IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA FRIDAY, THE 11TH DAY OF NOVEMBER 2011/20TH KARTHIKA 1933 RSA.No. 839 of 2003 ( ) ----------------------- AS.181/1999 of I ADDL.DITRICT COURT,PALAKKAD OS.107/1994 of PRINCIPAL SUB COURT, PALAKKAD APPELLANT(S): (RESPONDENTS/PLAINTIFFS) ------------ 1. DAIRA MAHAl, REPRESENTED BY ITS PRESIDENT R. MUNWAR BAIG, AGED 75 YEARS, SON OF RAHMAN BAIG, DAIRA STREET, PALAKKAD. 2. ANSARUL ISLAM COMMITTEE, PALAKKAD, REPRESENTED BY ITS PRESIDENT ABDUL KAREEM, AGED 73 YEARS, SON OF ABDUL RAZACK ROWTHER, RESIDING NEAR STATE BANK OF INDIA, PALAKKAD. BY ADV. SRI.TPM.IBRAHIM KHAN RESPONDENT(S): (APPELLANTS/DEFENDANTS) -------------- 1. NARIKUTTY SUNNATHUWAL JUMA-UT COMMITTEE, REPRESENTED BY ITS PRESIDENT P.S.SULAIMAN, SON OF SAIDU BAVA, AGED 60 YEARS, PALAKKAD. 2. K.M. SALEEM, SON OF MUTHU ROWTHER, AGED 37 YEARS, VICE PRESIDENT OF NARIKUTTY MAHAL COMMITTEE, PALAKKD. 3. BASHEER AGED 38 YEARS, SON OF ADBUL RAHMAN, SECRETARY, NARIKUTTY MAHAL, PALAKKAD. 4. M.C. KAMALUDHEEN, SON OF HASSAINAR, AGED 36 YEARS, JOINT SECRETARY OF NARIKUTTY MAHAL, PALAKKAD. 5. ALI, SON OF CHELLA ROWTHER, AGED 45 YEARS, TREASURER, NARIKUTTY MAHAL, PALAKKAD. R1 TO 5 BY ADV. SRI.G.SREEKUMAR (CHELUR) THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11-11.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- R.S.A.No.839 OF 2003 ----------------------------------- Dated 11th November, 2011 J U D G M E N T A suit was filed by appellants before the Sub Court against respondents for permanent injunction in respect of a Wakf property. After trial, a decree was passed, as prayed for. In the appeal filed by defendants before the District Court, the decree and judgment of the trial court were set aside and suit was dismissed. Hence this second appeal is filed by the plaintiffs- appellants inter alia contending that plaint A and B schedule properties are in the exclusive possession of first appellant and they are in management of the same. 2. First appellant is stated to be the President of Diara Street Mahallam ('Diara Mahallam' for short) who filed the suit representing the Diara Mahallam. The beneficiaries of property and members of Diara Mahallam are represented by first appellant. The office bearers of Narikuthy Mahallam have absolutely no right over plaint A and B schedule properties. An attempt is made by respondents to cause obstruction to the R.SA. No.839/03 2 construction of mosque in plaint B schedule property, even though they had admitted before the District Collector, title and possession of the property of Diara Mahallam. 3. Respondents filed written statement contending that appellants have no possession over plaint schedule properties. The suit is bad for mis-jointer of parties since second appellant has absolutely no right over plaint schedule property. The property is admittedly a Wakf property and hence Wakf Board is a necessary party to the suit. In the absence of impleading Wakf Board suit is bad for non-jointer of necessary parties. Plaint schedule properties are not in the exclusive possession and management of Diara Mahallam. Narikkuthy Mahallam represented by respondents have equal right and possession over plaint schedule property. 4. According to respondents, the property belonged in Janmom to Naduvil Madhom Mooppil Swamy' who dedicated A and B schedule property for use of all Muslims as a burial ground. The members of Narikuthy Mahallam used the ground as a burial ground for burying dead bodies. Respondents have not trespassed into the property. All Muslims are beneficiaries of Wakf properties. There is no attempt to trespass. Second R.SA. No.839/03 3 appellant attempted to construct a mosque in a portion of plaint schedule property unauthorisedly and without consent and knowledge of Mahallam members and it was resented to by the public. There is a dispute in respect of title and hence, the suit for simple injunction without a prayer for declaration of title will not be maintainable. First appellant has no authority to manage the plaint schedule property overlooking claims of other Muslims. Suit is liable to be dismissed. 5. Issues were framed by trial court. PW1 to PW3 were examined on the side of plaintiffs-appellants. Ext A1 to Ext.A7 were marked. DW1 was examined on the side of respondents and Ext.B1 and ExtB2 were marked. Commissioner was also examined and Ext.C1 was marked. Ext.X1 to Ext.4 were also marked. 6. Lower appellate court held, with reference to several precedents and evidence on record, that right of decent burial of the dead body of a Muslim is well recognised as religious civil right and it is not within the power of managing committee or beneficiaries of a section of people to prevent other Muslims from enjoying their religious rights vested in the Muslims. It was also held that suit is not bad for non-joinder of necessary parties since notice under section 90 of the Wakf Act was issued to the Wakf R.SA. No.839/03 4 Board. 