IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 1059 of 2003()
1. AYAMU HAJI, S/O.THOOMBATH THAZHEKKATHU
... Petitioner
2. BROTHER, MOIDEENKUTTY, -DO- -DO-
3. BROTHER, AHAMMEDKUTTY, -DO- -DO-
4. BROTHER, HAMZA, -DO- -DO-
Vs
1. SIDDIQUE JUMATH PALLI,
... Respondent
2. CHIEF EXECUTIVE OFFICER,
For Petitioner :SRI.T.SETHUMADHAVAN
For Respondent :SRI.K.RAMACHANDRAN
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :23/09/2008
O R D E R
KURIAN JOSEPH & HARUN-UL-RASHID, JJ.
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C.R.P.NO.1059 OF 2003
&
W.P.(C)NO. 31606 OF 2004
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Dated this the 23rd day of September, 2008
O R D E R
Harun-Ul-Rashid, J.
C.R.P. No.1959 of 2002 is directed against the judgment dated
15.2.2003 in O.S. No.73 of 2001 on the file of the Wakf Tribunal,
Kozhikode. By the said judgment and decree, the Tribunal dismissed the
suit.
2. The revision petitioners are the plaintiffs in the suit. The suit was
filed for prohibitory injunction. It was subsequently amended by inserting
the prayers for mandatory injunction and alternatively for recovery of
possession of the plaint schedule properties on the strength of the
plaintiffs’ title. Mandatory injunction was sought for to remove seven
sheds allegedly put by the defendants in the property pending the suit. It is
claimed by the plaintiffs that the plaint schedule property belonged to them
and that the defendants have no manner of right or title over the said
property. The plaintiffs based their claim of title on the basis of the title
C.R.P. NO.1059/2003 &
W.P.(C) NO.31606/2004 2
deeds in their favour.
3. In the written statement filed by the first defendant, it is
contended inter alia that the plaintiffs have no manner of right or
possession over the properties, that the title deeds relied on by the
plaintiffs do not confer any title on them, that the plaint schedule
properties are Wakf properties of Parappur Theke Juma ath Mosque and
that being Wakf properties, the same cannot be alienated, partitioned or
sold. It is also contended that an application was made for registration of
the Mosque and other properties including the plaint schedule Wakf
properties, that the Wakf Board after making the necessary enquiries in
this regard, registered the plaint schedule properties as Wakf property on
29.12.1969, that a Gazette notification was also issued regarding the
registration of the Wakf and that the Wakf including the plaint schedule
properties are continuously being managed for the last 97 years.
4. The second defendant/Wakf Board also, in their written
statement, denied the averments contained in the plaint and contended
that the properties in question were declared as Wakf in favour of Parappur
Thekke Juma ath Palli as per partition deed of 1903. It is also contended
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W.P.(C) NO.31606/2004 3
that the Wakf Commissioner who had conducted the survey had reported
about the said fact in the report dated 15.7.1959 and subsequently, the
Mosque and its properties were registered with the Wakf Board in the year
1969. It is also pleaded that the Wakf Board approved the muthavalliship
of the first defendant as the muthavalli. The Wakf Board also pleaded that
from 1903 onwards the plaint schedule properties are in the possession and
management of the mosque and that the plaintiffs have no right or title
over the said properties.
5. The suit was filed for prohibitory injunction and later amended
into one for mandatory injunction directing the defendants and their men
to remove the unauthorised construction in the plaint schedule properties
and to restore the properties into its original position. The plaintiffs have
also sought recovery of possession of the plaint schedule properties on the
strength of their title in case the court finds that the plaint schedule
properties are in the possession of the defendants. The defendants mainly
contended that the suit is not maintainable before the Wakf Tribunal and
that the Wakf Tribunal did not have the jurisdiction to entertain a suit of
this nature. The Wakf Tribunal held that it had the jurisdiction to decide
the issue regarding the nature of the property as a Wakf.
