Pathoor Juma Masjid Committee v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 15TH DAY OF NOVEMBER 2017 / 24TH KARTHIKA, 1939** **CRP(WAKF).No. 565 of 2012** **AGAINST THE JUDGMENT IN OS 53/2011 OF WAKF TRIBUNAL, KOZHIKODE DATED 04-10-2012** ## **PETITIONER/PLAINTIFF:** **PATHOOR JUMA MASJID COMMITTEE, P.O.PATHOOR, REP. BY ITS SECRETARY, IBRAHIM, AGED 46 YEARS, RESIDING AT PATHOOR VILLAGE, KASARAGOD TALUK.** **BY ADVS.SRI.R.RAMADAS SRI.T.SIVADASAN** ## **RESPONDENT(S)/DEFENDANTS:** **1. THE STATE OF KERALA,** **REPRESENTED BY THE DISTRICT COLLECTOR,** **KASARAGOD. PIN-671121.** **2. THE STATION HOUSE OFFICER, MANJESWHAR POLICE STATION, MANJESHWAR, KASARAGOD. PIN-671 323.** ## **3. P.M.UMMER HAJI,** **S/O.HAJI MUHAMMED MUSLIYAR,AGED 80 YEARS, LAND HOLDER, RESIDING AT ZAKARIYA MANZIL, PRESIDENT BADRIYA JUMA MASJID, PATHOOR VILLAGE AND POST, KASARGOD TALUK, PIN-671 323.** ## **4. ABDUL RAHIMAN,** **S/O.USMAN,AGED 27 YEARS, RESIDING AT DURGALAPPU HOUSE, P.O.BALIPUNI, BATWAL TALUK, KARNATAKA STATE. PIN-574 153.** ## **5. MUHAMMED,AGED 50 YEARS,** **S/O.MOIDEEN KUNHI, RESIDING AT BADIRMALA, PATHOOR VILLAGE AND POST, KASARGOD TALUK & POST, PIN-673 323.** ## **PBS** ## **CRP(WAKF).No. 565 of 2012** **6. HYDER,AGED 25 YEARS, S/O.H.ABDUL KHADER, BUSINESS, RESIDING AT HOSAMANA HOUSE, PATHOOR VILLAGE & POST. PIN-673 323, KASARGOD TALUK & DISTRICT.** **R1 & R2 BY GOVERNMENT PLEADER SRI. SYAMJI RAM R3,R4,R6 BY ADV. SRI.BECHU KURIAN THOMAS** **THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON 15-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **PBS** ## **CRP(WAKF).No. 565 of 2012** ## **APPENDIX** ## **PETITIONER'S ANNEXURES** |**ANNEXURE 1**|**CERTIFIED COPY OF THE DOCUMENT NO. 1202/2015 DATED**| |---|---| ||**16.03.2015 OF S.R.O., MANJESWAR IN KANNADA LANGUAGE.**| |**ANNEXURE 1(a)**|**ENGLISH TRANSLATION OF ANNEXURE 1.**| |**ANNEXURE 2**|**TRUE COPY OF THE SALE AGREEMENT DATED 02.06.2016**| |**RESPONDENT'S ANNEXURE**<br>**NIL**|| ||**/TRUE COPY/**| ||**PS TO JUDGE**| **PBS 23/5/2018** ## **C.T. RAVIKUMAR & A. MUHAMED MUSTAQUE, JJ.** ## ------------------------------------ C.R.P (Wakf) No.565 of 2012 ------------------------------------ Dated this the 15[th] day of November, 2017 ## **O R D E R** ## **C.T. Ravikumar, J.** This revision petition is directed against the judgment dated 04.10.2012 in O.S.No.53 of 2011 passed by the Wakf Tribunal, Kozhikode. The revision petitioner herein was the plaintiff and the respondents herein were the respondents 1 to 6, therein. On a bare perusal of the impugned judgment in O.S.No.53 of 2011 would reveal that the Chief Executive Officer, Kerala State Wakf Board was impleaded therein as supplemental defendant as per the order in I.A No.540 of 2011 dated 16.11.2011, but in the revision petition, the said supplemental defendant is not joined as respondent. We will deal with the matter later, in case it is inevitable. 2. The revision petitioner filed the said suit seeking for a declaration that plaint A schedule is a burial ground of Pathoor **C.R.P (Wakf) No.565/2012** **2** Juma Masjid and the members who have subscribed to Pathoor Juma Masjid alone are having the right to be buried in plaint A schedule property and for consequential permanent prohibitory injunction restraining respondents 3 to 6 herein/defendants 3 to 6 from trespassing into the plaint schedule property or in any way interfering with the enjoyment of the plaintiff and Pathoor Juma Masjid members plaint A schedule property as their 'kabarstan' (burial ground). As per the impugned judgment, the Wakf Tribunal dismissed the suit. Hence this revision petition. 3. The plaint averments are as follows: Pathoor Juma Masjid is one of the oldest Masjids in the Northern Kerala. The mosque and its properties are being managed by the plaintiff-committee/viz., the petitioner and they are registered with the Wakf Board. The plaint A schedule property is in the possession and enjoyment of Pathoor Juma Masjid and it is the burial ground of the Masjid. It is classified as Governmental land in Government records and it is being used as a burial ground attached to Pathoor Juma Masjid for the past 125 years or thereabouts. The right to be buried in the said property **C.R.P (Wakf) No.565/2012** **3** is the right being enjoyed and available to be enjoyed only by the mahal members of the Masjid and burial has to be done there only after performing Janaza prayer (funeral prayer) as per the custom and usage being followed in Pathoor Juma Masjid. Shortly stated, according to the revision petitioner, only the mahal members can enjoy the plaint A schedule property as their burial ground and therefore, dead body of a non-member could not be buried there. 