IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 1 of 2005()
1. K.P.JAGATHEESH,A GED 40 YEARS,
... Petitioner
Vs
1. NAJATHUSSIBIYAN MADRASSA COMMITTEE,
... Respondent
For Petitioner :SRI.V.V.SURENDRAN
For Respondent :SRI.B.KRISHNAN
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :22/10/2009
O R D E R
P.R.RAMAN &
P.R. RAMACHANDRA MENON, JJ.
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CRP NO. 1 OF 2005
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Dated this the 22nd day of October, 2009
J U D G M E N T
P.R.RAMAN, J
Respondent in a suit for eviction in O.S. 45/2002 on the file of Wakf
Tribunal, Kozhikode is the revision petitioner. Earlier, the suit was
instituted as O.S. 168/2001 before the Munsiff’s Court, Kozhikode by the
plaintiff. Subsequent to the Constitution of the Wakf Tribunal, the plaintiff
himself represented before the Munsiff’s Court that the suit is not
maintainable. Since according to him, as per document, plaint schedule
property is a Wakf property. On such representation, the Munsiff’s Court
returned the suit directing the parties to appear before the Tribunal. Plaint
was re presented before the Tribunal as O.S. 45/2002. Before the
Tribunal, based on the pleadings several issues were raised. One of the
issues tried for consideration is Whether the suit is maintainable, (2)
whether the plaint schedule property is a wakf and whether the same is
registered before the Wakf Board? The Court below tried (1 to 6) all the
issues together. Findings are recorded in paragraph 5 of the judgment.
CRP NO.1/2005 2
2. On the basis of the contention of the defendant that the
committee is not a registered one and so the suit is not maintainable, the
plaintiff had filed a petition as I.A.64/003 for permission to sue under Order
1 Rule 8 representing the members of the Committee. This was allowed
and there was a revision to this Court and subsequently the matter was
remanded. Ext.A4 was produced later, which is the certified copy of the
Memorandum of Association of the plaintiff Committee which shows that it
was registered with the Registrar of Societies under the Societies
Registration Act. Therefore the petition filed under Order 1 Rule 8 was not
pressed and it was dismissed. Ext.A2 is the certified copy of the register of
Wakf kept in the Kerala Wakf Board showing that the plaintiff committee
was registered with the Kerala Wakf Board. The Tribunal based on Ext.A2,
found that the plaintiff committee is a wakf registered with the Kerala Wakf
Board and the committee is registered under Societies Registration Act
and hence the suit is maintainable. Then it turned to the question as to
whether the benefit of the provisions of the Rent Control Act is applicable to
the tenant and it was decided against the tenant.
3. The revision petitioner contended that the very finding of the
Tribunal in the issue regarding maintainability of suit is not properly
considered and decided. We have gone through the judgment and we find
CRP NO.1/2005 3
that merely because Ext.A2 showed that the plaintiff committee is
registered as the wakf with the Board it cannot without going to other
evidence come to the conclusion that the suit is maintainable. When there
is a dispute between the parties as to whether it is a Wakf or the suit
relates to wakf property, the finding ought to have been rendered based on
the evidence and materials produced. That has not been done. Therefore
the finding on the question of maintainability is liable to be vacated. We do
so.
4. The respondent has the contention that even if plaint schedule
property is not a Wakf property, it being a Madrasa property by a separate
notification and the same has been exempted under Rent Control Act. But
this contention is not seen considered by the Tribunal. As we found earlier,
it has to consider the question whether it is a Wakf or the suit relates to a
Wakf property after considering the evidence adduced and answer the
jurisdiction issue. If the issue is decided in favour of the plaintiff, the next
question would be whether the building in question is exempted from the
provisions of the Rent Control Act either it as a Wakf property or it as a
Madrasa. In so far as the Tribunal has not proceeded in the correct
perspective, the only course is to set aside and remand the case to the
Wakf Tribunal for fresh consideration in accordance with law, after entering
CRP NO.1/2005 4
into the finding as to whether the suit relates to a Wakf or Wakf property
and if so, whether the property in question is exempted under the
provisions of the Rent Control Act. Both the parties are allowed to adduce
additional evidence in respect of their respective contentions.
The revision is thus allowed by remand. The parties shall appear
before the Tribunal on 23rd November. Records will be transmitted to the
Court below immediately.
P.R.RAMAN, JUDGE
P.R.RAMACHANDRA MENON, JUDGE
dnc