VAZHAKKAD DARUL ULOOM ASSOCIATION v. HAMSA, ISMAIL, ABDUL NAZAR

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 26[TH] DAY OF SEPTEMBER 2022 / 4TH ASWINA, 1944** ## **OP(C) NO. 212 OF 2019** **AGAINST THE ORDER/JUDGMENT IN I.A 1953/2018 IN O.S. 278/2018 OF MUNSIFF COURT,** ## **MANJERI** ## **PETITIONER:** **VAZHAKKAD DARUL ULOOM ASSOCIATION, REPRESENTED BY ITS SECRETARY, K.V.MOHAMMED HABEEBULLA, AGED 69 YEARS, S/O LATE K.M. HUSSAIN BIN MOHAMMED, VAZHAKKAD AMSOM, KONDOTTY TALUK, VAZHAKKAD P.O., MALAPPURAM DISTRICT, PIN-673 646.** ## **BY ADV K.SHIBILI NAHA** ## **RESPONDENTS:** **1 HAMSA, AGED 50 YEARS, S/O VALIYA VEETTIL MOOSA, AALUNGAL HOUSE, VAZHAKKAD AMSOM, KARUMAKKAD DESOM, KONDOTTY TALUK, VAZHAKKAD P.O., MALAPPURAM DISTRICT, PIN-673 646. 2 ISMAIL, AGED 50 YEARS, S/O MUHAMMADALI, MACHINGAL HOUSE, VAZHAKKAD AMSOM, VAZHAKKAD DESOM, KONDOTTY TALUK, VAZHAKKAD P.O., MALAPPURAM DISTRICT, PIN-673 646. 3 ABDUL NAZAR, AGED 47 YEARS, S/O MAMMAD KUTTY HAJI, PALAPPURA HOUSE, VAZHAKKAD AMSOM, VAZHAKKAD DESOM, KONDOTTY TALUK, VAZHAKKAD P.O., PIN-673 646.** **BY ADVS. SRI.K.RAKESH SRI.GOKUL DAS V.V.H.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26.09.2022, THE COURT ON** **THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.(C)No.212 of 2019** **2** ## **JUDGMENT** **Dated this the 26[th] day of September, 2022** Aggrieved by the Ext.P6 order passed in I.A.No.1953/2018 in O.S.No.278/2018 of the Court of the Munsiff, Manjeri, the 1st defendant in the suit has filed the original petition under Article 227 of the Constitution of India. The respondents in the original petition are the plaintiff and defendants 2 and 3. 2. The petitioner's case, in a nut shell, relevant for the determination of the original petition, is : the petitioner is the 1st defendant in the suit, which is filed by the 1st respondent, inter alia, for a decree of permanent injunction, to restrain the petitioner and the respondents 2 and 3 from causing any obstruction to the user of plaint 'B' schedule property. The suit is resisted by the petitioner, who has filed Ext.P2 written statement. The court below has granted an ad-interim order of injunction. The petitioner and respondents 2 **O.P.(C)No.212 of 2019** **3** and 3 had filed an application to vacate the interim order of injunction. Thereafter, the petitioner filed Ext.P4 application to hear the maintainability of the suit. Ext.P4 was opposed by the 1st respondent, who had filed Ext.P5 counter statement. The court below, by the impugned Ext.P6 order, has held that it has the jurisdiction to entertain the suit. Ext.P6 is erroneous and unsustainable in law. Hence, the original petition. 3. Heard; Sri.K.Shibili Naha, the learned counsel appearing for the petitioner, Sri.K.Rakesh, the learned counsel appearing for the 1st respondent and Sri.Gokul Das, the learned counsel appearing for the respondents 2 and 3. 4. The point is whether there is any error or illegality in Ext.P6 order. 5. The 1st respondent has filed Ext.P1 plaint, against the petitioner and respondents 2 and 3, for a decree of injunction, as regards his right of user of plaint 'B' schedule property. The petitioner filed Ext.P2 **O.P.(C)No.212 of 2019** **4** written statement, questioning the maintainability of the suit before the court below. The petitioner also filed Ext.P4 application, to consider the maintainability of the suit as a preliminary issue. 6. The court below by the impugned order has held that the bar under Section 85 of the WAQF Act, 1995 is not applicable to the case on hand. 7. Section 83(1) and Section 85 of the WAQF Act reads as follows:- ## **“83. Constitution of Tribunals, etc.