IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 SA.No.940 of 1994 (C) -------------------------- O.S.436/1985 OF MUNSIFF COURT, KASARAGOD A.S.61/1992 OF SUBORDINATE COURT, KASARAGOD ------------------------- APPELLANT/RESPONDENT/PLAINTIFF: --------------------------------------------- A1 MADRASATHIL DEENIYA SANGAM, THAYALANGADI, KASARAGOD. REP. BY ITS MANAGER SRI.M.A.MUHAMMED SHAFI. BY ADV. SRI.M.RAMESH CHANDER ADV. M.S.MANIKANDHAN ADV. KUMAR RESPONDENTS/APPELLANTS/DEFENDANTS: --------------------------------------------------- *1. VITTAPPA KAMATH, S/O RAGHUNATH KAMATH, TRADER, OPP. CORPORATION BANK, THAYALANGADI, KASARAGOD. [DIED] ADDL. R2 TO R5 IMPLEADED 2. GIRIDHARA KAMATH, RESIDING AT SVT SQUARE, OLD CUSTUMS ROAD, THAYALANGADI, P.O. KASARAGOD. 3. NAGESH KAMATH, DO- -DO- 4. GEETHA KAMATH, -DO- -DO- 5. THULASI KAMATH, -DO- -DO- BY ADV. SRI.C.S.ANANTHAKRISHNA IYER (SR.) ADV. SRI.KODOTH SREEDHARAN - ADDL. R3 ADV. SRI.K.K.MOHAMMED RAUF - R1 ADV. SRI.SAJAN VARGHESE K. - R1 SA.No.940 of 1994 (C) -2- * [ADDL. RESPONDENTS 2 TO 5 ARE IMPLEADED AS LRs OF DECEASED SOLE RESPONDENT AS PER ORDER DT.10/03/08 IN I.A.2075/07]. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ S. A. No.940 of 1994 ------------------------------------------------ Dated this the 26th day of May, 2008 JUDGMENT Plaintiff in a suit for recovery of plaint 'A' schedule shop room with past and future profits is the appellant. The plaintiff is a Wakf. O.S.436/85 was instituted by the plaintiff for recovery of possession of 'A' schedule shop room with past and future mesne profits after withdrawing Rent Control Petition filed as R.C.P.30/1984 before the Rent Control Court, Kasaragod as according to the plaintiff, being Wakf property it stands exempted from the application of the Rent Control Act vide S.R.O.47/1982 issued under Sub Section (1) of Section 25 of the Kerala Buildings (Lease and Rent Control) Act (Act 2 of 1965). The suit was decreed initially. On appeal by the defendant as A.S.87/87, the appeal was allowed and the suit was dismissed. S. A. No.940 of 1994 -2- Plaintiff filed S.A.586/89 before this Court and this Court remanded the case back for consideration of the question as to whether 'A' schedule building is Wakf property covered by the exemption in S.R.O.47/82. Over and above A1 to A9 and B1 to B4 documents and oral evidence of PW1 and DW1 which was available before remand, A10 to A12 were also produced by the plaintiff after remand to establish its case. The trial court by revised judgment again decreed the suit. Respondent/defendant filed A.S.61/92 assailing the decree for recovery of possession passed by the trial court. The first appellate court vide judgment dt.14/07/94 in A.S.61/92 allowed the appeal and dismissed the suit. Hence, this second appeal by the plaintiff in the suit. 2. The second appeal was admitted on the following substantial questions of law formulated in the memorandum of appeal:- S. A. No.940 of 1994 -3- “1) Whether the court below has applied the correct principles of law in deciding whether the plaint property is Wakf property when, on the admitted facts the plaintiff is a registered Wakf and the property is owned by Wakf. 2) Whether the court below has raised the necessary presumption arising out of an acquisition by a registered Wakf which will clothe the property acquired as a Wakf property without any further dedication. 3) Whether the court below was right in coming to the conclusion that the plaint property is not Wakf property when, on the recitals in the sale deed Ext.A10 show that there is dedication as contemplated in Section 3(L) of the Wakf Act.” 3. The only point that requires to be considered to answer the above substantial questions of law is as to whether the scheduled building is owned by a Wakf registered under the Wakf Act, 1954 with the Kerala Wakf Board. If so, the scheduled property stands exempted from all provisions of the Rent Control Act vide S.R.O.47/82 issued under Sub Section (1) of Section 25 of Act, 2 of 1965. Ext.A-11 shows the particulars of the properties owned by the plaintiff/Wakf and that takes in property obtained by the S. A. No.940 of 1994 -4- plaintiff under Sale Deed No.1268/1954 which is produced as Ext.A10 in the case. The respondent has no case that Ext.A10 is not title deed in relation to the property which takes in the scheduled building as well. It is true that the appellant should have produced a translation copy of Ext.A10, but probably being a document filed before the Munsiff's Court, Kasaragod and counsel on both sides are conversant with Kannada language, no insistence is seen to have made for production of a translated copy and no dispute at all is also raised to the effect that the document does not take in the scheduled building. When