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 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 CRP.No. 496 of 2010() -------------------------- OS.53/2007 of WAKF TRIBUNAL, KOZHIKODE .................... PETITIONER/PLAINTIFF IN OS 53/2007-WAKF TRIBUNAL --------------------------------------------------------------------- ASHRAF MARUTHERI, S/O. AMMAD, AGED 38 YEARS, TRADER, RESIDING AT MARUTHERI, NARIPATTA AMSOM, CHEEKUNNU DESOM, POST CHEEKUNNU, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY ADVS. SRI.B.KRISHNAN SRI.PARTHASARATHY RESPONDENT(S): DEFENDANTS IN OS 53/2007-WAKF TRIBUNAL,KOZHIKODE --------------------------------------------------------------- 1. NAMBIATHANKUND JUMAETH PALLI MAHALLU COMMITTEE, POST CHEEKUNNU. 2. THIRUVATTERI KUNHAMMED HAJI, S/O. PALLIKKUTTY, TRADER, AGED 65 YEARS, NARIPATTA AMSOM, CHEEKUNNU DESOM, POST CHEEKUNNU, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 3. VATTAKUTTIYADI IBRAHIM, S/O. KUNHABDULLA HAJI, AGED 55 YEARS, TRADER, NARIPATTA AMSOM, THINUR DESOM, POST THINUR, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 4. MURINGOLI AMMAD, S/O. MOIDEEN, AGED 58 YEARS, NARIPATTA AMSOM, THINUR DESOM, POST THINUR, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 5. JALEEL MANIKKOTH, S/O. KUTTIALI HAJI, AGED 35 YEARS, NARIPATTA AMSOM, CHEEKUNNU DESOM, POST CHEEKUNNU, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 6. THE CHIEF EXECUTIVE OFFICER, WAKF BOARD, ERNAKULAM. R1 TO R3 BY ADVS. SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V R4 & R5 BY ADV.SRI.MANSOOR.B.H. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs/ PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ----------------------------------- C.R.P.No.496 OF 2010 ----------------------------------- Dated this the 28th day of October, 2010 O R D E R ~~~~~~~ Pius C.Kuriakose, J. Under challenge in this revision filed under Section 83(9) of the Wakf Act, 1995 is the judgment and decree of the Wakf Tribunal dismissing the suit filed by the revision petitioner for a decree of injunction restraining the respondents/defendants “from trespassing into the plaint schedule property or burying dead bodies in the plaint schedule property or otherwise interfering with the possession of the plaint schedule property”. The case of the petitioner/plaintiff was that the plaint schedule property extending to 21.50 cents of land was acquired by his grandfather Marutheri Onhiyil Kunhabdulla Haji by virtue of sale deeds Exts.A1 and A2 respectively dated 11.9.1952 and 20.1.1995 and that thereafter the above said Kunhabdulla Haji constructed a mosque thereupon. The further case is that till he breathed his last in 1972, Sri.Kunhabdulla Haji himself was the Muthavally of the said mosque and that upon demise of his father, son Kunhabdulla Haji (father of the revision petitioner) C.R.P.No.496/2010 2 became the Muthavally. It is further averred that the 1st defendant Committee namely Nambiathankund Jumaeth Palli Mahallu Committee was formed and registered under Societies Registration Act 'to manage' the plaint schedule property. According to the plaintiff, the right of the 1st defendant Committee is only to manage the mosque and to advise the Muthavally. It is then averred that the plaintiff, who is the hereditary Muthavally, and his predecessors interest including grandfather Kunhabdulla Haji used a portion of the plaint schedule property as their family graveyard. It is also stated in the plaint that dead bodies of 'a few deserving outsiders' were also buried with permission. It is averred further that the 1st defendant Committee acquired another property 12 years ago for the purposes of a public graveyard. The suit is instituted on the allegation that now the defendants are making a claim over the plaint schedule property and that they are trying to obstruct the right which the plaintiff and their family members are having over the plaint schedule property. C.R.P.No.496/2010 3 2. The defendants would file written statement contending inter alia that the suit is not maintainable. It was also contended that neither the plaintiff nor his father was ever in possession and management of the plaint schedule property in their individual capacity. It is averred that though the plaint schedule property was purchased in the name of Kunhabdulla Haji, the requisite funds were collected from public and that the funds formed for constructing the mosque was also collected from the muslim devotees of the locality. It is contended that after construction of the mosque, the same was managed by Kunhabdulla Haji as well as one Vattakkuttiyadi Kunhabdulla Haji as joint Muthavallys. It is also contended that thereafter they jointly applied for the registration of the property as a Wakf property before the Wakf Commissioner. Later, in 1978, the 1st defendant Society was formed under the Societies Registration Act for the administration of the mosque as well as the entire plaint schedule property. It is the 1st defendant and its Committee, who are in possession and administration of the plaint schedule property. The property is used for burying the dead bodies of Muslims of the Mahal and it is not reserved for the family members of the plaintiff. The learned Tribunal C.R.P.No.496/2010 4 formulated necessary issues on the basis of the pleadings including the following issues. 