IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 CRP.No. 893 of 2008() --------------------- AGAINST THE ORDER DATED / / IN IA.207(A)/2005 IN WOS.23/2005 of WAKF TRIBUNAL, ERNAKULAM .................... REVN. PETITIONER(S): RESPONDENT/DEFENDANT ----------------------------------------- JAMIYA JUMA MAZJID JUMATH COMMITTEE VILAYACHATHANUR, ALATHUR TALUK, PALAKKAD REPRESENTED BY ITS PRESIDENT NOOR MUHAMMED. BY ADV. SRI.BABU KARUKAPADATH SRI.JAGAN ABRAHAM M.GEORGE SRI.P.G.PRAMOD RESPONDENT(S): --------------- 1. SYED MOHAMMED SIYAVUDEEN, S/O. LATE HUSRATH MEERAN HUSSAIN BAKHAVI, ABBABIL HOUSE, NOVHUR, KODUVAYUR - 678501. 2. KAJA HUSSAIN, S/O. CHINNAMUTHU RAWTHER @ CHINAKUTTY RAWTHER, KAYARANAKULAM, THENKURISSI ADV. SRI.H.BADRUDDIN FOR CAVEATOR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/12/2009, ALONG WITH CRP NO. 894 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ----------------------------------------------- CRP No. 893 & 894 of 2008 --------------------------------------- Dated, this the 4th day of December, 2009 O R D E R P.R.Raman, J. The Wakf Tribunal by a common order disposed of two I.A.s I.A.207 (a)/05 in WOS 23/05 and also I.A. 128/07 in the same suit. I.A.207 (a)/05 was filed under order 39 Rule 2 A for alleging violation of the order of injunction and I.A. No. 128 is for mandatory injunction. Both these applications were allowed by the Wakf Tribunal and the operative portion of the order reads as hereunder. “Therefore considering the facts and circumstances of this case I find that respondents/defendants wilfully violated the order of injunction and constructed a platform in front of the Makbara. Before punishing the respondents/defendants I think that they shall be given a chance to undo the illegal things done by them. Therefore I direct the respondents/defendants to demolish the platform constructed in front of the Makbara at their own personal expenses and file an affidavit within 17 days, that is on or before 17.12.2008 regarding compliance, failing which respondents 1 and 2 shall be detained in civil prison for a period of one month each and the petitioner is entitled to demolish the platform with necessary protection at the cost of respondents/defendants. In the result, I.A. Nos. 207(a)/05 and 128/07 in WOS 23/05 are allowed with cost of Rs.1,000/- to petitioner/plaintiff. Respondents 1 and 2 are hereby directed to demolish and remove the concrete platform constructed by them in front of the Makbara at a length of 24 ½ feet and width of 10 feet at their own expenses on or before 17.12.2008, failing which they shall be detained in CRP No. 893 & 894 of 2008 2 civil prison for a period of one month each and petitioner/plaintiff is entitled to demolish the above unauthorised construction at the cost of the respondents 1 and 2 through the Tribunal. Respondents/defendants shall also pay a cost of Rs.1,000/- to the petitioner.” The respondents in the respective I.A.s have come up in revision by filing two separate Revision Petitions who are also the plaintiff in the case. Hence we dispose of these revisions by this common order. 2. The suit is itself one for permanent prohibitory and mandatory injunction. Along with the suit, plaintiff filed I.A. 98/2005 for an order of temporary injunction against the respondents therein who are defendants restraining them from constructing a platform in the property till the disposal of the suit. The Court granted an exparte order of injunction. Subsequently after hearing both sides, the said order was modified by subsequent order dated 02.08.2005. The complaint made is alleging violation of that modified order. The Advocate Commissioner who inspected the property and submitted a report, was also examined in the case. Before we proceed to consider materials available on record, it has to be seen as to what is the nature and scope of the modified order passed by the Tribunal on 02.08.2005. 3. The injunction was sought for mainly alleging that there is an attempt to construct a platform on the floors of the grave yard on the plaint A schedule property (road leading to the plaint A schedule property) through B schedule by inviting tenders for the same. According to the plaintiff, the construction of the platform of the grave yard and the road was objected to by CRP No. 893 & 894 of 2008 3 them on the reason that constructions are against Sheriat law. In the counter affidavit filed by the respondent who are the revision petitioners herein, among other things, it is stated that platform was proposed to be build up for convenient use of the same availing to the members. A decision to this effect was taken by the Controller and all that was done is to convert the existing road as a concrete road. The road is the only access to the mosque. It will be very difficult to bring even a dead body to wakf property for burial without the road. They also justified the construction of platform as is absolutely essential. Nothing further is stated regarding the necessity to construct the platform. 4. The Tribunal entered a prima facie finding for the purpose of disposing of injunction application as follows:- 1) From the gate up to the Makbra there is a pathway having a width of 11 feets. The plaint B schedule is not used a un grave yard. The pathway ends in the Makbra. At this place arrangements are made for the construction of a platform. The pathway was concrete to a certain distance and the balance portion up to the makbra is to be concreted for which the materials were collected and stored at the place. At this place, arrangements were made for the construction of platform and for this mud were removed. 2) Disputed pathway is 2 feets width and 11 feets length. Up to 77 feets length pathway was concreted. The balance portion was intended to be concreted. The Commissioner found the existence of Kabarsthan at the CRP No. 893 & 894 of 2008 4 place and location of the kabar was clearly noted in the road sketch No. 6. One kabar was located at the east and another kabar on the west, other side of the so called pathway that ends in the plaint A schedule property. 3) The platform intended to be constructed was on floors of the area it is thus sought to be restrained by prohibitory injunction. 4) It was clearly conceded on the side of the respondent that the construction of any kabar is against sheriath. The Commissioner has reported that in the pathway as noted in C1 sketch he was not able to find the existence of any kabar. It was also clearly reported by the Commissioner that completion of the pathway is absolutely necessary. 5. On the above finding, the Court finds that the injunction already granted as to be modified slightly. Accordingly, the Court modified its earlier order permitting the respondents to concrete the already existing pathway. “In the result there will be an injunction restraining the defendant from making any platform for service of any of the kabar in the property as noted in Ext.C1 and C1(a) sketch. Injunction granted, restraining the defendant from constructing a platform, by destroying any construction as noted in Ext.C1(a) as item No.3”. The order of injunction will not be a bar for the defendants to finish up the construction and concreting the pathway noted by the Commissioner Ext.C1 as item No. 9. 6. We find that though the Commissioner has submitted Ext.C2 CRP No. 893 & 894 of 2008 5 report, but he did not prepare a plan. The plan be submitted earlier contained in Ext.C1 report. The construction of the road is half way done as was observed by the Court below in its modified order of injunction. So, whether the road constructed now was in same width as proposed earlier or in front of the makbra and whether the entire portion is constructed can be ascertained only by a sketch prepared and produced. Since the allegation is that platform is constructed which is prohibited as per order of injunction passed by Court below. According to the respondent, he completed the construction of the road upto the makbra but in so doing whether the kabar as noticed in the sketch marked as 6 and 14 were taken inside the constructed portion is a matter thus in dispute. Therefore we set aside the order passed by the Tribunal allow this revision and remit the same to the Tribunal. The Tribunal shall depute the same Commissioner who shall after inspection submit a sketch plan and thereafter based on the additional evidence if any adduced by both the sides, the Tribunal will pass appropriate orders. P.R. RAMAN, JUDGE P. R. RAMACHANDRA MENON, JUDGE dnc