High Court Kerala High Court

Ayamu Haji vs Siddique Jumath Palli on 23 September, 2008

Kerala High Court
Ayamu Haji vs Siddique Jumath Palli on 23 September, 2008
       

  

  

 
 
  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.
            ----------------------------------------------------------------
                            C.R.P.NO.1059 OF 2003
                                          &
                         W.P.(C)NO. 31606 OF 2004
            ----------------------------------------------------------------
                  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

C.R.P. NO.1059/2003 &
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

C.R.P. NO.1059/2003 &
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

C.R.P. NO.1059/2003 &
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,

C.R.P. NO.1059/2003 &
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