IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 WP(C).No. 35887 of 2007(Y) -------------------------- CMA.80/2007 of D.C. & SESSIONS COURT,KOZHIKODE OS.749/2002 of PRL.M.C.,KOZHIKODE-II .................... PETITIONERS: ---------------------- 1. P.V.ABDUL KHADER,S/O.AHAMMADKOYA THANGAL, AAKKIITHAZHATH HOUSE, KIZHAKKOTH AMSOM, KODUVEALLY. 2. C.KAMARUNNISSA,D/O. SEETHI, AGED 35 YEARS, HOUSE NO. 3/625,KACHERI AMSOM, OF KOZHIKODE TALUK, REPRESENTED BY POWER OF ATTORNEY C.SEETHI. 3. C.SEETHI,S/O.ABDUL KHADER,AGED 74 YEARS, HOUSE NO. 3/625,WAYANAD ROAD,KACHERI AMSOM, KOZHIKODE TALUK. 4. C.SUHARA,D/O. C.SEETHI, HOUSE NO. 3/625, WAYANAD ROAD,KACHERI AMSOM, KOZHIKODE TALUK. 5. C.MARIYAM,D/O.C.SEETHI, HOUSE NO. 3/625 WAYANAD ROAD,KACHERI AMSOM, KOZHIKODE TALUK. 6. C.SALIKAT,S/O.SEETHI, HOUSE NO. 3/625 WAYANAD ROAD, KACHERI AMSOM, KOZHIKODE TALUK. 7. C.HASHIM,S/O. SEETHI, HOUSE NO. 3/625 WAYANAD ROAD, KACHERI AMSOM, KOZHIKODE TALUK. BY ADV. SRI.B.G.BHASKAR SRI.BIJU ABRAHAM Kss ..2/- ...2.... WPC.NO.35887/2007 V RESPONDENTS: -------------------------- 1. JAM, IYYATHU ATHABAYI NAKSHABANDIYA, KIZHAKKOTH AMSOM, KOZHIKKODE – 4. 2. P.V.SHAHUL HAMEED,S/O.SAID HASSAN, THANGAL, PUTHEN VEETTIL, KOZHIKKOTH AMSOM, DESOM, KOZHIKKODE – 4. 3. B.C.ABDURAHIMAN, S/O.AHAMMAD, MAVULLAKANDIYIL HOUSE, ELATTIL AMSOM, DESOM, KOZHIKKODE – 4. ADV. SRI.S.V.BALAKRISHNA IYER (SR.) FOR R1 TO 3 SRI.K.JAYAKUMAR FOR R1 TO R3 SRI.P.B.KRISHNAN FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.35887/2007 V APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT DTD. 30/10/2002 AS AMENDED BY I.A.2318/2005. EXT.P2: COPY OF THE RELEASE DEED BY HANEEFA TO RAZACK DTD. 19/07/1996. EXT.P3: COPY OF THE SALE DEED DTD. 01/12/1999 BY RAZACK TO KAMRUNISSA. EXT.P4: COPY OF THE SETTLEMENT DEED DTD. 12/09/1997 BY KASIM TO HANEEFA. EXT.P5: COPY OF THE SETTLEMENT DEED DTD. 01/10/2000 BY HANEEFA TO KHADEEJA BEEVI. EXT.P6: COPY OF THE JOINT STATEMENT FILED IN O.S.621/95 DTD. 2/11/95. EXT.P7: COPY OF THIS FRAUDULENT ASSIGNMENT DEED DTD. 08/10/2001 BY RAZACK TO HANEEFA. EXT.P8: COPY OF THIS ASSIGNMENT DEED BY HANEEFA TO THE 1ST RESPONDENT DED. 11/10/2001. EXT.P9: COPY OF THE INJUNCTION ORDER DTD. 09/12/2002 IN I.A.4491/2002 IN O.S.749/2002 ON THE FILE OF THE MUNSIFF COURT, KOZHIKKODE. EXT.P10: COPY OF THE ORDER DTD. 29/11/2003 OF THE DISTRICT COURT, KOZHIKKODE IN V.M.A. 21/2003. EXT.P11: COPY OF THE I.A.4352/2005 IN O.S.749/2002 DTD.26/11/05. EXT.P12: COPY OF THE ORDER DTD. 23/08/2007 OF THE MUNSIFF OF KOZHIKKODE II IN I.A.4352/2005 IN O.S.749/2002. EXT.P13: COPY OF THE APPEAL MEMO BY THE PLAINTIFFS IN CMA 80/07 DTD. 15/09/07. EXT.P14: COPY OF THE ORDER DTD. 09/11/2007 OF THE 1ST ADDL. DISTRICT COURT, KOZHIKKODE IN CMA 80/2007. EXT.P15: COPY OF THE APPLICATION DTD. 05/02/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.35887 OF 2007 =========================== Dated this the 17th day of July, 2008 JUDGMENT O.S.749/2002 was instituted by petitioners before Munsiff Court, Kozhikode claiming a decree for declaration that respondents defendants have no right, title or interest in the plaint schedule property and for consequential injunction restraining them from entering into the plaint schedule property and interfering with the peaceful possession of the plaint schedule property. Plaint B schedule property is having an extent of 55.62 cents and plaint C schedule property is the remaining portion of plaint A schedule property deducting plaint B schedule property having an extent of 2 acres and 36.38 cents. The total extent of plaint A schedule property is 2 acres91 1/2 cents i.e. extent of plaint B and C schedule property. Case of the petitioners is that the plaint A schedule property originally belonged to W.P.