Ext.A-11 shows that the property covered by Ext.A10 is the title deed of the plaintiff which has been produced pursuant to the remand for the specific purpose of ascertaining whether the scheduled building is owned by the Wakf, it does not require to be doubted unnecessarily, as to whether the property does S. A. No.940 of 1994 -5- in fact belong to the Wakf or not. The lower appellate court has proceeded at a tangent to hold that further proof is required to uphold the case of the plaintiff that it is property belonging to the Wakf and that it is actually Wakf property. He has for the purpose proceeded to consider the definition of Wakf in Section 3(l) of the Wakf Act, 1954 and held that the dedication must be a permanent dedication of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable. The lower appellate court proceeded to observe the purport of Ext.A10 as follows:- “Ext.A10 is an assignment in favour of the plaintiff. It is not a Wakf as envisaged in Wakf's Act, 1954. To constitute a Wakf, there must be a permanent dedication for religious or charitable purpose. Ext.A10 is only an assignment in favour of the plaintiff which is not a permanent dedication. Therefore, it has to be found that Ext.A10 is not a Wakf and the property comprised therein, is not a Wakf property.” 4. The lower appellate court proceeded to state further as follows:- S. A. No.940 of 1994 -6- “It is true that the plaintiff is a Wakf institution registered under the Wakf's Act, 1954. Ext.A-11 produced after remand shows that the property comprised in Ext.A10 is not a registered Wakf property. Column No.7 of Ext.A-11 furnishes the particulars of properties Wakfed. It does not include plaint 'A' schedule property. Column 10 of Ext.A11 shows the title deeds of documents relating to the properties held by the plaintiffs wherein Ext.A10 sale deed is referred to. Merely because the plaintiff Wakf institution owns plaint 'A' schedule property, it will not assume the character of a Wakf property. For that, there must be a dedication or at least, after purchase, the plaintiff should have dedicated the property for religious purposes. There is neither dedication as per Ext.A10 nor the assignee the plaintiff, has set apart the property for any Wakf purpose. Mere ownership of the plaintiff will not amount to holding that it is a Wakf property”. 5. The above observations made by the first appellate court has no relevance at all under the scheme of Section 25(1) of the Rent Control Act which enables the Government in public interest or for any other sufficient cause to exempt by notification in the gazette any building or class of buildings from all or any of the provisions of the Act. By virtue of the power conferred by Sub Section (1) of Section 25 of the Act the Government has S. A. No.940 of 1994 -7- issued S.R.O.47/82 which reads as follows:- “In exercise of the powers conferred by Sub Section (1) of Section 25 of the Kerala Buildings (Lease and Rent Control) Act 1965 (Act 2 of 1965) the Government of Kerala hereby exempt in public interest the buildings owned by a Wakf registered under the Wakf Act 1954 (Central Act 29 of 1954) with the Kerala Wakf Board from all the provisions of the said Act (G.O.(MS) 229/81/PW dated 10-12-81 in K.G. No.2 dated 12-1-1982).” 6. As per the above notification what is exempted in public interest are the buildings owned by a Wakf registered under the Wakf Act, 1954 with the Kerala Wakf Board. It is not in dispute and it cannot be disputed either that the plaintiff is registered with the Kerala Wakf Board as a Wakf and that the scheduled building is owned by the said Wakf. That by itself will suffice to have the scheduled building exempted from all provisions of Act 2 of 1965. The matters considered by the first appellate court are not matters which deserved consideration as what is exempted from application of Act 2 of 1965 are buildings owned by a Wakf which is registered under the Wakf Act with the Kerala Wakf Board and that S. A. No.940 of 1994 -8- stands established by production of Ext.A11 extract from the register of Wakfs and Ext.A12 certificate issued from the Wakf Board regional office, Kozhikode. In the circumstances, the dismissal of the suit by the first appellate court in reversal of the decree and judgment passed by the trial court is unsustainable and the order of eviction passed by the trial court deserves to be restored. 7. No other contention was advanced before me by the learned counsel for the appellant. 8. In the result, allowing this Second Appeal, I set aside the judgment of the first appellate court and restore the judgment of the trial court dt.17/07/92 in O.S.436/95. The appellant shall be entitled to his costs in this appeal from the respondent. K.P.BALACHANDRAN, JUDGE kns/-