C.R.P. NO.1059/2003 &
W.P.(C) NO.31606/2004 4
6. The contention raised by the defendants regarding the
maintainability of the suit is that the plaint schedule properties were
registered in the year 1969 and the same was notified in the Gazette in the
year 1982 as per Section 5(2) of the Wakf Act and, therefore, the suit
challenging the registration of such Wakf and inclusion in the list of
Wakf should have been filed within one year from the date of publication
of the list of Wakfs in the Gazette as per Section 6(1) of the Wakf Act. It
is contended that since the properties are included in the list of the Wakf as
early as in 1982, the present suit filed by the plaintiffs in the year 1999 for
mandatory injunction and recovery of possession is not maintainable in
law. The defendants have also raised a contention that the plaintiffs are
not entitled to file and maintain the present suit for mandatory injunction
and in the alternative for recovery of possession without challenging the
registration of the property as Wakf property and its inclusion in the list of
Wakf as notified in the Gazette. The crux of the contention of the
defendants is that after publication in the Gazette, the list of Wakf and
registration of its property and the nature of the properties as Wakf have
become final and that unless and until the same is challenged within one
year from the date of notification of the list of Wakfs, no suit is
C.R.P. NO.1059/2003 &
W.P.(C) NO.31606/2004 5
maintainable in this regard. Learned counsel for the revision petitioners
brought to our attention to the decision reported in Muslim Wakfs Board,
Rajasthan v. Radha Kishan, A.I.R. 1979 S.C. 289 and contended that the
revision petitioners right, title and interest in the property cannot be put in
jeopardy merely because the property is included in the list. According to
him, such a person is not required to file a suit for declaration of title
within a period of one year. The special rule of limitation laid down in the
proviso to sub-section (1) of Section 6 of the Wakf Act is not applicable
to him. In other words, the list published by the Board of Wakfs under
sub-section (2) of Section 5 can be challenged by him by filing a suit for
declaration of title even after the expiry of the period of one year.
Paragraphs 37 and 39 of the decision referred to above reads as follows:
“37. xx xx xx xx xx xx
The very object of the Wakf Act is to
provide for better administration and supervision
of wakfs and the Board has been given powers of
superintendence over all wakfs which vest in the
Board. This provision seems to have been made
in order to avoid prolongation of triangular
disputes between the Wakf Board, the mutawalli
and a person interested in the wakf who would be
a person of the same community. It could never
have been the intention of the legislature to cast a
cloud on the right, title or interest of persons
who are not Muslims. That is, if a person who is
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W.P.(C) NO.31606/2004 6
non-Muslim whether he be a Christian, a Hindu,
a Sikh, a Parsi or of any other religious
denomination and if he is in possession of a
certain property his right, title and interest cannot
be put in jeopardy simply because that property
is included in the list published under sub-s. (2)
of S. 5.
The Legislature could not have meant that
he should be driven to file a suit in a Civil Court
for declaration of his title simply because the
property in his possession is included in the list.
Similarly, the legislature could not have meant to
curtail the period of limitation available to him
under the Limitation Act and to provide that he
must file a suit within a year or the list would be
final and conclusive against him. In our opinion,
sub-sec. (4) makes the list final and conclusive
only between the Wakf Board, the mutawalli and
the person interested in the wakf as defined in
Section 3 and to no other person.
39. It follows that where a stranger who is a
non-Muslim and is in possession of a certain
property his right, title and interest therein cannot
be put to jeopardy merely because the property is
included in the list. Such a person is not required
to file a suit for declaration of title within a period
of one year. The special rule of limitation laid
down in proviso to sub-s. (1) of Sec. 6 is not
applicable to him. In other words, the list
published by the Board of Wakfs under sub-s. (2)
of S. 5 can be challenged by him by filing a suit
for declaration of title even after the expiry of the
period of one year, if the necessity of filing such
suit arises.”
C.R.P. NO.1059/2003 &
W.P.(C) NO.31606/2004 7
It is clear from the principles stated above that the said decision is not
applicable to the case on hand.
7. The Wakf Registration Certificate Extracts, namely Exts.B2 and
B65 produced by the defendants are to the effect that two items of
properties comprised in R.S. No.203/1 and R.S. No.185/3A were notified
in the Gazette dated 23.11.1982. The third item of property comprised in
Survey No.203/8 was notified only in the year 2001. On the basis of the
contentions raised, according to the defendants, the petition for mandatory
injunction and recovery of possession on the strength of title is not
maintainable.
