IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 SA.NO. 698 OF 1999(G) ----------------------------------- AS.22/1994 OF III ADDL.SUB COURT, KOZHIKODE OS.5/1987 OF MUNSIFF COURT, ANDROTH .................... APPELLANT(S)/RESPONDENTS 1, 2, 3,4, 9 AND 10/PLAINTIFFS 1, 2, 3, 5 AND LEGAL REPRESENTATIVES OF 6TH PLAINTIFF: ------------------------------------------------------------------------------------------------------------- (1). S.V.P.MUTHU KOYA, SON OF SAYED KOYA, ANDROTH. (DIED) (2). S.V.SHAIKOYA THANGAL, SON OF ATTAKOYA THANGAL, ANDROTH.(DIED) 3. S.V.P.POOKOYA, SON OF SAYED KOYA, ANDROTH. (4). S.V.P.MUTHUKOYA HAJI, SON OF KOYAKIDAVU KOYA, ANDROTH (DIED) *(5). S.V.P.KUNHIKOYA, ANDROTH (DIED) (DELETED) (6). THANGA KOYA, ANDROTH (DIED) *THE WORD 'DIED' ADDED ALONG WITH THE 5TH PETITIONER/5TH APPELLANT'S NAME IN THE CAUSE TITLE IS DELETED AS PER ORDER DATED 17.12.2009 IN I.A. NO.1731 OF 2009 (*)ADDL.APPELLANT NO.7 IMPLEADED: ADDL.A7. S.V.P. SAYED HASSAN, S/O.LATE U.P.S.JAMALLUDHI KOYA THANGAL, SHAIKINTA VEETTIL PADIPPURA, ANDROTH. (*)ADDL.APPELLANT NO.7 IMPLADED AS PER ORDER DATED 3.12.2009 IN IA NO.1635/2009. BY ADV. SRI.P.R.VENKETESH SRI.P.C.CHACKO(PARATHANAM) SMT.ASHA P.KURIAKOSE RESPONDENT(S)/APPELLANT AND RESPONDENTS 6, 7 AND 8/I DEFENDANT AND SUPPLEMENTAL DEFENDANTS 2, 3 AND 4: -------------------------------------------------------------------------------------------------- S.A. NO.698 OF 1999 2 *1. S.V.POOKOYA THANGAL, SON OF KOYAMMAKOYA, ANDROTH ISLAND (DIED) 2. LAKSHASWEEP WAKF BOARD, REP. BY SECRETARY, KAVARATTI. 3. S.V.CHERIYAKOYA THANGAL, ANDROTH. 4. S.V.P.KUNHISEETHI KOYA, SONOF SAYEDKOYA, SHAIKINTE VEEDU PADIPURA, ANDROTH. *THE DEATH OF 1ST RESPONDENT RECORDED VIDE ORDER DATED 17.12.2009 IN MEMO BEARING CF 3468/09 DATED 30.6.2009 AND THE RIGHT TO SUE SURVIVE TO THE SURVIVING RESPONDENTS RECORDED AS PER ORDER DATED 17.12.2009 VIDE MEMO BEARING C.F.5638/09 DATED 9.9.2009 (**)ADDL.RESPONDENTS 5 AND 6 IMPLEADED: ADDL.R5. SYED YUSUFF KOYA THANGAL, S/O.KUNHIKOYA THANGAL, SHAIKINTE VEEDU, ANDROTH ISLAND, LAKSHADWEEP. ADDL.R6. SYED FATHAHULLA THANGAL, SHAIKINTE VEEDU, ANDROTH ISLAND, LAKSHADWEEP. (***)ADDL.RESPONDENT NO.7 IMPLEADED: ADDL.R7. S.V.SEYAD MOHAMAD KOYA THANGAL, S/O.LATE ATTAKOYA THANGAL, SHAIKINTE VEEDU, ANDROTH ISLAND, LAKSHADWEEP. (**)ADDL.RESPONDENTS 5 AND 6 ARE IMPLEADED AS PER ORDER DATED 5.10.2006 IN IA NO.2067/2006. (***)ADDL.RESPONDENT NO.7 IS IMPLEADED AS PER ORDER DATED 3.12.2009 IN IA. NO.2499/2009. ADV. SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE FOR R1 SRI.P.GOPAL FOR R1 SRI.THAMBI JACOB FOR R2 SRI.JOE KALLIATH FOR R2 SRI.T.SETHUMADHAVAN FOR ADDL.R5 & 6 SRI.K.JAYESH MOHANKUMAR FOR ADDL.R5 & 6 SRI.SHYAM PADMAN FOR R3 SRI.A.RANJITH NARAYANAN FOR R3 SMT.M.LISHA FOR R3 SRI.K.S.MOHAMED HASHIM FOR ADDL.R7 SRI.P.JINISH PAUL FOR ADDL.R7 SMT.SEEJA S. FOR ADDL.R7 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 3/12/2009, THE COURT ON 17/12/2009 DELIVERED THE FOLLOWING: SA NO.698/1999 ORDER ON C.M.P.NO.1888/1999, IA NOS. 1574 & 2024/2009 DISMISSED 17.12.2009. SD/-THOMAS P.JOSEPH, JUDGE //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.698 of 1999 -------------------------------------- Dated this the 17th day of December, 2009. JUDGMENT Androth is the largest among 36 Islands which together form the Union Territory of Lakshadweep known for its scenic beauty. It is surrounded by the Arabian Sea and situated about 250 to 400 k.m. west of Kochi. Most of the inhabitants of that Island belong to the Muslim community. Shaikinteveedu Tarwad (for short, “the Tarwad”) is one of the ancient Tarwards of the Island which came into existence, as the evidence goes atleast 400 years before this litigation started. A saintly member of that Tarwad, Shaik Mohammed Khasim Valyulla established a Mosque in the property of the Tarwad in the Island of Androth. It is not disputed the Mosque, known as 'Ujra Palli' (for short, “the Mosque”) acquired fame in and out of the Island. When strength of the Tarwad increased they divided into four thavazhies - Shaikinteveedu thavazhi, Shaikinteveedu Padippura thavazhi, Shaikinteveedu Puthiyapura thavazhi and