IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 CRP.No. 2551 of 2002(E) ----------------------- OS.157/2001 of WAKF TRIBUNAL, KOZHIKODE .................... REVN. PETITIONER(S): DEFENDANT ------------------------------ K.M.MUHAMMED HAJI, AGED 55 YEARS, S/O. PAKRAMMARU KOLINTAVIDA, MUYYARAKANDI HOUSE, PANOOR AMSOM, ELANKODE DESOM, THALASSERI TALUK. BY ADV. SRI.M.C.SEN, SENIOR ADVOCATE SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN RESPONDENT(S): PLAINTIFF ------------------------ PANOOR JUMA ATH PALLI MAHALLU MUSLIM JUMA ATH (REGD.SOCIETY), REP.BY SECRETARY, MAVILOTT USMAN S/O. ASSAN, AGED 49 YEARS, PANOOR AMSOM DESOM, THALASSERI TALUK. ADV. SRI.T.A.RAMADASAN FOR R1 SRI.CIBI THOMAS THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/08/2009, THE COURT ON SAME DAY PASSED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. NO: 2551 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th Day of August, 2009. O R D E R K. M. Joseph J. The defendant in O.S. No: 157 of 2001 is the petitioner. The suit was filed by the respondent seeking eviction of the petitioner from the plaint schedule shop rooms together with arrears of rent. Amount towards damages was also sought. After considering the matter, the Tribunal decreed the suit by ordering eviction with arrears of rent at the rate of Rs.160/- per month from February 1990 onwards till August 2001, together with interest at the rate of 12% per annum together and damages. For use and occupation at the rate of Rs.160/- per month was also ordered. 2. Heard the learned senior counsel Mr. M. C. Sen for the revision petitioner and learned counsel for the respondent. C. R.P . NO: 2551 OF 2002 :2: 3. Learned counsel for the revision petitioner would contend that as the suit is not maintainable, it is liable to be set aside. He would point out that O.S. No: 123 of 1990 was filed by the same plaintiff against the petitioner and the suit was dismissed. Copy of the judgment is produced as Ext.B1. Therefore, the finding in the judgment of the Tribunal is only to be set aside. 4. Learned counsel for the respondent submitted that the order is to be supported and the Tribunal found that there is a change in so far as that the registration is taken out from the Wakf Board in the name of the Secretary of the Committee as muthawalli and therefore found that the suit is maintainable. 5. In the earlier suit, the following issues were raised: 1. Whether the suit is maintainable? 2. Whether the plaintiff is competent to file the suit? 3. Whether the plaint schedule property is a wakf property and if so whether the same is registered with the Wakf Board? 4. Whether there is proper notice? 5. Whether the suit is barred by Resjudicata? 6.Whether the plaintiff is entitled to get an order for eviction? C. R.P . NO: 2551 OF 2002 :3: 7. Whether the plaintiff is entitled for the damages for use and occupation? 8. Reliefs and costs? 6. In the present suit, answering the contention taken by the petitioner, the Tribunal held as follows: “The plaintiff has filed the suit alleging that they are the muthawallies of the Panur Jumayath Palli Mahalle Muslim Jumayath Wakf. According to the plaintiff, this is a wakf property and that the wakf is registered with the Kerala Wakf Board. According to the plaintiff, as the muthawalli of this wakf, the plaintiff committee is entitled to file the suit for eviction of the defendant from the property. As a Secretary of this wakf, the present signatory to the plaint is competent according to the plaintiff. But, the defendant in the written statement has contended that this property is not a wakf property and that the plaintiff is not the muthawalli. According to the defendant, so the suit filed by the present plaintiff is not maintainable and that the same is liable to be dismissed. But, that contention by the defendant cannot be accepted in the suit. The plaintiff has C. R.P . NO: 2551 OF 2002 :4: produced and proved the necessary documents to prove this plaint schedule property as a wakf property and registered with the Kerala Wakf Board. Ext.A3 is the wakf Board Registration certificate. Ext.A3 has clearly proved that the Panur Jumayath Palli Mahallu Muslim Jumayath of Panur desom and amsom, Tallassery Taluk, Kannur District and its properties are wakf properties and that the wakf is registered before the Kerala Wakf Board, as required under Section 36 of the wakf Act, 1965 as its Reg. No. being 504/RA. So that Ext.A3 certificate has clearly proved that the plaint schedule property is a wakf property and that the same is registered with the Kerala Wakf Board. Further the plaintiff has also produced extract of the register of Wakf, pertaining to this plaint schedule property. Ext.A4 has clearly proved that this wakf was known as Panur Jumayath Palli wakf and that subsequently the name of wakf is amended as per order in A6/2154/1998 dated 8.12.1998, to Panur Jumayath Palli Mahallu Muslim Jumayath is the Muthawalli. Earlier, the Muthawalli was Eroth Kunhi Mammu Musaliar as the Muthawalli of C. R.P . NO: 2551 OF 2002 :5: Pannur Jumayath Palli Wakf. The year of registration of this wakf as Kunhi Mammu Musaliar as the muthawalli was in the year 1961. It is the case of the plaintiff that subsequently name of this wakf and the name of the muthawalli committee were changed with permission and recognition from the Kerala Wakf Board. So according to the plaintiff, the present name of this wakf is Panur Jumayath Palli Mahallu Muslim Jumayath and that the present muthawalli is the Secretary Panur Jumayath Palli Mahallu Muslim Jumayath. From