IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 CRP.No. 1010 of 2006() ---------------------- OS.12/2002 OF WAKF TRIBUNAL, KOZHIKODE .................... REVN. PETITIONER/DEFENDANTS: ------------------------------------------- N.K. PRADEEP KUMAR, NAMBADIKANDI, HILL PRODUCE MERCHANT, P.O.MEPPAYUR, PERAMBRA, MENHANYAM AMSOM DESOM, KOYILLANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE SRI.P.G.RAJAGOPALAN SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT/PLAINTIFF: ------------------------------ DARUSSALM MADRASSA COMMITTEE, P.O. AYENCHERI, VADAKARA TALUK, REPRESENTED BY ITS PAST PRESIDENT/ PAST MUTHAVALLI NUPPATTA MUHAMMED AI HAJEE, S/O. KUNHABDULLA HAJEE AND PRESENT PRESIDENT/ MUTHAVALLI A.P.KUNHI SEETHI THANGAL. ADVS. M/S. K.JAYAKUMAR & P.B.KRISHNAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/10/2009, ALONG WITH C.R.P. NO. 1040/2006 AND CONNECTED CASES, THE COURT ON THE SAME DAY, PASSED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. = = = = = = = = = = = = == == = = = C.R.P. NOS. 1010 & 1040/2006 & 44, 45, 48 & 49/2007 = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 13TH DAY OF OCTOBER, 2009. O R D E R Raman, J. All these revision petitions arise out of the common order passed by the Wakf Tribunal, Kozhikode in O.S. Nos.133/2001 and 12, 19, 20 and 21 of 2002. 2. Revision petitioners are the tenants of shop rooms situated in a common building, whose present landlord is the plaintiff. The suit was instituted seeking eviction of the revision petitioners from the tenanted premises on the ground of arrears of rent. It was the contention of the plaintiff that the suit property is a Wakf property and exempted from the provisions of the Kerala Building (Lease and Rent Control) Act and so the remedy available to the plaintiff is to seek eviction and recovery of possession through the Tribunal. After issuing notice of termination, the suit was instituted. 3. The defendants/revision petitioners contended that the tenanted premises are not Wakf properties and they are entitled to the protection CRP 1010/2006 & CON. CASES 2 under the Kerala Building (Lease & Rent Control) Act and so the Tribunal has no jurisdiction to entertain the suit. The Tribunal, by separate orders passed, ordered eviction and the revision petitions filed therefrom (C.R.P. Nos. 415/2003, 374/2003 etc.) were disposed of by a common judgment by a Division Bench of this Court (to which one of us was a party). It appears that the two other remaining respondents have also filed revisions which were disposed of following the earlier decision. Therefore, this is the second round of litigation between the parties. 4. As per the earlier judgment rendered by this Court, the matter was remitted to the Tribunal for fresh consideration in accordance with law, after holding that Ext.A1 produced in the case only shows that the Wakf is registered with the Wakf Board and when a challenge is made that it is not a Wakf at all, the same has to be proved by evidence adduced and therefore, the issue is to be adjudicated by the Tribunal independently, based on the evidence adduced by the parties. The said finding regarding the jurisdiction of the Wakf Tribunal to go into the question as to whether it is a Wakf or not dehorse Ext.A1, as far as this Court is concerned, has become final, in the absence of any appeal therefrom. Pursuant to the remand, the parties adduced further evidence and by the impugned order, the Wakf CRP 1010/2006 & CON. CASES 3 Tribunal directed the defendants/tenants to surrender vacant possession of the rooms with arrears of rent till termination of the tenancy and damages for use and occupation of the respective plaint schedule rooms to the landlord. Aggrieved by the said decision of the Wakf Tribunal, the defendants/tenants have preferred these revision petitions. 5. We have heard the learned counsel Sri. Mohammed Nias appearing on behalf of the revision petitioners in C.R.P. Nos. 44,45,48 and 49/2007 and Sri. Gopikrishnan Nambiar, learned counsel appearing on behalf of the petitioners in C.R.P. No. 1010 and 1040 of 2006. We have also heard the learned counsel Sri. Jayakumar appearing for the respondent / landlord. 6. The maintainability of the suit, the jurisdiction of the Wakf Tribunal and other related issues centre round the main issue as to whether the plaint schedule property is a Wakf property or not. As per the plaint averments, The building situated in Perambra Panchayat was entrusted with the tenants agreeing to pay monthly rent at the agreed rates. The rate of rent is not the same in respect of all the buildings and it is not necessary to refer to such details for the limited purpose of disposing of these revision petitions. The defendants disputed the rate of rent. They also contended CRP 1010/2006 & CON. CASES 4 that they have paid the rent subsequently after receipt of notice. The main issue taken up for consideration is dealt with in Paragraphs 22 and 23 of the judgment under revision is as to whether the plaintiff Committee is a Wakf and the plaint schedule properties are Wakf properties. The plaint schedule property originally belonged to one Swarnalatha and it is contended that the same was entrusted to the defendants and subsequently, the properties were purchased in the the name of the Wakf as per Document No. 