IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 137 of 2004()
1. D.RAVINDRAN, S/O. DAMODARAN,
... Petitioner
Vs
1. KINASSERI YATHEEMKANA, REPRESENTED BY
... Respondent
2. THE SECRETARY, KERALA WAKF BOARD.
For Petitioner :SRI.V.BHASKARAN PILLAI
For Respondent :SRI.P.M.MOHAMED ALI
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :16/09/2010
O R D E R
S.S.SATHEESACHANDRAN, J. "C.R."
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R.S.A.No.137 of 2004
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Dated this the 16th day of September, 2010
JUDGMENT
The 1st defendant is the appellant.
Suit was filed by the 1st respondent for
realisation of arrears of rent and eviction of
the 1st defendant from the plaint building
occupied by that defendant. Property occupied
by the 1st defendant was dedicated to a Wakf and
thereafter the rent are in arrears was the case
of the plaintiff to seek eviction and
realisation of arrears of rent. The Wakf Board
was impleaded as the 2nd defendant in the suit.
2. The 1st defendant resisted the suit
claim contending he is a tenant of the building
and he is liable to be evicted only under the
provisions of the Kerala Buildings (Lease and
Rent Control) Act, 1965. The trial court
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accepting the contention of the 1st defendant
non-suited the plaintiff. No material was
produced by the plaintiff to show that there was
a registered Wakf in respect of the property
comprised in the building also weighed with the
trial court in dismissing the suit. Plaintiff
preferred an appeal in which he produced a
certificate evidencing that there is a
registered Wakf of the suit property with the
Wakf Board.
3. In appeal the first appellate court,
reversing the dismissal of the suit, granted a
decree to the plaintiff as applied for. That
decree is challenged in this appeal.
4. I heard the counsel on both sides.
5. Though in the appeal, the
jurisdiction of the civil court to entertain a
suit in relation to a property of the Wakf was
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set forth as a challenge to the decree granted
in favour of the plaintiff, learned counsel for
the appellant rightly and correctly refrained
from pressing that challenge into service in
view of the recent decision rendered by the Apex
Court in Ramesh Gobindram v. Sugra Humayun Mirza
Wakf {2010(3) KLT 862} by which controversy over
the question whether Wakf Tribunal alone has
jurisdiction to entertain a civil dispute over
the wakf property has been settled. The Apex
Court in the above decision has stated that a
suit seeking eviction of the tenant from a wakf
property has to be filed only before the civil
ocurt and not before the Tribunal. The one and
only challenge canvassed by the counsel for the
appellant to assail the decree passed by the
first appellate court is built upon the
competency of a Muthavalli to institute a suit
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over a wakf property. Relying on Section 32(2)
(i) of the Wakf Act, 1995, the learned counsel
for the appellant contended that only the Wakf
Board is competent to institute a suit for
eviction of a tenant in occupation of a wakf
property and a Muthavalli in his individual
capacity is incompetent to do so. Duties of
Muthavalli delineated under Section 60 of the
above Act are also pointed out by the counsel to
contend that he is not empowered with the
authority to institute a suit over a wakf
property. I find, the challenge canvassed by the
counsel for the appellant is no longer res
integra as it has been settled by this court in
Haji Abdulla Haji Adam Sait Trust v. Hameed
{1987(2) KLT 949} expressing in unmistakeable
terms that a Muthavalli, who is in management of
the wakf, is competent to institute a suit over
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the wakf property. The authority conferred on
the Wakf Board to institute a suit over the wakf
property does not in any way impinge the
authority or competency of the Muthavalli, who
is in management of the wakf, to take
appropriate legal proceedings for protecting and
safeguarding the wakf property. The only
requirement that has to be complied with where
the suit relates to wakf property is the
presence of Wakf Board as a party in such suit.
That is evident from Section 92 of the Wakf Act,
1995. Section 93 of the Act also contain an
inbuilt safeguard barring compromise of suits
instituted by or against a Muthavalli. When the
suit is in relation to a wakf property, no such
suit can be compromised at the instance of the
Muthavalli, without the sanction of the Wakf
Board. That alone is the restriction and it does
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not affect his authority or right to institute a
suit in respect of the wakf property under his
management. Such being the position of law, as
governed by the provisions of the Wakf Act and
also the Mohammadan Law relating to the wakf,
the challenge against the decree questioning the
competency of the Muthavalli to institute a suit
relating to the wakf property under his
control,. must necessarily fail.
The appeal is devoid of any merit and
it is dismissed. Considering the circumstances,
both sides are directed to suffer their costs.
Sd/-
(S.S.SATHEESACHANDRAN)
JUDGE
sk/-
//true copy//
P.S. to Judge.