A property must be permanently dedicated to qualify as Wakf; absence of valid dedication or user negates claims of Wakf status.

ORDER :

Amit Rawal, J.

The present civil revision petition is directed against the judgment and decree dated 26.08.2017 rendered in O.S.No.24 of 2013, dismissing the suit for declaration and the order of the Chief Executive Officer of the Wakf Board dated 10.12.2012 in enquiry proceedings bearing No.3727 of 2002.

2. The brief facts of the case is as under:

The plaint schedule property having an extent of 21.31 cents of land comprised in Re-Sy.No.379/1 along with the larger extent belonged to one Veeran and subsequent to his death, his legal heirs, in the year 1937, i.e; vide partition deed No.1392/37 dated 29.01.1937 Ext.A1 partitioned the property. Item Nos.17 to 23 in the partition deed were set apart to Mamu and Ettiyattu Pathumma, whereas the plaint schedule property was shown as item No.19. In the year 1941, a kanam was also created by the Jenmi of Kochi Raja of Kovilakam in favour of Ahmmed Kutty, the great grandfather of the plaintiffs.It is pertinent to mention that, in 1951, again a partition deed was executed by senior Ahmmed Kutty and others. In 2002, an enquiry petition referred to above was instituted at the instance of a Jama-ath called Feroke Mahal Juma Masjid Committee against Ittiyatu Mammu, since dead and represented by the LRs, seeking registration of the property as Wakf on the basis of two documents dated 25.09.1911 vide Ext.A3, alleged kanam/lease deed executed by Ahammed Kutty to Muhammed Haji Thangal and Ext.A4 dated 19.02.1917, a Wakf Deed executed by Nalakath Khadimun Islam Haji Muhammedbena Moulavi Kalantharil Hamadani., which saw the light of the day only in those proceedings which In 2003 again Ettiattu Ayissa Beevi Umma had executed a joint lease deed in favour of Ettiyattu Mammu. As per the provisions of Section 7A and 7B of the Land Reforms Act, 1963 , the tenancy/occupancy rights on the basis of the long and settled possession were conferred and a purchase certificate bearing No.154/92 was issued by Land Tribunal, Beypore on 29.04.1992 Ext.A16. Till such time, there was no dispute. Even in 2007, the building tax was also paid by the petitioners as per Ext.A19.

3. The notice of such proceeding was issued to the petitioners who were arrayed as respondents in the afore enquiry petition and claimed that these documents cannot be looked into for the reason that they have acquired the ownership of the property by virtue of a purchase certificate, thus neither there was any dedication or any wakf by user and therefore cannot be declared to be a wakf property and registered in the records of the Wakf Board. Only sixteen (16) cents of land is being used as pond and remaining land as a barren land and half of the land is divided by way of the National Highway. There is no mosque on the aforementioned property which is about 728 feet away from the pond.

4. The aforementioned pleadings and the arguments/submissions were rejected by the CEO and vide order dated 10.12.2012,ordered to be registered. The aforementioned order was assailed along with the suit for declaration as there was a cloud on the title of the petitioners who are respondents by filing the original suit No.24 of 2013. The stand of the parties in the suit as well as of the respondents in the enquiry proceedings had been same as it had been before the CEO, except that following umpteen number of documents were placed on record as given in the appendix. For the sake of brevity, they are extracted hereunder;

Petitioner' Exhibits