Shaikinteveedu Cheriyapura thavazhi about 250 years back. The last two thavazhies - Shaikinteveedu Puthiyapura thavazhi and Shaikinteveedu Cheriyapura thavazhi got extinct, it is not disputed before me and its properties reverted to the two other thavazhies. Later, the remaining two thavazhies got divided into sub-thavazhies. The sub-thavazhies under Shaikinteveedu thavazhi are Nallakkoya Thangal thavazhi, Thangakkoya Thangal thavazhi and Shaik Koya thavazhi. The sub-thavazhies under Shaikinteveedu Padippura thavazhi SA No.698/1999 2 are Muthukkoya thavazhi, Pookkoya thavazhi and Koyamakkoya thavazhi. Shaik Koya thavazhi under Shaikinteveedu thavazhi also has become extinct. Plaintiff No.2 (he died pending proceeding) is a member of Nallakkoya Thangal sub-thavazhi. On his death, respondent Nos.5 to 7 are impleaded as legal representatives. Plaintiff No.4 and defendant No.1 are members of Thangakkoya Thangal sub-thavazhi. Defendant No.1 expired during the pendency of the Second Appeal. Plaintiffs filed a memo stating that defendant No.3 and some of the respondents represent the Sub-thavazhi of defendant No.1. Respondent No.3/defendant No.3 (who was originally plaintiff No.4 and later transposed as defendant No.3) filed objection to the memo stating that he alone is entitled to represent Thangakkoya Thangal sub-thavazhi of defendant No.1. Plaintiff Nos.1 and 5 are members of Muthukkoya sub-thavazhi. On the death of plaintiff No.1 on 22.8.2006 additional appellant No.7 was impleaded as legal representative. Plaintiff No.3 and defendant No.4 are members of Pookkoya sub-thavazhi. Plaintiff No.6 is a member of Koyamakoya sub- thavazhi. Defendant No.2 is the Wakf Board (for short, “the Board”). Defendant No.3 as I stated, is plaintiff No.4 who was transposed as defendant No.3 during the pendency of proceeding in the trial court. In short, plaintiffs and defendant Nos.1 and 3 (as on the date of suit) represented the existing Sub-thavazhies under Shaikinteveedu thavazhi and Shaikinteveedu Padippura thavazhi. Dispute is concerning right of the thavazhies for the spiritual and temporal administration of the Mosque. Plaintiff Nos.1 to 6 (plaintiff No.4 being later transposed as defendant No.3) alleged in the plaint that the Mosque is SA No.698/1999 3 registered under the Wakf Act (then in force) and entered in the Gazette as Sl.No.157. They claimed that plaintiff Nos.1 and 5 are Muthavallies of the Mosque at the time of institution of the suit. Further claim is that the Mosque belong to the Tarwad and was being managed by qualified persons of the Shaikinteveedu thavazhi and Shaikinteveedu Padippura thavazhi (since the other two thavazhies had become extinct). Ratib is a prayer performed in the Mosque, sitting on the Mehra (prayer rug) by the shaik on all Mondays and Fridays and on Id-ul Fitr and Id-ul Azha days. Defendant No.1 who belonged to Thangakkoya Thangal sub-Thavazhi relinquished all his rights in the Mosque to his sub-thavazhi and hence he has no right in the Mosque or to do any activity there. Defendant No.1 is trying to perform Ratib and interfer with the right of the plaintiffs in the Mosque. They said that the Mosque and its administration belonged originally to the Tarwad and that right is now vested in the plaintiffs and other members of the thavazhies excluding defendant No.1 (on account of the relinquishment above referred). Plaintiffs prayed for injunction against defendant No.1 and his men performing Ratib in the Mosque and interfering with the plaintiffs performing Ratib. Later, plaint was amended to incorporate a plea that plaintiffs are Muthavallies of the Mosque and that the said Mosque belonged to the Tarwad of the plaintiffs and defendant No.1. Matters of the Mosque are being looked after by qualified persons belonging to the existing two thavazhies, Shaikinteveedu thavazhi and Shaikinteveedu Padippura thavazhi. In the amended plaint it is also stated that qualified members of those two thavazhies are performing Ratib in the Mosque as per the terms and conditions prescribed SA No.698/1999 4 by them. A prayer for declaration was also incorporated by amendment in the