IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 CRP.No. 293 of 2009() --------------------- OS.53/2002 of WAKF TRIBUNAL, KOZHIKODE .................... REVN. PETITIONER/DEFENDANTS ------------------------------------------- 1. WEST PATHANAPURAM VALIYA JUMA-ATH PALLI MAHAL JUMA-ATH SANGHAM,REP.BY ITS PRESIDENT, THE SANGHAM HAVING ITS OFFICE SITUATED AT KIZHUPARAMBA AMSOM AND PATHANAPURAM DESOM OF ERNAD TALUK,MALAPPURAM DISTRICT. 2. PULLITHODI UMMER, S/O.PULLITHODI MOYINKUTTY,RESIDING AT KIZHUPARAMBA AMSOM AND PATHANAPURAM DESOM OF ERNAD TALUK,MALAPPURAM DISTRICT. 3. PATHANAPURAM KHITHUMATHUL ISLAM SANGHAM, REP.BY ITS PRESIDENT PULLITHODI UMMER, TEH SANGHAM IS HAVING ITS OFFICE SITUATED KIZHUPARAMBA AMSOM AND PATHANAPURAM DESOM OF ERNAD TALUK,MALAPPURAM DISTRICT. BY ADV. SRI.R.RAMADAS ADV. SRI.T. KRISHNAN UNNI (SR.) RESPONDENT: PLAINTIFF ------------------------------------ EAST PATHANAPURAM CHERIYA JUMA-ATH PALLI MAHALLU JUMA-ATH SANGHAM,(REGD.NO.142/78) REP.BY C.P.ABDULLAKUTTY ITS JOINT SECRETARY, THE SANGHAM IS HAVING ITS OFFICE SITUATED AT KIZHUPARAMBA AMSOM AND PATHANAPURAM DESOM OF ERNAD TALUK,MALAPPURAM DISTRICT. ADV. SRI.M.KRISHNAKUMAR FOR R1 SMT.PRABHA R.MENON FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21.08.2009, THE COURT ON 8.9.2009 PASSED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.No. 293 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the ....th day of August, 2009 O R D E R Joseph Francis, J. This revision petition is filed by defendants 1 to 3 in O.S. No. 53 of 2002 on the file of Wakf Tribunal, Kozhikode. The respondent herein is the plaintiff in that suit. That suit was filed for declaration and injunction. 2. The case of the plaintiff is as follows. The plaintiff is a registered society. The 1st and 3rd defendants are also registered societies. Pathanapuram Juma-ath Palli and Cheriya Palli and the properties attached to the same are wakf properties. The said properties were being managed by a committee as Muthavalli under the name and style Pathanapuram Juma-ath Palli and Cheriya Palli. While the Muthavalli has been in management of the Wakf properties, C.R.P.No. 293 of 2009 2 it was felt that continued administration by one Muthavalli might not be convenient on account of the nature of the wakf properties. Then it was decided to have two separate committees for the administration and management after division of the properties of the wakf. Accordingly, Pathanapuram Juma-ath mosque and some properties were under the administration of the society registered under the Societies Registration Act under the name and style of the first defendant. The Niskara Palli and some properties, including the property shown in the schedule herein and improvements thereon, were put under the possession and management of a separate Muthavalli. The plaintiff committee is in management of the said properties as Muthavalli. 3. The division was effected in the year 1965. Afterwards, the wakf Board registered the plaintiff committee as the Muthavalli of Niskara Palli and the properties, including the plaint schedule properties. The first defendant committee was registered C.R.P.No. 293 of 2009 3 with the Wakf Board as the Muthavalli of Pathanapuram Juma-ath Palli and some properties were attached to the same. The respective Muthavallies have been in possession and management of the respective wakf and properties. 4. The second defendant was the President of the plaintiff committee in the year 1978. He continued as President until 4.6.1996. On that day, a new President and Secretary were elected. The second defendant had issued a letter dated 4.6.1996 to the Wakf Board Regional office, Kozhikode informing that he ceased to be the President of the plaintiff committee with effect from 4.6.1996. The second defendant had relinguished his President-ship and the new committee is functioning. Though the second defendant wanted to continue as President, the general body meeting dated 4.6.1996 was not willing to elect him. C.R.P.No. 293 of 2009 4 5. The plaint schedule property belonged to Cheriya Palli wakf and the same has been in the management of the plaintiff committee. The building in the schedule property was the subject matter of the lease in favour of Kerala State Government on a monthly rent of Rs.535/-. A G.L.P. School was functioning there. The second defendant was the President of the committee from 1978 till 6.4.1996 and had been collecting rent for the building as authorised by the committee. The second defendant had been trying to create difficulties from 4.6.1996 onwards. He wanted to create false and fabricated documents for facilitating him to collect rent of the building from the Government. 