IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 CRP.No. 222 of 2005() ------------------------------- OS.24/2002 of WAKF TRIBUNAL, KOZHIKODE REVN. PETITIONER: DEFENDANT ------------------------------ K.P.SEBASTIAN,S/O.ULAHANNAN POULOSE, AGED 40 YEARS,G.M.F.ASSOCIATES,NEAR BUS STAND, KANNUR ROAD, PERAMBRA,SHOP NO.1/906, MENHANIYAM AMSOM AND DESOM, KOYILANDI TALUK. BY ADV. SRI.R.SUDHISH SRI.L.S.BHAGVAL DAS RESPONDENT(S): PLAINTIFFS ------------------------- 1. DARUSSALAM MADRASSA COMMITTEE,AYANCHERY (VADAKARA TALUK),A WAKF REGISTERED WITH THE REGISTRATION NO.6943,REPRESENTED BY AND ACTING THROUGH ITS FORMER PRESIDENT MUTHAVALLY MUPATTA MUHAMMED ALI HAJEE, S/O.KUNHABDULLA HAJI,53 YRS, RAMATH HOUSE,AYANCHERI AMDOM DESOM,VATAKARA TALUK. 2. PRESENT PRESIDENT/MUTHAVALLY PUTHIYOTHIL A.P.KUNHISEETHI THANGAL, S/O.MUTHUKOYA TANGAL, AGED 50 YEARS, PUTHIYOTHIL HOUSE, AYANCHERI AMSOM DESOM, VADAKARA TALUK. ADV. SRI.C.VATHSALAN SRI.K.RAKESH ROSHAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & C.T. RAVIKUMAR, JJ. ------------------------------------------------------ C.R.P. (Wakf Act) No.222 of 2005 (B) ------------------------------------------------------ Dated this the 3rd day of February, 2009 J U D G M E N T P.R.RAMAN, JUDGE. Revision petitioner is the defendant in O.S.No.24 of 2002 on the file of the Wakf Tribunal, Kozhikode. This is a suit for eviction. As per the plaint averments, the first plaintiff Darussalam Madrassa Committee, Ayanchery, Vadakara Taluk is a Wakf registered under the Wakf Act before the Kerala Wakf Board; that originally the plaint schedule property granted on lease by the then owner Swarnalatha as per lease deed dated 13-11-1997 on a monthly rent of Rs.650/- to the defendant. Subsequently, the right of the said Swarnalatha vested in the first plaintiff became Wakf as per the assignment deed dated 24-9-1999. C.R.P.No.222 of 2005 - 2 - Thereafter, a registered notice was issued to the defendant intimating about the assignment and also terminating the defendant's lease. To the suit notice, a reply was sent by raising untenable contentions. According to the first plaintiff, Kerala Buildings (Lease and Rent Control) Act will not apply to the Wakf building and the rent of the building from September, 1999 onwards is on arrears since the defendant refused to pay the rent and also for vacating and terminating the lease. Hence, they prayed for a decree directing the defendant to vacate and surrender the possession of the premises with arrears of rent and damages for use and occupation as stated in the plaint. 2. The defendant in the written statement contended that the Tribunal has no jurisdiction to render a suit of this nature. The issues involved in the suit are not matters within the jurisdiction of the Tribunal as per the provisions C.R.P.No.222 of 2005 - 3 - of the Wakf Act. The allegation in the plaint that first plaintiff is a registered Wakf under the Wakf Act is denied. According to the plaintiffs, the first plaintiff is a committee or society; that they have no case that it is a registered committee or society and such assessment of a person acquired a separate legal status and at best it will manage or administer by Wakf, but that Committee itself cannot claim that it is a Wakf. It is their further contention that the plaintiffs have no case in the plaint that the plaint schedule building is dedicated by Swarnalatha and accordingly managed by the plaintiffs and the same has been registered as Wakf under the Wakf Act as an item of wakf property. Thus, accordingly, plaintiffs have no case that the property was dedicated to Wakf and that has to be managed by the plaintiffs and that the same has been registered with the Wakf Board as an item of wakf property. According to them, plaint schedule property is dedicated by the earlier owner C.R.P.No.222 of 2005 - 4 - Swarnalatha and the document by which such dedication if any, is not produced before the Tribunal. They also disputed that there is no arrears of rent as alleged in the plant. Accordingly, they tendered the subsequent rent from September, 1999 onwards. But the plaintiffs were not prepared to accept the same. They further contended that they had paid Rs.two lakhs as advance to the earlier landlord on condition that the same will be re-funded without interest at the time of surrendering the building. It is their further contention that unless a separate notification granting exemption under the Kerala Buildings (Lease and Rent Control) Act is issued in respect of the wakf property the same is not exempted under the Act. 3. The Tribunal raised ten issues for trial. The first issue relates to the maintainability of the suit. Second issue is regarding the jurisdiction to entertain the