Kerala High Court
Muhammadali vs Alavi on 17 October, 2024
Author: Amit Rawal
Bench: Amit Rawal
CRP(WAKF) NO. 27 OF 2020 1
2024:KER:79548
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
CRP(WAKF) NO. 27 OF 2020
AGAINST THE JUDGMENT DATED 18.02.2020 IN WOS NO.17 OF 2019 OF WAKF
TRIBUNAL, KOZHIKODE
PETITIONERS/DEFENDANTS 1 TO 3:
1 MUHAMMADALI
AGED 56 YEARS
S/O.MUHAMMED KUTTY, PERINGOTTUTHODI HOUSE, IRIMBILIYAM AMSOM
DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-679572.
2 RUKHIYA
AGED 59 YEARS
D/O.MUHAMMED KUTTY, PERINGOTTUTHODI HOUSE, IRIMBILIYAM AMSOM
DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-679572.
3 SECRETARY,
VATTAPARAMBU NISKARA PALLI COMMITTEE, IRIMBILIYAM AMSOM DESOM,
TIRUR TALUK, MALAPPURAM DISTRICT, PIN-679572.
BY ADV R.RAMADAS
RESPONDENT/S:
1 ALAVI
AGED 54 YEARS
S/O.MOITHEENKUTTY, KOLOOTH PARAMBIL IRIMBILIYAM P.O.,
IRIMBILIYAM AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-
679572.
2 KERALA STATE WAKF BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, KERALA STATE WAKF
BOARD, KALOOR, KOCHI, ERNAKULAM-17.
BY ADVS.
SRI.N.V.P.RAFEEQUE
SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD
SHRI.JAMSHEED HAFIZ, SC, WAQF BOARD
THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON 17.10.2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRP(WAKF) NO. 27 OF 2020 2
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JUDGMENT
Amit Rawal, J.
1. Present revision petition is directed at the instance of
the appellant/defendant No.1 against the judgment and decree
dated 18.2.2020 rendered in W.O.S No.17 of 2019.
2. Respondent No.1/plaintiff instituted a suit seeking
cancellation of the documents Exts.A2 and A3 dated 14.4.1975 and
11.9.2006 respectively. The case set out in the plaint was that
Vattaparambu Niskara Palli and the land adjacent to it was
purchased by late Chozhiyarath Abu as Secretary of Palli committee
from one Moideen Kutty and Nabeesa Umma as per registered
assignment deed No.964 of 1973, Ext.A1. Mosque, on the basis of
the funds provided by Abu, was constructed and thereafter, Abu
continued as Secretary of the Palli committee till his death. Plaintiff
apprehended that the defendants were trying to take the forcible
possession and control of the schedule property and mosque by
creating false documents. Previously, a civil suit bearing number
OS No.43 of 2015 by Sri.Abu was filed. However, that suit was
dismissed for non prosecution as, during the pendency of the suit,
Sri.Abu had died. It was alleged that vide Ext.A1, assignment deed,
the property was dedicated as Waqf even if the tenancy rights were
created in favour of the Palli committee, of which Mohammedali
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was the President. It was further alleged that the subsequent
execution of documents ie., conferring the proprietary rights vide
Ext.A2 and dedication of the property vide Ext.A3 were sham
documents.
3. Appellants-defendant Nos.1 to 3 filed a joint written
statement and objected the maintainability of the suit by stating
that the property was purchased as per the document 964/1973 for
constructing Niskara Palli and the committee who managed the
Mosque could not continue its administration, therefore, the right of
administration was entrusted to Irumbiliyam Vadakke Juma-ath Palli
Mahal, thereafter the Mahal committee had been in the
management of the plaint schedule Mosque. Suit was liable to be
dismissed on account of non joinder of party as the Mahal
committee was not arrayed as a party. Mahal Committee
authorized defendant No.1, Mohammedali to manage the affairs of
Vattaparambu Niskara Palli. The existence of the alleged
committee as arrayed as defendant No.3 was emphatically denied.
The averments qua expenses spent by Abu for construction of
mosque were also denied. It was further explained that vide Ext.A1,
only the tenancy rights were conferred upon the defendant No.1 to
manage the affairs but the proprietary rights, which called jenmam
rights, were conferred vide registered document Ext.A2 dated
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14.4.1975 by the original proprietor . Aforementioned janmam
rights, by the children of the original proprietor, an executant of
document dated 14.4.1975, created a waqf by dedicating the
property through the registered documents dated 11.9.2006,
Ext.A3. It is pertinent to mention here that Ext.A2 and A3, due to
inadvertence, the name of the defendant No.1 was referred to as
Muthawalli, though he never had been a Muthawalli.
4. The Waqf Board, defendant No.4 submitted that the
aforementioned Waqf, after having been dedicated, was registered
with the Waqf Board as No.8343/RA. The application for
registration of the Waqf was made by the defendant No.1 on
19.11.2013 and registered, as per records of the Board, on
27.12.2013. The factum of purchase of the property by
Mohammedali as per document No.765/1975 was also admitted.