6. With the object of collecting rent from the Government, the second defendant in collusion with the President of the first defendant committee fabricated a document, purported to be a sale deed executed by Sri. Abdulla, President of the first defendant, in favour of the second defendant. It is claimed that the second C.R.P.No. 293 of 2009 5 defendant is the President of the 3rd defendant committee. The document was registered as No:2206/1998 of SRO, Malappuram. The plaintiff committee and its office bearers were unaware of the said transaction. The first defendant committee or its general body were also not aware of the said transaction. The above document is void and unenforceable. No right or possession of the property shown in the schedule herein is delivered by the first defendant to the 3rd defendant. First defendant committee has no right to sell or deal with the property. The plaint schedule property being a wakf property cannot be alienated by way of sale or otherwise without prior sanction of the Wakf Board. There is no permission of the Wakf Board for the alleged transaction. 7. Soon after knowing about the creation of a bogus committee, the plaintiff was constrained to file a suit against the second defendant, as O.S. 3 of 2000 before the Munsiff's court, Manjeri on 4.1.2000. While the suit was pending, the same was C.R.P.No. 293 of 2009 6 withdrawn to file fresh suit. Afterwards, the plaintiff filed the above suit. In view of the pending dispute, the A.E.O. has not paid the rent. The second defendant is also attempting to trespass upon the plaint schedule properties. On these allegations the plaintiff filed the suit. 8. The plaint was amended, as per order in I.A.474 of 2006 stating that the plaintiff came to know that S.M. Proceedings No.1024 of 2003 was commenced at the instance of the second defendant before the Land Tribunal. The Land Tribunal passed an order on 21.2.2004 granting purchase certificate in the name of the 3rd defendant. The above order was obtained during the pendency of a suit by fraud and mis representation. The order was passed in favour of the 3rd defendant basing on document No.2206 of 1998 of S.R.O. Malappuram. The amendment sought for was to declare the above document as null and void. The purchase certificate is illegal and improper. It is not binding upon the plaintiff, who was C.R.P.No. 293 of 2009 7 not a party to the proceedings. Hence the plaintiff prayed for a decree ignoring the purchase certificate. 9. Defendants filed written statement denying the plaint averments and contending that the suit is not maintainable. The plaintiff had filed O.S. 3 of 2000 before the Munsiff's Court, Manjeri along with I.A. 22 of 2000 with a prayer for interim injunction. In that suit, the second defendant herein was the first defendant and A.E.O., Areekkod was the second defendant. The relief sought in O.S. 3 of 2000 is for restraining the second defendant herein from collecting rent of the school building from the A.E.O. When the suit was posted for judgment, after taking evidence and hearing both parties, the plaintiff filed I.A. 1782 of 2002 for withdrawal of the plaint. The above petition was allowed and the plaintiff was permitted to withdraw the suit for filing a fresh suit after the disposal of proceedings No.A4- C.R.P.No. 293 of 2009 8 5616/RA before the Wakf Board. The Wakf Board has not passed any order in the above proceedings. 10. Before that the Joint Secretary of the plaintiff committee filed the suit for the same relief. There is no document to prove that the plaintiff is competent to file the suit. There was no committee by name Pathanapuram Juma-ath Palli and Cheriya Palli. Such a committee was not the Muthavalli of the Wakf properties at any point of time. It is also not correct to say that the plaint schedule building belongs to the plaintiff committee. The plaint schedule item Nos. 2 and 3 are not in the exclusive possession of the first defendant. The plaint schedule property and the building were originally belonged to Pathanapuram Valiya Juma-ath Palli and the building therein was rented out to the Government for running the G.L.P. School. Accordingly, the first defendant has been receiving rent from the Government. C.R.P.No. 293 of 2009 9 11. The first defendant was also running a Niskarapalli and now it has become a juma-ath mosque. For managing the mosque east Pathanapuram Cheriay Juma-ath Palli Mahal Juma-ath was formed and registered under the Societies Registration Act. The said committee has no right or possession over the school building. The plaint schedule properties belonged in jenm to Kizhakkamparathu Illam and it was taken on Kanam lease by one Ibrahim Koya. After his death, his legal heirs partitioned the property as per document No.119 of 1932. Item No.1 in the said partition deed was set apart to one Ahammed. Later, as per document No.778 of 1953, the property was purchased by the Nottamveettil Muhammed. The said Muhammed gave the property to Pathanapuram Valiya Juma-ath mosque as per document No.687/59. The mosque has also obtained right from the said Ahammed, as per document No.1473/1960. In that property the first defendant constructed a building and the same C.R.P.No. 293 of 2009 10 was rented out to the government for running a school. The first defendant committee had agreed to utilise the income from the building for running Hayathul Islam Madrassa, Pathanapuram which is affiliated to Samastha Kerala Islam Matha Vidyabhyasa Board. 12. The 2nd defendant used to collect rent of the building as the representative of the mosque committee and the same used to be spent for the Madrassa. The plaintiff was never authorised to receive rent from the Government. The plaintiff never collected rent for the building. It is also incorrect to say that the suit was filed at the instance of the second defendant to wreck vengeance against the defendant. 