2) Whether the plaintiff has got any right, title or possession of the property? 3) Whether the plaint schedule property is in the management of the 1 st defendant committee? At trial the evidence consisted of Exts.A1 to A8, C1 and C2, B1, B2, X1, X2 and X2(a) and the oral evidence of PWs1 and 2. The learned Tribunal would appreciating on the pleadings and evidence come to the conclusion that the entire plaint schedule property consisting of the mosque as well as the graveyard is Wakf property. It was also concluded that the graveyard is not a private graveyard, but is a public graveyard. To conclude so, strong reliance was placed by the learned Tribunal on the judgment of the Supreme Court in Mohd. S. Labbai v. Mohd. Hanifa [AIR 1976 SC 1569. Accordingly, the suit was dismissed. C.R.P.No.496/2010 5 3. In this revision various grounds are raised challenging the judgment of the learned Tribunal and we have heard the submissions of Sri.B.Krishnan, learned counsel for the revision petitioner and also Sri.C.Vathsalan learned counsel for the contesting respondents. The lower court records are available and we have perused them. Mr.Krishnan would draw our attention to Exts.A1 to A3 and submit that those three documents would establish very clearly that the plaint schedule property belonged absolutely to the grandfather of the revision petitioner. The learned counsel submitted that the contention of the respondents is that the entire plaint schedule property is a Wakf by dedication but not even a scrap of paper is produced to prove the alleged dedication. In this context, Mr. Krishnan would draw our attention to the testimony of DW1, the defendant, who had to concede that there are no documents to prove that there is dedication. It is submitted that it is on Ext.B1 that the respondents relied to prove their case that the entire plaint schedule property is Wakf property. Learned counsel submitted that the very production and marking of Ext.B1 was subject to valid objections raised by the revision petitioner. The learned Tribunal ought not have relied on Ext.B1 in the absence of C.R.P.No.496/2010 6 proper supporting documents. Answering a specific query put by us as to how it can be contended that the mosque which stands constructed on the plaint schedule property is not Wakf property. Mr. Krishnan would fairly concede that the mosque is open to all Muslims of the Mahal and that it has never been the intention of the plaintiffs to restrain the devout muslims of the Mahal from offering prayers in the Mosque. Leaned counsel submitted that plaintiff/the revision petitioner is confining his prayer for injunction to the graveyard portion of the plaint schedule property. The plaintiff's objection is only in the Muslim public of the locality claiming right to burial in this graveyard, which is a family graveyard. Mr. Krishnan submitted that the judgment of the Supreme Court has not been correctly construed by the learned Tribunal. The judgment does not support the contention that burial of a few corpses on permission will result in the graveyard acquiring status of a public graveyard. 4. Mr. A.A.Abul Hazan, learned standing counsel for the Wakf Board, submitted that mosque and the graveyard whether public or private is a Wakf. According to him, burial of dead bodies itself is a religious purpose and the very purchase of the C.R.P.No.496/2010 7 property was for the construction of a mosque and of a graveyard. It is idle for the plaintiff to contend that the entire plaint schedule property is not Wakf property. However, Mr.Hazan submitted that there can be situations where a private graveyard has been constructed by the Wakf exclusively for the benefit of members of a family and in such a situation the wakif may be justified in seeking an injunction restraining burial of dead bodies of outsiders. 