2027/1999 of the SRO, Perambra. Since then, all the properties were in the ownership of the plaintiff Committee. the plaintiff Committee purchased other properties from different persons. One Pathu executed a wakf deed in favour of the plaintiff as per document NO. 320/1994 with respect to the property in Survey No. 18/1 situated at Ayencheri, which is marked as Ext.A4. Another person by name Anthruman Musaliar wakfed property in favour of the plaintiff Committee on 28,.1.1998 as per Ext.P5 document. This property also situate at Ayencheri Village. Placing reliance on Exts. A3 to A5 documents,it was contended that the plaintiff Committee is a Wakf and received properties as per Exts.A4 and A5. Ext.A3 was found to be a property purchased in the name of the Wakf in the year 1999. Ext.A6 minutes book of the plaintiff Committee is from 1996 November. CRP 1010/2006 & CON. CASES 5 The Tribunal referred to the said decision and found that the decision taken by the Committee for purchase of the said property is recorded in the said minutes. PW.1 has signed the further pages of Ext.A6 to show that he was actively participating in the function of the plaintiff Committee. Then it referred to Ext.A1 to show that the property is registered with the Wakf Board. According to PW.1, he was holding the post in two capacity - one as the President of the plaintiff Committee and the other as the Muthavalli of the Wakf, which was challenged by the defendant. Ext.A2 series are notices issued and Ext.A7 series are the reply. On an analysis of the evidence adduced, it was found that the ownership of the shop room by the plaintiffs cannot be disputed by the defendants. In para 23 of the judgment, the Tribunal referred to the earlier judgment rendered by this Court and rightly observed that the mere registering of the Wakf Board is not sufficient to hold that the property is a Wakf property. Ext.A3 shows that the property was assigned by Swarnalatha in favour of the plaintiff Committee. The transferor being a Hindu, there cannot have been a dedication implied as a Wakf, as observed by the Tribunal. But Ext.A1, according to the Tribunal, shows that the plaintiff Committee is a Wakf registered before the Wakf Board. Since the property now in question was CRP 1010/2006 & CON. CASES 6 also purchased by the same Committee as per Ext.A3, it was held that whether Ext.A3 is a Wakf or not is a matter to be determined by the Wakf Board and unless and until it is decided by the order of the Wakf Board, it cannot be said that Ext.A3 property is not a Wakf property. The above finding is contrary to what was stated in the judgment of this Court rendered in C.R.P. No. 415/2003 and connected cases. After referring to the various contentions of the parties, this Court referred to the various provisions of the Wakf Act and after referring to the decisions of the Apex Court, it was found that petitioners are all third parties who had no notice about the registration and therefore merely because a wakf is registered, that will not in any way affect the right of the defendants to contend that it is not a Wakf property dehors the registration made. Hence this Court directed the Tribunal to decide the question based on the materials produced in the case. If so, to say that this is a matter to be decided by the Wakf Board is clearly wrong and contrary to the decision of this Court. It is true that Exts. A4 and A5 are documents by which other persons have dedicated property to the plaintiff Committee. It is contended that the property, no doubt, is a Wakf property because it was dedicated as a Wakf and the Committee was appointed to administer the property. Therefore, by virtue of that fact alone CRP 1010/2006 & CON. CASES 7 whatever acquisition made subsequently by the Committee ipso facto without anything more, cannot be said to be a Wakaf property, and there is no available evidence on record to show that the Committee itself was constituted solely for the purpose and exclusively for the purpose of administering the Wakf property. The Committee may be doing other activities also. Therefore, it is contended that unless it is found that the present properties were purchased by the Committee from out of the income of the Wakf or that the Committee itself has, as earlier stated, exclusively constituted for the purpose of managing the Wakf property, it may not be possible to infer that the very purchase by the Committee leads to the conclusion that the present properties are also Wakf properties. 7. Per contra, it is contended by the learned counsel appearing on behalf of the respondent that indisputably, two properties, which were Wakf properties, were under the administration of the Committee and it has got also a Madrassa and the present properties are also purchased for charitable purposes by the very same Wakf Committee, that the intention of purchasing these properties was only to augment more income to the Wakf already in existence and therefore, the Tribunal was right in holding that the plaint schedule property having been purchased by the Committee is also a CRP 1010/2006 & CON. CASES 8 Wakf property. 