IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 18TH DECEMBER 2007 / 27TH AGRAHAYANA 1929 CRP.No. 460 of 2006(A) ---------------------- OS.1/1998 of WAKF TRIBUNAL, LAKSHADWEEP, KAVARATTI .................... REVN. PETITIONERS: ------------------ 1. PATTAKAL CHERIYAKOYA, S/O.SYED MOHAMMED KOYA THANGAL, AGED 65 YEARS, ANDROTT. 2. PATTAKAL THANGAKOYA, S/O.LATE SHAIKOYA, AGED 63 YEARS, ANDROTT. 3. PATTAKAL UBAIDULLA, S/O.LATE NAILAKOYA, AGED 52 YEARS, ANDROTT. BY ADVS . SRI.M.M.ABDUL AZIZ (SR.) SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.M.A.ABDUL HAKHIM RESPONDENTS: ------------- 1. ALIYATHAMMUDA BEETHATHEBIYYAPPURA MUTHUKOYA, S/O.LATE KUNHIKOYA, AGED 82 YEARS, ANDROTT (DEAD). 2. ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA, S/O.LATE MUTHUKOYA, AGED 65 YEARS, ANDROTT. 3. A.B.MOHAMMED NAJEEB, S/O.MUTHUKOYA, AGED 46 YEARS, ANDROTT. 4. DR.C.P.HUSSAIN, S/O.P.A.SAYED MOHAMMED KOYA TAHNGAL, AGED 53 YEARS, ANDROTT. 5. P.P.KOYAMMAKOYA, S/O.LATE SHAIK KOYA, AGED 72 YEARS, ANDROTT. 6. S.V.POOKOYA THANGAL, S/O.KOYAMMAKOYA, AGED 72 YEARS, ANDROTT. 7. ATTALADA NALLAKOYA, ANDROTT. 8. PANDARATH KOYAMMA, ANDROTT. 9. ANATH PUZHIYAPURA SYED MOHAMMED, ANDROTT (DEAD). 10. MOTHIYATHODA YOUSUF, ANDROTT. ADDITIONAL RESPONDENTS 11 TO 15 IMPLEADED ADDL.R11.A.I.SAYADKOYA THANGAL, S/O.NALLAKOYA THANGAL, RESIDING AT ALIYATHAMMADA ISHAYAOURA, ANDROTH ISLAND, LAKSHADWEEP. ADDL.R12.A.I.KUNHISEETHIKOYA THANGAL, S/O. P.O. MUTHUKOYA THANGAL RESIDING AT ALIYATHAMMADA ISHAYAOURA, ANDROTH ISLAND, LAKSHADWEEP. ADDL.R13.A.B. SAYEDKOYA THANGAL, S/O. P.KOYAMMAKOYA THANGAL, ALIYATHAMMADA , ANDROTH ISLAND, LAKSHADWEEP. ADDL.R14.A.B. SAYED MOHAMMEDKOYA MUSLIYAR, S/O. P.P. SAYED ISMAILKOYA, ALIYATHAMMADA, BEETHATHEBIYYAPURA, ANDROTH ISLAND, LAKSHADWEEP. ADDL.R15.A.B. MOHAMMED BASHEER MUSLIYAR SANQUAFI, S/O. A.B. POOKOYA THANGAL, RESIDING AT ALIYATHAMMADA, BEETHATHEBIYYAPURA, ANDROTH ISLAND, LAKSHADWEEP. ADDITIONAL RESPONDENTS 11 TO 15 ARE IMPLEADED VIDE ORDER DATED 4.7.2007 IN I.A. NO. 2599 OF 2006. ADDITIONAL RESPONDENTS 16 TO 18 IMPLEADED . ADDL.R16.P. MUTHUKOYA, S/O. A.B.KOYAMMAKOYA, ANDROTH ISLAND, U.T. OF LAKSHADWEEP. ADDL.R17.M.P.CHERIYAKOYA, S/O. KOYA, ANDROTH ISLAND, U.T. OF LAKSHADWEEP. ADDL.R18.K.P.POOKUNHIKOYA, S/O. KOYA, ANDROTH ISLAND, U.T. OF LAKSHADWEEP. ADDITIONAL RESPONDENTS 16 TO 18 ARE IMPLEADED VIDE ORDER DATED 18.12.2007 IN I.A. NO. 2582 OF 2006. ADDITIONAL RESPONDENT 19 IMPLEADED ADDL.R19.ALIYATHAMMADA ISHAYAPURAM KOYAMAKOYA THANGAL, AGED 78 YEARS, S/O. NALLAKOYA THANGAL, RESIDING AT .ALIYATHAMMADA ISHAYAPURAM, ANDROTH ISLAND, LAKSHADWEEP. ADDITIONAL RESPONDENT 19 IMPLEADED VIDE ORDER DATED 4.7.2007 IN IN I.A. NO.3603 OF 2006. BY ADVS. SRI.A.P.CHANDRASEKHARAN)-R2, R3, R5, R6 SMT.PRABHA R.MENON ) SRI.M.KRISHNAKUMAR-R4 SRI.T.K.SAIDALIKUTTY-R7, R8 SRI.P.M.KUNJIMOIDEENKUTTY SRI.K.MOHANAKANNAN SRI.T.SETHUMADHAVAN-ADDLR11 TO ADDL R15 SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23.10.2007 ALONG WITH CRP NO. 462 OF 2006 THE COURT ON 18.12.2007 PASSED THE FOLLOWING: ORDER IN I.A. NOS.1827 OF 2006 AND I.A. NO. 1828 OF 2006 IN C.R.P. NO.460 OF 2006. DISMISSED 18.12.2007 Sd/-(KURIAN JOSEPH, JUDGE) Sd/-(HARUN-UL-RASHID, JUDGE) KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ------------------------------------------------------------------ C.R.P.Nos.460 & 462 of 2006 ------------------------------------------------------------------ Dated this the 18th day of December, 2007 O R D E R Harun-Ul-Rashid, J. The plaintiff in O.S.No.1/1998 on the file of the Wakf Tribunal, Lakshadweep, Kavaratti is the revision petitioner in C.R.P.No.460/2006. CRP No.462/2006 is also filed by the plaintiffs in OS.1/1998 who are defendants 1 to 3 in OS 1/2001. Both the suits were jointly tried and disposed of by a common judgment dated 20.5.2006 of the Wakf Tribunal. By the impugned judgment the Tribunal was pleased to dismiss O.S.1/1998 and decreed O.S.1/2001. Hence the revision petitions. 