IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 RSA.No. 137 of 2004() {AS.67/2000 of III ADDL.SUB COURT, KOZHIKODE OS.560/1994 of ADDL.M.C.,KOZHIKODE-I} .................... APPELLANT(S):/1ST RESPONDENT/1ST DEFENDANT ---------------------------------------------------------- D.RAVINDRAN, S/O. DAMODARAN, HOUSE NO.65/1688, VELAYANADU AMSOM DESOM, KINISSERI. BY ADV. SRI.V.BHASKARAN PILLAI SMT.S.LEELA SRI.B.VINOD SMT.V.JISHA RANI RESPONDENT(S): APPELLANT/PLAINTIFF & 2ND RESPONDENT/2ND DEFNT. ---------------------------------------------- 1. KINASSERI YATHEEMKANA, REPRESENTED BY ITS SECRETARY VALAYANAD, KOZHIKODE. 2. THE SECRETARY, KERALA WAKF BOARD. R1 BY ADV. SRI.B.V.BALAKRISHNAN & SRI.AYPE JOSEPH R2 BY ADV. SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. “C.R.” --------------------------------------- R.S.A.No.137 of 2004 --------------------------------------- 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 R.S.A.No.137 of 2004 :: 2 :: 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 R.S.A.No.137 of 2004 :: 3 :: 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 R.S.A.No.137 of 2004 :: 4 :: 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 R.S.A.No.137 of 2004 :: 5 :: 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 R.S.A.No.137 of 2004 :: 6 :: 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.