8. The suit as such now filed is not one challenging the inclusion of
the properties in the list of Wakf as per Section 5 of the Wakf Act. Going
by the pleadings in the suit, the suit was filed for declaration of title on the
strength of the title deed. This cannot be held to be a suit under Section 6
(1) of the Wakf Act. There is no averment in the plaint that the suit
properties are not Wakf properties and therefore, the inclusion of the said
properties in the list of Wakf is illegal. So long as the suit is not filed
under Section 6 of the Wakf Act and not within time, the suit is not
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W.P.(C) NO.31606/2004 8
maintainable in law. Section 5 of the Wakf Act provides that a property
can be included in the list of Wakf only after necessary enquiry is made by
the Wakf Board and when the Board is satisfied regarding the nature of
the property as a Wakf, the same will be published in the official gazette
by including the property in the list of Wakf. If the property is wrongly
included in the list of Wakf and notified as Wakf property, the remedy
available to a person is under Section 6 of the Wakf Act. He can challenge
the action of the Wakf Board and contend that the property included in the
list of Wakf is not Wakf property and that it was mistakenly included in
the list of Wakf and notified by the Wakf Board in the official gazette.
Such a suit can be filed only before the expiry of one year from the date of
publication of the list of Wakfs. The time limit has already expired as
stated above. Moreover, the suit is not of the nature contemplated under
Section 6 of the Wakf Act. The inclusion of properties in the list of
Wakfs can be challenged only in a suit preferred by the plaintiffs
challenging the inclusion and subsequent gazette notifications. In such
circumstances, no suit for mandatory injunction and recovery of possession
on the strength of the plaintiffs’ title can be entertained by the Wakf
Tribunal in respect of properties which are included in the list of Wakfs.
Therefore, the findings entered by the Wakf Tribunal that the suit is not
C.R.P. NO.1059/2003 &
W.P.(C) NO.31606/2004 9
maintainable is a finding validly made by the Tribunal. We, therefore,
find no reason to interfere with the findings entered by the Wakf
Tribunal. Hence, the Civil Revision Petition is without merit.
9. W.P.(C) No.31606 of 2004 is a connected matter filed
challenging Exts.P1, P4 and P8 orders and for a direction to the 4th
respondent to receive land tax from the petitioner in respect of the property
comprised in R.S. Nos.185/3A, 203/1 and 203/8 of Parappur Village.
10. Claiming title over the property in question, the petitioner
approached the third respondent requesting to receive tax from him. The
5th respondent in the Writ Petition set up a rival claim in respect of the
property claimed by the petitioner. The third respondent by Ext.P1 order
directed the Village Officer to receive tax from the 5th respondent. The
petitioner filed appeal against Ext.P1 order and the Appellate Authority as
per Ext.P4 confirmed the said order. Thereafter, the petitioner approached
the first respondent challenging Ext.P4 order. The first respondent
rejected the contention of the petitioner by Ext.P8 order.
11. In the light of the decision taken by the Wakf Tribunal,
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W.P.(C) NO.31606/2004 10
Kozhikode in O.S. No.73 of 2001 that the suit is not maintainable which is
confirmed by this Court in the order in C.R.P. No.1059 of 2003 heard
along with this Writ Petition, the writ petitioner is not entitled to any of
the reliefs sought for in the Writ Petition.
In the result, C.R.P. No.1059 of 2003 and W.P.(C) No.31606 of
2004 are dismissed. It is made clear that this order does not bar the
plaintiffs from approaching other forum, if any, available to them for
redressing their grievance. There will be no order as to costs.
(KURIAN JOSEPH, JUDGE)
(HARUN-UL-RASHID, JUDGE)
sp/
C.R.P. NO.1059/2003 &
W.P.(C) NO.31606/2004 11
KURIAN JOSEPH &
HAURN-UL-RASHID, JJ.
C.R.P. NO. 1059/2003
&
W.P.(C)NO.31606/2004
O R D E R
23rd September, 2008
C.R.P. NO.1059/2003 &
W.P.(C) NO.31606/2004 12