-** [(1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, **for the determination of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property,** under this Act and define the local limits and jurisdiction of such Tribunals;] **85. Bar of jurisdiction of [civil court, revenue court and any other authority].- No suit or other legal proceeding shall lie in any [civil court, revenue court and any other authority] in respect of any dispute, question or other** **O.P.(C)No.212 of 2019** **5** ## **matter relating to any Waqf, Waqf property** or other matter which is required by or under this Act to be determined by a Tribunal.” 8. Interpreting the above provisions, the Honourable Supreme Court in **Rashid Wali Beg v. Farid Pindari and Others 2021 KHC 6660** has held thus:- **“53. It is well settled that the court cannot do violence to the express language of the statute. S.83(1) even as it stood before the amendment, provided for the determination by the Tribunal, of any dispute, question or other matter (i) relating to a waqf; and** (ii) relating to a waqf property. Therefore to say that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property, is indigestible in the teeth of S.83(1). **54. In fact, S.83(5) of the Act makes it clear that the Tribunal shall be deemed to be a Civil Court and shall have the same powers as may be exercised by a Civil Court under the CPC, while trying a suit or executing a decree or order.** This is why this Court held in Syed Mohideen and Another vs. Ramanathapura Peria Mogallam Jamath and Others, 2010 (13) SCC 62, that the Waqf Tribunal will have power to issue temporary injunctions under Order **O.P.(C)No.212 of 2019** **6** XXXIX, R.1 CPC.” 9. Sections 83(1) and 85 of the Act and its interpretation by the Honourable Supreme Court in **Rashid Wali Beg** (supra), establish that what needs to be substantiated is whether the property is waqf or not. 10. In the instant case, the 1st respondent does not have a case that the property does not belong to a waqf. Once it is conceded that the property is waqf, any dispute pertaining to the said property has to be necessarily dealt with by the Tribunal. 11. Thus, I am of the considered view that, Ext.P6 order passed by the court below is erroneous and untenable and is to be interfered by this Court invoking its supervisory powers under Article 227 of the Constitution of India. In the result, I allow the original petition in the following manner:- (i) Ext.P6 order is set aside. **O.P.(C)No.212 of 2019** **7** (ii) Ext.P4 application is allowed. (iii) The Court of the Munsiff is held to be lacking jurisdiction to entertain O.S.No.278/2018. (iv) O.S.No.278/2018 is ordered to be returned to the 1st respondent for representation to the proper Court/Tribunal. (v) The order of ad-interim injunction passed in I.A.No.1817/2018 will continue to remain in force, till 25.10.2022. **Sd/C.S.DIAS Judge** NR/26/09/2022 ## **O.P.(C)No.212 of 2019** ## **8** ## **APPENDIX** **PETITIONER'S EXHIBITS EXHIBIT P1** **TRUE COPY OF THE PLAINT IN O.S.NO.278/2018 FILED BY THE IST RESPONDENT/PLAINTIFF BEFORE THE HONOURABLE MUNSIFF COURT, MANJERI.** **EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER/IST DEFENDANT.** **EXHIBIT P3 TRUE COPY OF THE COUNTER IN I.A.NO.1817/2018.** **EXHIBIT P4** **TRUE COPY OF THE AFFIDAVIT FILED IN O.S.NO.278/2018.** **EXHIBIT P5 TRUE COPY OF THE COUNTER IN I.A.1953/2018 IN O.S.NO.278/2018.** **EXHIBIT P6 TRUE COPY OF THE ORDER IN I.A.NO.1953/2018 IN O.S.NO.278/2018 DATED 12.12.2018.**