Fathima vs Kerala State Wakf Board
2021 Latest Caselaw 21609 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
           THE HONOURABLE MR.JUSTICE S.V.BHATTI
                             &
         THE HONOURABLE MR.JUSTICE BASANT BALAJI
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
                CRP(WAKF) NO. 566 OF 2013
          WOA 8/2008 OF WAKF TRIBUNAL, ERNAKULAM

   1     FATHIMA(died)

   2     SHAIK RAJU
         S/O LATE IBRAHIM, PUILLIPARAMBIL HOUSE,
         THATHAPILLY P.O, MANNAM, 683520, PARUR TALUK

   3     SHAIK MANI
         S/O LATE IBRAHIM, PUILLIPARAMBIL HOUSE,
         THATHAPILLY P.O, MANNAM, 683520, PARUR TALUK

   4     SHAIK SUNNAJAN
         S/O LATE IBRAHIM, PUILLIPARAMBIL HOUSE,
         THATHAPILLY P.O, MANNAM, 683520, PARUR TALUK

   5     ZEENATH (Struck off)
         S/O LATE IBRAHIM, PUILLIPARAMBIL HOUSE,
         THATHAPILLY P.O, MANNAM, 683520, PARUR TALUK

           (The 5th petitioner is struck of from the party
         array at her own risk as per order dated 13.7.17
         in IA 1586/17)

   6     SHAKE MEHABOOBJAN
         S/O LATE IBRAHIM, PUILLIPARAMBIL HOUSE,
         THATHAPILLY P.O, MANNAM, 683520, PARUR TALUK

   7     ADDL.RAMLA BEGAM, W/O.LATE SHEIK MANI,
         PALLIPARAMBIL HOUSE, THATAPILLY PO, MANNAM, PARUR
         TALUK, PIN 683 520
         (IS IMPLEADED AS PER ORDER DATED 1.3.21 IN IA
         1.2021)

        BY ADV SRI.T.H.ABDUL AZEEZ
 CRP(WAKF) NO. 566 OF 2013
                                   -2-




RESPONDENT/S:

     1     KERALA STATE WAKF BOARD
           REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
           KALOOR, KOCHI 682017

     2     THATHAPALLY KUTTANELLOR MUSLIM JAMAATH COMMITTEE
           KOTUVALLY VILLAGE, NORTH PARAVUR, ERNAKULAM
           DISTRICT 683513

           BY ADVS.
           SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD
           SRI.P.A.ABDUL JABBAR
           SRI.ANAND PARATHARA
           SRI.MUHAMMED SHAFFI
           SHRI.JAMSHEED HAFIZ, SC, WAQF BOARD




      THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON
02.11.2021,     THE   COURT   ON    THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 CRP(WAKF) NO. 566 OF 2013
                             -3-




                          ORDER

(Dated this the 2nd day of November 2021)

Basant Balaji J.,

This Civil Revision Petition is filed against the judgment in W.O.A. No.8 of 2008 dated 27.4.2013 on the files of the Wakf Tribunal, Ernakulam. The said appeal was filed against the order dated 15.10.2008 in proceedings No.E6-349/08-2 of the 1st respondent.

2. The case of the petitioners before the Tribunal is that the President of 2nd respondent filed a petition before the 1st respondent alleging that the property in possession of the first petitioner is a Wakf property and she may be removed from unlawful encroachment invoking the provision of the Wakf Act 1985. On receipt of the complaint from the 2nd respondent, notice was issued to the petitioners to show cause why an order requiring removal of encroachment should not be made. On receipt of the notice, an Advocate represented for the petitioners before CRP(WAKF) NO. 566 OF 2013

the 1st respondent and filed a statement. In the said statement, the petitioners contended that there is a preliminary decree passed in O.S.No.41 of 67 and in the preliminary decree, it was ordered that certain items of scheduled properties are liable to be recovered by the plaintiff through final decree proceedings. Hence, even if it is found that the property is liable to be recovered, it can be proceeded against by way of final decree proceedings and the same cannot be re-adjudicated by a separate proceedings under Section 54 of Wakf Act. It was also contended that she, herself and her family are residing in the residential building constructed in the said property. The first respondent repelling the contentions of the petitioners directed to remove the encroachment and hand over the possession. Challenging the proceedings dated 8.7.2008 of the first respondent, the revision petitioner filed W.O.A. No.8 of 2008 before the Wakf Tribunal, Ernakulam.

