENT IN OS 14/2011 of WAKF TRIBUNAL, KOZHIKODE DATED 30-04-2012 REVISION PETITIONERS/PLAINTIFFS : ------------------------------------------ 1. NOORUL HUDA MADRASSA COMMITTEE REGISTERED AS PER SOCIETY ACT 642/2000, REPRESENTED BY PRESIDENT, KATTALI TAZHA KUNIYIL ABDUL AZEEZ BAKAFI, AGED 40 YEARS, S/O. AMMED MUSALIYAR, NARIPPATTA AMSOM, THINAYUR DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. 2. GENERAL SECRETARY, NOORUL HUDA MADRASSA COMMITTEE, REPRESENTED BY PRESIDENT, NAYARKANDIYIL ISMAYIL SAKHAFI, S/O. AMMED, NARIPPATTA AMSOM, TINAYUR DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. 3. ABDUL AZEEZ BAKAFI, AGED 43 YEARS,S/O. AMMED MUSALIYAR, NOORUL HUDA MADRASSA COMMITTEE PRESIDENT, NARIPPATTA AMSOM, TINAYUR DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. 4. NAYARKANDIYIL ISMAYIL SAKHAFI , AGED 43 YEARS,S/O. AMMED, GENERAL SECRETARY, NOORUL HUDA MADRASSA COMMITTEE, NARIPPATTA AMSOM,TINAYUR DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADVS.SRI.G.S.REGHUNATH SRI.K.RAJESH KANNAN SRI.A.S.SHAMMY RAJ SRI.P.SHANES RESPONDENT(S)/DEFENDANTS : -------------------------- 1. KELOTHPOYIL AMMAD HAJI, AGED 50 YEARS, S/O. MOIDEEN HAJI, BUSINESS, NARANGOLIYIL,NARIPPATTA AMSOM, TINAYUR DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673 127. 2. VANNATHANKANDY ANDRU HAJI, AGED 65 YEARS FATHER'S NAME NOT KNOWN TO THE PETITIONERS, AGRICULTURE, NARIPPATTA AMSOM, TINAYUR DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673 127. 3. THE KERALA STATE WAKF BOARD, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, V.I.P.ROAD, KALOOR, ERNAKULAM-682 017. R1&2 BY ADV. SRI.ZUBAIR PULIKKOOL R1&2 BY ADV. SRI.P.S.BINU THIS CRP (WAKF) HAVING BEEN FINALLY HEARD ON 23-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ---------------------------------------------C.R.P. (Wakf)No.278 of 2012 ---------------------------------------------Dated this the 23[rd ] day of June, 2017** ## **ORDER** ## **Anil K. Narendran, J.** This civil revision petition arises out of the judgment dated 30.4.2012 of the Waqf Tribunal, Kozhikode in O.S.No.14 of 2011. The petitioners/plaintiffs filed the said suit seeking for an injunction restraining the defendants from trespassing into the plaint schedule property having an extent of 6¼ cents in Re-Survey No.21/4 (old Survey No.34/6) of Vadakara Taluk or obstructing the plaintiffs' peaceful possession and enjoyment of plaint schedule property or obstructing them from demolishing the old building in the plaint scheduled property, etc. By the impugned order, the Tribunal dismissed the suit holding that no effective decree in favour of the plaintiffs can be passed in the absence of a proper survey plan and report. Challenging the said order, the petitioners/plaintiffs are before this Court in this civil revision petition filed under the proviso to subsection (9) of Section 83 of the Waqf Act, 1995. 2. Heard arguments. 3. Going by the plaint averments, the plaint schedule property belongs to the 1[st] plaintiff committee, as obtained vide waqf 2 CRP (Wakf)No.278/2012 deed No.1750/2000 and the committee is in possession and enjoyment of the same, which is lying with definite boundaries. The defendants have no manner of right or possession over the said property. After obtaining the plaint schedule property, the 1[st] plaintiff committee constructed a building thereon, for conducting Noorul Huda Madrassa. The property situated immediate south to the plaint schedule property was in possession of 1[st] defendant's father Moideen Haji, who constructed a building thereon, with the permission of the owner of that property and the madrassa was functioning in that property. While so, the building became dilapidated and now the building is without any roof. Therefore, the madrassa was shifted to a new building and when the plaintiffs attempted to demolish the dilapidated building to avoid danger to children, the defendants obstructed them. According to the plaintiffs, they have right to demolish the dilapidated building standing in the property and the defendants have no right to obstruct them. Since the defendants obstructed the plaintiffs, they filed the suit for permanent prohibitory injunction. 