13. For the purpose of smooth functioning of Hayathul Islam Madrassa, a society was formed under the name Hitamasthul Islam Sangham. It was registered under the Societies Registration Act. After the formation of the committee, the first defendant was C.R.P.No. 293 of 2009 11 informed about that fact and the first defendant used to spend the money for running the Madrassa. Hayathul Islam Madrassa is functioning in building No.315/9 of Keezhuparamba Village. The first defendant committee had assigned the building in the name of Hikmasthul Islam Sangham. The second defendant is in exclusive possession of the plaint schedule property. 14. The plaintiff had filed complaint before the A.E.O. Areekkod regarding collection of rent of the building. After enquiry, the petition was dismissed with a direction to the second defendant to receive rent. The above order was not challenged by the plaintiff. The plaintiff has no right to challenge the transfer effected by the first defendant. The plaint schedule committee was never in possession of the plaintiff. It is not stated in the plaint on what basis the plaintiff is representing the committee. Hence the suit is liable to be dismissed. The plaintiff was never appointed as the Muthavalli of the plaint schedule C.R.P.No. 293 of 2009 12 properties. The plaint schedule properties are not part of Cheriya Palli wakf. The allegation that the defendants are trying to create false document is incorrect. Plaintiff is not entitled to challenge the document in favour of the 3rd defendant. The plaintiff is not entitled to get any reliefs in the suit. 15. The defendants filed an additional written statement stating that the contentions of the plaintiff that he came to know about the S.M. proceedings No.1024/03 only recently is incorrect. All the allegations against the defendants relating to the S.M. proceedings are false. The Land Tribunal has passed the order after satisfying that the real person is in possession of the property. Plaintiff has no right over the property. No appeal or revision was filed against the order of the Land Tribunal. The plaintiff is not a necessary party to the proceedings before the Land Tribunal. The claim of the plaintiff to decree the suit ignoring the purchase C.R.P.No. 293 of 2009 13 certificate is unsustainable. On the above grounds, the defendants prayed for dismissal of the suit. 16. In the Wakf Tribunal, PW1 and DW1 were examined and Exts. A1 to A59 and B1 to B21 were marked. The learned Wakf Tribunal, on considering the evidence, decreed the suit declaring that Ext.A1 Document No. 2206 of 1998 of S.R.O. Malappuram and Ext.B14 purchase certificate No. 313 of 2004 are not binding on the plaint schedule property and the plaintiff. Defendants 1 to 3 are restrained by a decree of permanent prohibitory injunction restraining from interfering with the possession and management of the plaint schedule property by the plaintiff. Defendants 1 to 3 are also directed to pay the cost of the suit to the plaintiff. Against that judgment and decree, defendants 1 to 3 filed this revision petition. 17. We heard the learned counsel for the revision petitioners and the learned counsel for the respondent. C.R.P.No. 293 of 2009 14 18. The learned counsel for the revision petitioners submitted that the Tribunal went wrong in finding that the plaintiff has right and possession over the plaint schedule property and as such the plaintiff is not entitled to get a declaration and injunction. 19. The learned counsel for the respondent/plaintiff supported the judgment and decree. 20. The learned counsel for the revision petitioners invited our attention to the decision reported in Khaji Muhammad Hussain Sahib V. Majiday Mahmood Jamait Managing Committee, Puddupet, (A.I.R. 1940 Madras 167), in which it was held that: “A mutawalli according to Mahomedan law is only a manager or a superintendent of a religious institution administering its temporal affairs. A mutawaliship can be held by a single individual or two or more individuals or a society. The right to manage a religious C.R.P.No. 293 of 2009 15 institution is recognizable and enforceable in a Court of law. Such a right can be acquired by prescription.” 21. According to the plaintiff, Pathanapuram Juma Ath Palli and Cheriya Palli and properties attached to the same were managed by a committee known as Pathanapuram Juma Ath Palli and Cheriay palli. When they found it to be difficult to manage the affairs of the Wakf as a single unit, they decided to separate the mosque properties. The plaintiff alleges that they divided the properties and two committees came into existence in the year 1965 and entrusted the management of separate items of properties. Accordingly Pathanapuram Juma ath Mosque and some properties under the administration and management were given to first defendant. The Niskarapally and some properties C.R.P.No. 293 of 2009 16 including the plaint schedule properties were put under the possession and management of the plaintiff. 