(C)35887/07 2 Fathima Beevi and on her death it devolved on her four sons, first petitioner Abdul Khader, Muhammed Haneefa,Abdul Razak, Muhammed Kasim and two daughters Saithunath Beevi and second petitioner Khadeeja Beevi. It is contended that Muhammed Haneefa released his fractional right in favour of Abdul Razak under Ext.P2 in 1996 and subsequently Abdul Razak assigned his rights in favour of second petitioner under Ext.P3 in 1999 and thus Abdul Razak and Muhammed Haneefa did not retain any right in the plaint A schedule property. It is contended that Muhammed Kasim subsequently in 1997 under Ext.P4 transferred his rights in favour of his brother Muhammed Haneefa, who had originally transferred his right in favour of Abdul Razak and Muhammed Haneefa thereafter in turn under Ext.P5 transferred his right in favour of deceased second plaintiff in 2000. So also it is contended that daughter Saithunath Beevi transferred her right in favour of deceased second plaintiff in 2001 and therefore only petitioners have right or title to plaint A schedule property. It is contended that W.P.(C)35887/07 3 Fathima Beevi had dedicated plaint B schedule property and created a wakf and plaint B schedule property is thus a wakf property and first petitioner is acting as its muthavally. The suit was instituted contending that though respondents are claiming right under Ext.P7, a subsequent assignment deed executed by Abdul Razak in favour of Muhammed Haneefa on 8-10-2001 and Ext.P8 assignment deed executed on 11-10-2001 in favour of first respondent, Abdul Razak who had transferred all his rights under Ext.P3 on 1-12- 1999 had no such right to be transferred under Ext.P7 and therefore respondents have no right whatsoever to the plaint A schedule property. It was also contended that O.S.621/1995 was earlier instituted before Munsiff Court, Kozhikode II, by first respondent as Muthavalli when respondents attempted to trespass and in Ext.P6 joint statement filed in that suit respondents recognised the rights of the petitioners. 2. Respondents in their written statement contended that 2 acres 91 cents was actually W.P.(C)35887/07 4 purchased by the disciples of Sayed Ahammadkutty Thangal the grand father of plaintiffs 1 and 2 and second defendant for devotional purposes and the property is known as Chunkathara paramba and Sayed Ahammadkutty Thangal was the 34th Imam of the Organisation known as “Jam Iyyathu Athbayi Nakshabandiya” which is the first respondent society and it was earlier known as Nakshabandiya Thareekath” and the belief among the public at large is that the Imam is the descendant of prophet Mohammad. He is respected by the public at large and he conducts religious speeches and for the said purposes and for burial of the bodies of the Imams, the property was dedicated and Sayed Ahammadkutty Thangal was buried in the Kabaristhan and around the same a “Dargha” was built. It was contended that the said paramba as such is used for religious and devotional purposes and the Dargha was constructed under the supervision of 35th Imam utilising the funds of the disciples and in 1957 when the properties were divided, plaint schedule property was decided to be kept in common W.P.(C)35887/07 5 in the name of Fathima Beevi the eldest daughter and plaint schedule property has been kept in common for religious and devotional purposes in the name of Fathima Beevi. It was also contended that there was no wakf as alleged by the petitioners and the alleged wakf in respect of plaint B schedule property was not created by all the co-owners and first petitioner is not the muthavally and Abdul Razak had not assigned his entire rights in favour of second petitioner under Ext.P3 and only the right inherited was transferred thereunder and the right obtained from Mohammad Haneefa under Ext.P7 was not transferred and therefore Abdul Razak is competent to assign back the right obtained under Ext.P7 to Muhammed Haneefa and Muhammed Haneefa is competent to transfer that right under Ext.P8 and first respondent is entitled to purchase the same and petitioners are not entitled to dispute the said right and therefore petitioners are not entitled to the decree sought for. 3. In the suit petitioners filed an application for an order of temporary injunction which was W.P.