4. The defendants filed written statement, contending that the plaint schedule property is not identifiable and even prior to the waqf deed in favour of the 1[st] plaintiff committee, Moideen Haji was in 3 CRP (Wakf)No.278/2012 possession of the property situated immediate south to the plaint schedule property, and he constructed the building thereon with the permission of the owner of that property, using his own money and contribution from public, for conducting a madrassa. After his death, 3½ cents of property devolved upon the 1[st] defendant and other legal heirs of Moideen Haji. The old madrassa building was in the property of Moideen Haji. No portion of that building is extending to the plaint schedule property. Subsequently, the madrassa was shifted to a new building. According to the defendants, the old building is not in a dilapidated condition. After purchasing the plaint schedule property, the 1[st] plaintiff committee tried to remove the roof of the old madrassa building, which resulted in filing of a petition before police and the police had instructed both parties to maintain status quo. According to the defendants, the intention of the plaintiffs is only to create a new pathway to the newly constructed building, by demolishing a portion of the old building in their property. The plaintiffs have no manner of right to demolish any portion of the old building and as such, the suit is liable to be dismissed with costs. 5. Before the Tribunal, PWs.1 to 3 were examined and Exts.A1 to A13 were marked on the side of the plaintiffs. On the side of the defendants, DW1 was examined and Exts.D1 and D2 were CRP (Wakf)No.278/2012 4 marked. 6. After considering the materials and evidence on record, the Tribunal found that the plaint scheduled property having an extent of 6¼ cents in Re-Survey No.21/4 (old Survey No.34/6) of Vadakara Taluk, which is scheduled in the plaint with its survey number, boundary descriptions and measurements, in accordance with Order VII, Rule 3 of the Code of Civil Procedure, 1908, which descriptions are as contained in Ext.A1 waqf deed, can be identified as per the schedule given in the plaint. While arriving at such a conclusion, the Tribunal has also noticed that, except a contention that the plaint schedule property is not identifiable, nothing was argued by the learned counsel for the defendants regarding that contention in the written statement. Since the plaint schedule gives the details of the measurements of the property on four sides with its boundary descriptions, survey number, etc., the Tribunal held that the plaint schedule property can be identified as per the schedule given in the plaint. 7. The 1[st] plaintiff committee is claiming title and possession over the plaint schedule property having an extent of 6¼ cents, on the strength of Ext.A1 waqf deed dated 25.9.2000. On the other hand, the defendants would contend that Moideen Haji, father of the CRP (Wakf)No.278/2012 5 1[st] defendant, was in possession of 3½ cents of property covered by Ext.B1 Kanam Kuzhikanam deed dated 21.2.1962. Exts.C1 and C2 are commission reports prepared by PWs.2 and 3, and Ext.C2(a) is the plan prepared by a private surveyor. The Tribunal found that, there is no dispute as to the fact that the 1[st] plaintiff committee obtained the plaint schedule property having an extent of 6½ cents as per Ext.A1 waqf deed dated 25.9.2000 and that, the property dedicated as per that document, for the purpose of constructing a madrassa, is specifically described therein with its measurements on all four sides and also the boundaries on all four sides; which would show that the property was measured before the execution of Ext.A1 deed. As per the boundary descriptions, the property referred to in the schedule to Ext.A1 deed, lies north to the property in possession of Moideen Haji, which would make it clear that the waqif had no intention to transfer any portion of the property which has been in the possession of Moideen Haji, which lies south to the property transferred vide Ext.A1 waqf deed. 8. The 2[nd] plaintiff, the General Secretary of the 1[st] plaintiff committee, was examined as PW1. The evidence of PW1 would also show that the plaintiffs have no claim over 3½ cents of property covered by Ext.B1 Kanam Kuzhikanam deed dated 21.2.1962 6 CRP (Wakf)No.278/2012 executed by Assan, S/o.Moideen Musaliyar, in favour of Moideen Haji. The schedule to Ext.B1 deed contains the measurements of 3½ cents of property and the 1[st] defendant is not claiming possession of any land in excess of that mentioned therein. Exts.C1 and C2 commission reports and the oral evidence of the Advocate Commissioners as PWs.2 and 3 would show that the building constructed by Moideen Haji is presently in a dilapidated condition, without any roof, and it is unfit for occupation. 