IMPORTANT POINT
Prior to amendment the CEO was the authority at the first instance to order eviction of an encroacher from which order any one prejudiced could approach the Tribunal with a suit. After amendment the CEO on being satisfied that the property on which encroachment is alleged, is a wakf; there should be a suit filed before the Tribunal for eviction by the CEO. This does not expressly or impliedly bar a Muttawall from initiating a suit directly before the Tribunal was the ratio. This has no application to the present suit, which is one filed before the amendment.

ORDER :

1. The dispute involved in these revision petitions is regarding the right of management of a Wakf property. O.S. No. 166 of 2001 was filed by the revision petitioner herein before the Wakf Tribunal, Kozhikode praying for a permanent prohibitory injunction restraining the respondents from obstructing the management of the plaint schedule property. O.S. No. 167 of 2001 was filed by the respondents herein seeking a decree of recovery of possession of the plaint schedule property.

2. The properties originally belonged to Ahammed Abdul Haleem who executed a Wakf deed in 1954. He managed the wakf till his death. As per the Wakf deed, his male children are entitled to manage the wakf and if he left no male children, the management of the Wakf property has to be done by the Palli Karnavan of the Kokkur Juma Mosque; the plaintiff in O.S. No. 167 of 2001. The Wakif died without leaving any children, and hence according to the Kokkur Juma Mosque Committee, they alone have the right to manage the property. It is on the above basis that O.S. No. 167 of 2001 has been filed.

3. According to the revision petitioners, the right of management of the masjid vested upon a committee which included a member of the family of the Wakif. They contended that they alone have the right to manage the property. According to the revision petitioners, even though the Wakf deed was executed in 1954, due to the existence of a temple, the construction of a mosque as intended by the Wakif, did not materialise. In 1957, another property on the northern side was given from the family of the Wakif as a Wakf, wherein a mosque and a madrassa were constructed and the same are functioning there. During partition of the properties, the property wherein the mosque situated was dedicated as a Wakf. Later in 1965-66, the above mosque was converted into a Jama-ath mosque. It is contended that the property was being managed by the Darul Huda Masjid Committee even during the lifetime of the Wakif himself. It is further submitted that since the Wakif was happy with the functioning of the committee, he had handed over the original documents relating to the plaint schedule property to the committee. According to the revision petitioners, they have been managing the property for more than 30 years and the respondents who are residing in the same locality were aware of the above facts.

4. Both the suits were tried together. The Tribunal found that the recitals in Exhibit A1 Wakf deed would show that the plaintiffs in O.S. No. 167 of 2001 have got the right to manage the property and hence are entitled to a decree of recovery of possession. As a consequence, O.S. No. 166 of 2001 filed by the revision petitioners has been dismissed. It is against the judgment in the above two cases that these revision petitions filed.

5. Heard Sri. Mayankutty Mather on behalf of the revision petitioners, Senior Advocate Smt. Sumathi Dandapani instructed by Sri. Roy Thomas (Muvattupuzha), on behalf of the party respondents and Sri. T.K. Saidalikutty, learned Standing Counsel on behalf of the Wakf Board.

6. The counsel for the revision petitioner has raised a contention that the prayer in the suit filed by the respondents though worded as recovery of possession is in fact for removing the revision petitioners from the property on the ground that they are not authorised to remain in possession, which comes within the meaning of the term encroachment. It is contended that such a suit is not maintainable before the Wakf Tribunal. He contends that Section 54 of the Wakf Act confers jurisdiction on the Chief Executive Officer (hereinafter refered to as CEO) of the Board to determine such disputes. According to him, the jurisdiction of the Tribunal is akin to an appellate jurisdiction and the same is to be exercised after a definite finding has been entered into by the CEO. The Counsel submits that if the above contention finds favour with this Court, there is no necessity to go into the merits of the co