(C)35887/07 6 originally granted under Ext.P9 order. It was challenged before District Court, Kozhikode in C.M.A.21/2003. Under Ext.P10 order, learned District Judge while disposing the CMA directed the trial court to consider the question of bar of jurisdiction under section 85 of the Wakf Act. Subsequently respondents got the written statement amended. Petitioners filed I.A.4352/2005 an application to decide the question of jurisdiction. Under Ext.P12 order, learned Munsiff found that Civil Court has no jurisdiction and the dispute is to be resolved by the Wakf Tribunal. The plaint was directed to be returned for presentation before the Wakf Tribunal. Petitioners challenged the order before District Court, Kozhikode in C.M.A.80/2007. Learned Additional District Judge under Ext.P14 order modified the order of the Munsiff holding that only civil court has jurisdiction to decide the dispute with regard to the plaint C schedule property and civil court has no jurisdiction to try the dispute with regard to the plaint B schedule property and therefore held that suit is W.P.(C)35887/07 7 maintainable with regard to the plaint C schedule property alone which is the plaint A schedule property alone excluding plaint B schedule property. It is challenged in this petition is filed under Article 227 of the Constitution of India. 4. Learned counsel appearing for petitioners and learned senior counsel appearing for respondents were heard. 5. Learned counsel appearing for petitioners pointed out that the dispute in the suit relate to the question whether Abdul Razak, the son of Fathima Beevi and brother of the first petitioner, after Ext.P3 assignment in favour of third petitioner retained any right with him to be transferred to Muhammed Haneefa under Ext.P7 and the question whether there is a wakf or plaint B schedule property is the wakf property are not the disputes to be resolved in the suit and hence the civil court has jurisdiction to resolve the dispute involved in the suit and the findings of the courts below are not correct. Learned counsel also argued W.P.(C)35887/07 8 that when a suit comprises of disputes which could be resolved only by the Wakf Tribunal and also by the civil court, cause of action cannot be bifurcated by the court as against the wishes of the plaintiff and try only a portion of the claim and in such a case civil court has to decide all the disputes which are to be resolved in that suit. Reliance was placed on the decision of the Apex Court in Sahebgouda v. Ogeppa (A.I.R.2003 SC 2743), and the Full Bench decision of High Court of Andhra Pradesh in Sangubhotla Venkatramaiah v. Kallu Venkataswamy (A.I.R. 1976 Andhra Pradesh 402). 6. Learned senior counsel appearing for respondents argued that eventhough Abdul Razak transferred his right in favour of second petitioner under Ext.P3 the right transferred thereunder is only the right which he inherited as legal heir of Fathima Beevi and not the right which was got transferred by Muhammed Haneefa in his favour and therefore he is competent to assign the right back to Muhammed Haneefa and first respondent W.P.(C)35887/07 9 is entitled to purchase the right from Muhammed Haneefa under Ext.P8 and therefore petitioners are not entitled to contend that first respondent did not derive any right or title to plaint A schedule property. Learned counsel also argued that the alleged wakf in respect of plaint B schedule property is not valid, as all the co-owners did not dedicate the property and there is a Dargha in the plaint A schedule property which was constructed on the death of 34th Imam. The learned senior counsel argued that the whole dispute arose on the failure of first petitioner the son of 35th Imam Syed Ahammad Koya Thangal to be the Imam and on the death of 35th Imam it was the brother of Fathima Beevi P.V.S.A. Thangal who became the 36th Imam and thereafter instead of first petitioner, second respondent become the 37th Imam and the suit is the result of that frustration.It was argued that petitioners are not entitled to any relief in respect of plaint A schedule property. Learned senior counsel also argued that though a joint statement was earlier filed in the previous suit W.P.