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Kerala High Court Allows Petition Entitling Review Applicants to Hold Property

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On 6th November 2020, The Kerala High Court involving division bench judge of the Honourable Mr Justice K. Vinod Chandran and Honourable Mr Justice T.R. Ravi heard the case of Darul Huda Masjid Mahallu Committee vs Unknown.

Facts of the Case

The dispute involved in these revision petitions is regarding the right of management of a Wakf property. It was filed by the revision petitioner hereinbefore the Wakf Tribunal, Kozhikode praying for a permanent prohibitory injunction restraining the respondents from obstructing the management of the plaint schedule property. It was filed by the respondents herein seeking a decree of recovery of possession of the plaint schedule property.

The properties originally belonged to Ahammed Abdul Haleem who executed a Wakf deed in 1954. He managed the wakf till his death. As per the Wakf deed, his male children are entitled to manage the wakf and if he left no male children, the management of the Wakf property has to be done by the Palli Karnavan of the Kokkur Juma Mosque, the respondent.

The Wakif died without leaving any children, and hence according to the Kokkur Juma Mosque Committee, they alone have the right to manage the property.  

Petitioner’s Arguments

According to the revision petitioners, the right of management of the masjid vested upon a committee which included a member of the family of the Wakif. The petitioners contended that they alone have the right to manage the property. According to the revision petitioners, even though the Wakf deed was executed in 1954, due to the existence of a temple, the construction of a mosque as intended by the Wakif, did not materialise.

In 1957, another property on the northern side was given from the family of the Wakif as a Wakf, wherein a mosque and a madrassa were constructed and the same is functioning there. During the partition of the properties, the property wherein the mosque situated was dedicated as a Wakf. Later in 1965-66, the above mosque was converted into a Jama-ath mosque.

It is contended that the property was being managed by the Darul Huda Masjid Committee even during the lifetime of the Wakif himself. It is further submitted that since the Wakif was happy with the functioning of the committee, he had handed over the original documents relating to the plaint schedule property to the committee.

According to the revision petitioners, they have been managing the property for more than 30 years and the respondents who are residing in the same locality were aware of the above facts.

Respondent’s Arguments

The respondents, on the other hand, submits that the question relating to maintainability is raised for the first time before this Court and that no such contention was taken either before the Wakf Tribunal or even in the Memorandum of Revision before this Court. She further submits that even the pleadings in the case do not specifically raise such an issue. It is contended that such a contention ought not to be entertained at this stage after the passage of so many years.

On merits of the contention, she contends that the suit is not one for removal of encroachment under Section 54 of the Wakf Act, so as to necessitate a proceeding before the CEO.

According to the respondent, the suit is one of recovery of possession simpliciter and the respondents have no case that the revision petitioners are encroachers on the land and the relief is sought for only on the basis of the recitals in the Wakf deed which specifically says that the right to manage shall come vested in the respondents, on the happening of the event contemplated in the Wakf, that is, the Wakif leaving behind no successors.

Court’s Observations

The Court observed into the case Aliyathammada Beethathabiyyupura Pookoya Haji v. Pattakkal Cheriyakoya [(2003) 3 KLT 32]. The Division Bench held that if the reasoning of the learned Judge is upheld it will be restricting the jurisdiction of the Tribunal considerably, thereby narrowing the scope and ambit of Section 83 read with Section 85 and other related provisions. The court also observed into several provisions in the Wakf Act like Sections 6732(3)54(4)33(4)38(7)39(3)40(2)48(2)51(5)52(4)64(4)67(4), 67(6), 69(3), 73(3), 83(2) and 94.

Court’s Decision

The Court allowed the revision petitions. The decree of previous judgement was set aside and the suit was dismissed as not maintainable before the Tribunal; whether it be for recovery of possession or removal of encroachment if it is the latter as the provision stood prior to 2013. In so far as the suit filed by the revision petitioner, admittedly they are in possession of the property.  

The previous judgment was set aside and the suit was decreed restraining the respondents therein from obstructing the management of the plaint schedule property by the revision petitioners; unless in accordance with the law. It is made clear that this judgment will not in any way prejudice the right of the respondents to prefer a petition/suit for the same reliefs before the appropriate forum.

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