2. OS 1/1998 was filed praying for a decree declaring and holding that the office of muthawalli of the plaint schedule mosque is vested with the Pattakal family, that the 1st plaintiff is duly chosen to be the muthawalli of the mosque and for consequential perpetual prohibitory injunction restraining the defendants from interfering with those rights of the members of the Pattakal tharawad. C.R.P.NOS.460 & 462 OF 2006 2 3. Defendants Nos.7 to 10 in OS 1/1998 and another filed OS 1/2001 for a declaration that none of the defendants has got any special right to hold the post of muthawalli or Khazi and the mosque belongs to the entire members of the `Mahal' and also for framing a scheme for election of a committee. 4. OS 1/1998 was earlier decreed and OS 1/2001 was dismissed by judgment and decree dated 3.6.2003. But in CRP Nos.1757, 1908 and 1978 of 2003 filed by the defendants in OS 1/1998 and by the plaintiffs in OS 1/2001, the judgment and decree dated 3.6.2003 were set aside and remanded for fresh disposal in accordance with law after giving a reasonable opportunity to both sides to adduce further evidence, if any. 5. The parties are hereafter referred to as plaintiffs and defendants in OS 1/1998 as in the trial court's judgment. The facts of the case as stated in the plaint in brief are as follows:- The plaintiffs are the senior-most male members of different thavazhies of Pattakal family. Defendants 1 to 3 are some of the members of Beethaathabiyyapura thavazhi of Aliathummada tharawad. Defendants 4 to 6 have been putting forward various claims against the interests of Pattakal and Aliathummada tharwad and they are impleaded as C.R.P.NOS.460 & 462 OF 2006 3 representatives of Andrott public. Defendants 7 to 10 are impleaded as per the order in IA 26/2000 dated 11.12.2000 pending suit. The mosque detailed in the plaint schedule in OS 1/1998 is a public wakf registered with Lakshadweep Wakf Board, Kavaratti island. The said mosque was originally built and dedicated by Saint Ubaidulla who had brought Islam to Lakshadweep islands during 7th century A.D. His descendants constituted Pattakal family represented by the plaintiffs. The original muthawalli of the wakf was the Wakif Saint Ubaidulla. By virtue of immemorial custom and usage, the office of muthawalli and traditional Khazi of the mosque was vested and devolved on the members of the Pattakal family who were conferred with the further discretion to choose the most eligible and qualified from among them to be the de facto muthawalli, de jure muthawalli being the entire body of members of the Pattakal family. 6. It is further averred in the plaint that the descendants of Saint Ubaidulla are the present members of Pattakal tharawad, that after the constitution of the Lakshadweep Wakf Board, the mosque was registered with the Lakshadweep Wakf Board in 1967, that on 1.11.1968 there was a gazette publication by the Lakshadweep Wakf Board notifying the registration of the wakf with the Lakshadweep Wakf Board inter alia C.R.P.NOS.460 & 462 OF 2006 4 showing the name of the muthawalli as members of the Pattakal family. Not only that, all along, the members of Pattakal family alone have been functioning as muthawalli and traditional Khazi of the mosque and no one else had held these offices till today. Both the office of the muthawalli of the wakf as well as the traditional Khazi have been exercised and performed only by one or other member of the Pattakal family, right through and all along during the past several centuries and that the immediate last muthawalli of the wakf was Pattakal Pookoya Thangal who died on 20.8.1996. After his death, the 1st plaintiff became the muthawalli and has been functioning as such. A member of the Pattakal family who is chosen from among the members of their family for assumption of office as muthawalli of the wakf has been submitting the requisite returns under the provisions of the Wakf Act to the Lakshadweep Wakf Board and remitting contributions from time to time as and when demands were made on the basis of the returns