5. Sri.Vathsalan and B.H.Mansoor learned counsel for the contesting respondents would oppose all the submissions of Mr.Krishnan and the submission of Mr.Abdul Hazan that if the graveyard is a private graveyard, the wakif is entitled to obtain an injunction restraining the burial of dead bodies of others. Mr. Vathsalan would highlight Ext.B1 and submit that Ext.B1 is referred to in the written statement itself and that not even a single question is asked in cross-examination challenging the authenticity of Ext.B1. Ext.B1 will very clearly indicate that the plaint schedule property is the Wakf property. Mr.Vathsalan submitted that the suit is one simplicitor for injunction. In a suit simplicitor for injunction, the question of title is not relevant. C.R.P.No.496/2010 8 The crucial question is whether plaintiff is having possession. According to Mr.Vathsalan that the plaint itself states the management of the mosque is vested with the 1st respondent Society. The graveyard is only an adjunct to the mosque. Since it is conceded that dead bodies of the outsiders also have been buried, the argument of the revision petitioner that it is private graveyard cannot hold water. Mr.Vathsalan drew our attention to Ext.C1 Commissioner's report. Mr.Vathsalan submitted that the entire plaint schedule property is built up, in the sense that the mosque and the Kabarstan occupies the same in full. According to Mr.Vathsalan, the case of the revision petitioner that a portion of the vacant land alone is utlised as graveyard and the remainder portion is lying as open yard is not supported by evidence including Ext.C1 report. Mr.Vathsalan would submit referring once again to Ext.C1 that the plaint schedule property is not separated from the adjacent properties belonging to the respondent. 6. Mr.Vathsalan would place reliance on the judgment of the Supreme Court in Mohd. S. Labbai v. Mohd. Hanifa [AIR 1976 SC 1569], particularly, paragraph Nos.28, 32, 33, 40 C.R.P.No.496/2010 9 and 47 therein which we quoted below. “28. The High Court has clearly held that the burial ground consisted of two parts as shown in the sketch map and has been proved to be a public graveyard by immemorial user. There is overwhelming oral and documentary evidence to prove this. In fact the defendants themselves have not denied that the Mahomedan public of the village used to bury their dead in this graveyard and they have only sought to protect their right to realise pit fees and other incidental charges which has been accepted by the High Court. The Mahomedan Law on the subject is very clear. Under the Mahomedan Law the graveyard may be of two kinds - a family or private graveyard and a public graveyard. A graveyard is a private one which is confined only to the burial of corpses of the founder, his relations or his descendants. In such a burial ground no person who does not belong to the family of the founder is permitted to bury his dead. On the other hand, if any member of the public is permitted to be buried in a graveyard and this practice grows so that it is proved by instances adequate in character, number and extent, then the presumption will be that the dedication is complete and the graveyard has become a public graveyard where the Mahomedan public will have the right to bury their dead. It is also well settled that a C.R.P.No.496/2010 10 conclusive proof of the public graveyard is the description of the burial ground in the revenue records as a public graveyard. In Ballabh Das v. Nur Mohammad, AIR 1936 PC 83 the Privy Council observed as follows: “If the plaintiffs had to make out dedication entirely by direct evidence of burials being made in the ground, and without any record such as the khasra of 1868, to help them, they would undoubtedly have to prove a number of instances adequate in character, number and extent to justify the inference that the plot of land in suit was a cemetery. .....................The entry “qabristan” in the khasra of 1868 has to be taken together with the map which shows the whole of plot 108 to be a graveyard. 32. We are of the view that once a Kabarstan has been held to be a public graveyard then it vests in the public and constitutes a wakf and it cannot be divested by non-user but will always continue to be so whether it is used or not. The following rules in order to determine whether a graveyard is a public or a private one may be stated: (1) that even though there may be no direct evidence of dedication to the public, it may be presumed to be a public graveyard by immemorial user i.e. where corpses of the members of the Mahomedan community have been buried in a particular graveyard for a C.R.P.No.496/2010 11 large number of years without any objection from the owner. The fact that the owner permits such burials will not make any difference at all; (2) that if the graveyard is a private or a family graveyard then it should contain the graves of only the founder, the members of his family or his descendants and no others. Once even in a family graveyard members of the public are allowed to bury their dead, the private graveyard sheds its character and becomes a public graveyard; (3) that in order to prove that a graveyard is public by dedication it must be shown by multiplying instances of the character, nature and extent of the burials from time to time. In other words, there