Nalakath Hamza vs K.P.Shamsudheen
2021 Latest Caselaw 23244 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
             THE HONOURABLE MR.JUSTICE S.V.BHATTI
                               &
            THE HONOURABLE MR.JUSTICE BASANT BALAJI
  THURSDAY, THE 25TH DAY OF NOVEMBER 2021/4TH AGRAHAYANA, 1943
                  C.R.P.(WAKF) NO.158 OF 2015
    (AGAINST THE JUDGMENT DATED 15.3.2012 IN O.S.No.43/2011
                 OF WAKF TRIBUNAL, KOZHIKODE)
  PETITIONER/PLAINTIFF:

          NALAKATH HAMZA, AGED 60 YEARS, S/O.PAKKI,
          NALAKATH HOUSE, PATTANAMPADI, KALAMASSERY,
          MANGALAM P.O, THRIPPAMGOTTU AMSOM DESOM,
          TIRUR TALUK, MALAPPURAM DISTRICT.
          BY ADVS.
          SRI.T.KRISHNAN UNNI (SR.)
          SRI.K.C.KIRAN
          SMT.MEENA.A.
          SRI.VINOD RAVINDRANATH

RESPONDENTS/DEFENDANTS:

    1     K.P.SHAMSUDHEEN, AGED 54 YEARS,
          S/O.UNNIHAJI, KARATTAPARAMBIL HOUSE,
          B.P.ANGADI P.O, THALAKKAD AMSOM, DESOM,
          TIRUR TALUK, MALAPPURAM DISTRICT, PIN 676 306.
    2     KERALA STATE WAKF BOARD,
          REPRESENTED BY CHIEF EXECUTIVE OFFICER,
          V.I.P ROAD, KALOOR, COCHIN , 682 017.
          BY ADVS.
          SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD
          SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD
          SHRI.JAMSHEED HAFIZ, SC, WAQF BOARD



          THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION
    ON 25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
    FOLLOWING:
 C.R.P.(Wakf) No.158 of 2015

                                      2




                                   ORDER

(Dated: 25th November, 2021)

-------------------------

BASANT BALAJI, J.

The plaintiff in O.S.No.43 of 2011 on the Court of

the Wakf Tribunal, Kozhikode is the revision petitioner

herein. The original suit was filed by him for

prohibitory and mandatory injunction against the first

respondent herein. Short facts of the case are as

follows.

2. Plaint-A Schedule is 1.08 acres in Re-survey

No.304/7 and Plaint-B Schedule is about 5 cents on the

north-eastern side of plaint-A schedule property.

Plaint schedule properties are wakf properties

registered with Kerala State Wakf Board. The plaintiff

and the predecessors are the hereditary 'Muthavallies'

of plaint schedule properties Mosque and the Jaram. The C.R.P.(Wakf) No.158 of 2015

first defendant has no manner of right over plaint

schedule property, but he has trespassed on plaint-B

schedule property and un-authorisedly started

construction of a shed for extending his hotel. The

plaintiff filed petition before the Wakf Board and the

Board passed a prohibitory order restraining him from

making construction in the plaint schedule property, but

the first defendant continued his un-authorised

construction in violation of the order of the Wakf

Board. The plaintiff is residing away from the plaint

schedule property and he is unable to prevent the

illegal act of the first defendant, hence the suit was

filed.

3. The first defendant filed a written statement

contending that the suit is not maintainable either on

facts or in law. The defendant is the ex-president of

Vettath Puthiyangadi Thekke Moideen Jaram Palli

Paripalana Committee. The suit filed by the plaintiff

without impleading the unregistered society and the C.R.P.(Wakf) No.158 of 2015

present president is not maintainable. The plaintiff and

the predecessors had no right or possession over the

properties. The plaintiff or their predecessors never

acted as the 'Muthavalli' of the plaint schedule

property and the wakf. Even if they have created any

document showing that they are the 'Muthavallies' of the

property, that is not binding upon the wakf and its

properties. The Committee is in management of the plaint

schedule properties. One Ali is conducting a hotel in

the property situated outside the plaint schedule

property. There was a shed adjacent to that hotel in the

wakf property. There was a proposal to construct a

temporary shed and let out the same to the above Ali.

After receiving necessary amount for its construction

the committee accepted the proposal finding that it is

beneficial to the wakf. While the construction of the

temporary shed was in progress, plaintiff filed a suit

and obtained a temporary injunction. The lease

arrangement is only for 11 months and no permission is C.R.P.(Wakf) No.158 of 2015

required from the Board.