submitted. In short, it is seen that both the office of muthawalli and that of traditional Khazi of the plaint schedule was undisputedly being held by the chosen member of the Pattakal family. When a feeble attempt was made to constitute an advisory committee to aid and advise the de facto muthawalli in the performance of his duties, the then C.R.P.NOS.460 & 462 OF 2006 5 de facto muthawalli, namely, late Koyammakoya Thangal is purported to have entered into a compromise decree in OS 10/1974. The said compromise is null, void and non-est for several reasons. The said suit was not a representative suit much less was the said suit filed impleading the muthawalli in his capacity as the accredited and duly authorised muthawalli. The valuable rights of the members of Pattakal tharawad vis-a-vis the office of muthawalli-cum-Khazi of the ancient Jum-ath mosque were incapable of abandonment, release or surrender by any one member of the Pattakal tharawad and the entitlement of privileges appertaining to the office of the muthawalli and traditional Khazi of the mosque which vests in the Pattakal family remained unaffected and continued to vest in the family without in any way being lost on account of any act, thing or deed done or purported to be done by any single member. On the other hand, the office of the muthawalli-cum-Khazi of the mosque was continued to be held, discharged and performed by late Koyammakoya Thangal prior to the filing of OS 10/1974, during the pendency of the said suit and subsequent to the disposal of that suit. The committee referred to in the proceedings of OS 10/1974 was a still -born child, it did not come into existence and had not exercised any of the powers or duties of muthawalli. A cloud on the rights and C.R.P.NOS.460 & 462 OF 2006 6 entitlement of the family on the above office is being raised by the defendants and so the plaintiffs are constrained to file the suit. 7. In the joint written statement filed by defendants 1 to 3 it is pleaded inter alia that the claim that the mosque was built by Saint Ubaidulla is denied, that the mosque was built by the inhabitants of Andrott island, that the claim that the members of Pattakal tharawad are the descendants of Saint Ubaidulla is false, that the Pattakal tharawad was never the traditional muthawalli or Khazi of the mosque in dispute, that the Amins and Karanavans were administrating the island as representatives of the public and that the members of Pattakal tharawad has no vested right conferred on them to act as muthawalli of the mosque. It is also pleaded that by the end of the Amin/Karanavan system, the people elected a committee of 14 members representing all the four blocks and that the said committee is the muthawalli of the mosque, that in the year 1974 Pattakal Koyammakoya Thangal was removed from the presidentship of the committee, that OS 10/1974 and OS 11/1974 were compromised and a compromise petition was filed and decree was passed, that the compromise decree is binding on the plaintiffs and that only the elected committee from among the public has got a right of muthawalliship of the mosque. The 5th C.R.P.NOS.460 & 462 OF 2006 7 defendant also filed a written statement raising more or less the same contentions of both of the written statements of defendants 1 to 3. In the written statement filed by the 4th defendant after denying the contentions of the plaintiffs, it is further alleged that the Tribunal has no jurisdiction to entertain and decide the suit, that the public of Andrott Mahal are entitled to the management of the mosque, that Pattakal tharawad has no exclusive right for the management, that the new committee as per the compromise in OS 10/1974 and OS 11/194 was never constituted and elected and so the committee as on 16.2.1981 had continued to manage the mosque as muthawalli till 1986, that in 1986 consequent on the dispute that arose between two factions, an arrangement for the management of the mosque was evolved and as per the