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2011 Supreme(Ker) 734

High Court of Kerala
K.M. JOSEPH & M.L. JOSEPH FRANCIS
Puthucode Juma-Ath Committee, Palakkad, Represented by its Secretary M.M.Basheer
Versus
T.S. Abdul Rahiman @ Thangalkutty
C.R.P. Nos. 499 of 2006 & 644 of 2010
Decided on : 02-08-2011

Appearing Advocates:
For the Petitioner:Babu Karukapadath, M.A. Vaheeda Babu, Jagan George, K.A.Noushad, P.G. Pramod, Advocates.
For the Respondents:R2-4, P.K. Muhammed, M. Abdul Rasheed,R1, R5 to 6 T.H. Abdul Azeez, Advocates. R8 A.A. Abul Hassan, SC, Wakf Board, R9 Umesh N. Pai R12 P.K. Muhammed, Advocates

Headnote:

Kerala Wakf Act - Section 15(3), Section 69(4), Section 69, Section 83(9), Section 69 - Wakf property - Seeking a declaration that Putharipadam Mosque and the compound referred to above belonged to and are in the joint possession of the four amsoms we have referred to earlier and that the petitioner has no exclusive right, title, possession or management of the Mosque. The suit was instituted in a representative capacity. The said suit was decreed. In First Appeal, however, the judgment of the trial court was reversed - Held, Board has recognized the rights of all members of the four Amsoms on the basis of the materials before it to administer the Putharipadam Mosque and its properties. We repel the argument of the learned counsel for the petitioner that the order was based on the fact that all Members of the different Amsoms were burying the dead in the burial ground of Putharipadam Mosque. As already noted, there were other materials in the form of documentary evidence of some antiquity. In the circumstances of the case, we feel that the petitioner has failed to establish a case for interference under Section 83(9) of the Act - Court is not inclined to interfere in the matter, it may be indicated that when the final scheme is framed, domination must be provided for to the petitioner, having regard to the history- Revision Petitions are dismissed

Judgment :-

Joseph, J.

1. These two civil revision petitions are filed against the common order passed by the Wakf Tribunal, Ernakulam. C.R.P.644/2010 is filed against the common order passed in W.O.A.No.1/2001 and C.R.P.499/2006 is filed against the common order in W.O.A.No.6/2001.

2. The petitioner is a Jama Ath owning 16 cents of land. There is a mosque situated therein. There is an extensive area of 8 acres and 3 cents. It is known as Putharipadam Jama-ath and its burial ground (Mayyathankara).

3. The dispute essentially relates to the administration of the aforesaid 8 acres and 3 cents. The dispute had its origin in the year 1956. Apparently, it started when the Managing Committee of the petitioner auctioned about 2,000 numbers of teak wood trees standing in the compound of Putharipadam Mosque. Some of the inhabitants and beneficiaries of the said Mosque, it appears, objected to the auction by the petitioner committee. They approached the Executive First Class Magistrate, Palakkad seeking an injunction under Section 144 of the Criminal Procedure Code, restraining the committee from cutting and removing the trees. Injunction was granted initially, but later on, it was vacated. Thereafter, O.S.213/57 was filed in the Munsiff Court, Alathur, seeking a declaration that Putharipadam Mosque and the compound referred to above belonged to and are in the joint possession of the four amsoms we have referred to earlier and that the petitioner has no exclusive right, title, possession or management of the Mosque. The suit was instituted in a representative capacity. The said suit was decreed. In First Appeal, however, the judgment of the trial court was reversed. Against the said judgment, S.A.268/71 was filed. We think, it will not be inappropriate to extract the whole judgment.

“The second appeal arises out of a representative action instituted by the plaintiffs for a declaration that the plaint mosque and the land where it is situated belongs to the Muslim Community of four villages in and around that place and for a further declaration that the Pudikkoda Jumayath mosque of the defendants has no exclusive right of management of the mosque and its properties. While the trial court, when not granting the positive declaration in favour of the plaintiffs, negatived the right of the defendants; in appeal the suit was dismissed. The plaintiffs have come up in second appeal. 2. The basic dispute turns on the right of management of the Juma Masjid. But stemming out of that is the further dispute regarding the right of the second defendant to cut and remove the timber trees in the compound of the mosque auctioned away by the committee of the defendants and purchased by the 2nd defendant. There had been criminal proceedings antecedent to the civil suit and the civil case itself has had fluctuating fortunes in the two courts below. But it looks as if the primary authority competent to deal with this matter is the Kerala Wakf Board. Sec.15 of the Wakf Act, 1954, vests considerable powers of superintendence over all wakfs in the State in the Board. While comprehensive powers are conferred under Sec.15(1) to control the administration of Wakfs. Sub-section 2, particularly sub-clauses (c), (d) and (o) enable the Wakf Board to issue directions regarding the day-to-day administration and the disposal of the income. That is why whenever a suit is instituted relating to the title of Wakf properties the Court has been enjoined to issue notice to the Board. Notice has been given to the Board in this Court and counsel for the Board has entered appearance. In these circumstances, the most appropriate order to be passed in this case would be to direct the Board to decide the right of management and to settle the manner in which the management of the Wakf should take place. Wide powers are already vested in the Board ever to give interim directions. I mention this because trees have been auctioned and some of them have been cut and removed. I have gran



















































































































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