5. Since the parties were at variance, the learned Tribunal
framed the following issues:
I. Whether the suit is maintainable ?
II. Whether the suit is bad for non-joinder of necessary party ?
III. Is there any cause of action as claimed?
IV. Whether the plaintiff is entitled for declaration and injuction?
V. What is the order as to cost ?
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Additional issue:
I. Whether the suit is properly valued for the purpose of court fee
and jurisdiction?
6. Learned Tribunal noticed that both the documents Exts.A2
and A3 reflected the name of defendant No.1 as Muthawalli, who
was not at any point of time appointed as Muthawalli, itself was a
clincher for holding a document to be sham besides the fact that
vide Ext.A1, the assignment deed, the nature of the property, by
control and management, was of waqf as the mosque was
constructed by next year ie., 1974 . Therefore there was no
question of re-dedication vide registered document in 2006 and
further registration with the Waqf Board thus set aside the
documents and decreed the suit.
7. Mr.R.Ramadas, learned counsel appearing on behalf of the
petitioners/defendant No.1 to 3, in support of the revision petition,
raised the following submissions:
I. Defendant No.1 in the written statement, never claimed himself
as a Muthawalli though his name, due to inadvertence, was
reflected in Ext.A2 and A3.
II. There was no dedication to the Waqf property as per the
assignment deed Ext.A1. It was only a tenancy rights and not
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beyond. Petitioner-defendant No.1 was given the authority to
manage the affairs of the Niskara Palli Committee. The proprietary
rights were acquired by Sri.Mohammedali vide Ext.A2 dated
14.4.1975. Till such time, there was no grievance at the instance of
respondent No.1. Transfer of property vide Ext.A2 was from one
Shankunni Varrier. There was no criminal mens rea or nefarious
act on behalf of the defendant No.1 in acquiring the ownership, as
the execution of the document Ext.A2 was with free will and
without any pressure or force. However, the children of
Sri.Mohammedali decided to dedicate the property to the Waqf as
was done vide registered document No.3243 of 2006 dated
11.9.2006.
III. Plaintiff is not a party to the agreement; a third party could have
challenged the document within a reasonable period by the
amendment, sought the cancellation without paying the court fees
as per the market value. The suit was liable to be dismissed as per
the provisions of Order 7 Rule 11 of the Code of Civil Procedure.
IV. Once the Board had also supported the defense of the
defendants, there was no occasion for the Tribunal to form a
different opinion while setting aside the documents, thus prayed
the order to be set aside and the revision petition be allowed.
8. Learned counsel appearing on behalf of the respondent/
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plaintiff supported the findings of the Tribunal and submitted that
the defendants failed to place on record any document to show that
there was no dedication of the property. The conduct, intention
and purpose for which the property were being used are the
parameters for deciding whether the property was used as waqf or
not. All these ingredients suffice the requirement of law enabling
the court to decree the suit. There was no occasion for referring
Sri.Mohammedali as Muthawally in the absence of any order of
appointment. Thus there is no illegality and perversity in the order
under challenge.
9. Mr.Jamsheed Hafiz, learned counsel appearing on behalf of
defendant No.4/respondent No.2 supported the case of plaintiff
and did not deny the registration in 2013 as well as the dedication
of the property as Waqf in 2006 vide registered document dated
11.9.2006, Ext.A3. Further submitted that Ext.A1 was only a
conferment of tenancy right and not the ownership and therefore it
was never in the ownership of the waqf or being used a waqf.
Construction of the mosque would not reflect that the property was
being used for pious, religious and other purposes referred to in
Section 3(r) of the 1995 Act as the construction was subsequent to
Ext.A1. In such circumstances, the proprietor ie., the transferror of
Ext.A2 had full right of ownership to transfer in anybody's name
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including Sri.Mohammedkutty.
10. We have heard the learned counsel for the parties and
appraised the paper book and records of the case. The plaint do not
reflect any payment of court fees with respect to the market value
of the documents except for sixty Rupees (60). Law with regard to
the cancellation of the documents as per the Indian Court Fees Act
as well as the Kerala Court Fees Act, no longer res integra as and
when such document is challenged by the third party. Court fees of
the market value is required to be paid. The objection qua court
fee can be taken at any stage of the case even if no issue has been
framed or in the absence of any objection in the written statement.
In our considered view, the Tribunal ought to have followed the
legal path and dismissed the suit as in limine as well as on the
limitation as no reasonable explanation has come forth or much less
compliance of any ingredients of fraud and misrepresentation to
overcome the rigorous of the limitation. In other words, for
succeeding in a suit alleging fraud and misrepresentation, there
has to be categoric pleading and evidence as per the provisions of
Order 6 Rule 4 of the CPC. Therefore for all intents and purposes,
the finding of the Tribunal holding that the property was being used
as Waqf from the date of execution of assignment deed Ext.A1 dated
4.6.1973 is a figment of imagination without any basis much less
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against the contents of the documents as there was no dedication
reflected in such document.
11. For the reason aforementioned, we thus set aside the
findings in the impugned order. Revision petition stands allowed.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
sab EASWARAN S.
JUDGE