plaint to the effect that the Mosque belonged to the Tarwad, right of management and all other matters are with the plaintiffs, it was so being done by the members of the Shaikinteveedu Tarwad including the plaintiffs, it is required to be done so by the members of the family of the plaintiffs and that defendant No.1 has no right to do so (on account of the relinquishment). Defendant No.1 in answer to the plaint averments as it originally stood denied that he has relinquished right over the Mosque. He also denied that the matters of the Mosque are being looked after by the plaintiffs as pleaded in the plaint. He claimed that he is the seniormost member of the Tarwad and Shaikinteveedu thavazhi under it (he comes under Thangakkoya Thangal sub-thavazhi under Shaikinteveedu thavazhi under the Tarwad) and hence is entitled to conduct the spiritual and temporal administration of the Mosque and perform Ratib. Answering the amended plaint, defendant No.1 contended that it is incorrect to say that matters of the Mosque are being looked after by the thavazhies represented by the plaintiffs. 2. In the course of the proceeding in the trial court plaintiff Nos.1 to 3,5 and 6 filed I.A.No.10 of 1990 on 5.5.1990 requesting to transpose plaintiff No.4 as defendant No.3. In the affidavit in support of the application plaintiff Nos. 1 to 3, 5 and 6 stated that though plaintiff No.4 also is a signatory in the plaint he has been won over by defendant No.1 (plaintiff No.4 and defendant No.1 belonged to Thangakkoya thangal sub-thavazhi) and under the influence SA No.698/1999 5 and instigation of defendant No.1, plaintiff No.4 is not co-operating with the other plaintiffs in the conduct of the case, instead, he is moving with defendant No.1 and has even refused to sign the vakalath along with other plaintiffs. In that situation if plaintiff No.4 continued to be as such it would cause irreparable injury to other plaintiffs and hence they requested that plaintiff No.4 be transposed as defendant No.3. Notice of that application was given to plaintiff No.4 also but he did not respond. Defendant No.1 opposed the application. Hence learned Munsiff allowed I.A.No.10 of 1990 on 10.9.1990 and plaintiff No.4 was transposed as defendant No.3. Plaintiff No.4, transposed as defendant No.3 did not file written statement, but remained absent and was set exparte. Defendant No.1 contested the suit. It came out that defendant No.1 who is the seniormost member of the two existing thavazhies was acting as Muthavalli and Shaik who performs Ratib in the Mosque. Learned Munsiff as per judgment dated 31.12.1992 held that the case of plaintiffs that defendant No.1 relinquished his right over the Mosque as per Ext.A2, partition deed is not acceptable since when the Mosque is dedicated to the Wakf, it amounts to dedication to Allah and hence question of defendant No.1 relinquishing his right over the Mosque which has been dedicated to Allah did not arise. Learned Munsiff found that defendant No.1 is entitled to take part in the matters of the Mosque in his capacity as a member of Thangakkoya Thangal sub-thavazhi which is one of the sub-thavazhies under Shaikinteveedu thavazhi and he cannot be injuncted from doing so. Learned Munsiff however declared that right of management and income from the suit property (the Mosque) belongs to the members of the SA No.698/1999 6 different thavazhies of the Tarwad (I stated that of the four thavazhies, two thavazhies ie., Shaikinteveedu puthiyapura thavazhi and Shaikinteveedu cheriyapura thavazhi had become extinct), of plaintiffs and defendant Nos.1 and 3 (the latter being plaintiff No.4 transposed as defendantNo.3) and that the right to hold the office of Shaik in the Mosque belongs to the qualified members of the Tarwad. Defendant No.1, aggrieved by the declaration preferred an appeal. Learned Sub Judge took the view that relief granted by the learned Munsiff is something not asked for by the plaintiffs, plaintiffs proceeded on the basis that they alone (individually) are entitled to administer the affairs of the Mosque, be it spiritual and temporal, laid the suit accordingly, learned