IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 CRP.No. 2078 of 2002() ---------------------- OS.4/2001 of S.T.A.TRIBUNAL,ADDL.BENCH,KZD. .................... REVN. PETITIONER(S): PLAINTIFFS: -------------------------------- 1. KUZHAMBILATH AYISHAKUTTY, AGED 61 YEARS, W/O. KUTTIAMU, THAHOTHU KUNNUMMAL, P.O. MANIPURAM, KODUVALLY, KOZHIKODE. 2. KUZHAMBILATT MARIYAKUTTY, AGED 56 YEARS, W/O. KADAR, MEPPOYIL, P.O. KIZHAKKOTH, VIA. KODUVALLY, KOZHIKODE. 3. KUZHAMBILATT PUTHUMMAKUTTY, AGED 53 YEARS, W/O. UNNIMOYIL, ATHIRIPOYIL, P.O. PILASSERY, KUNNAMANGALAM, KOZHIKODE. BY ADV. SRI.A.SUDHI VASUDEVAN SMT.BINDU K. NAIR RESPONDENT(S): DEFENDANTS: -------------------------- 1. KERALA WAKF BOARD REP. BY CHIEF EXECUTIVE OFFICER, ERNAKULAM NORTH, KOCHI-682 018. 2. SENIOR SUPERINTENDENT, KERALA WAKF BOARD, REGIONAL OFFICER, K.P. KESAVA MENON ROAD, KOZHIKODE. ADV. SRI.A.A.ABUL HASSAN, SC, WAKF BOARD FOR R1,2CRP SRI.P.A.ABDUL JABBAR, SC, WAKF BOARD FOR R1 SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD FOR R1 & 2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ C.R.P.No. 2078 OF 2002 ------------------------ Dated this the 11th day of November, 2010 O R D E R Gopinathan, J. The plaintiffs in O.S.4/2010 on the file of the Wakf Tribunal, Kozhikode is the revision petitioners. The above suit is one for declaration of the jenmem right of the revision petitioners over the plaint schedule properties and for a consequential injunction. The Tribunal below dismissed the suit. Now, assailing the said judgment and decree, this revision petition was filed. 2. The learned counsel appearing for the respondents submitted that the suit on hand is covered by the decision of the Apex Court in Ramesh Gobindram v. Sugra Humayum Mirza Wakf (2010)(3) KLT 862) against the revision petitioners. Hence, the suit is not maintainable before the Wakf Tribunal and that this revision petition is also not maintainable. On the other hand, the learned counsel for the revision petitioners submitted that the revision petitioners originally instituted the suit before the Munsiff Court, Kozhikode and numbered as O.S. No.637/1999 and on CRP.No.2078/2002 2 establishment of the Wakf Tribunal amidst the trial, the suit was transferred to the Wakf Tribunal stating that the dispute therein is to be tried and settled before the Wakf Tribunal. According to the learned counsel, in the event, if this court finds that the Wakf Tribunal has no jurisdiction and the civil court has to try the suit on hand, the revision petitioners shall be constrained to run from pillar to post and that it was not at the instance of the revision petitioner the suit was transferred to the Wakf Tribunal. On the other hand, the learned standing counsel appearing for the respondents submitted that the cause of action alleged in the suit itself is premature because the first respondent Board issued only a notice calling upon the revision petitioners to show cause for not evicting them and that the revision petitioners would get a cause of action only after an order in pursuance of the notice is passed by the Wakf Board. We find that the said dispute is also a matter to be adjudicated by the competent court and not by the Tribunal in the event the Tribunal has no jurisdiction. Going by the decision of the Apex Court, the suit on hand being one for declaration of title and consequential injunction, we find that the dispute would not come within the purview of CRP.No.2078/2002 3 Section 6 of the Wakf Act and would not come within the powers of the Tribunal under Section 7 of the Wakf Act. It appears that without noticing that aspect, the suit was transferred from the Munsiff Court to Wakf Tribunal. We find that the matter is to be tried and disposed of by the civil court. In the above circumstances, we find that the judgment and decree under challenge are not sustainable as it is passed by the Tribunal having no jurisdiction. Consequently, the judgment and decree under challenge are set aside. The matter is remitted back to the Tribunal below so as to enable the revision petitioners to get the suit returned under Order 7 Rule 10A for presentation before the Civil Court. There will be no order as to costs. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk CRP.No.2078/2002 4 PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ C.R.P.No. 2078 OF 2002 ------------------------ O R D E R 11th November,2010