should be evidence to show that a large number of members of the Mahomedan community had buried their corpses from time to time in the graveyard. Once this is proved, the Court will presume that the graveyard is a public one; and (4) that where a burial ground is mentioned as a public graveyard in either a revenue or historical papers that would be a conclusive proof to show the public character of the graveyard. Applying theses principles, therefore, to the facts of the present case it would appear from the judgments Exts.A4 to A87 that C.R.P.No.496/2010 12 right from the year 1915 to 1938 the public character of the burial ground had been established by those judgments. All attempts by the defendants who were the plaintiffs in the suits brought by them to get a declaration from the Courts that the graveyard was a private one failed and all the Courts have consistently held during the course of 22 years that both the parts of the present burial ground were a public graveyard where corpses of the Mahomedan community of the village were buried. The mere fact that the defendants Labbais used to realise pit fees or other incidental charges would not detract from the nature of the dedication. Apart from that there is a document Ext.A8 dated March 3, 1932 which is a certified extract of the proceedings of Municipal Council, Tiruvarur which shows that the Labbais themselves had filed an application before the Municipal Council for registering the burial ground as a graveyard. This document appears at pp.247-248 of the Paper Book. It appears from this document that Syed Muhammad Kasim Sahib and Syed Abdul Rahiman Sahib residents of Vijayapuram had applied to the Municipal Council for registering the plot in dispute as a burial ground and the Municipal Council by its resolution accepted the application and registered the plot in question as a burial ground. This, therefore, clearly shows that as early as 1932 the Labbais themselves treated the present burial ground as a public graveyard and got the same C.R.P.No.496/2010 13 registered in the Municipal Council. 33. Apart from this the oral evidence led by the parties clearly proves that the graveyard was a public one. P.W.1 Mohamed Hanifa who is an old man of 65 years has stated in his evidence that before burial the Janaza prayers are offered and after the prayer the dead body is taken to the graveyard and buried. Similarly P.W.2 Hyder Ali has stated that there is no other burial ground where bodies of the Rowthers could be buried, implying that the Rowthers had been burying their dead in the burial ground in question. P.W.3 Yehiya has also testified that the remains of the Muslims of Vijayapuram are buried in the burial ground attached to the mosque and that there is no other burial ground. The defendants who had examined only two witnesses, D.W.1 Syed Mubarak and D.W.2 Syed Mohamed Salia, have not denied that the Muslims of the village buried their dead in the burial ground. In this state of evidence, therefore, the conclusion is inescapable that the graveyard has been used for burying the dead of all the persons belonging to the Mahomedan community ever since the land was sold to the saint - the ancestor of the defendants. It is true that the burial ground contains the graves of the saint and the members of his family also, but that by itself would not show that the graveyard was a private one. On a C.R.P.No.496/2010 14 consideration of the oral and documentary evidence and the circumstances of case we find ourselves in complete agreement with the finding of the High Court that the entire burial ground as shown in the sketch map is a public graveyard and the Mahomedan community have a right to bury their dead subject to payment of pit fees and other charges that may be fixed by the defendants. 40. It would thus appear that in order to create a valid dedication of a public nature, the following conditions must be satisfied: (1) that the founder must declare his intention to dedicate a property for the purpose of a mosque. No particular form of declaration is necessary. The declaration can be presumed from the conduct of the founder either express or implied; (2) that the founder must divest himself completely from the ownership of the property, the divestment can be inferred from the fact that he had delivered possession to the Mutawalli or an Imam of the mosque. Even if there is no actual delivery of possession the mere fact that members of the Mahomedan public are permitted to offer prayers with azan and ikamat, the wakf is complete and irrevocable; and C.R.P.No.496/2010 15 (3) that the founder must make some sort of a separate entrance to the mosque which may be used by the public to enter the mosque. As regards the adjuncts the law is that where a mosque is built or dedicated for the public if any additions or alterations, either structural or otherwise, are made which are incidental to the offering of prayers or for other religious purposes, those constructions would be deemed to be accretions to the mosque and the entire thing will form one single unit so as to be a part of the mosque. 