said arrangement Pattakal Pookoya Thangal, the then Khazi, and three Khatteebs, namely defendants 1 to 3, were jointly entrusted with the management of the mosque. After the death of Pattakal Pookoya Thangal in 1996, the other three persons were jointly managing the mosque and therefore prayed that until a new arrangement is made by the people of the locality, the plaintiffs have no manner of right or possession of the mosque as muthawalli or Khazi etc. 8. Defendants 7 and 8 in their written statement pleaded that the C.R.P.NOS.460 & 462 OF 2006 8 mosque in question was constructed by the people of the locality, that no family has got any vested right to become the muthawalli of the mosque, that the committees elected by the people of the locality are managing the affairs of the mosque, that now there is no proper management of the affairs of the mosque and that in such circumstances a scheme has to be framed for the management of the mosque electing a committee from among the people. Other defendants have also filed separate written statements virtually reiterating the contentions raised in the written statement of other defendants and also pleaded that they have no objection in the court framing a scheme for the proper management of the mosque. 9. Defendants 7 to 10 and another, who are the plaintiffs in OS 1/2001 sought a declaration in the suit that none of the defendants has got any special right to hold the post of muthawalli or Khazi and that the mosque belongs to the entire members of the Mahal with a further prayer for framing a scheme for election of a committee to manage the affairs of the mosque. In the plaint the plaintiffs reiterated the contentions raised in their written statement in OS 1/1998. Defendants 1 to 3 in OS 1/2001, who are the plaintiffs in OS 1/1998 raised the same contentions as in OS 1/1998 and they also contended that for framing a scheme for the functioning of the C.R.P.NOS.460 & 462 OF 2006 9 mosque, the Tribunal has no jurisdiction to entertain such a suit, that the power conferred on other authority cannot be usurped by the Wakf Tribunal, that the second suit was filed with a mala fide intention of delaying the disposal of OS 1/1998 etc. and prayed for dismissal of the suit. 10. Before the Tribunal PWs.1 and 2 were examined and Exts.A1 to A22 were marked on the side of the plaintiffs, DWs.1 and 2 were examined and Exts.B1 to B17 were marked on the side of the defendants before the remand and after the remand PW.1 and DW.2 were recalled and further examined and Exts.A24 to A39 and Exts.B18 to B23 were further marked. 11. After a detailed consideration of the oral and documentary evidence adduced in this case, the Tribunal came to the following conclusions: “23 - Whatever be, the traditional belief in the island is that Saint Ubaidulla was instrumental to the conversion of the people of the islands who were originally Hindus or Buddists. For arriving at a decision in this case that whether it is Saint Ubaidulla who constructed or dedicated the mosque or it was constructed by the public is very much material. The probability is that Saint Ubaidulla who was instrumental in the conversion of the people might have got a mosque constructed by the new converts in a piece of land donated by the then Chieftain. The islanders are being Marumakkathayees, even after the conversion to Islamic faith, the present Pattakal family may probably be the C.R.P.NOS.460 & 462 OF 2006 10 descendants though his female line. The report of R.H.Ellies shows that the Khazis of the island were from the family of the descendants of Hazarath Ubaidulla even in the year 1920. 