7. Heard both sides. Perused the records. The substantial questions of law involved in this appeal are framed as hereunder: 1) In the absence of consideration of the fact whether plaintiffs have any legal right to claim possession over the disputed property, can an injunction be granted by the court in their favour ? 2) Can the court reject plea of non-joinder of Wakf Board as party to suit on the sole ground that notice was issued under section 90 of the Wakf Act? 8. Questions 1 and 2 : Learned counsel for appellants strongly argued that lower appellate court committed serious error in holding that every Muslim has the right to get the dead body buried in plaint schedule property. The plaint schedule property, which is a Wakf property is in exclusive possession of Diara Mahallam and it is managed by a committee of which first appellant is the president. It is not correct to say that every muslim has the right to get his dead body buried in any burial ground managed by different committees, it is argued. The court below failed to consider the aspects in the right perspective and hence, the decree and judgment are unsustainable, it is argued. R.SA. No.839/03 5 9. Learned counsel for respondents on the other hand, argued that suit itself is not maintainable. It is an admitted fact that plaint schedule property is Wakf property and hence, Wakf Board is a necessary party to the suit. The dispute in this case is relating to Wakf property and hence, without impleading Wakf Board as a necessary party, it may not be legal or proper to decide alleged title or possession of plaint schedule property, it is argued. 10. Learned counsel for respondents also argued that though these questions were raised in the suit, both the courts below entered a finding against respondents by holding that section 90 is complied with and it is not necessary to implead Wakf Board, as per section 90 of Wakf Act. No decree can be passed in favour of appellants without Wakf Board being a party to suit, it is submitted. It is pointed out by learned counsel for respondents that lower appellate court considered the question of maintainability and question of jurisdiction but took the view that suit is not barred by section 7(1) of the Wakf Act. 11. For the reasons stated in paragraph 21 of the impugnend judgment, it was found that argument raised on maintainability of suit is not acceptable. Having found that the R.SA. No.839/03 6 Civil court is having jurisdiction to decide the suit and suit is not barred under section 7(1) of Walk Act, first appellate court committed an illegality in holding that notice under section 90 was enough and it is not necessary to implead Wakf Board as a necessary party, it is argued by learned counsel for respondents. 12. On hearing both sides and on going through the records and the impugned judgment, I find that courts below have travelled beyond the scope of the contentions raised in the suit. It appears that lower appellate court has not understood the pleadings and the case set up by both sides. The findings are erroneous for various reasons. Both the courts below entered a finding that in the light of notice under section 90 of the Wakf Act, it is not necessary to join Wakf Board as a party to the suit. The above finding cannot be legally sustained, since section 90 will be applicable, only if Wakf Act is applicable. 13. According to learned counsel for appellants, Wakf Act is not applicable to this case since the suit was filed prior to commencement of Wakf Act. In the light of decision reported in 2007(10) SCC 727, if the Wakf Act is not applicable, the dispute has to be decided by Civil court without reference to the provisions of Wakf Act. I am satisfied of the submission made by R.SA. No.839/03 7 learned counsel for appellants. It is clear from the impugned judgment that the main controversy in the suit is considered on the basis of section 90 of Wakf Act but in the light of the dictum laid down in the decision cited above it is not legal. The findings on maintainability is , therefore, to be considered afresh by the trial court. 14. It is also to be noted that lower appellate court has also not considered at all whether the plaintiffs are in exclusive possession of property or not. In a suit for injunction, court is bound to consider the question on what legal right a plaintiff is claiming decree of injunction. Unless the court is satisfied that plaintiff has the legal right to claim a decree of injunction as sought for, the court shall not grant any injunction. In this case, appellants would contend that they have exclusive title and possession over plaint schedule properties and produced documents. 