(C)35887/07 10 O.S.621/1995, first respondent society is not a party in that suit and that statement is not valid or binding on first respondent or members of the society and therefore petitioners are not entitled to seek any relief in respect of the plaint A schedule property. It was argued that as relief is sought for in respect of plaint A schedule property which includes the Dargha and thus a Wakf property the dispute is to be settled by the Wakf Tribunal and Civil Court has no jurisdiction. 7.In the light of the contentions raised in the suit which are necessary to be resolved for granting the decree or refusing to grant the decree, I do not find that the question whether plaint B schedule property is a wakf property and whether the wakf alleged by the petitioners is valid or not are not to be decided in the suit. The suit is only for a declaration that respondents did not derive any right in the plaint A schedule property. That contention was raised on the foundation that after Muhammed Haneefa transferred his right in favour of Abdul Razak under Ext.P2, W.P.(C)35887/07 11 Abdul Razak under Ext.P3 transferred his entire rights to second petitioner and thereafter Abdul Razak did not retain any right to be transferred to Muhammed Haneefa under Ext.P7 and therefore eventhough Muhammed Haneefa obtained Ext.P7 and then executed Ext.P8 assignment deed in favour of first respondent, respondents did not derive any right or title to the property. The question therefore is whether the transfer made under Ext.P3 is a transfer of his entire rights inclusive of the right obtained under Ext.P2 also or only the right inherited as the legal heir of Fathima Beevi. If it is to be found that under Ext.P3 Abdul Razak transferred all his rights inclusive of Ext.P2 right then the question of validity of the wakf in respect of plaint B schedule property as stated in the plaint is not to be decided in the suit. Similarly, if it is to be found that what was transferred by Abdul Razak in favour of the third petitioner under Ext.P3 is only the right inherited by him and not the right obtained under Ext.P2 from Muhammed Haneefa, petitioners are to be non- W.P.(C)35887/07 12 suited. In that case also the other questions need not to be considered in the suit. In such circumstance, on the facts and pleadings and the disputes courts below were not justified in holding that civil court has no jurisdiction to try the suit in view of Section 85 of Wakf Act. As the question to be decided in the suit is only with regard to the right available with Abdul Razak, subsequent to the assignment in favour of second petitioner under Ext.P3, that is not a question to be decided by the Wakf Tribunal. Eventhough a decree for injunction in respect of plaint B schedule property which is alleged to be the wakf property was also sought for that relief was not sought for by first petitioner in his capacity as the Muthavally. Hence even if it is found that petitioners are not entitled to the decree on the basis that Abdul Razak did not retain with him any right subsequent to Ext.P3 assignment in favour of second petitioner, a decree for injunction cannot be granted in the suit in respect of plaint B schedule property as according to the petitioners, W.P.(C)35887/07 13 plaint B schedule property is a wakf property and the suit is not instituted by the Muthavally. In such circumstances, even the dispute with regard to plaint B schedule property the suit is not to be tried by the Wakf Tribunal. Writ Petition is allowed. Exts.P12, 14 orders are quashed. Munsiff, Kozhikode II is directed to dispose the suit in accordance with law. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006