IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 CRP.No. 1 of 2005() ------------------- OS.45/2002 of WAKF TRIBUNAL, KOZHIKODE .................... REVN. PETITIONER(S): DEFENDANTS; -------------------------------- K.P.JAGATHEESH, AGED 40 YEARS, S/O.K.P.APPUKUTTY, KERALA STATIONERY MARK, 10/712, M.P.ROAD, CALICUT 673 001. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S): PLAINTIFF: ------------------------- NAJATHUSSIBIYAN MADRASSA COMMITTEE, REG. WITH THE KERALA, WAKF BOARD, ERNAKULAM, ASSIGNED REGISTRATION NO.6981, THROUGH THE SECRETARY, M.K.ABDULLA HAJI, P.O. KANNOOKKARA, KOZHIKODE. ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/10/2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & P.R. RAMACHANDRA MENON, JJ. -------------------------------------------------- CRP NO. 1 OF 2005 ------------------------------ 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