Thathur Juma Masjid Committee v. Ayamadkutty, Abdurahiman, Muhammed, Majeed and Wakf Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **FRIDAY, THE 4TH DAY OF OCTOBER 2013/12TH ASWINA, 1935** ## **CRP (WAKF ACT)No. 164 of 2006 ( ) ------------------------** **AGAINST THE JUDGMENT IN OS 47/2004 of WAKF TRIBUNAL, KOZHIKODE DATED 30-11-2005.** **REVISION PETITIONER(S)/PLAINTIFFS NO.2.:** **----------------------------------------** **THATHUR JUMA MASJID COMMITTEE, THATHUR, C.P.9/22. PAZHUR P.O., MAVOOR VIA, KOZHIKODE. REPRESENTED BY ITS SECRETARY, T.ABDULLA, S/O.THATHUR ALI, THATHUR HOUSE, PAZHUR P.O., KOZHIKODE DISTRICT.** **BY ADVS.SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN** ## **RESPONDENT(S)/DEFENDANTS. 1 TO 5.:** **----------------------------------** **1. AYAMADKUTTY, S/O.ADRUMANKUTTY, PALLIPPARAMBIL HOUSE, POOLAKKODU AMSOM, AYAKODE DESOM, PAZHUR P.O., KOZHIKODE DISTRICT.** **2. ABDURAHIMAN, S/O.AYAMMADUKUTTY, PALLIPPARAMBIL HOUSE, DO. DO.** **3. MUHAMMED, S/O.AYAMMEDKUTTY, PALLIPPARAMBIL HOUSE, DO. DO.** **4. MAJEED, S/O.AYAMMADUKUTTY, KUNIYANPARAKKAL HOUSE, DO. DO.** **5. WAKF BOARD, REPRESENTED BY THE CHIEF EXECUTIVE OFFICER, PARAMARA ROAD, ERNAKULAM.** **R1 TO 4 BY ADV. SRI.A.SUDHI VASUDEVAN. R5 BY ADVS. SRI.P.A.ABDUL JABBAR, SC, WAKF BOARD, SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD, SRI.K.SHIBILI NAHA, SC, KERALA STATE WAKF BOARD.** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **amk** ## **K.M.JOSEPH & A.HARIPRASAD, JJ.** **----------------------------------------------C.R.P (Wakf Act) No.164 OF 2006 ------------------------------------------------Dated this the 4[th] day of October, 2013.** ## **O R D E R** ## **A.Hariprasad, J.** Revision Petitioner is the second plaintiff in O.S No.47/2004 before the Wakf Tribunal, Kozhikode. The suit was filed for a declaratory relief, recovery of possession and consequential injunction. The case of the parties in brief is as follows : - Thathur Juma Masjid Committee is one registered under the Societies Registration Act. As per the bye-law, the Secretary is competent to represent the Society. Thathur Juma Masjid is having a number of wakf properties. Formerly, the Masjid and wakf properties were administered by the karanavers elected from the congregation. The Masjid had been duly registered as a wakf with the Kerala Wakf Board in 1961. At present, the committee is the muthawalli of the Masjid and other wakf properties. It is recorded so in the register of wakf also. The plaint schedule properties are wakf properties belonging to the Juma Masjid. It was acquired by the wakf in the year 1906. In the year 1909 as per a registered document executed by Kunhutty in favour of then karanavan of the Masjid, it **C.R.P (Wakf Act) No.164 OF 2006 2** was leased out for three years. Later, Kunhutty as per a registered document surrendered his tenancy right regarding the plaint schedule property in favour of the then karanavan of the Masjid. Later the tenancy right accrued by the father of respondents 1 to 4 was surrendered to the muthawalli as per document No.1417/1950. Thereafter, the plaintiff committee is administering and managing the plaint schedule property as muthawalli. Respondents 1 to 4 filed a suit as O.S No.202/2003 before the Munsiff Court-II, Kozhikode against the plaintiff and others for permanent prohibitory injunction regarding the plaint schedule properties. Along with this suit an application for temporary injunction was also filed. That application was dismissed and respondents 1 to 4 took the matter in appeal before the District Court, Kozhikode. The appeal was allowed by the District Court. But the District Court reserved the right of the plaintiff/revision petitioner to initiate legal proceedings against the respondents 1 to 4 for recovery of possession. Neither respondents 1 to 4 nor their predecessor had any title or ownership over the plaint schedule wakf properties. The documents on which respondents 1 to **C.R.P (Wakf Act) No.164 OF 2006 3** 4 rely on are concocted documents. With these averments, the revision petitioner sought for a decree. Respondents 1, 2 and 4 filed a written statement contending that the suit is not maintainable. The plaintiff's right to administer the plaint schedule property is also disputed. According to the contesting respondents, the plaint schedule properties belonged to Thathur Juma Masjid formerly. Subsequently their father Ayamadkutty and his brother Kuhutty got possession of it along with other properties as per document No.1418/1950. They were holding the property as tenants and paying the rent to the wakf. The right of Kunhutty has been assigned to Ahammadkutty as per registered document No.369/1954 and the right of Konnara Ahamadkutty was purchased by the first respondent by a registered document No.419/1960. The first respondent obtained the purchase certificate from the Land Tribunal in 1977. The plaintiff was a party to the proceedings before the Land Tribunal. Later, the first respondent Ammadkutty assigned a portion of his property to the 4[th] respondent in 1992. He gifted a portion to the 3[rd] respondent in the **C.R.P (Wakf Act) No.164 OF 2006 4** same year. He also had made a gift with respect to the another portion to the 2[nd] respondent in 1992 itself. Thereby, the respondents 2 and 3 are in possession of the property as title holders. Respondents 2 and 3 are residing in the plaint schedule properties. The house of the 4[th] respondent in the Item No.3 of the plaint schedule properties had been completed and he also started residing therein. The plaintiff has no right or possession over the plaint schedule property and the suit is liable to be dismissed, contended in the written statement. 