22. While they were managing the properties, the plaintiff committee was registered in the year 1978. The first defendant committee was registered in the year 1981. The second defendant was the office bearer and member of the plaintiff committee and was functioning as its President from the year 1978 onwards till 4.6.1996. The present Secretary of the plaintiff sangham and new president were elected on 4.6.1996 ousting the second defendant. The plaintiff alleges that thereafter the second defendant formed a fictitious committee, which is the third defendant committee. The plaintiff further alleges that defendants 1 and 2 colluded together and transferred the plaint schedule property in the name of third defendant. The defendants contend that the plaint schedule properties were in the possession of the first defendant and it C.R.P.No. 293 of 2009 17 transferred the properties to the third defendant and now the third defendant is managing the property as the mutawalli. The rent of the school building has been collected by second defendant and that the plaintiff has no right to collect rent. 23. The present Joint Secretary of the plaintiff Sangham was examined as PW1. PW1 deposed that the common committee purchased the plaint schedule item No. I, as per Ext.A54 Sale deed No. 687/59. The plaint schedule item No.2 property was purchased by that committee as per Ext.A55 Sale Deed No.1473/60. The second defendant, who was examined as DW1, admits the acquisition of the plaint schedule property as per Exts.A54 and A55. 24. The undivided common committee filed petition before the Wakf Board for registering the same before the Wakf Board. Ext.A21 is the petition submitted by the Pathanapuram Juma-ath C.R.P.No. 293 of 2009 18 Palli committee showing that the plaint schedule property item No.1 property was included in that petition. ExtA22 is the report of the U.D. Clerk of Wakf Board, Kozhikode Regional office, based on a memo dated 1.6.1999, when there was no dispute between the parties. That report shows that plaint schedule properties are in the possession of the Niskara palli committee, which is the predecessor committee of the plaintiff after the division in the year 1965. Ext.A2 is the certificate issued from the Kerala State Wakf Board dated 25.6.1998, stating that Pathanapuram Niskara Palli and its properties have been registered before the Wakf Board. Ext.A56 is the bye-law of the first defendant society. Ext.A56 was registered on 23.12.1981. In Ext.A56 it is stated that one of the purposes of the first defendant society is to manage the Valiya Juma-ath Palli Dars and Madrassa. That does not mention about the Cheriya palli, madrassa and school building. C.R.P.No. 293 of 2009 19 25. Ext.A36 is the bye-law of the plaintiff committee registered on 5.10.1978. The purpose of the plaintiff committee is to manage the Cheriya Juma-ath Palli, Dars and Madrassa, apart from other activities. Ext.A23 is the account book of the unregistered Sangham. That Sangham was managing the plaint schedule property, in which the school building is situated. In Ext.A23, the rent received from the Government by the plaintiff Sangham was recorded. Ext.A23 shows that the plaintiff sangham was receiving the rent of the school building. 26. The third defendant claims ownership and possession over the plaint schedule property on the basis of Ext.A1 Sale Deed No.2206/98 of the S.R.O., Malappuram executed by the first defendant. That sale deed was executed without obtaining the sanction from the Wakf Board and as such it is void under Section 51 of the Wakf Act. According to the defendants, the third C.R.P.No. 293 of 2009 20 defendant purchased the jenm right over the plaint schedule property as per Ext.B14 purchase certificate dt. 28.4.2004. 27. The evidence on record shows that the plaintiff and the first defendant are two different committees holding different items of properties and the plaint schedule properties were not in the management and possession of the first defendant, but in the possession of the plaintiff. Since the first defendant has no right to transfer the plaint schedule property to the third defendant, the learned Wakf Tribunal is justified in finding that Ext.A1 is not binding on the plaintiff and the plaint schedule properties. The plaintiff is not a party to S.M. 1024 of 2003. Therefore, Ext.B14 purchase certificate issued from the Land Tribunal in favour of the third defendant as per S.M. proceedings is not binding on the plaintiff and the plaint schedule properties. Therefore, we are of the view that the Wakf Tribunal is justified in declaring that Ext.A1 and Ext.B14 are not binding on the plaint schedule C.R.P.No. 293 of 2009 21 property and the plaintiff. Since defendants 1 to 3 have no right over the plaint schedule properties, the learned Wakf Tribunal is fully justified in granting permanent prohibitory injunction against the defendants. Therefore, we find no reason to interfere with the judgment and decree of the Wakf Tribunal. 28. Accordingly this revision petition is dismissed as it is without any merit. The parties are directed to suffer their respective cost in this revision petition. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm