IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 FAO.No. 188 of 2008() --------------------- OP.305/2008 of D.C. & SESSIONS COURT, ERNAKULAM .................... APPELLANTS/PETITIONERS-PLAINTIFFS: -------------------- 1. IBRAHIM, S/O.LATE ALI MAKKAR AGED 69, CHETTUKUDIYIL DESHABHIMANI ROAD, KALOOR 2. MOHAMMED BASHEER, S/O.THANGAL KUNJU 51, KALLELIL HOUSE, PUTHUKKALAVATTOM, ELAMAKKARA, KOCHI-26. BY ADV. SRI.T.B.THANKAPPAN SRI.P.V.ALIAS SRI.T.T.HARIKUMAR RESPONDENT(S): --------------- 1. COCHIN ISLAMIC WELFARE TRUST REP. BY ITS CHAIRMAN P.K.HASHIM, S/O.ABDUL RAHIMAN, R/AT.HOUSE NO.39/515, BONANZA, ARANGATH CROSS ROAD, ERNAKULAM 2. P.K.HASHIM, S/O.ABDUL RAHIMAN, R/AT. HOUSE NO.39/515, BONANZA, ARANGATH CROSS ROAD, ERNAKULAM. 3. K.A.AMANULLA, S/O.K.M.ALI, PANAMPILLI NAGAR,KOCHI-36. 4. K.P.MARIKKAR PILLAI, W/O.PAREED KALLINGAL VEEDU, KAKKANAD, COCHIN-30. 5. E.K.ISMALI, S/O.KOCHUMAKKAR, LISSIE HOSPITAL ROAD, NEAR PULLEPPADY RAILWAY GATE, COCHIN-18. 6. C.V.EBRAHIM, S/O.UMMERHAJI, R/AT.QUEENS HOTEL, SHENOYS JN., ERNAKULAM. 7. P.P.HUSSAIN, S/O.P.P.MUHAMMED, AGED 64 YEARS, R/AT.MINNATH MANZIL, PIRILIKKAL HOUSE, PALAPPURAM. 8. E.K.ABDUL KHADER, S/O.KOCHUMAKKAR, AGED 76, FLAT NO.10, SWIZ HOUSE, VAZHAKKALA COCHIN-21. 9. K.U.HAMSA, S/O.USMAN, AGED 70, 3/698, ERAVELI, KOCHI-2. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1-6,12-22 SRI.T.U.ZIYAD FOR R1-6,12-22 SRI.T.H.ABDUL AZEEZ FOR R7 TO 9 SRI.P.RAJEEV KUMAR FOR R7 TO 9 SRI.T.H.ABDUL AZEEZ FOR R11 SRI.C.S.ABDUL SAMMAD FOR R1-6,12-22 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 25/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. ........................................... F.A.O.No.188 OF 2008 ............................................. Dated this the 25th day of November, 2009 J U D G M E N T This is an appeal preferred against the order of the District Judge, Ernakulam in O.P.No.305/2008. The original petition was filed under Section 92 of the C.P.C for permission to institute a suit for the removal of the trustees in respect of a trust and for vesting of the properties of the trust in the new trust etc. The learned District Judge after exhaustive consideration held that the petitioners are not entitled to get leave of the court under Section 92 of the C.P.C and therefore dismissed the petition. It is against that decision, the petitioners have come up with this appeal. 2. The name of the institution is Cochin Islamic Welfare Trust. There was a parallel proceeding before the Wakf Board constituted under the Wakf Act and the Wakf Board by its ordered dated 11.11.2009 held as follows: In the circumstances, the Board comes to the definite finding that the first party namely Mr. Hashim Haji in his capacity as the Chairman of the Cochin Islamic Welfare Trust is the Mutawalli of the Wakf in dispute. The office is directed to take all steps to register an extent of 15.716 cents of land comprised in : 2 : F.A.O.No.188 OF 2008 Sy.Nos.64/1 and 611/02 of Ernakulam village and the structures, buildings and other improvements including the Masjid situated in the said property as a Wakf under the Wakf Board in the name of Mr. Hashim Haji, the party herein in his capacity as the Chairman of the Cochin Islamic Welfare Trust Pullepady, Ernakulam. The office is also directed to complete the process of registration of the Wakf within a period of one month from the date of this order”. 3. So, the competent statutory authority has entered into a definite finding to the effect that the property covered by the trust is a Wakf property to be governed under the provisions of the Wakf Act. The Wakf Act is a self governed Act which provides remedy for the persons who are aggrieved with respect to the management etc of the Wakf as contemplated therein. So in the light of the finding that it is a Wakf property, the jurisdiction also vests with the Wakf Tribunal constituted under the Act to consider the grievance, if it is in accordance with law. 4. Therefore, a civil suit to be filed under Section 92 of the CPC as a public trust does not survive for consideration at this stage in the light of the backdrop of the order of the Wakf Board. On that ground I hold that the original petition : 3 : F.A.O.No.188 OF 2008 need not be entertained and dismissal of the original petition by the learned District Judge is confirmed on other grounds as mentioned above. Therefore, the FAO is dismissed. I make it clear that any person aggrieved by the order of the Wakf Board is at liberty to challenge it in the forum which is contemplated and everything will depend upon the final outcome of the same. If at any stage the order of the Wakf Board is vacated, and it becomes the non Wakf property, the person aggrieved may again approach the court for sanction under Section 92 of the CPC and it may be considered in accordance with law at that point of time. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 4 : F.A.O.No.188 OF 2008