24 - As noted by Mr. Ellies and the Gazetteer and other historians, Ubaidulla married a lady from Pendamveli tharwad of Amini island and settled at Andrott island. So the Pattakal family at Andrott is the tharawad name given to the descendants of Ubaidulla and Hameedathbi. Only the doubt among the writers is about the period of conversion and the establishment of Juma mosque at Andrott and other islands happened. Let it be in the 14th century as noted by Ellies and the Gazetteer. So by all probabilities the plaintiffs' Pattakal family may be the descendants of Hazarath Ubaidulla. But both Ubaidulla and his family were aliens to Andrott. They had no land and so the land where the mosque situated was not a land donated by them. It means Ubaidulla or his family were not the wakifs. There is no positive evidence to prove that Saint Ubaidulla constructed and dedicated the mosque and was the first muthawalli and his marumakkathayee heirs through his female line traditionally continued to be the muthawalli. xx xx xx 27 - There is no documentary evidence to prove the case of the defendants that the suit mosque was managed by the public representatives, the Amins and Karanavans and then an elected committee. xx xx xx 31 - It is for the parties who claims under the decree in OS 10/74 and the compromise therein to prove that it is a valid and binding decree. Admittedly there was no applications for the leave of the court for the compromise in OS 10/74 or in OS 11/74 before the Munsiff Court, Andrott. Admittedly no notice was given to the plaintiffs' family who is said to have C.R.P.NOS.460 & 462 OF 2006 11 been represented by its karanavan the plaintiff in OS 10/74. To bind the compromise on the plaintiffs, the decree is to be shown valid and not void, since the compromise was without leave of the court and without a notice under sub Rule (2), Rule 23(3)(B) of Civil Procedure Code the decree is expressly 'void'. I have no hesitation to hold that the compromise and decree in OS 10/74 dated 16.2.1981 is void and so not binding on the plaintiffs in OS 1/98. 32 - So the compromise in OS 10/74 and 11/74 shall not be binding on any of the parties to this suit. 33 - So probably after the compromise, the committee had not functioned and no new committee as per the terms of the compromise was constituted. It is so admitted by the 4th defendant in his written statement. xx xx xx 35 - On the basis of the pleadings in this case, by all probabilities it can be concluded that no committee had functioned during or after the compromise and decree in OS 10/74. So the contention of the defence that the committee elected by public has been managing the affairs of the mosque and that committee is the muthawalli of the mosque is untenable and unacceptable. When Ext.A3 notification and A4 registration before the Board in the year 1967-68 took place, if a managing committee was in existence and was functioning so, it ought to have been reflected in the registers of the Wakf Board. But this mosque in dispute is shown as managed by the Pattakal family under the supervision of Amins and Karanavans. The Juma mosque of Andrott island is being a very important and a very revered one by the islanders, 'supervision of Amins and Karanavans on the mosque was prominent'. By this way we can only arrive at the conclusion that the Amins and Karanavans were not directly managing the affairs of the mosque. 36 - But admittedly Koyammakoya was the karanavan of C.R.P.NOS.460 & 462 OF 2006 12 Pattakal family at that time and he had the right to represent the tharawad as karanavan. Koyammakoya was chosen Khazi and Muthawalli of the mosque as per plaintiffs at that time, if so he had the right to represent the family and any compromise arrived at by him is binding on the Pattakal family but for the voidness of the decree as discussed above. xx xx xx 38-Claim by Pattakal Sayed Ahammedkoya for traditional Khaziship has been rejected by the Hon'ble High Court of Kerala in OP 11211/97. Admittedly, in the year 1998 one Kunnasada Hamzakoya was appointed as Khazi of Andrott island by the Administrator, U.T. of Lakshadweep. The Pattakal family has lost their right to be Khazi of Andrott island and so they have no vested right to be the Muthawalli also. xx xx xx 42 - On the evidence given by DW1, DW2 and the document produced from their side will not prove the