9. The Tribunal noticed that, both sides have not disputed the measurements shown in Exts.A1 and B1 deeds and they have also not claimed any property in excess of the extent mentioned in the respective documents. The fact that, the executors of Exts.A1 and B1 deeds had no intention to transfer any extent in excess of that mentioned in those documents is also not in dispute. Both sides have dispute only with respect to the southern boundary of the plaint schedule property, which is the northern boundary of the 1[st] defendant's property. In other words, both sides have absolutely no dispute regarding the other 3 boundaries of the properties covered by Exts.A1 and B1 deeds. Therefore, as rightly noticed by the Tribunal, the dispute between the plaintiffs and the defendants can be resolved by a proper measurement of the properties covered by Exts.A1 and CRP (Wakf)No.278/2012 7 ## B1 deeds. 10. The Advocate Commissioner who submitted Ext.C1 report was examined as PW2. The evidence of PW2 would show that he has not measured the property as per the measurements given in the document. The Advocate Commissioner who submitted Ext.C2 plan and Ext.C2(a) report was examined as PW3. The evidence of PW3 would show that Ext.C2(a) plan was prepared by a private surveyor. The details of the private surveyor have not been mentioned in Ext.C2 report. Further, Ext.C2(a) plan is one signed by the Advocate Commissioner and not by the surveyor, who allegedly prepared the same. The Tribunal found that, considering the nature of contentions raised by both sides, a proper survey plan and report is necessary to find out whether any portion of the disputed building is in the plaint schedule property. In the absence of any such report and plan prepared after measuring the property, no effective decree in favour of the plaintiffs can be passed. Accordingly, the Tribunal dismissed the suit holding that the plaintiffs are not entitled to get a prohibitory injunction as sought for. 11. Order XXVI of the Code of Civil Procedure, 1908 deals with commissions. Order XXVI, Rule 9 deals with commissions to make local investigations. Rule 9 provides that, in any suit in which 8 CRP (Wakf)No.278/2012 the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. Going by the proviso to Rule 9, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules. 12. Order XXVI, Rule 10 deals with procedure of commissioner. Sub-rule (1) of Rule 10 provides that, the commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. Sub-rule (2) of Rule 10 provides further that, the report of the commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has CRP (Wakf)No.278/2012 9 made the investigation. Going by sub-rule (3) of Rule 10, where the Court is for any reason dissatisfied with the proceedings of the commissioner, it may direct such further inquiry to be made as it shall think fit. 13. In **Retnamma and others v. Mehaboob and others (2013 (2) KHC 670)** a learned Judge of this Court held that, Order XXVI, Rule 9 of the Code of Civil Procedure enables the Court to issue a commission for local investigation, if it is satisfied that such local inspection is requisite or proper for the purpose of elucidating any matter in dispute, etc. When a commission report and plan are filed in Court, as per the direction of the Court, the Court shall not act merely as a post office and receive it on file. In the light of the provision contained in Order XXVI, Rule 10(3) Code, the Court shall go through the report and see whether it is in order, irrespective of whether any objection is filed or not. Where the Court is dissatisfied with the proceedings of the commissioner, for any reason, it may direct the commissioner to make such further inquiry as it thinks fit. This may be done by the Court either suo motu or at request of by either of the parties. Paras.56 to 59 of the judgment read thus; “ **56.