3. The main contention raised in the appeal was that CRP(WAKF) NO. 566 OF 2013

the first respondent failed to note that the first petitiioner is not an encroacher and she can be evicted only through final decree proceedings in O.S.No.41 of 67. The Tribunal raised only one issue "whether the order No.E-/6 349/08 - 2 dated 15.10.2008 of the Kerala State Wakf Tribunal is liable to be set aside?". The main contention raised by the first petitioner was that the property was purchased by her as per Sale Deed No.2061/61 of SRO, North Paravur and her vendor Mammu got the said property in a Court auction conducted by the Munsiff's court, North Paravur in O.S.No. 738 of 101 and that the property originally belonged to the Mosque as Jenmi and it was outstanding as usufructuary mortgage and the mortgagees right was sold in court auction. It was also contended that in O.S.No.41 of 67, there is a clear finding that the first petitioner has got lease hold right in the property. The preliminary decree in O.S.No.41 of 67 was challenged by the 1 st respondent before this court in A.S.No.352 of 71 and the said appeal was dismissed. The final decree application was filed as CRP(WAKF) NO. 566 OF 2013

I.A. No.857 of 1980 was also dismissed as per order dated 29.8.2004.

4. The very contention of the counsel for the petitioners is that the first respondent has chosen to file O.S.No.41 of 67 for evicting the petitioners and a preliminary decree is passed, but the final decree proceedings was dismissed for non-compliance with the direction of the court and finding that the decree cannot be executed, now has chosen another way by filing the petition under Section 64(3) of the Wakf Act 1985. The favourable finding if any of the civil court, are not approved on a proceeding which is exclusively based on the status of a person in possession of the Wakf property namely, whether lawful or in encroachment.

5. Heard the learned counsel, Shri T H Abdul Azeez for the petitioners and Shri Jamshed Hafiz for the 1 st respondent and Shri P.A. Abdul Jabbar for the 2 nd respondent.

6. The counsel for the petitioners submits that even CRP(WAKF) NO. 566 OF 2013

though a preliminary decree was passed in O.S.No.41 of 67, there is clear finding in the judgment that the petitioners are entitled to a lease hold right in the property and since the final decree proceedings have been given a go-by initiation of parallel proceedings under Section 54(3) of the Wakf Act, is unwarranted. He further submits that the right, if any, crystalised under the judgment in O.S.No.41 of 67 cannot be taken away by any proceedings under the Wakf Act 1985. He also points out that the first respondent as well as Wakf Tribunal failed to note this aspect.

7. On the contrary, the counsel for the 2 nd respondent submits that the first petitioner is encroacher into the Wakf Property and that the proceedings under Section 54 of Wakf Act enables removal of encroachment from the Wakf property and that it is the independent proceedings. It was also contended that the 1st respondent on receipt of a complaint regarding encroachment of any land, building, space or other property which is Wakf property and, which CRP(WAKF) NO. 566 OF 2013

has been registered as such under this Act, he shall cause to be served upon the encroacher, a notice specifying the particulars of the encroachment and calling upon him to show cause before a date to be specified in such notice as to why an order requirer him to remove the encroachment before the date so specified should not be made and shall also send a copy of such notice to the concerned muthawalli. Thus, after complying the procedures under Section 54 of the Wakf Act, the first respondent has passed the order dated 8.7.2008. The counsel further submits that the Tribunal also found that the first petitioner is an encroacher and that she has to be evicted from the Wakf property.

8. The question regarding the lease holder right if any, accrued to the petitioner even though raised before the first respondent as well as the Wakf Tribunal was not considered by the authority, if at all a right has accrued or not is a question to be decided by the Tribunal. On a perusal of the judgment of the Tribunal, it can be seen that the Tribunal CRP(WAKF) NO. 566 OF 2013

failed to appreciate the said contentions of the first petitioner. The Tribunal ought to have called for the records in O.S.No.41 of 67 as requested by the petitioner or should have given an opportunity to the petitioner to produce the judgment as well as other documents produced in O.S.No.41 of 67, since the question regarding lease hold right as claimed by the petitioner arises or not had to be independently considered by the Tribunal. Since the said contention is not considered by the Tribunal, we are of the opinion that the matter requires re-consideration by taking note of the specific contention raised by the petitioner regarding any right she has accrued in the suit, O.S.No.41 of 67. It is relevant to note that the Wakf was registered only in the year 1974 and the decree in O.S. No.41 of 67 was dated 17.8.1970. For the view we are taking for disposing of the Revision, we are persuaded not to examine the merits for it would affect independent consideration by the Tribunal.

In the result, for the above reasons this Civil CRP(WAKF) NO. 566 OF 2013

Revision Petition is allowed and the judgment dated 27.4.2013 in W.O.A. No.8 of 2008 on the file of the Wakf Tribunal, Ernakulam is hereby set aside and the matter is remitted for fresh consideration to Wakf Tribunal, in accordance with law, after giving all the parties an opportunity to adduce further evidence, if any, within a period of six months from the date of receipt of a certified copy of this order.

Needless to state that we have not gone into the merits of the contentions raised by any of the parties.

sd/-

S.V.BHATTI JUDGE

sd/-

BASANT BALAJI, JUDGE dl/