2. The Wakf Tribunal framed the following issues for trial : - _1. Whether the suit is not maintainable ?_ _2. Whether the plaint schedule properties are wakf properties and whether the plaintiff is the muthawalli as alleged ?_ _3. Whether the right of the plaintiff if any is lost by adverse possession and limitation ?_ _4. Whether the suit is barred by estoppel ?_ _5. Whether the plaintiff is entitled to the recovery of possession as sought ?_ _6. Whether the plaintiff is entitled to the declaration sought ?_ _7. What order as to relief and cost ?_ 3. Exts.A1 to A17 and Exts.B1 to B20 series are the **C.R.P (Wakf Act) No.164 OF 2006 5** documents considered by the Tribunal. PW1 and DW1 were examined. 4. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents 1 to 4 and the Standing counsel for the 5[th] respondent. 5. Learned counsel for the revision petitioner submitted that the lease set up by the respondents 1 to 4 are in violation of Section 51 of the Wakf Act, 1995. The case of the respondents 1 to 4 is that their predecessor-in-interest had obtained the property on lease as per Ext.B2 document dated 5-8-1950. It is pertinent to note that the law prevailing at the time of Ext.B2 was the Wakf Act 1954. The provision which corresponds to Section 51 of the Wakf Act, 1995 Act is Section 36A of 1954 Act. It reads as follows : - _**“36A. Alienation of wakf property without sanction of Board to be void.-** (1) Notwithstanding anything contained in the wakf deed, any gift sale, exchange or hypothecation of any immovable property which is wakf property, shall be void unless such gift, sale, exchange or hypothecation is effected with the prior sanction of the Board._ _(2) The Board may, after publishing in the_ **C.R.P (Wakf Act) No.164 OF 2006 6** _official Gazette, the particulars relating to the transaction referred to in sub-section (1) and inviting any objections and suggestions with respect thereto and considering all objections and suggestions, if any, that may be received by it from the concerned mutawalli or any other person interested in the wakf, accord sanction to such transaction if it is of opinion that such transaction is -_ - _(i) necessary or beneficial to the wakf; (ii) consistent with the objects of the wakf; (iii) the consideration thereof is reasonable and adequate:_ _Provided that the sale of any property sanctioned by the Board shall be effected by public auction and shall be subject to confirmation by the Board within such time as may be prescribed:_ _Provided further that the Tribunal may, on the application of the aggrieved mutawalli or other person, for reasons to be recorded by it in writing, permit such sale to be made otherwise than by public auction, if it is of opinion that it is necessary so to do in the interest of the wakf._ _(3) The utilisation or investment of the amount realised by the sale, exchange or hypothecation of any property shall be made by the mutawalli subject to the approval of the Board, and where any amount has been raised by mortgage, of any such property, the mutawalli or other shall make person repayment of the mortgage-debt and obtain a_ **C.R.P (Wakf Act) No.164 OF 2006 7** _discharge of the mortgage-debt from the mortgage within such reasonable time as the Board may specify._ _(4) Every approval given by the Board under sub-section (3) shall be communicated to the mutawalli and shall also be published in the prescribed manner._ _(5) The mutawalli or any other person having an interest in the wakf who is aggrieved by the decision given under sub-section (3), may, within ninety days from the date of communication to him of such decision or the publication of the decision, as the case may be, prefer an appeal to the Tribunal against such decision, and thereupon, the Tribunal may, after giving the appellant and the Board or the Wakf Commissioner, as the case may be, a reasonable opportunity of being heard, confirm, modify or set aside such decision.”_ 6. Learned counsel for the respondents 1 to 4 submitted that the above mentioned provisions only prohibit gift, sale, exchange or hypothecation of any immovable property which is a Wakf property. It was also contended that there was no prohibition for creating a lease in respect of a wakf property. Here in this case the property was given to the predecessors-in-title of the respondents 1 to 4 on lease as per Ext.B2 document. Such a lease is not **C.R.P (Wakf Act) No.164 OF 2006 8** prohibited under Section 36A of 1954 Act. Moreover, the tenant gets the right to fixity of tenure under Section 13 of the Kerala Land Reforms Act, 1963 and he becomes entitled to purchase jenm right under Section 72B of the Act. Exts.A15 and A15(a) are the copies of purchase certificates issued by the competent Land Tribunal in favour of the predecessors-in-title of respondents 1 to 4. It was obtained with the muthawalli of the wakf in the party array. By no stretch of reasoning it can be stated that the grant of these purchase certificates is an alienation prohibited under Section 36A of the Wakf Act, 1954. 