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2017 Supreme(Ker) 1476
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.T. RAVIKUMAR, B. SUDHEENDRA KUMAR, JJ.
SAVAD S/O. SAITHUMUHAMMED - PETITIONER
Vs.
ABDUL WAHAB S/O. KAREEM RAWTHER & ORS. - RESPONDENTS
C.R.P.(WAKF).No. 625 of 2014
Decided On : 16-10-2017
For the Petitioner: SRI. T. KRISHNAN UNNI (SR.), SMT. P.G. BABITHA, SRI. BINOY VASUDEVAN.
For the Respondents: SRI. N. SUBRAMANIAM (CAVEATOR), SRI. M.S. NARAYANAN, SRI. P.T. GIRIJAN, SMT. USHA NARAYANAN, SRI. T.P. SAJID, STANDING COUNSEL.
Important points:
• The revision petitioner/plaintiff had failed to establish his possession over the plaint schedule property cannot be said to be an error or illegality warranting interference.
• In the light of the decision in Chandrabhai K. Bhoir's case (supra) and also in view of Section 11 of the Code of Civil Procedure, the decisions in the order ought not have operated as res judicata.
• As per the orders in decisions Chief Justice of Andhra Pradesh and Others v. L.V.A. Dixitulu 1979 (2) SCC 34, Union of India v. Pramod Gupta 2005 (12) SCC 1 and National Institute of Technology and Others v. Niraj Kumar Singh 2007(2) SCC 481) an order passed without jurisdiction would be a nullity. It will be a coram non judice. It is non est in the eye of law. Principles of res judicata would not apply to such cases.
Headnote:Wakf Act- Section 83(9) & Section 85 - The question of resjudicata –Whether the order vacating the interim injunction initially passed in favour of the plaintiff holding that he had failed to prove the possession, could have been treated as one creating res judicata.
Statement of facts:
The plaintiff is the elected President of the Dhikir Khana situated in the plaint schedule property in Muthalamada Amsom of Chittur Taluk-The plaint schedule property originally belonged to one Chella Rowther who is the father of the power of attorney holder of the revision petitioner and the Dhikir Khana was established in memory of the spirit of Mohiyaddeen Abdul Khader Jailanee. In the year 1981, the aforesaid Chella Rowther had gifted the plaint schedule property to Abdul Rahiman Musaliyar who was then the President of the Dhikkir Khana-After the death of the said Abdul Rahiman Musaliyar, the revision petitioner was elected as the president of the Dhikir Khana in a general body meeting convened on that day and since then he has been running the establishment through his power of attorney holder-The defendants did not dispute the fact that in the capacity of its president it was being managed by Abdul Rahiman Musaliyar. -After the death of Abdul Rahiman Musaliyar, a general body of Kambrathachalla Jama-ath was conducted on 6.5.1983 and one K.V. Noor Mohammed Rawther was elected as the President of the Jamaath-The Dhikir Khana started its functioning on 25.1.1987, it was transferred to Anamari 16 Jamaath. The learned counsel for the respondents submitted that in the written statement filed before the Wakf Tribunal, it was specifically stated that on 6.5.1983, the management of the Dhikkir Khana got vested with Anamari 16 Jama-ath and it was handed over to Kambrathachalla Jamaath in the year 1996. Furthermore, it is stated that thereupon, the committee had spent huge amounts for repairing the building and that the administration of the Dhikkir Khana has been exclusively in the hands of Kambrathachalla Jamaath since 2.10.2001. In short, according to them, the plaint schedule property has been under the exclusive possession of the Kambrathachalla Jamaath even during the lifetime of Abdul Musaliyar and being the party in possession of the property, there was absolutely no question of their trespassing into the said property-
1. Whether the Tribunal has jurisdiction to try the suit?
2. Whether the plaint schedule is a Waqf property?
3. Whether the suit is barred by res judicata?
4. Whether the plaintiff is entitled to get the injunction prayed for?
Finding of the court:
The revision petitioner/plaintiff had failed to establish his possession over the plaint schedule property cannot be said to be an error or illegality warranting interference-When the revision petitioner who approached the Tribunal had failed to establish his possession over the property in a suit for permanent prohibitory injunction-The revision petitioner/plaintiff had not entered the box to give evidence- No grounds have been brought out by the revision petitioner compelling us to invoke the revisional jurisdiction available to this Court in view of the proviso to Section 83(9) of the Wakf Act.
