IMPORTANT POINT
The Waqf Board holds original jurisdiction over mutawalli appointments, while the Tribunal's role is appellate, as established by the Waqf Act.

JUDGMENT :

The present CRP is directed against the order of the Tribunal whereby the Waqf Original Suit preferred by the respondent No.1 seeking declaration to be the Muthawalli of the scheduled mosque along with 4th defendant namely C.K Ammed with a consequential relief of prohibitory injunction against the defendant Nos. 1 and 2, as per the document No.292 of 1968, the waqf deed, has been allowed. It is pertinent to mention here the defendant No.2 is the petitioner in this Court.

2. Respondent/plaintiff staked the claim on the basis of the waqf deed No.292 of 1968 and claimed the declaration of Mutawalli on the basis of succession and hereditary whereas the defendant Nos.1 and 2 set up a claim on the basis of document Nos. 43 of 1982 and 203 of 1987 and defendant Nos. 5 and 6 claimed to be the President and Secretary. Since the parties were at variance, the Tribunal framed six issues including the issue of relief. The plaintiff examined himself as PW1 and brought on record Exts.A1 to A15 whereas the defendant examined three witnesses DW1, DW2 and DW3 and brought on record the documents, Exts.B1 to B16. Besides commission report filed by Advocate Commissioner and rough sketch were exhibited as C1 and C2. On an analysis of the aforementioned evidence, the Tribunal granted the declaration in favour of the plaintiff and the defendant No. 4 and restrained from defendant No.1 and 2 from interfering into the joint Mutawalliship.

3. Learned senior counsel for the petitioner submitted that the Tribunal did not have the jurisdiction to entertain and try the claim set up in the suit in view of the following provisions of the Act ie., Section 32(2)(g), 63(1) and (2) and 83 (1) and (2) of the Act. In support of the contentions relied upon the judgment of the Supreme Court in S.V Cheriyakoya Thangal v. S.V P Pookoya and Ors. (Civil appeal No.4629 of 2024). It was next contended that he would not be addressing the argument on the merit and demerit of the matter as it would be the domain of the competent authority ie., the Waqf Board to adjudicate the issues and particularly, when the parties have already led an evidence, this court can issue appropriate directions to the Board to decide the matter on merits with 1:1 opportunity to lead any additional evidence, if they deem it appropriate with a time line, for, it has taken a valuable right of appeal before the Tribunal as provided sub Section 2 of Section 83 of the waqf Act. The judgment of the Division Bench empowering the Tribunal to decide the question has been set aside in view of the judgment of the Supreme court (supra). Therefore it would be farcical exercise in commenting upon the evidence or touching the merits of the matter.

4. On the other hand, learned counsel for the respondent submitted that petitioner is estopped to raise such plea as they submitted to the jurisdiction of the Tribunal. When the suit was tried, did not take up the objection and it is too late in the day to raise this plea by taking the assistance of the judgment, at the best the judgment would be taken into consideration prospectively and cannot be construed to be applicable to the matter, which were conceived as far back as in 2019 and a decree passed in November 2023. It would result into a very incongruous situation, in case, the matter is remitted to the Waqf Board. Moreover the question of jurisdiction at this point of time, cannot be raised, for, the petitioner has failed to take up any such objection as evident from the grounds of the revision petition. The power to determine the question with regard to Mutawalli vests with the Tribunal in view of the provisions of sub Section 1 of Section 83 of the Act and urged this Court for adjudication of the issue on the merits of the matter.

5. Learned counsel for the Waqf Board submitted that a very complacent situation has arisen in view of the findings of the Supreme Court, for, the judgment has to be construed prospectively and not retrospectively or in the