existence of the committee and managing the affairs of the mosque as Muthawalli of Andrott Jumah mosque. The compromise entered in OS 10/71 before the Munsiff Court, Andrott for the constitution of an elected committee had not been acted upon and the decision in that compromise had not even reported to the Wakf Board. OS 10/74 was not a representative suit. There is no evidence to show the committee members had performed or acted so. There is no evidence at all to show that after that compromise any general body meeting of the members of the Mahal was called to elect a committee. Pattakal Koyammakoya and after him, Pattakal Pookoya acted as muthawallies of the mosque in their capacity as Khazi and the Karanavans of Pattakal family. They have not relinquished their right of management to any public representative. xx xx xx C.R.P.NOS.460 & 462 OF 2006 13 44 - These documents throw light that the Pattakal people along with Aliyathammada who were the reversioners of each other or branches of one family were enjoying and managing the properties within the compound of the mosque. The word 'muthawalli' was not in use in these islands earlier to the extension of Wakf Act, 1954 to the islands. 45 - Exts.A3 and A4 are the documents relied on by the plaintiffs to prove their case of muthawalliship. So the defense version that these are all concocted documents for the purpose of this case is not tenable. 46 - The contention of the plaintiffs that the de facto muthawalli is chosen by the members of Pattakal family or the Amin and karanavans appointed muthawalli in consultation with the family members is not proved by any evidence. xx xx xx 48 - These documents i.e. Exts.A6 to A10 will go to show that Pattakal Pookoya Thangal had submitted accounts and was conducting nercha. The Wakf Board had accepted him as Muthawalli. xx xx xx 54 - But the admission of Koyammakoya in Ext.B5 deposition that a committee was constituted to manage the affairs of the mosque and he was elected the President of the committee goes against the claim of the plaintiffs in O.S.1/98 but it supports the case of the defence. So this shows that from 1966 onwards there was committee till 1972 and it was functioning and had been keeping minutes. So if at all the Pattakal family was performing as de facto Muthawallies, that tradition and custom was breached in 1966 and up to 1974. xx xx xx C.R.P.NOS.460 & 462 OF 2006 14 56 - As discussed earlier, the so called committee even after the compromise has not been in existence or have functioned so unless the defendants succeeds to show that there has been and there is a committee of public representatives for the management of the Wakf mosque. Exts.A3 and A4 notification and registration will be binding on all the concerned. xx xx xx 60 - So these public mosques are managed or supervised by the then Administrative Authority. The Amin and Karnavans who are also public representatives not elected but nominated. The karanavans are normally the tharawad karanavans of prominent families of the island. So it shows that the management is vested with the heads of families of island as public representatives. xx xx xx 62 - So on the basis of the above discussion it is concluded that the plaintiff in OS 1/98 have failed to prove that they are the traditional and customary Muthawalli of the mosque, defendants have failed to prove that there is an existing committee to manage the affairs of the mosque and consequently there is a vacancy of Muthawalli of the mosque. xx xx xx 64 - It cannot be concluded that the Pattakal family was the traditional customary Muthawalli of Andrott Juma mosque. The right of the family is not established by any evidence of unbreached custom. 65 - There is also no reliable evidence to show that 1st plaintiff ever acted as Muthawalli of the mosque. C.R.P.NOS.460 & 462 OF 2006 15 xx xx xx 68 - Having found that the plaintiffs in OS 1/98 have no vested right to be the Muthawalli of the mosque and only the right of management