IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932 WP(C).No. 16321 of 2008(R) ---------------------------------------- OS.242/2006 of MUNSIFF COURT, DEVIKULAM. .................... PETITIONER(S): ----------------------- 1. P.M. PAREETH, AGED 47 YEARS, S/O.MOIDHEEN, ERESIDING AT PARANUVIL HOUSE, ANAVIRATTY PO., KOOMPANPARA KARA, ANAVIRATTY VILLAGE, DEVIKULAM TALUK. 2. U.M. MEERAN, AGED 56 YEARS, S/O.MOIDHEEN, UTHAVAN HOUSE, KOOMPANPARA KARA NEAR FOREST RANGE OFFICE, KOOMPANPARA VILLAGE, VELLATHOVAL VILLAGE, DEVIKULAM TALUK. 3. ABOOBACKER, AGED 45 YEARS, CHEMBANKUZHIYIL HOUSE, KOOMPANPARA KARA, KOOMPANPARA PO., ANAVIRATTY VILLAGE, DEVIKULAM TALUK. BY ADV. SRI.C.KHALID, SRI.N.GOPINATHA PANICKER, SRI.R.O.MUHAMED SHEMEEM, SRI.T.P.SAJID. RESPONDENT(S): -------------------------- S.A. MYTHEEN, AGED 43 YEARS S/O.ANTHRU, SASTHUKUDY HOUSE, KOOMPANPARA KARA VELLATHOVAL VILLAGE, DEVIKULAM TALUK. BY ADV. SRI.PEEYUS A.KOTTAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 16321/2008-R APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S. NO.242/2006 OF MUNSIFF COURT, DEVIKULAM DATED 06/12/2006. EXT.P2: COPY OF THE COMPLAINT DATED 28/11/2006 BEFORE THE DISTRICT COLLECTOR. EXT.P3: COPY OF THE WRITTEN STATEMENT IN O.S.242/2006, DATED 21/02/2007. EXT.P4: COPY OF THE ORIGINAL SUIT NAMELY W.O.S.11/2007 BEFORE THE WAKF TRIBUNAL, ERNAKULAM, DATED 20/02/2007. EXT.P5: COPY OF THE PETITION NO.34/2007 BEFORE THE WAKF BOARD, DATED 15/03/2007. EXT.P6: COPY OF THE I.A. NO.1274/2007, DATED 08/08/2007. EXT.P7: COPY OF THE COUNTER AFFIDAVIT TO THE PETITION BY THE RESPONDENT. EXT.P8: COPY OF THE ORDER DATED 17/03/2008, WP(C) NO. 8888/2008. EXT.P9: COPY OF THE ORDER DATED 10/04/2008 IN I.A.1274/2008 IN O.S.242/2006 OF MUNSIFF COURT, DEVIKULAM. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. HARUN-UL-RASHID,J. ------------------------------- W.P.(C).NO. 16321 OF 2008 ------------------------------- DATED THIS THE 29TH DAY OF SEPTEMBER, 2010 JUDGMENT This writ petition is filed seeking to set aside Ext.P9 order passed by the Munsiff's Court, Devikulam and for a direction to transfer the suit O.S.No.242/07 pending before the Munsiff's Court, Devikulam to the Wakf Tribunal, Ernakulam. 2. The defendants in the said suit are the petitioners. Respondent herein is the plaintiff in the suit. The subject matter of the suit is 10 cents of land. The suit is filed for permanent prohibitory injunction to restrain the defendants from trespassing into the plaint schedule property and taking forceable possession of the same. Ext.P1 is the copy of the suit. The defendants in the suit inter alia contended that the plaint schedule property includes 4.5 cents of possessory land of Muhiyudheen Juma Masjid Mosque and that the boundary description of the plaint schedule property is false. Ext.P3 is the copy of the written statement. -2- WP(C).No.16321/2008 3. The petitioners/defendants filed I.A.No.1274/07 requesting the Munsiff's Court to dismiss the suit holding that the civil court lacks jurisdiction under the provisions of Wakf Act or may be pleased to transfer the suit to a competent court. Ext.P6 is the copy of the said petition. In Ext.P6 affidavit it is pleaded that whether the plaint schedule property is Wakf property or not, the jurisdiction of which come under the Wakf Tribunal and the civil court lacks jurisdiction, since the subject matter of the dispute purely come under the purview of Section 83 of the Wakf Act, 1985. It is further stated that therefore any dispute, question or any other matter relating to any Wakf property squarely comes under the jurisdiction of the Wakf Tribunal. The learned Munsiff passed Ext.P9 order holding that the defendants failed to adduce any prima facie evidence to establish that the plaint schedule property is a Wakf property and also failed to establish that the dispute is whether the plaint schedule property is a Wakf property or not. 4. The suit was filed by the respondent/plaintiff for a perpetual injunction restraining the defendants from trespassing -3- WP(C).No.16321/2008 into the plaint schedule property. The question to be decided in the suit is as to whether the plaintiff is in possession of the plaint schedule property or not. The title of the plaintiff is not a matter to be decided in the suit for injunction. Whether the it is a defendants' property or not is also not a question to be decided in the suit for injunction. The question to be decided in the suit for injunction is whether the plaintiff is in possession of the plaint schedule property and whether he is entitled to the relief of injunction sought for in the plaint, since the relief of injunction is discretionary. Therefore, the court below is right in dismissing the IA. Whether the suit property is a Wakf property or not is not a question to be decided in the present suit and therefore Section 83 of the Wakf Act is not attracted. In the above circumstances, the challenge against Ext.P9 order fails. With the above observation the Writ Petition is dismissed. HARUN-UL-RASHID, Judge.