4. The defendants 3 to 6 denied the averments made in the plaint and contended inter alia, as follows in their written statement:- The plaintiff got no authority to represent Pathoor Juma Masjid. In the surrounding land of the Masjid which is a puramboke, in resurvey No.104/2 of Pathoor village, many dead bodies of non-member of the revision petitioner Masjid, were buried since the establishment of the Masjid. On the death of one Muhammed, S/o.Abdulla belonging to Pathoor village, the people and the relatives of the deceased took his body for burial there. When they started digging the graveyard, the members of **C.R.P (Wakf) No.565/2012** **4** the plaintiff along with 50 others prevented them from digging the graveyard and burying the body there. The plaintiff has no manner of right to prevent the burial of dead body in the schedule property which is a public burial ground. The claim of the plaintiff that only members of the Pathoor Juma Masjid alone are having right to get buried in the plaint A schedule property is not sustainable. 5. Based on the rival pleadings, the Tribunal had framed the following issues for consideration: 1. Whether the plaintiff has got exclusive right of user of plaint A schedule property as a burial ground? 2. Is the prayer for declaration allowable? 3. Is the prayer for injunction allowable? 4. Reliefs and costs? 6. Issue Nos.1 to 3 were jointly considered by the Tribunal. Before the Tribunal, the then Secretary of the plaintiff-Masjid committee, Sri.Ibrahim, was examined as PW1 and on the side of the plaintiff, Exts.A1 to A12 were got marked. No oral evidence was adduced on the side of the defendants. However, Exts.B1 to B8(a) were marked on their side. Ext.C1 is the commission **C.R.P (Wakf) No.565/2012** **5** report dated 16.01.2008 and Ext.C2 is the plan appended thereto. 7. On evaluating the evidence on record as also the rival contentions, the Tribunal had arrived at a conclusion that the disputed land viz., plaint A schedule property is a puramboke land. The Tribunal had further come to the conclusion that the plaintiff-committee got no exclusive possession and control over the plaint A schedule property. It was observed that the revision petitioner/plaintiff-committee had not produced any document to show that it is with their permission that dead bodies were used to be buried in the plaint A schedule property. We have no doubt, in view of the rival pleadings referred hereinbefore, that plaint A schedule property is a puramboke land. Our conclusion is fortified by the fact that both the plaintiff and defendants 3 to 6 had filed applications before the Government for assignment of the said property. Nonetheless, it is a fact that the said property is being used as a graveyard. 8. In the above contextual situation as also in the light of the evidence on record discussed in detail in the impugned **C.R.P (Wakf) No.565/2012** **6** judgment, we are of the considered view that the decision of the Hon'ble Apex Court in _**Syed Mohd. Salie Labbai (dead) by L.Rs and others** vs._ _**Mohd. Hanifa (Dead) by L.Rs and others**_ (AIR 1976 SC 1569) assumes relevance. In the said decision, the Hon'ble Apex Court took note of the fact that only two kinds of graveyards are recognised i.e. family or private and public. The Apex Court had laid down the following rules to determine whether a graveyard is public or private. “32. We are of the view that once a Kabarstan has been held to be a public graveyard then it vests in the public and constitutes a wakf and it cannot be divested by non-user but will always continue to be so whether it is used or not. The following rules in order to determine whether a graveyard is a public or a private one may be stated: (1) that even though there may be no direct evidence of dedication to the public, it may be presumed to be a public graveyard by immemorial user i.e. where corpses of the members of the Mahomedan community have been buried in a particular graveyard for a large number of years without any objection from the owner. The fact that the owner permits such burials will not make any difference at all; **C.R.P (Wakf) No.565/2012** **7** (2) that if the grave-yard is a private or a family graveyard then it should contain the graves of only the founder, the members of his family or his descendants and no others. Once even in a family graveyard members of the public are allowed to bury their dead, the private graveyard sheds its character and becomes a public graveyard; (3) that in order to prove that a graveyard is public by dedication it must be shown by multiplying instances of the character, nature and extent of the burials from time to time. In other words, there should be evidence to show that a large number of members of the Mahomedan community had buried their corpses from time to time in the graveyard. Once this is proved, the Court will presume that the graveyard is a public one; and (4) that where a burial ground is mentioned as a public graveyard in either a revenue or historical papers that would be a conclusive proof to show the public character of the graveyard....”. 9. In the case on hand, the rival pleadings as also the evidence on record would undoubtedly go to show that nobody got a case that plaint A schedule property was a private or family graveyard. In such circumstances, it can only be said that plaint A schedule property is a public graveyard. Once it is found that a **C.R.P (Wakf) No.565/2012** **8** 'kabarstan' is a public graveyard, then it should vest with the public and should constitute a Wakf. In such circumstances, the question is whether the plaintiff-committee can legally sustain a claim that only its members and families are having the right to bury the body there and seek a permanent prohibitory injunction against defendants 3 to 6 or any other public? 10. In that context and situation, it is also relevant to refer to a Single Bench decision of this Court in _**Abdul Khader** vs._ _**Mohammed Ali**_ (1989 (2) KLT 146). In the said decision, after referring to the decision of the Apex Court in _Syed Mohd's case_ (supra), it was held that a person who is dead got a right to have a descent burial and every member of the muslim community got a right to bury dead body of the family members in a public graveyard. 11. In this case, we are of the considered view that there is an added ground to decline the prayers sought for by the revision petitioner/plaintiff. As noticed herein and before, in the plaint it was specifically averred that in the Government records, plaint A schedule property is classified as Governmental land. It is also to **C.R.P (Wakf) No.565/2012** **9** be noted that defendants 3 to 6 in their written statement also contended that plaint A schedule property is a Governmental land. But, at the same time, it is a common case that dead bodies of musalman alone were used to be buried therein for the past 125 years or thereabouts. 12. In such circumstances, it is evident from the rival pleadings and also from the evidence on record that neither the revision petitioner-plaintiff nor the respondents got a case that plaint A schedule property was being used as family or private graveyard. In _**Dwarka Dass (deceased) through Harcharan Dass etc.** vs._ _**Punjab Waqf Board etc**_ (1992 (1) P.L.R 352), the High Court of Punjab and Haryana held that even if there is no direct evidence of dedication to the public, a graveyard could be presumed to be a public graveyard in case corpses of members of Mohammadan community have been buried there for a large number of years without any objection from the owner. Here, the uncontroverted case, rather the common case is that dead bodies are being buried there, for the past 125 years or thereabouts it can only be said to be a public graveyard. Once it **C.R.P (Wakf) No.565/2012** **10** is admitted that it is a public graveyard, the question is whether the plaintiff-committee could seek for a declaration and permanent prohibitory injunction as prayed for. The answer can only be in the negative. In the light of the decisions referred above and also in the light of the evidence discussed hereinbefore, we are of the considered view that the Tribunal was right in holding that the plaintiff had failed to establish its case and that the plaintiff is not entitled to the declaration as also to the injunction as sought for. This revision petition is liable to fail for the foregoing reasons. Consequently, it is dismissed. Sd/- ## **C.T. RAVIKUMAR JUDGE** Sd/- ## **A. MUHAMED MUSTAQUE JUDGE** smp