IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 CRP.No. 617 of 2008() --------------------- WOS.19/2007 of WAKF TRIBUNAL, ERNAKULAM .................... REVN. PETITIONER(S): PLAINTIFFS ------------------------- 1. V.A.MUHAMMED HANEEFA, AGED 68, S/O.LATE V.K.ABDUL KHADER, VALIYAVEETTIL HOUSE, S.R.M.ROAD, ERNAKULAM DISTRICT. 2. A.K.BAVA, AGED 56, S/O.KOCHUNNI AK., ANJIKAPADATH HOUSE, C.P.UMMER ROAD, PULLEPADY, ERNAKULAM. BY ADV. SRI.K.I.ABDUL RASHEED RESPONDENT(S): DEFENDANTS -------------------- 1. MUNAVIRUAL ISLAM YUVAJANA SAMAJAM REP. BY ITS SECRETARY, MUNAVIRUAL ISLAM HIGH SCHOOL BUILDING, MARKET ROAD, ERNAKULAM. 2. A.M.SADIK, S/O.A.B.MUHAMMED, ALIYAPARAMBIL HOUSE, NEAR MYMOON THEATRE, CHITTOOR ROAD, ERNAKULAM. 3. KERALA STATE WAKF BOARD, REP. BY ITS CHIEF EXECUTIVE OFFICER, VIP ROAD, KALOOR, ERNAKULAM - 682 017. BY ADV. SRI.A.K.SRINIVASAN FOR R2 SRI.N.S.MOHAMMED USMAN FOR R2 SRI.A.S.BENOY FOR R2 BY SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD FOR R3 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON ------------------------------- C.R.P.No. 617 of 2008 ------------------------------- Dated this the 6th October, 2009 O R D E R Raman, J. This revision is at the instance of the plaintiffs in W.O.S.No.19 of 2007, on the file of the Wakf Tribunal, Ernakulam. The suit was instituted by the revision petitioners under Section 83 of the Wakf Act, 1995, praying for a declaration that the second defendant has no authority to continue as the Muthavally and manager of the first defendant Wakf and also to appoint an Advocate Commissioner for the conduct of election to the managing committee of the first defendant as per the Constitution. Subsequently, the suit was amended incorporating the prayer for setting aside the order passed by the Wakf Board, dated 22.12.1969, wherein, the Wakf Board decided that Munavirul Islam High School and its property are not Wakf. C.R.P.No.617 of 2008 2 2. The defendants contested the matter and the issue regarding the maintainability was also raised. After hearing the parties, the Tribunal held that the Wakf Board, which is the competent authority, having found as early as in 1969 that the first defendant is not a Wakf and that the order has become final, the Tribunal has no jurisdiction. No other point was decided. Hence, this revision. 3. After hearing the learned counsel, Sri.Abdul Rasheed, appearing for the revision petitioners as also the learned Standing Counsel, Sri.M.M.Saidu Muhammed, appearing for the Wakf Board, and after perusing the order passed by the court below and the records made available to us by the parties, we proceed to decide the matter as follows. 4. The court below decided that the suit is not maintainable on the sole reason that the competent authority, viz., the Wakf Board, has decided that the Munavirul Islam High School and its properties are not Wakf properties as early as in C.R.P.No.617 of 2008 3 1969. Therefore, at this belated stage, that question does not arise for fresh consideration by the Tribunal. 5. The question as to whether the plaintiffs were party to the proceedings rendered in 1969 or not is a matter on which there are serious disputes between the parties. While the respondents would submit that it is the predecessor-in-interest of the plaintiffs at whose instance the matter was decided by the Wakf Board in 1969, it is disputed by the revision petitioners. In the course of hearing, certified copy of the proceedings of the Wakf Board signed by the Chief Executive Officer is produced before us for perusal. It shows that Munavirul Islam High School , Market Road, Ernakulam, which is the Wakf institution, whose Muthavally is the Manager of the Munavirual Islam Yuvajana Samajam which was registered in the year 1961 and the same was published in the Gazette on 8.12.1964. If that be so, what was the occasion for the Wakf Board to declare that this is not a Wakf property in the year 1969 is not discernible from the pleadings or by any documents produced in the case. If it C.R.P.No.617 of 2008 4 was registered as a Wakf in the year 1964 (being the year of publication in the Gazette), then the question would arise as to whether the Board has power to rectify its registration or whether the Board or any party aggrieved thereby ought to have approached the Civil Court or the Tribunal, as the case may be. Likewise, if in 1969, rightly or wrongly, an order, saying that it is not a Wakf property, has since been passed at the instance of the plaintiffs or predecessor-in-interest, what is the binding nature of such declaration made in 1969. Could the plaintiffs, at this distance of time, urge a contention contrary to the said decision and seek for declaration. These questions, as such, could not be answered by this Court in the absence of a finding reached by the Tribunal, based on evidence adduced. 6. For want of documents and in the absence of any detailed order passed, we could only set aside the order impugned in this case, and remit the case back to the Tribunal for framing necessary issues arising out of the pleadings between the parties and then proceed to decide the matter, after giving an C.R.P.No.617 of 2008 5 opportunity to both the sides. We are not, in the circumstances, rendering any finding regarding the maintainability or otherwise, including whether it is barred by limitation or not. These questions are left open to be decided by the Tribunal . 7. Revision is thus allowed by way of remand. The impugned order is set aside. Parties are directed to appear before the Tribunal on 9.11.2009. Records be sent back immediately. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.