Munsiff found that plaintiffs alone are not entitled to do so and hence in that situation learned Munsiff went wrong in granting a declaration that all the members of the thavazhies of plaintiffs and defendant Nos.1 and 3 are entitled to exercise right over the Mosque. That according to learned Sub Judge was beyond the scope of the suit. Holding so the appeal was allowed and the suit was dismissed. That is under challenge at the instance of plaintiffs. Following substantial questions of law are framed for a decision: i. Where a Mosque is established by a marumakkathayam Tarwad, will not all the qualified members of the thavazhies constituting the Tarwad be entitled to participate in the conduct of the prayers in the Mosque as also share the income derived therefrom? ii. Where the plaint schedule Mosque is admitted to be established by SA No.698/1999 7 the Tarwad and in the light of Ext.A1, settlement deed between members of the thavazhies (as it then existed) constituting the Tarwad can there be a conferment of an exclusive right on one person viz., defendant No.1 to the exclusion of other members of the Tarwad with regard to the conduct of Ratib and management of the affairs of the Mosque? It is contended by learned Senior Advocate, Shri M.C.Sen for the plaintiffs that first appellate court was under a mis-impression that the trial court granted relief which was not asked for. First appellate court failed to take note of the amendment carried out in the plaint and the declaration prayed for by way of amendment. Learned Senior Advocate contended that a reading of the plaint with the relief sought by amendment would eloquently show that it is not a case of the plaintiffs trying to establish any individual right for themselves over the Mosque but, they were only enforcing the right of the existing two thavazhies under the Tarwad of which plaintiffs and defendant Nos.1 and 3 are members. According to the learned Senior Advocate, injunction was sought against defendant No.1 not in his capacity as representing the Thangakkoya thangal sub-thavazhi to which he belonged but personally against him on account of relinquishment of his right as per Ext.A2. Relief sought against defendant No.1 did not mean that plaintiffs were denying right of Sub-thavazhi to which defendant No.1 belonged. It is also contended by the learned Senior Advocate that so far as prayer for injunction is concerned, that has become infructuous on account of death of defendant No.1 during the pendency of Second Appeal and hence what remained is only the prayer for declaration. It is contended that SA No.698/1999 8 first appellate court was not justified in holding that learned Munsiff has granted a relief which is not asked for and at any rate, it was within the power of the court to mould relief taking into account relevant facts and circumstances so far as it did not result in any prejudice to defendant No.1. So far as the present stand of defendant No.3 (originally, plaintiff No.4) is concerned, though he has been transposed as defendant No.3 as per order on I.A.No.10 of 1990 he has not opted to contest the suit against the plaintiffs and instead, remained exparte. He did not challenge the decree passed by the learned Munsiff. In that situation, defendant No.3 cannot now be heard to say that averments in the plaint are not correct. Learned Senior Advocate prayed that the decree granted by the trial court be restored. Shri Shyam Padman, learned counsel for defendant No.3 (originally plaintiff No.4) contended that the suit is not maintainable in view of the bar under Section 85 of the Wakf Act, 1995 (for short, “the Act”) the civil court having no jurisdiction to entertain a challenge to the performance of Ratib in the Mosque, these issues are required to be decided by the Board and the Tribunal constituted under the Act and hence the suit is liable to be dismissed as not maintainable. It is contended by learned counsel that though defendant No.3 did not file written statement consequent to his transposition as such, he is entitled to contest the appeal in his capacity as legal representative of deceased defendant