Kerala High Court
Kerala State Wakf Board vs Dharmapalan And Others on 24 October, 2024
Author: Amit Rawal
Bench: Amit Rawal
2024:KER:78720
CRP(Waqf) 599/2009
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
CRP NO. 599 OF 2009
AGAINST THE ORDER/JUDGMENT DATED 23.10.2007 IN WOS
NO.6/2006 OF WAKF TRIBUNAL, ERNAKULAM
REVISION PETITIONER/1ST RESPONDENT:
KERALA STATE WAKF BOARD
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, VIP
ROAD, KALOOR, KOCHI - 682 017.
BY ADVS.
SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD
SRI.A.A.ABUL HASSAN, SC, WAKF BOARD
SRI.JAMSHEED HAFIZ, SC, WAKF BOARD
RESPONDENTS/PLAINTIFFS & 2ND DEFENDANT:
1 DHARMAPALAN S/O.KARUPPUNNI,
KUTTIYELI, POST ANDATHODU,, CHERAI,
PUNNAYURKULAM, THRISSUR DISTRICT,, PRESENTLY
WORKING AS ABUDABI.
2 MADHAVAN (DIED), S/O. KARUPPUNNI
RESIDING AT KUTTIYEIL, POST ANDATHODU, CHERAI,
THRISSUR DISTRICT.
3 MONOHARAN S/O. KARUPPUNNI
RESIDING AT KUTTIYELI, POST ANDATHODU, CHERAI,
THRISSUR DISTRICT.
4 KAMALAM, D/O. KARUPPUNNI
AND WIFE OF RAGHAVAN, RESIDING AT KUTTIYELI, POST
ANDATHODU, CHERAI, THRISSUR DISTRICT.
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2
5 SARASWATHY, D/O. KARUPPUNNI
AND WIFE OF RAVINDRAN, RESIDING AT KUTTIYELI,
POST ANDATHODU, CHERAI, THRISSUR DISTRICT.
6 SUMATHY, D/O. KARUPPUNNI AND WIFE OF
MADHAVAN, RESIDING AT KUTTIYELI, POST ANDATHODU,
CHERAI, THRISSUR DISTRICT.
7 SIDHARTHAN, S/O. KARUPPUNNI
RESIDING AT KUTTIYELI, POST ANDATHODU, CHERAI,
THRISSUR DISTRICT.
8 K. MOHAMMED, S/O. BAPPU
RESIDING AT PATTARUMADATHIL, AYIROOR.P.O,
MALAPPURAM DISTRICT - 679 580.
BY ADVS.
MANU VYASAN PETER
SRI.N.AJITH
SMT.GEETHA P.MENON
SRI.K.JAYAKUMAR SR.
SRI.P.B.KRISHNAN FOR RESPONDENTS
SRI.P.M.NEELAKANDAN
SRI.R.SURAJ KUMAR
P.B.SUBRAMANYAN(K/1145/2009) FOR RESPONDENTS
SABU GEORGE(K/000711/1998)
B.ANUSREE(K/000951/2016)
THIS CIVIL REVISION PETITION HAVING COME UP FOR ORDERS ON
06.09.2024, THE COURT ON 24.10.2024 DELIVERED THE FOLLOWING:
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3
O R D E R
EASWARAN S., J.
Kerala State Wakf Board, Ernakulam has come up
against the order dated 23.10.2007 of the Wakf Tribunal,
Ernakulam allowing O.S.No.6 of 2006.