8. We have considered the rival submissions. The Tribunal went wrong in holding that the matter has to be decided by the Wakf Board, as already pointed out earlier. Exts.A4 and A5 are documents, no doubt, by which properties were dedicated by persons professing Islam for the purpose of charitable purposes recognized by Muslim Law, in favour of the plaintiff Committee. But the question is as to whether the plaintiff Committee was in existence even before Exts.A4 and A5 or whether the Committee has only come into existence only later at a time when Exts.A4 and A5 were delivered. Further, the question may arise as to whether the very constitution of the Committee is for religious or charitable purposes. There is no discussion by the Tribunal on these questions. True that the Committee would have taken a decision to purchase this property. But what are the other income of the Committee, whether the income is only from the very same property already dedicated as per Exts.A4 and A5 or whether the Committee had other income and whether the property was purchased from out of the income from any Wakf property are not considered by the Tribunal. Though the Tribunal found that the Committee itself is a Wakf, there is no acceptable evidence produced in the case. therefore, the finding CRP 1010/2006 & CON. CASES 9 that the plaintiff Committee is a Wakf and is doing the duties of a Wakf is without reference to any evidence adduced. the finding that the properties were all purchased by the Wakf as per Ext.A3 stems from such a conclusion that the plaintiff Committee itself is a Wakf, about which, as we have stated earlier, no evidence is seen produced in the case. Reference was made to the decision of the Apex Court in U.P. SUNNI CENTRAL BOARD OF WAKFS VS. MAZHAR HASAN & OTHERS (2001) 6 SCC 289) which lays down satisfaction of some of the requirements of dedication in perpetuity. In that case, subscriptions were given by Muslim Public for a definite charitable and religious purpose on appeal from certain persons and such persons acquired property out of such subscriptions and set apart that property for the said purpose. There, the Apex Court held that the requirements of dedication in perpetuity is satisfied and such property became a Wakf property. In other words, proof of dedication by individual subscribers is not necessary. It is true that the proposal is now well settled. But then, in the present case, Ext.A6 only shows that money was collected from Gulf countries for the purpose of purchasing the property. 9. As we have already indicated, the question to be addressed is as to whether the Madrassa or the Mahal Committee itself is a Wakf. If so, it is CRP 1010/2006 & CON. CASES 10 only thereafter the question will arise as to whether the property purchased by expending the amount received by such Madrassa or Mahar will also be treated as Wakf property. But no attempt was made to show the various activities of the Madrassa and how it came to be constituted and what are its functions. It is only based on such evidence, one could arrive at a conclusion that the Madrassa in question is a Wakf and therefore acquisition of property by that Wakf by collecting money from abroad will constitute part of the fund required for such religious purpose and the property purchased in question being from out of the funds so collected it will be a wakf property. In the circumstances, it is not necessary that we should go into the evidence discussed in the judgment. Since the court below has committed the same mistake of swayed away by Ext.A1 and placed reliance on the same document to conclude that the Madrassa Committee is a Wakf, which, this Court has, in unambiguous terms, held that it is for the Tribunal to come to a conclusion independently, dehors Ext.A1. If so, the plaintiff as also the respondent be given an opportunity to be heard on the issue as to whether the Madrassa /Mahal Committee is a Wakf and based on the finding, the other issues will be decided. Since the Tribunal proceeded on the basis that the question whether it is a Wakf is to CRP 1010/2006 & CON. CASES 11 be considered by the Wakf Board, we set aside the decision and remand the case for denovo consideration. The discussion of the evidence by us is only to record that the Tribunal did not consider the question in the proper perspective; but not to hold either way. We have already directed the parties to deposit the rent in our earlier judgment. We are not disturbing the direction by the court below that the defendants shall continue to deposit the rent before the Tribunal and that the direction will continue until the disposal of the matter by the Tribunal. The parties shall appear before the court below on 16.11.2009. P.R. RAMAN, (JUDGE) P.R. RAMACHANDRA MENON, (JUDGE) KNC/- CRP 1010/2006 & CON. CASES 12 We have omitted to include the name of the learned counsel appearing for the revision petitioner in C.R.P. No. 1040/2006 in the order. Accordingly, the first sentence in Paragraph 5 of the order is corrected as follows: "We have heard the learned counsel Sri. Mohammed Nias appearing on behalf of the revision petitioners in C.R.P. Nos. 44,45, 48 and 49/2007, Sri. Gopikrishnan Nambiar, learned counsel appearing on behalf of the petitioner in C.R.P. No. 1010/2006 and Ms. Jayasree Manoj, learned counsel appearing on behalf of the petitioner in C.R.P. 1040 of 2006." The Registry shall incorporate necessary corrections in the order. P.R. RAMAN, JUDGE. P.R. RAMACHANDRA MENON, JUDGE.