7. Learned counsel for the revision petitioner contended that the Land Tribunal should have issued notice as contemplated under Section 90 of the Wakf Act, 1995. The provision corresponding to Section 90 of the Wakf Act, 1995 is Section 57 of the 1954 Act. It reads as follows :- _**“57. Notice of suits, etc. by courts.-** (1) In every suit or proceeding relating to a title to, or possession of, wakf property or the right of mutawalli or the court or beneficiary, Tribunal shall issue notice to the Board at the cost of the party instituting such suit or_ **C.R.P (Wakf Act) No.164 OF 2006 9** _proceeding._ _(2) Whenever any wakf property is notified for sale in execution of a decree of a civil court or for the recovery of any revenue of any revenue, cess, rates or taxes due to the Government or any local authority, notice shall be given to the Board by the Court, Collector or other person under whose order the sale is notified._ _(3) In the absence of a notice under subsection (1), any decree or order passed in the suit or proceeding shall be declared, void, if the Board, within one month of its coming to know of such suit or proceeding, applies to the Court in this behalf._ _(4) In the absence of a notice under subsection (2), the sale shall be declared void, if the Board, within one month of its coming to know of the sale, applies in this behalf to the Court or other authority under whose order the sale was held.”_ 8. Sub-section (4) of Section 57 of 1954 Act would indicate that at the instance of the Board, a sale can be declared void, if the Board applies to the court or other authority within a period of one month of its coming to know of the sale. In this case, the records would show that at least from 2005 onwards, the Board was aware of the fact of jenm assignment made in favour of the respondents 1 **C.R.P (Wakf Act) No.164 OF 2006 10** to 4. The learned Standing counsel for the Board submitted that the Board has not taken any step so far to challenge the issuance of purchase certificates in the name of respondents 1 to 4. It is evident that the revision petitioner has no locus standi to challenge because the purchase certificate can be treated as void only at the instance of the Wakf Board. Even if we assume that the purchase made by the predecessors-in-interest of respondents 1 to 4 is a prohibited transaction under the above said provisions, it is for the Wakf Board to take appropriate proceedings. The learned counsel for the revision petitioner submitted that the mere non impleadment of the Wakf Board in the proceedings before the Land Tribunal vitiates the proceedings. We are unable to accept this contention because the phraseology employed in Section 57 of the 1954 Act does not favour such a line of thinking. 9. Learned counsel for the revision petitioner relied on _**Madeena Masjid v. Kerala Jama Ath Islami Hind (2007(3) K.L.T 800)**_ to contend that under Section 90 of the 1995 Act in every suit or other proceeding relating to title or possession of a Wakf property, **C.R.P (Wakf Act) No.164 OF 2006 11** the Court or Tribunal shall make the Wakf Board as a party. The relevant portion of the decision reads as follows :- _“ In view of the clear mandate under S.90 of the Act, in every suit or proceeding relating to title or possession of a Wakf property or the right of mutawalli or beneficiary, the Court or Tribunal shall make the Wakf Board a party, at the cost of the party instituting such suit or proceedings. There will be a direction to the Wakf Tribunals in the State to issue notice to the Wakf Board at the cost of the party instituting the suit or proceedings, in case the same relates to title or possession of a Wakf property or the right of the mutawalli or beneficiary if the Board is not already on the party array.”_ Even if this rule is violated, only the Wakf Board can take appropriate action under law. 10. Learned counsel for the respondents 1 to 4 submitted that the issuance of Exts.A15 and A15(a) purchase certificates was challenged before the Land Reforms Appellate Authority. Ext.B4 is **C.R.P (Wakf Act) No.164 OF 2006 12** the order passed by the Appellate Authority dismissing the appeal filed by the revision petitioner. All these documents would go to show that the predecessors-in-title of respondents 1 to 4 had a valid lease in their favour and they obtained purchase certificate under Kerala Land Reforms Act through a competent Land Tribunal. The contention of the revision petitioner, that the respondents 1 to 4 are holding the property without any lawful title, cannot be accepted. Apart from that, PW1, while examining, submitted that respondents 1 to 4 are not in possession of the property and it is possessed by the committee itself. If that be so, a suit for recovery of possession is not legally possible. Considering the entire evidence on record, we find that the revision petitioner is not entitled to get any relief. The civil revision petition is dismissed. No order as to costs. amk