2. the facts, in brief, are as follows:
Plaint A Schedule item No.1 comprises ten (10) cents in
Survey No.51/9, plaint item No.2 is 62/3 cents in Resurvey
No.51 and item No.3 is 51 cents in Resurvey No.51 cents,
all of Ponnayurkulam Village, thus having a total extent of
672/3 cents. The said property was initially leased out to one
Raman Menon by Muhammed Unni for an annual pattom of
Rs.75/- as per registered lease deed. Subsequently, Raman
Menon transferred his tenancy right in favour of one Rama
Panicker as per document No.1229 of 1965. It was averred
that Mr.Kannappan, who is the predecessor in interest of
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the plaintiffs, was a kudikidappukaran in the property even
prior to the entrustment of the property to Raman Menon by
Mohammed Unni. On the death of Kannappan, his
kudikidappu right devolved upon his son Kuruppunni, father
of the plaintiffs, and later to the plaintiffs. The father of the
plaintiffs obtained the kudikidappu right from the Land
Tribunal and a Certificate of Purchase was issued on
26.05.1970 with respect to plaint item No.1. Thereafter, the
father of plaintiffs purchased 62/3 cents (plaint item no.2)
adjacent to his kudikidappu property from Rama Paniker as
per registered deed No.722/1975. In the meantime, Rama
Panicker sold 51 cents of land to Kunhahammed as per sale
deed No.722/1 dated 09.06.1975 and later obtained
Purchase Certificate No.16448 of 1977. Thereafter the first
plaintiff purchased the land covered by the Purchase
Certificate from Kunhahammed as per sale deed No.1132/83
which is scheduled as item No.3 in the plaint. Thus the
plaintiffs obtained rights over the plaint schedule properties
and are in possession and made constructions therein.
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While so the second defendant filed an application before
the Wakf Board alleging that 87 cents of property in Survey
No.51/9-10 of Kanikad Amsom, Chavakkad Taluk was
dedicated for charitable purpose by one Chekkutty. The
complaint was filed by the second defendant as a
descendant of Chekkutty for recovery of item No.3 of the
plaint schedule property in absolute possession and
enjoyment of the plaintiffs as owners. The Wakf Board
without considering any of the contentions of the plaintiffs
passed order dated 09.11.1999 ordering eviction of the
plaintiffs. Aggrieved by the same, the plaintiffs filed
O.P.No.32298 of 1999 before this Court and this Court
directed the plaintiffs to file a regular suit before the
competent authority and accordingly the suit was filed.
3. The Wakf Board entered appearance and filed a
written statement contending that the suit is not
maintainable and that the property with respect to partition
deed No.2027/1914 executed between the legal heirs of
Chekkutty, was dedicated as Wakf by late Chekkutty
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himself, thus, there is a valid Wakf created by him. The
lease deed mentioned in the plaint is null and void and that
Sri.Mohammed Unni had no right to lease out the property.
Since the lease deed is null and void, the subsequent
document created is not binding on the Wakf property.
4. On the side of the plaintiffs, Exts.A1 to A13 were
marked and the 7th plaintiff was examined as PW1. At the
time of evidence, the counsel for the Wakf Board and the
second defendant were absent and no cross examination
was conducted. Therefore, on the basis of the materials and
pleadings on record, the Tribunal framed the following
issues:
"1. Whether plaintiffs have any right or title over
the plaint schedule properties? Whether Rama
Panicker or his predecessors had any alienable
right over the property at the time?
2. Whether plaint schedule properties are Wakf
properties as alleged by defendants? When was the
Wakf created?
3. Whether the purchase certificate issued by Land
Tribunal is a valid document? Whether it is binding
on a Wakf property?
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4. Whether the order of the Wakf Board dated
9.11.1999 is binding on the plaintiff? Whether it is
liable to be set aside?
5. Whether the suit is barred by limitation?
6. Whether plaintiffs are entitled to the declaration
and injunction as sought for?
17. Reliefs and costs."
5. On the basis of the materials on record, the
Tribunal came to conclusion that the suit was maintainable
and that the predecessor in interest of the plaintiffs had
obtained the right of kudikidappu in terms of the provisions
contained under the Kerala Land Reforms Act, 1963 and
therefore the Purchase Certificate obtained by him was valid
in the eyes of law.