suit. These two C.R.P.No.222 of 2005 - 5 - issues were decided as a preliminary point as per the order in I.A.No.458 of 2002 and was held that this is a wakf dispute coming under Section 85 of the Wakf Act. The petitioner herein challenged the said decision before this Court in C.R.P.No.2599 of 2002 and following the decision in Pookoya Haji V. Cheriyakoya [2003(3) KLT 32], this Court held that the Tribunal can decide any question with regard to wakf and the Civil Revision Petition was dismissed thus finding on issue Nos.1 and 2 become final. The remaining issue is as to whether the plaint schedule property is wakf property and registered with the Kerala Wakf Board and whether the committee is properly registered and whether there is any arrears of rent as alleged in the plaint and whether the defendant is entitled to the protection under the Kerala Buildings (Lease and Rent Control) Act and other related issues were tried together and held those issues in favour of the plaintiffs and C.R.P.No.222 of 2005 - 6 - decreed the suit granting the order of eviction as also a direction to pay Rs.20,800/- by way of arrears of rent till the date of the suit with 6% interest and also to pay a compensation for future occupation at Rs.650/- per month till vacant possession is surrendered. It is against the said decision this revision petition has filed. 4. The evidence consists of Exhibits A1 to A3 marked on the side of the plaintiffs. No oral evidence was adduced by the plaintiffs or by the defendant. No document was also produced by the defendant. Therefore, this is a case where there is total absence of evidence on the part of the defendant and the case rests on the evidence of Exhibits A1 to A3. C.R.P.No.222 of 2005 - 7 - 5. We have heard the parties. According to the counsel appearing for the petitioner, even if the first plaintiff is registered as Wakf, there is nothing in evidence to show that the property in question was dedicated to the wakf. No deed is produced evidencing such dedication. According to him, Madrassa is only an educational institution. Therefore, acquiring any property by such a committee cannot be deemed as a wakf property. 6. Exhibit A1 is the extract of the register maintained by Kerala Wakf Board. Sri.Mupatta Mohammed Ali Haji is shown as the Muthavally and the wakf institution is Darussalam Madrassa Committee, Ayanchery, Vadakara Taluk. The charitable purpose shown as Madrassa. The particulars of the property held are registered against Col.7, which includes the plaint schedule item. The same was issued by the Secretary, Kerala Wakf Board, C.R.P.No.222 of 2005 - 8 - Ernakulam. Exhibit A2 is registered lawyer notice issued by the plaintiff and Exhibit A3 is the reply sent by the defendant. In Exhibit A2 lawyer notice issued, it is specifically stated that the property marginally noted is in possession of the defendant/tenant; that the defendant is holding the same under the former owner, later the assignment has obtained by the first plaintiff as per registered assignment deed and which was intimated to the defendant; that rent is in arrears from September 1999; that the provisions of the Kerala Buildings (Lease and Rent Control) Act is not applicable since the first plaintiff is Wakf registered under the provisions of the Wakf Act. The tenancy was terminated and demanded surrender of possession. In the reply notice, all that the defendant has said is that he does not admit the fact that the first plaintiff is a registered wakf registered as Wakf No.6943 nor does he admit the fact that Sri.Mupatta Mohammed Ali Haji is C.R.P.No.222 of 2005 - 9 - entitled to represent the alleged Wakf. Arrears of rent is also denied. Further it is alleged that Rs.two lakhs was deposited with the then owner agreeing to be returned at the time of surrender of possession. It is also stated that the provisions of the Kerala Buildings (Lease and Rent Control) Act is applicable to the building in question. Regarding the registration of the first plaintiff as a Wakf; by production of Exhibit A1 extract of the register maintained by the Wakf Board, it has been proved that the first plaintiff has been registered as a Wakf. 7. The further question as to whether the property is registered or dedicated to the Wakf etc. do not arise in the absence of any specific denial in the reply. Section 37 of the Act says that the Board shall maintain a register of wakfs which shall contain details of each wakf, and other particulars mentioned under items (a) to (f) under that C.R.P.No.222 of 2005 - 10 - section. Section 36 provides for registration and says that every wakf, whether created before or after the commencement of this Act, shall be registered at the office of the Board and