Ext.A4 certificate, it is clearly proved that this contention of the plaintiff is correct, proper and has to be accepted. The contention of the defendant that it was Kunhi Mammu Musliyar who was the muthawalli of this wakf and that the muthawalliship is heriditory to the family of Kunhi Mammu Musliyar is not correct. That contention by the defendant cannot be accepted at all. This defendant has also paid rent to the Palli committee. The defendant has no case that he ever paid the rent to either to Kunhi mammu Musliyar or to any of his legal heirs as now contended in the written statement. Further DW1 C. R.P . NO: 2551 OF 2002 :6: when examined as admitted that he has not paid any rent to Kunhi Mammu Musliyar or to his legal heirs. The Kunhi Mammu Musliyar is no more. But when the defendant took the plaint schedule shop room for rent, the said Kunhi Mammu Musliyar was dead. Further, according to DW1, nobody has demanded to him not to pay the rent to the present plaintiff committee or to pay the rent to the legal heirs of Kunhi Mammu Musliyar. DW1 was also admitted that the plaintiff committee have leased out the other rooms in the building and that this plaintiff committee used to collect the rent from those tenants in the other rooms of this building. According to DW1, his contention is that this is not a wakf property, but it is property belonged to muthawalli. That contention is false and has to be rejected. The wakf is not belonged to the muthawalli but the same belonged as dedicated to the almighty God. So, from the evidence of DW1, itself it is clear that he has no definite case, but only the case, that not to pay the rent to anybody else. If actually, this plaint schedule property belonged to the family of Kunhi Mammu Musliyar or this as a C. R.P . NO: 2551 OF 2002 :7: wakf was being managed either by decesed Kunhi Mammu Musliyar or by any of his legal heirs, certainly the defendant ought to have paid the rent to them. This defendant has no case that he ever paid the rent either to Kunhi Mammu Musliyar or to any of his legal heirs as now contended in the written statement. Further, this defendant has never enquired as regards to the registration of this property with the wakf Board, but has simply contended that there is no wakf Board registration for this property. Such contention of the defendants in a eviction suit cannot be appreciated. The defendants are bound to raise the contentions on some valid grounds. Any how in this case, the plaintiff has produced and proved Wakf Board registration of this property and has proved that the plaint schedule property is a wakf and that it is legally registered with the Kerala Wakf Board. It has to be noted that in an earlier case also this defendant was contending that this plaint schedule property is not a wakf property. Any how, at this stage, having proved that the plaint schedule property is a wakf property, and that it is validly C. R.P . NO: 2551 OF 2002 :8: registered with the Kerala Wakf Board as proved from Ext.A3 & A4 documents, it has to be found that the contention of the defendant in this regard, has to be rejected. From Exts.A3, A4, it is clearly proved that the plaint schedule building is a wakf property and that the same is registered with the Kerala Wakf Board and that as the muthawalli recognised by the Wakf board the present plaintiff is competent to file the suit for evicting the defendant from the plaint schedule shop rooms. Hence, I find that the plaint schedule property is a wakf property and that the same is registered with the Kerala Wakf Board. I find that the plaintiff as the present muthawalli as recognised by the Wakf Board is competent to file the suit. I find that the suit as such filed by the plaintiff is maintainable.” 7. Learned counsel for the petitioner, Mr. M.C. Sen contend that the finding is unsustainable as merely changing the name would not mean that the present suit is maintainable. There is no dispute that the property is Wakf property. C. R.P . NO: 2551 OF 2002 :9: 8. The Tribunal took the view that in the earlier suit the plaintiff was Panoor Jumayath Palli Committee. 9. We are of the view that there is no merit in the revision petition. The earlier muthawalli was Aroth Kunhi Mammu Musaliar. The registration of the said wakf was in the year 1961. Subsequently the name of the wakf and the name of the muthawalli committee were changed with the permission and recognition from the Kerala Wakf Board. We also note that the Tribunal has arrived at the finding that the petitioner had paid rent to the Palli committee and he has no case that he has ever paid rent to either Kunhi Mammu Musaliar or to any of his legal heirs. Kunhi Mammu Musalier is no more. The admission of DW1 that the plaintiff committee has leased out the other rooms in the building and the plaintiff committee used to collect rent from those tenants also cannot be overlooked. So also, the circumstances that the petitioner has no case that he had ever paid rent to Kunji Mammu Musaliar or any of his legal heirs. By Ext.A4 as per order of amendment dated 8.12.98, the Secretary would appear to be the C. R.P . NO: 2551 OF 2002 :10: mutawalli and name of the mosque is Panoor Jama-ath Palli Mahallu Muslim Jama-ath. 10. In the light of the Exts. A3 and A4, we are not inclined to accept the contention of petitioner that the suit is barred by resjudicata or the suit is not maintainable. In such circumstances, there is no merits in the revision petition and it is dismissed. There is no order as to cost. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/