6. More pertinently, the Tribunal also came to the
conclusion that there was no evidence to show that the
property was a Wakf property at any point of time. Tribunal
further found that even before coming into the force of the
Wakf Board, there was no evidence to show that the
property in question was a wakf property. On consideration
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of these facts, the Tribunal decreed the suit and order dated
09.11.1999 passed by the Wakf Board in Petition No.11 of
1997 was set aside, and it was declared that the plaintiffs
have title over plaint A schedule item Nos.1 to 3 properties
and the same are not Wakf properties and issued a
permanent prohibitory injunction against the Wakf Board
restraining them from interfering with the peaceful
possession of item Nos.1 to 3 of the plaint schedule
properties and further restrained the Wakf Board from
registering the plaint A schedule item Nos.1 to 3 as Wakf
properties. Aggrieved by the aforesaid judgment and
decree, the first defendant - Wakf Board has come up before
this Court in revision.
7. We have heard Sri.Jamsheed Hafiz, learned
Standing Counsel appearing for the Wakf Board and
Sri.P.B.Subramanyan, learned counsel appearing for the
respondent Nos.1, 3 to 7.
8. Before proceeding with the appeal, we are
constrained to note certain glaring defects in the Revision
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Petition. It was brought to the notice of the Court by the
learned counsel for the 1st respondent that the second
respondent had already died at the time when the revision
petition was filed. By order dated 18.01.2010, this Court
directed the revision petitioner to implead legal heirs of the
deceased second respondent and thereafter again by order
dated 22.07.2011 granted a further period of two weeks to
cure the defects. On 24.02.2016 also, two weeks' time was
granted as the last chance to take steps against the second
respondent. Finally, by order dated 03.06.2024, taking note
of the order passed on 24.02.2016, time was granted for the
revision petitioner to take steps against the deceased
second respondent.
9. We are constrained to know that till today, no
steps have been taken against the deceased second
respondent. Hence, the facts that the revision petition being
filed against a dead person and steps not being taken for
fourteen (14) years would certainly lead to the conclusion
that the revision petitioner is not interested in proceeding
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with the matter. On that count alone the revision is liable to
be dismissed.
10. However, before proceeding to consider the case on
merits we need to see whether the revision petitioner has
made out a case for condonation of delay. C.M.Application
No.1379 of 2009 has been filed by the revision petitioner
seeking for condonation of delay of 647 days. On a perusal
of the affidavit accompanying the application for
condonation of delay, it is seen that the order was passed by
the Wakf Tribunal on 23.10.2007. It is further stated that
the application for getting a certified copy of the order of
the Tribunal was filed only on 21.01.2009. The stamp papers
were called on 28.1.2009 and produced only on 31.1.2009.
The certified copy was received on 7.2.2009. Thereafter, the
records for filing of the case were entrusted to the Standing
Counsel in the High court in March 2009 and that on his
request additional documents were given to him on
25.5.2009. The affidavit, however, does not show that when
the Standing Counsel required the Wakf Board for the
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additional documents and what was the nature of the
documents and its relevancy for preferring the revision
before this Court. It is stated that thereafter the revision was
prepared and sent to the Board. However, it is not clear
when the revision was sent for approval. Even though it is
stated that an explanation was called for by the Board from
the earlier Counsel, no document is produced before this
Court to prove the same. We must necessarily notice that
the revision petitioner received the certified copy on
7.2.2009. However, the revision petition was filed on
10.11.2009, and reason for the delay caused for the period
between 7.2.2009 and 10.11.2009 has not been explained at
all.
11. It is now settled law that each day's delay has to
be properly explained. Even if we are to assume that each
day's delay need not be answered precisionaly, we cannot
but notice that there is no explanation for the delay between
7.2.2009 and 10.11.2009. Furthermore, the Board was
callous in their approach and has not taken steps to effect
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notice on the legal representatives of the deceased 2nd
respondent. On a cumulative assessment of the entire facts
as stated above, we are of the considered view that no
sufficient ground has been made out for this Court to
condone the delay of 647 days in filing the revision petition
and hence the application for condonation of delay is liable
to be dismissed. Consequently, the Revision Petition is also
liable to be dismissed.