** A reading of Order XXVI, Rule 9 of CPC reveals that the said provision enables the Court to issue a commission for local investigation, if it is satisfied that such local inspection is CRP (Wakf)No.278/2012 10 requisite or proper for the purpose of elucidating any matter in dispute, etc. Such a course may be necessary to enable the Court to resolve the dispute and to take a right decision in the matter. In many cases involving dispute relating to identity of immovable property or boundaries, the Court may not be in a position to resolve the dispute effectively and pass a decree with clarity in the absence of a commission report. **57.** Therefore, the commission report and plan have great significance in resolving the factual dispute in a civil case and hence, Order XXVI, Rule 9 CPC lays down that Court may direct the commissioner to make such investigation as may be necessary and to report the matter to the Court. When a commission report and plan are filed in Court as per the direction of the Court, the Court shall not act merely as a post office and receive it on file. It is the bounden duty of the Court to go through the commission report and consider whether the commission report is satisfactory or not and whether it contains all the relevant details as may be necessary to resolve the dispute. It shall see whether the report is defective or unsatisfactory for any reason or whether any clarification is required in the report. **58.** In short, the Court shall confirm that commissioner has elucidated all relevant facts which will help the Court to take a right decision in the case. In the light of the provision contained in Order XXVI, Rule 10(3) CPC, the Court shall go through the report and see whether it is in order, irrespective of whether any objection is filed or not. Order XXVI, Rule 10(3) CPC lays down that where the Court is dissatisfied with the proceedings of the commissioner, for any reason, it may direct the commissioner to make such further inquiry as it thinks fit. CRP (Wakf)No.278/2012 11 **59.** If, on a perusal of the report, the Court is satisfied that there is any failure or omission on the part of the commissioner in eliciting the necessary details or if the Court doubts the correctness of the details reported by the commissioner or if the Court finds that the report lacks clarity, the Court has to direct the commissioner to make such further inquiry, as it may think fit. This may be done by the Court either suo motu or at request of by either of the parties.” 14. In **Subhash B. v. State of Kerala and others (2014 (3) KHC 498)** a learned Judge of this Court held that, the report of the Advocate Commissioner shall be evidence in the suit in which it is filed (without him being even examined) and shall form part of the record under Order XXVI Rule 10(2) of the Code of Civil Procedure. The duty of the Advocate Commissioner is only to record evidence and give a vivid report of the true state of affairs in order to aid the Court to have a proper assessment of the factual matrix. The Court, if dissatisfied with the proceedings of the Advocate Commissioner for any reason, can direct such further enquiry to be made as it thinks fit under Order XXVI Rule 10(3) of the Code. 15. In the instant case, PW3 Advocate Commissioner, who submitted Ext.C2 report and Ext.C2(a) plan sought the assistance of a private surveyor for preparing that plan. Moreover, Ext.C2(a) plan is one signed by the Advocate Commissioner and not by the surveyor, 12 CRP (Wakf)No.278/2012 who allegedly prepared the same. If the Tribunal was dissatisfied with the report and plan submitted by the Advocate Commissioner on account of any procedural irregularity committed by her or for the reason that the details given in the report or plan are inadequate for passing an effective decree in favour of the plaintiffs, it ought to have remitted the commission report and plan, even suo motu, and get the relevant details reported. In that view of the matter, the impugned judgment of the Tribunal dismissing O.S.No.14/2011 filed by the petitioners/plaintiffs cannot be sustained in law. In the result, this civil revision petition is disposed of by setting aside the judgment of the Waqf Tribunal dated 30.4.2012 in O.S.No.14/2011 and the matter is remanded to the Waqf Tribunal for fresh consideration and disposal, in the light of observations contained in this judgment. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE) Sd/-** **ANIL K. NARENDRAN (JUDGE)** **spc/**