application for registration shall be made by the mutawalli; in such form and manner as prescribed thereunder. Along with the application a copy of the wakf deed or if no such deed has been executed or a copy thereof cannot be obtained, shall contain full particulars, as far as they are known to the applicant, of the origin, nature and objects of the wakf. As per the provisions of the Wakf Act, more particularly Section 40, it is for the Wakf Board to take a decision at the first instance before any wakf is registered to decide the question as to whether there is a proper wakf in this regard. For that purpose, the Board itself can collect information regarding any property, which it has reason to believe to be wakf property and if any question arises whether a particular property is wakf C.R.P.No.222 of 2005 - 11 - property or not or whether a wakf is a Sunni wakf or Shia wakf, it can be decided after making such inquiry as it may deem fit. The decision of the Board on such question, unless revoked or modified by the Tribunal, be final. As per Section 41, the Board will direct the mutawalli to apply for the registration of a wakf, or to supply any information regarding a wakf or may itself cause the wakf to be registered or may at any time amend the register of wakfs. It is further obligatory to mutawalli to keep regular accounts of the wakf, which has to be audited by the Board. Section 53 of the Act imposes restriction on purchase of property on behalf of wakf. It opens with a non-obstante clause. Notwithstanding anything contained in a wakf deed, no immovable property shall be purchased for or on behalf of any wakf from the funds of any wakf except with the prior sanction of the Board. There are restrictions on power to grant lease of wakf property as per Section 56 of the Act. C.R.P.No.222 of 2005 - 12 - Section 67 of the Act deals with supervision and supersession of the committee of management. 8. On a conjoined reading of the provisions under the Wakf Act as referred to above, it can be seen that the registration of wakf is mandatory and wakf could be created even in the absence of the any wakf. Wakf Board is the competent authority to register the wakf and maintain the register containing necessary particulars. Even suo moto, a wakf can be registered and the Wakf Board can collect necessary information before a wakf is registered. All that is required is that that Board should be satisfied that it is a wakf before the same is registered. Once wakf is registered, it is final subject to the right of the person to dispute its correctness before the competent Tribunal or before the Board itself, as the case may be. C.R.P.No.222 of 2005 - 13 - 9. If for any reason, the registration of the first plaintiff wakf is contended to be improper and illegal; the defendant could have impleaded the Wakf Board and incorporating such plea against the registration of the wakf relief could have been claimed. We have already gone through the written statement. All that is contended is that defendant do not admit that it is registered with the Wakf Board. As indicated Exhibit A1 extract of the register maintained by the wakf is admitted by the Tribunal and it is beyond challenge. We do not find any error in the decision taken by the courts below and it is proved beyond doubt as per Exhibit A1 that the first plaintiff wakf is a registered wakf under the Wakf Act. Therefore, the disputed property being one of the properties belonged to the wakf as shown in the register is exempted from the Kerala Buildings (Lease and Rent Control) Act . Eventhough, the defendant has disputed that there is no arrears of rent, he was not able to C.R.P.No.222 of 2005 - 14 - produce any documentary evidence to show the payment of the rent till the date of filing the suit. Further, the defendant himself has not chosen to mount the box even to deny the allegations contained in the plaint. That the defendant is a tenant under the plaintiff is beyond dispute. Hence, it is not necessary to prove anything further in this regard. That the landlord - tenant relationship is admitted. The only dispute was that the first plaintiff is not a registered wakf. That has been proved by Exhibit A1. 11. Therefore, the finding of the court below that there was arrears of rent and the quantification of the amount thereto do not call for any interference. Though the defendant contended that he had paid Rs.two lakhs to the former owner of the property, no evidence was adduced in support thereof. Therefore, the said plea was rightly rejected by the court below. C.R.P.No.222 of 2005 - 15 - In the result, this Civil Revision Petition fails and the same is accordingly dismissed. No costs. P.R.RAMAN, JUDGE C.T.RAVIKUMAR, JUDGE. skr