15. Plaintiffs - appellants produced Ext.A1 mainly to prove the title and possession. First plaintiff is stated to be the president of Diara Street Mahallam. The genuineness of Ext.A1 was disputed by the respondents-defendants. It was contended that it was a fabricated document. The Trial court rejected the R.SA. No.839/03 8 contention and held that it is a certified copy of a public document. There is a challenge on the genuineness of the document and it is contended that it is a fabricated document. Even in the written statement, such a plea is taken by respondents-defendants. In such circumstances, court ought to have considered whether it can rely upon a document only because it is “stated to be a certified copy”, without considering whether it is a true certified copy of a public document. 16. It appears that trial court has not read the evidence of PW3 Village Assistant, through whom Ext.A1 was proved. PW3 stated in chief examination that “Adangal Register” is petrified and destroyed. According to him, Ext.A1 is a certified copy of “Adangal register”. When PW3 was confronted with the fact that Ext.A1 was issued from the office of Thahsildar, he stated in the cross examination that original of Ext.A1 must be available in the Taluk office. In Ext.A1 it is not recorded that this is the certified copy of “Adangal Register”. It is referred to as 'Sthiram'('സര) Register'. Apart from all these, in the cross examination, it was brought out that the basic tax register is prepared on the basis of details in “Adangal Register”. The details in Ext.A1 and Ext.X4 do not tally and there is a striking difference between the R.SA. No.839/03 9 description, it is pointed out. 17. It is also brought out from evidence of PW3 that originals of Ext.A1 will be available in three Government Offices and that “Adangal Register” is not available in the office of PW3. It is also to be noted that Ext.A1 shows name of owner as “Khadi Abdul Karim Sahib”. But he is nowhere in the picture. None of these aspects were considered by both the courts below before granting an injunction and also while confirming the decree. In short, both the courts have not considered whether the appellants have any legal right over plaint A schedule property, in the light of pleading and evidence adduced in this case. 18. There can be no doubt that the that Courts below must have focused their attention to the details in Ext.A1 and other documents referred to by first plaintiff based on which title and possession are claimed and also his right for management of Wakf properties. Ext.X4 and Ext.A1 are stated to be issued in respect of same property. But it is brought out from evidence of PW3 that description do not tally. Even though PW3 claimed that Ext.X4 register is prepared on the basis of details shown in Ext.A1, Basic Tax Register is prepared on the basis of details in R.SA. No.839/03 10 Adangal Register, it is stated by PW3. In such case details should tally. These facts were not looked into by courts below for considering whether Ext.A1 is a genuine document or not, in spite of the objection raised. The question whether Ext.A1 is a genuine document requires consideration, since it is a basic document on which appellant claims right over plaint schedule properties. 19. Before granting injunction, court is bound to consider whether the plaintiffs have any legal right over the plaint schedule property in respect of which the injunction is sought for. Admission if any from the side of respondents alone may not be the criteria to come to conclusion whether appellants have any right over plaint schedule property or get an injunction. Various factors have to be looked into. But, that is not done. In the nature of dispute, it may be necessary for trial court to consider whether any additional issues have to be framed in adjudicating the real controversy between the parties. 20. It is also not considered in the right perspective whether suit is bad for non-jointer of necessary parties. In the above circumstances, findings entered into by courts below are unsustainable. The matter requires reconsideration and disposal, in accordance with law, untramelled by the observation, if any, R.SA. No.839/03 11 made in this judgment on the merit. Any way, decree and judgment have to be set aside. In the result, 1. The impugned decree and judgment are set aside. 2. The case is remanded to trial court for fresh consideration and disposal, in accordance with law. 3. Parties shall appear before the trial court on receipt of notice to their respective counsel by the trial court. This appeal is allowed. Sd/- K. HEMA, JUDGE. Sou. // True copy // R.SA. No.839/03 12 K. HEMA, J ---------------------------------- R.S.A.No.839 OF 2003 ----------------------------------- Dated 11th November, 2011 SUBSTANTIAL QUESTIONS OF LAW 1) In the absence of consideration of the fact whether plaintiffs have any legal right to claim possession over the disputed property, can an injunction be granted by the court in their favour ? 2) Can the court reject plea of non-joinder of Wakf Board as party to suit on the sole ground that notice was issued under section 90 of the Wakf Act? K. HEMA, JUDGE. Sou.