Court emphasizes validity of property ownership claims; defendants failed to substantiate allegations of fraud against the execution of property exchange deeds.

ORDER :

1. This order shall dispose of two C.R.P. (Wakf) bearing Nos.28 of 2022 and 29 of 2022 arising out of the common judgment and decree dated 07.03.2022 whereby suit bearing number O.S. No. 303 of 2019 (First Suit) titled as Abdul Salam v. Thazhava Muslim Jama-ath Masjid and Others preferred by the petitioner (in both petitions) has been dismissed and another suit O.S.No.323 of 2019 (second suit) preferred by the respondents/defendants has been decreed in part, declaring a document bearing No.3312/1999 dated 08.10.1999 Exts.A2/B2 to be invalid in law with a further declaration that the first defendant in the second suit who is the plaintiff in the first suit has no right over the Wakf property whereas the other reliefs for declaration and injunction have been declined.

2. Succinctly the facts in brief for adjudication of the controversy are given under:

Petitioner, who is the plaintiff in the first suit claimed declaration that the plaint A schedule property measuring 24 sq. metres is not Wakf but consists of the ‘Kabar’ (graves) of his parents and brother. 1^st defendant is the Thazhava Muslim Jama-ath Masjid represented by president Sri.Shamsudheen, and consequential prayer of injunction restraining the defendants therein from causing obstruction or interference in respect of plant A schedule property. Pleading was based on facts that the Petitioner - plaintiff is the member of 1^st defendant – Jama-ath, registered with the Kerala state Wakf Board and defendant Nos.2 and 3 are the office bearers of the Jama-ath. Thazhava Muslim Jama-ath having a Darul Aman Mosque, Darul Salam Mosque about half kilometre away from Thazhahava, two Thaikavus and Khabarsthan in the compound of Darul Salam Mosque. Plaint A schedule property having an extent of 24 sq. metre, is the first item in the exchange deed executed on 08.10.1999 between the plaintiff and the Khatheeb Ahmed Koya Moulavi, son of Hassankunju Moulavi, in possession and enjoyment of the plaintiff whereas plaint B schedule property having the same extent of 24 sq. metre, is item No.2 in the exchange deed executed in favour of Darul Aman Mosque in the name of Ahmed Koya Moulavi, son of Hassankunju Moulavi, given in exchange of item No.1. plaint C schedule property having an extent of 5 cents belonging to the plaintiff was given as Wakf to Darul Aman Mosque, in the name of Ahmed Koya Moulavi as per the document dated 03.11.1994. Though no mutation was effected, the property stood in the name of plaintiff. On the eastern side of the Darul Aman mosque, 12 cents of the property was also dedicated as Wakf by the family of the plaintiff – petitioner and the remaining property is being used for the activities of the trust in the name of plaintiff’s father, who died on 13.06.1999. His body was buried in the said property adjacent to the Mosque property and there are two other graves which were prepared by his father spending considerable amount. One grave was meant for his father and the other for his mother and another one was meant for the person who died first in the family. Mother died in the year 2006 and her body was also buried in the second grave. Thereafter, his brother Sadhudheen Moulavi also died and buried in the third Khabar. All the graves are having six (6) feet height from the ground level and situated in the plaint A schedule property. Realising the fact that plaint A schedule property was included in the Wakf in the year 1994, the exchange deed in 1994 was executed and B schedule property was given in exchange of A schedule property to the Jama-ath. However, later on the defendants attempted