No.1 as he belongs to the Thangakkoya Thangal sub- thavazhi. At any rate, defendant No.3 has filed written statement in the Second Appeal with I.A.No.2778 of 2009 to accept the same. Learned counsel requested that the application may be allowed and the written statement be SA No.698/1999 9 accepted. It is also the contention of learned counsel that plaint proceeded on the basis that plaintiffs (plaintiff No.4 was later transposed as defendant No.3) alone are entitled to deal with the affairs of the Mosque which has been found to be incorrect by the learned Munsiff and hence the consequence should have been a dismissal of the suit. According to learned counsel, spiritual and temporal administration of the Mosque is vested only with Thangakkoya Thangal sub-thavazhi of which defendant No.3 is a member, it is the seniormost members of that sub-thavazhi who were functioning as Muthavalli and Shaik performing Ratib in the Mosque. But, since the plaint proceeded on the assumption that plaintiffs alone are entitled to perform the said obligation there was no occasion for defendant No.1 or after transposition for defendant No.3 to contend that the thavazhi of himself and defendant No.1 alone had the right to perform such administrative and religious functions. In that situation learned Munsiff was not justified in granting a declaration which was not prayed for or was not in issue in the suit and that prejudiced the defence of defendant Nos.1 and 3. Learned counsel contended that in the above circumstances first appellate court is justified in interfering with the judgment and decree of the learned Munsiff and non-suiting the plaintiffs. 3. I have to consider the argument related to the transposition of defendant No.3 as such from his original position as plaintiff No.4. I referred to the averments in I.A.No.10 of 1990 whereby plaintiff Nos.1 to 3 wanted plaintiff No.4 to be transposed as defendant No.3 and as per which the order transposing plaintiff No.4 as defendant No.3 was passed. Rule 1A of Order 23 SA No.698/1999 10 of the Code of Civil Procedure (for short, “the Code”) brought in by the Amendment Act (104 of 1976) provides for transposition of a defendant as a plaintiff when a suit is withdrawn or abandoned by the plaintiff and the defendant applies to be transposed as a plaintiff under Rule 10 of Order 1 of that Code. In such circumstances having due regard to the question whether applicant has a substantial question to be decided “as against any other defendant”, the court may order transposition of a defendant as a plaintiff. This Court in Dr.Suresh Babu v. Dr. T.K. Chandrasekharan and others (2009 (4) KHC 638) dealing with that power of court has stated that in such circumstances question to be considered is whether the defendant who seeks transposition as a plaintiff has a substantial question to be determined as against the remaining defendants in the suit and that if the defendant establishes the same, transposition has to be allowed. The question arose whether in the absence of an enabling statutory provision court could order a plaintiff to be transposed as a defendant. In Narayanan v. Manjadimoodu Coir Co-op. Society (1985 KLT 893), this Court referring to the provisions of Rules 1 and 2 of Order 1 of the Code held that question of transposing a plaintiff as a defendant does not arise as it is impermissible. Learned Judge took the view that the Code only permits transposition of a defendant as a plaintiff and that too, under certain circumstances. That was a case where plaintiffs alleged that one among them changed sides. This Court held that in such a situation the court was bound to order separate trial even though, what plaintiffs requested for was SA No.698/1999 11 a transposition of the plaintiff who sailed with the defendants. A Division Bench of this Court in Janadas v. Vedanayagam (2004 (3) KLT 425) held that even de hors provisions of Order 23 Rule 1 A of the Code a court is not powerless, which has the inherent power as well and under Order 1 Rule 10 of the Code to transpose a plaintiff as a defendant in appropriate cases. That was a case where plaintiffs