IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 188 of 2008()
1. IBRAHIM, S/O.LATE ALI MAKKAR
... Petitioner
2. MOHAMMED BASHEER, S/O.THANGAL KUNJU
Vs
1. COCHIN ISLAMIC WELFARE TRUST
... Respondent
2. P.K.HASHIM, S/O.ABDUL RAHIMAN, R/AT.
3. K.A.AMANULLA, S/O.K.M.ALI, PANAMPILLI
4. K.P.MARIKKAR PILLAI, W/O.PAREED
5. E.K.ISMALI, S/O.KOCHUMAKKAR,
6. C.V.EBRAHIM, S/O.UMMERHAJI,
7. P.P.HUSSAIN, S/O.P.P.MUHAMMED,
8. E.K.ABDUL KHADER, S/O.KOCHUMAKKAR,
9. K.U.HAMSA, S/O.USMAN, AGED 70,
For Petitioner :SRI.T.B.THANKAPPAN
For Respondent :SRI.V.CHITAMBARESH (SR.)
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :25/11/2009
O R D E R
M.N. KRISHNAN, J.
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F.A.O.No.188 OF 2008
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Dated this the 25th day of November, 2009
J U D G M E N T
This is an appeal preferred against the order of the
District Judge, Ernakulam in O.P.No.305/2008. The original
petition was filed under Section 92 of the C.P.C for
permission to institute a suit for the removal of the trustees
in respect of a trust and for vesting of the properties of the
trust in the new trust etc. The learned District Judge after
exhaustive consideration held that the petitioners are not
entitled to get leave of the court under Section 92 of the
C.P.C and therefore dismissed the petition. It is against that
decision, the petitioners have come up with this appeal.
2. The name of the institution is Cochin Islamic Welfare
Trust. There was a parallel proceeding before the Wakf
Board constituted under the Wakf Act and the Wakf Board
by its ordered dated 11.11.2009 held as follows:
In the circumstances, the Board comes to
the definite finding that the first party namely
Mr. Hashim Haji in his capacity as the
Chairman of the Cochin Islamic Welfare Trust
is the Mutawalli of the Wakf in dispute. The
office is directed to take all steps to register
an extent of 15.716 cents of land comprised in: 2 :
F.A.O.No.188 OF 2008Sy.Nos.64/1 and 611/02 of Ernakulam village
and the structures, buildings and other
improvements including the Masjid situated
in the said property as a Wakf under the Wakf
Board in the name of Mr. Hashim Haji, the
party herein in his capacity as the Chairman
of the Cochin Islamic Welfare Trust Pullepady,
Ernakulam. The office is also directed to
complete the process of registration of the
Wakf within a period of one month from the
date of this order”.
3. So, the competent statutory authority has entered
into a definite finding to the effect that the property
covered by the trust is a Wakf property to be governed
under the provisions of the Wakf Act. The Wakf Act is a self
governed Act which provides remedy for the persons who
are aggrieved with respect to the management etc of the
Wakf as contemplated therein. So in the light of the finding
that it is a Wakf property, the jurisdiction also vests with the
Wakf Tribunal constituted under the Act to consider the
grievance, if it is in accordance with law.
4. Therefore, a civil suit to be filed under Section 92 of
the CPC as a public trust does not survive for consideration
at this stage in the light of the backdrop of the order of the
Wakf Board. On that ground I hold that the original petition
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F.A.O.No.188 OF 2008
need not be entertained and dismissal of the original petition
by the learned District Judge is confirmed on other grounds
as mentioned above. Therefore, the FAO is dismissed. I make
it clear that any person aggrieved by the order of the Wakf
Board is at liberty to challenge it in the forum which is
contemplated and everything will depend upon the final
outcome of the same. If at any stage the order of the Wakf
Board is vacated, and it becomes the non Wakf property,
the person aggrieved may again approach the court for
sanction under Section 92 of the CPC and it may be
considered in accordance with law at that point of time.
Disposed of accordingly.
M.N. KRISHNAN, JUDGE
cl
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F.A.O.No.188 OF 2008