12. It is pertinent to mention that the revision
petitioner had filed C.M.Application No.1/2024 to condone
the delay of 5206 days in filing application to set aside
abatement against the deceased 2nd respondent and also to
implead the legal heirs of the deceased 2nd respondent. We
have by separate order passed today, dismissed the said
application, since no satisfactory explanation was caused to
condone the delay in filing the application for setting aside
the abatement. It is seen that as early as in the year 2010,
the revision petition stands abated as against the 2nd
respondent. This is also one of the reasons which persuaded
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us not to proceed with the revision petition any further.
13. Although we are not inclined to condone the delay
in filing the revision petition, in order to find out whether
there is any merit in the contentions raised in the revision
petition, we closely scrutinized the facts, which led to the
passing of the impugned order, with an intention to see as
to whether the revision petitioner has made out a case so as
to warrant a liberal approach on the condonation of delay.
14. Indisputedly, the plaintiffs had set up the title
independently based on the entrustment of the properties to
the predecessor in interest as a kudikidappukaran. On the
death of Sri.Kannappan, his kudikidappu right devolved
upon the father of the plaintiffs, namely Karuppunni. It is
admitted before us that Sri.Karuppunni obtained the
purchase certificate in terms of provisions contained under
Section 72 of the Land Reforms Act, which conclusively
proves the title of the property in his favour. As a matter of
fact, it assumes little significance as to whether
subsequently the property was purchased by the plaintiffs
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from one Sri.Rama Paniker, who had obtained lease hold
rights. The Tribunal after analysing the evidence on record
had found that plaint schedule item Nos.1 comprising of ten
(10) cents, item No.2 comprising of 62/3 cents and item No.3
comprising of 51 cents originally belonged to the
predecessor of one Sri.Mohammed Unni as per Ext.A1
partition deed. Sri.Raman Menon had obtained the property
as per the Patta Chit, Ext.A2, from Muhammad Unni. It has
also come out in evidence that the predecessor of the
plaintiffs, Sri.Kannappan, was residing as kudikidappukaran
in the plaint schedule property. Though by Ext.A3
Sri.Raman Menon had transferred the right over the
property in favour of Sri.Rama Panicker on 27.04.1965,
Sri.C.Karuppunni, the only son of Sri.Kannappan, was
entitled to purchase the kudikidappu rights over the
property. It has also come out in evidence that as per
Ext.A5, Sri.Rama Panicker had transferred a certain extent
of property in favour of Sri.Karuppunni. The remaining
extent of the property was subsequently transferred by
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Sri.Rama Panicker in favour of Sri.Kunhahammed as per
Ext.A6 and later Sri.Kunhahammed obtained Purchase
Certificate in respect of item No.3 of the plaint schedule
property in the year 1977. After obtaining Ext.A7, the
remaining extent of the property was transferred in the
name of the first plaintiff by Ext.A8 sale deed dated
26.09.1983. It is not clear as to how the Wakf Board
entertained the application filed by Sri.K.Muhammed after
a lapse of considerable time stating that there is
encroachment in respect of the Wakf properties.
Admittedly, before the passing of Ext.A10 order, which was
challenged before the Tribunal, there was no registration
cost in respect of the Wakf property. In the absence of any
evidence before the Tribunal to show that the plaint
schedule properties are Wakf properties, the revision
petitioner had no authority much less jurisdiction to
entertain a complaint from the second defendant and pass
Ext.A10 order. Thus, in our considered view, the Tribunal
rightly entertained the suit and decreed the same.
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As an upshot of these discussions, we find that there
is no merit in the revision petition. Accordingly, the revision
petition has to fail. Consequently, both the C.M.Application
No.1379/2009 filed seeking to condone the delay in filing
the revision petition and the revision petition are dismissed.
No order as to costs.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
EASWARAN S.
JUDGE
vv/jg
