IMPORTANT POINT
The court ruled that tenants claiming ownership through long tenancy must be allowed to present evidence, and the Tribunal should frame issues for adjudication.

ORDER :

Amit Rawal, J.

1. Predecessor of the petitioners was inducted as a tenant by virtue of document No.3954/1944 by the Ediyangara Palliveettil Imbichammad Mulla of the Mosque for running shop rooms which are four (4) in numbers. A larger property including the aforementioned property in dispute was alleged to have delegated to the Wakf as per the certificate of registration issued in 1961. In 2012, the Chief Executive Officer of the Wakf Board initiated the eviction proceedings, branding the petitioners as unauthorized occupants. The said proceedings resulted into an eviction order dated 09.05.2012.

2. The aforementioned order was assailed before the Tribunal in O.S.No.4/2015 which was further renumbered as O.S.NO.70/2019. Before the Trial Court commenced the proceedings, petitioner instituted an application bearing No.64 of 2019 by taking the aid of provisions of Section 7B of the Kerala Land Reforms Act, 1963, for reference to Land Tribunal, of having acquired the ownership on long and settled tenancy. Learned Tribunal rejected the application by taking into consideration, the provisions of Section 108A of the Wakf Act.

3. Sri.Nirmal S., learned counsel appearing on behalf of the petitioners submitted that the Tribunal should have kept the application alive or deferred its hearing, ought to have permitted the petitioners to lead evidence in support of the claim of acquisition of ownership by way of long tenancy as provided under Section 7B for the reason that as the dedication of the Wakf property along with larger chunk of property was in 1961 but by that time, predecessor of the petitioners and petitioners had acquired valuable right as per the provisions of Section 7B. Chapter II deals with the exemptions with regard to provisions of tenancy where there is no exemption as far as the tenancy in respect of the Wakf Board. All the documents were placed on record. Without noticing the aforementioned fact, passed the order and therefore there is an illegality and perversity.

4. On the other hand, Sri.Jamsheed Hafiz, learned counsel appearing on behalf of the Wakf Board submitted that Section 108A would obviously take away the right of the civil court or at the best of the Tribunal for adjudication of issue of tenancy as set up by the petitioners by taking the aid of the provisions of Section 7B of the Land Reforms Act, 1963. In fact, the application was premature, could not have been decided without leading any evidence in affirmative.

5. In rebuttal, Sri.Nirmal S. relied upon judgments of supreme Court in Poovollaparambil Chathu And Others v. V.P. Sudheer and Others ((1999) 1 SCC 115) and Mathevan Padmanabhan Alias Ponnan (Dead) Through LRS v. Parameshwaran Thampi And Others (1995) 1 Suppl. SCC 479).

6. We have heard the learned counsel for the parties and appraised the paper book.

7. Section 108A of Wakf Act and Section 7B of the Land Reforms Act are produced hereinbelow:

Section 108A of Wakf Act

[108A. Act to have overriding effect.—The provisions of this Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.]

Section 7B of the Land Reforms Act

7B. [Certain persons occupying lands under leases granted by in-competent persons to be deemed tenants. [Inserted by Act No.35 of 1969.]

(1) Notwithstanding any-thing to the contrary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of court, any person in occupation of the land of another at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, on the basis of a registered deed purporting to be a lease deed, shall be deemed to be a tenant if he or his predecessor-in-interest was in occupation of such land on the 11th of April, 1957, on the basis of that deed, notwithstanding the fact that the lease was granted by a person who had no right over the land or who was not competent t