sued for partition and separate possession of their share of the family properties jointly. In the course of the suit it appeared that one of the plaintiffs was not co-operating with the other plaintiffs. Other plaintiffs wanted the non-co-operating plaintiff to be transposed as a defendant so that his share could be allotted to him separately. Division Bench held that the power for transposition of even a plaintiff as a defendant, even in the absence of a provision like Order 23 Rule 1A of the Code is available to the court. In the concluding paragraph of the judgment it was observed, “In the above view of the matter, we are of the opinion that a plaintiff can be transposed as a defendant. The next question is that so far as this suit is concerned, whether it is possible. The Court below declined to grant the relief on the ground that it was only to overcome the objection with respect to valuation. According to us, this should not have been taken into consideration even if it is made in order to confine the case to the Munsiff Court. There is nothing wrong for the plaintiffs asking for it. Hence, we are of the view that the application ought to have been allowed.” (emphasis supplied) A reading of the decision would show that the Division Bench was upholding SA No.698/1999 12 the power of court to order transposition of a plaintiff as a defendant in appropriate cases depending on the facts and circumstances of the case. I am unable to understand from the decision that in any and every case unmindful of the facts involved a plaintiff could be transposed as a defendant. It has to depend on the facts and circumstances of the case. In the case before the Division Bench there was no dispute between the plaintiffs and the non-co- operating plaintiff so far as demand for partition was concerned but it is only that they did not want their share to be jointly allotted to them along with that of the non-co-operating plaintiff. Hence he was requested to be transposed as a defendant and the Division Bench allowed that. The question whether a plaintiff could be transposed as a defendant should depend largely on the facts of the case involved. In 'Legal Thesaurus, Deluxe Edition' by William C.Burton, the word 'transpose' is given the meaning “convert (change use), convey (transfer), displace (replace), move (alter position)”. P.Ramanatha Aiyar in his 'Advanced Law Lexicon', 3rd Edition given the word the meaning “revive the order or change the place of”. The expression 'transpose' as explained above only means changing from one side to another side and does not contemplate taking a stand opposite to the stand already taken. In re Mathews: Oates v. Mooney ((1905) 2 Ch.Div. 460) it was held that in case of difference between co-plaintiffs proper course is to make an order that the name of one of them should be struck out as plaintiff and added as a defendant. Hence when a co-plaintiff is not able to agree with the other plaintiffs so far as contentions raised are concerned, the proper course is not to transpose him as a defendant SA No.698/1999 13 but to strike out his name as plaintiff and add him as a defendant so that he could take up defences appropriate to his character as a defendant if necessary by explaining how he happened to be a signatory to the plaint. 4. As per the averments in the affidavit in support of I.A.No.10 of 1990 what I find is that plaintiff No.4 (transposed as defendant No.3) was not co- operating with other plaintiffs in the conduct of the case and he refused to sign vakkalath along with other plaintiffs at the instance or instigation of defendant No.1. I am not able to understand from I.A.No.10 of 1990 that according to the remaining plaintiffs, plaintiff No.4 (transposed as defendant No.3) disowned the averments in the plaint. Hence transposition of plaintiff No.4 as defendant No.3 cannot be said to be illegal. Plaintiff No.4 who was transposed as defendant No.3 could either elect to remain as a defendant supporting the other plaintiffs having verified and signed the plaint along with them or assume the character of a defendant by filing a written statement with the