47. It is further contended that under the agreement, the plaintiffs clearly stipulated not to claim any right or interest in the mosque and, therefore, they cannot now be heard to say that the mosque was a wakf property. This argument appears to have found favour with the trial Court. But in our opinion it is based on a serious misconception of the Mahomedan Law on the subject. Once there was a complete dedication to the mosque as a place of public worship any reservation of condition imposed by the owner would be deemed to be void and would have to be ignored. Moreover we do not construe the so call stipulation by the plaintiff's ancestors at the time of erecting the prayer hall as an assertion that the mosque was not a public wakf. Reading the statements made in the agreement as a whole what the plaintiffs' C.R.P.No.496/2010 16 ancestors meant was that the mosque would be undoubtedly a public wakf meant for the purpose of public worship and that they would not interfere with the management of the same. This does not mean that if the founder's descendants indulged in mismanagement of the mosque the plaintiffs as members of the Mahomedan community could not take suitable action under the law against the defendants. This argument is, therefore, negatived. The learned counsel submitted that Mahomedan Law recognizes two kinds of graveyards; family or a private graveyard and a public graveyard. A graveyard qualifies as private graveyard only when its user is confined to the burial of the corpse of the founder, his relations or descendants alone. However, according to the learned counsel, if any member of the public is permitted to buried in that graveyard and this practice grows then the graveyard will become a public graveyard. By practice, the graveyard in question has become a public graveyard, according to Mr.C.Vatsalan. 7. We have very anxiously considered the rival submissions submitted at the Bar. We have gone through the C.R.P.No.496/2010 17 pleadings and the evidence which is available on record. We find it difficult to sustain the finding of the learned Tribunal that the entire plaint schedule property including the mosque and the graveyard is a wakf and that the same is under the absolute possession of the 1st respondent Muthavally. The evidence on record, especially, Exts.A1 to A3 cannot support of such a conclusion in the absence of further evidence. As indicated already, the specific contention of the respondent was that the plaint schedule property was purchased in the name of the grandfather of the revision petitioner with fund contributed by the devout Muslims of the locality and that the mosque was also constructed with such fund. The further case was that after such purchase and construction, the property was dedicated as a Wakf by the plaintiff's grandfather jointly with one Vattakkuttiyadi Kunhabdulla Haji. The evidence available in this case, falls short, of accepting the above contention. At the same time, we feel that the evidence presently available on record is insufficient to accept the case of the plaintiff/revision petitioner that a portion of the ground area comprised in the plaint schedule property alone is being utilised as a graveyard and the remainder portions are under the possession of the plaintiff himself and that C.R.P.No.496/2010 18 the plaintiff himself enjoys the usufructs. Infact, Ext.B1 will show that there were no fruit bearing trees on the plaint schedule property. Significantly, no receipts against payment of basic revenue to the Government have been produced by any of the parties. The Advocate Commissioner's report give some credence to the defence version that the plaint schedule property is lying contiguously with the adjacent property purchased by the 1st respondent. At the same time, Ext.B1 does not inspire much confidence in our mind. 8. We are of the view that the issue should be reconsidered by the learned Tribunal on the basis of the evidence already on record and further evidence to be adduced by the parties. The result is that we set aside the judgment and decree under revision. The suit is remanded to the learned Tribunal. The parties will appear before the Tribunal on 29.11.2010. The Tribunal will reconsider all the issues and the decision after permitting both sides to adduce further evidence. C.R.P.No.496/2010 19 9. We record the submission of Mr. Krishnan that the plaintiff is confining his prayers for injunction to the graveyard portion of the plaint schedule property only and not to the mosque. (PIUS C.KURIAKOSE, JUDGE) (P.S.GOPINATHAN, JUDGE) ps