4. PWs1 and 2 are examined on the side of the

plaintiff and Exts.A1 to A20, C1 and C1(a) were marked

on the side of the plaintiffs. DW1 was examined on the

side of the defendant and Exts.B1 to B16 were marked.

The Wakf Tribunal on an elaborate consideration of oral

and documentary evidence on both sides came to the

finding that the plaintiff has failed to prove that he

is the 'Muthavalli' of the wakf and he is not entitled

to an order of prohibitory and mandatory injunction in a

suit filed by him without impleading the 'Muthavalli' of

the wakf. It was further held that the plaintiff can

redress his grievance, if any, in a proceeding already

filed by him before the Board by invoking its powers

under Section 54 and 55 of the Wakf Act. The said

judgment is assailed in this C.R.P.(Wakf).

5. Learned Senior Counsel Sri.T.Krishnanunni

assisted by Sri.Thareeq Anwar addressed on behalf of the

petitioner. The counsel submitted that the Tribunal C.R.P.(Wakf) No.158 of 2015

failed to appreciate the case projected by the

plaintiff. He contended that, Ext.A1 is the certificate

issued from the Wakf Board certifying that 'Yahu Thangal

Jaram' situated at B.P.Angadi of Thalakkad Village,

Thirur Taluk and its properties have been registered

before the Wakf Board under Section 36 of the Wakf Act

and one Nalakathu Moideenkutty is the present

'Muthavalli'. The counsel further submitted that the

documents produced before the Tribunal would

conclusively proved that the plaintiff is the

'Muthavalli' and that he is entitled to maintain a suit

for eviction of the un-authorised construction.

6. The suit filed by the plaintiff is for

prohibitory and mandatory injunction. Exts.A1 to A3 are

mainly relied on by the plaintiffs to show that he is

the 'Muthavalli' of the property. Ext.A1 is the

certificate of the Wakf Board and Ext.A2 is a tax

receipt and Ext.A3 is the certified copy of the

settlement register, which will only show that the C.R.P.(Wakf) No.158 of 2015

property is registered in the name of one Puthiyangadi

Thekkepalli Manager, Nalakath Kunhali. The above three

documents relied on by the plaintiff will not prove that

the 'Muthavalliship', is by hereditary as provided by

the wakif or by custom. Merely because some members of

the tharavad acted as 'Muthavalli' or manager of the

wakf properties, that is not sufficient to hold that

Nalakath tharavadu has the 'Muthavalliship' of the wakf

by hereditary. When the plaintiff was examined as PW1,

he was not aware of the administration of the wakf and

its properties, though he claims that he is

administering the wakf property, so there is no

documentary proof produced on the side of the plaintiff

to prove that the plaintiff is the 'Muthavalli' and

entitled to file a suit for mandatory and prohibitory

injunction. The burden of proof is always on the

plaintiff to prove the allegations raised in the plaint.

He cannot win a suit on the weakness of the defendant.

Inorder to obtain a decree he has to plead and prove C.R.P.(Wakf) No.158 of 2015

before the court.

The plaintiff in this case has miserably failed to

prove the fact that he is the 'Muthavalli' of the wakf

property. It is also seen from the judgment that he has

already moved the Wakf Board under Section 54 of the

Wakf Act for removal of encroachment into the wakf

property by the first respondent herein. The Wakf Board

is amply armed to remove the encroachment, if it is

found that there has been an encroachment on any land,

building, space or other property which is wakf property

and which has been registered under the Act. Section 55

of the Wakf Act also gives powers to the Wakf Board for

enforcement of the order made under Section 54. So if at

all the plaintiff has a grievance that the wakf property

is encroached by the first respondent, he has a remedy

under the Act before the Wakf Board and which he has

already invoked. The Tribunal has taken note of the said

fact while dismissing the suit and it was specifically

noted that the plaintiff can redress his grievance in C.R.P.(Wakf) No.158 of 2015

the proceedings already initiated by him before the Wakf

Board. On going through the judgment of the Wakf

Tribunal, we find no illegality or impropriety in the

judgment of the Tribunal and hence no interference is

warranted and this C.R.P(Wakf) is dismissed.

Sd/-

S.V.BHATTI, JUDGE

Sd/-

BASANT BALAJI, JUDGE ss