Result: C.R.P. dismissed.
Ravikumar, J.
This revision petition is directed against the judgment dated 12.9.2014 in W.O.S.No.24 of 2010 passed by the Wakf Tribunal, Ernakulam. It carries a question of seminal importance. The revision petitioner herein was the plaintiff and the respondents herein were the defendants, in the said suit for prohibitory injunction. A succinct narration of the rival contentions and case, is required to highlight the question involved.
2. The case of the plaintiff is that he is the elected President of the Dhikir Khana situated in the plaint schedule property in Muthalamada Amsom of Chittur Taluk. The common case of the revision petitioner as also the respondents is that the plaint schedule property originally belonged to one Chella Rowther who is the father of the power of attorney holder of the revision petitioner and the Dhikir Khana was established in memory of the spirit of Mohiyaddeen Abdul Khader Jailanee. In the year 1981, the aforesaid Chella Rowther had gifted the plaint schedule property to Abdul Rahiman Musaliyar who was then the President of the Dhikkir Khana. Due to the ill health of Abdul Rahiman Musaliyar, the institution was to be closed for some time and later, in the year 2000, the said Abdul Rahiman Musaliyar had passed away. Subsequently, on 4.4.2001, the revision petitioner was elected as the president of the Dhikir Khana in a general body meeting convened on that day and since then he has been running the establishment through his power of attorney holder. The respondents herein contested the suit. As noticed hereinbefore, with respect to the dedication of the property to Dhikir Khana, there is no dispute. So also, the defendants did not dispute the fact that in the capacity of its president it was being managed by Abdul Rahiman Musaliyar. However, according to them, after the death of Abdul Rahiman Musaliyar, a general body of Kambrathachalla Jama-ath was conducted on 6.5.1983 and one K.V. Noor Mohammed Rawther was elected as the President of the Jamaath. It is also their case that though the Dhikir Khana started its functioning on 25.1.1987, it was transferred to Anamari 16 Jamaath. The learned counsel for the respondents submitted that in the written statement filed before the Wakf Tribunal, it was specifically stated that on 6.5.1983, the management of the Dhikkir Khana got vested with Anamari 16 Jama-ath and it was handed over to Kambrathachalla Jamaath in the year 1996. Furthermore, it is stated that thereupon, the committee had spent huge amounts for repairing the building and that the administration of the Dhikkir Khana has been exclusively in the hands of Kambrathachalla Jamaath since 2.10.2001. In short, according to them, the plaint schedule property has been under the exclusive possession of the Kambrathachalla Jamaath even during the lifetime of Abdul Musaliyar and being the party in possession of the property, there was absolutely no question of their trespassing into the said property. In such circumstances, according to them, the plaintiff is not entitled to get the prohibitory injunction as sought for.
3. Defendant No.4, the Chief Executive Officer, who is the third respondent herein, in his written statement filed before the Tribunal stated that as per the records, no such wakf was registered with the Wakf Board and therefore, the Wakf Board is not aware of the claim of the plaintiff. Based on the rival pleadings, the Tribunal formulated the following issues for consideration:-
1. Whether the Tribunal has jurisdiction to try the suit?
2. Whether the plaint schedule is a Waqf property?
3. Whether the suit is barred by res judicata?
4. Whether the plaintiff is entitled to get the injunction prayed for?
4. Before the Tribunal, the power of attorney holder of the plaintiff was examined as PW1 and fifth defendant/4th respondent herein was examined as DW1. Exts.A1 to A10 were marked on the side of the revision petitioner/plaintiff and Exts.B1 to B18 were marked on the side of the defendants/re
