The judgment clarifies burial rights in public graveyards for Muslims, regardless of sectarian differences, while limiting the Wakf Tribunal's authority over burial practices.

ORDER

T.R.Ravi, J.

Heard Sri Babu Karukappadath on behalf of the revision petitioners, Sri K.P.Majeed on behalf of respondents 1 to 7 and Sri T.K.Saidalikutty on behalf of the 8th respondent Wakf Board.

2. Defendants 1 and 3 in WOS No.30 of 2012 on the file of the Wakf Tribunal, Ernakulam are the revision petitioners. The respondents 1 to 7 filed the suit contending that they were sympathisers of the Kerala Nadvathul Mujahideen (KNM for short) and for that reason, the revision petitioners are harassing them and the other members of KNM. It is contended that the revision petitioners have imposed a ban on petitioners and other members of KNM and excommunicated them from all functions relating to the Munavirul Islam Madrassa. It is also stated in the plaint that the petitioners had proclaimed that they will not allow burial of the dead bodies of the relatives of the plaintiffs and others, in the burial ground attached to the Jama-ath.

3. The petitioners filed written statement contending that the Jama-ath was established long ago and that the members follow the Hanafi Mad-hab, according to which the burial is led by the Imam of the masjid. It was contended that there cannot be a different mode of prayer at the time of burial of dead bodies than what is being followed under the Hanafi tenet. It is further contended that the plaintiffs were followers of the Salafi sect. It is stated in the written statement that the petitioners have not obstructed the burial of the dead bodies of the relatives of the plaintiffs, and that they have no such intentions. The prayer in the suit was for a declaration that the plaintiffs are entitled to bury the dead bodies of the members of their family in the burial ground of the 1st defendant Jama-ath and for a prohibitory injunction.

4. The Tribunal relied on the decision in Abdul Khader v.

Mohammed Ali reported in [ 1989 (2) K.L.T 146 ] and held that the plaintiffs have a right to bury the dead bodies of their relatives in the Khabaristan of the Kalleppully Muslim Jamaat. The Tribunal observed that the petitioners are follwers of Shafi Mad- hab and the plaintiffs are followers of the Salafi sect and that there is a longstanding dispute between the two sects, which cannot come in the way when the burial of a Muslim's dead body has to take place. It is also declared that the burial has to take place in a public graveyard irrespective of the sub-sect of the Jama-ath. It can be seen throughout the judgement that the Tribunal has stated that the revision petitioners are following the Shafi Mad-hab which is not factually correct. Though the revision petitioners/defendants in their written statement have stated that they follow Hanafi Mad-hab, the Tribunal has gone on to say that they follow Shafi Mad-hab.

5. The Hon'ble Supreme Court has inPunjab Wakf Board vs. Sham Singh Harike reported in [(2019) 4 SCC 698], held that the jurisdiction of the Tribunal extends to only dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal; the effect of the ouster of jurisdiction of Civil Court as contained in Section 85 ; which has been held to be not absolute. The prayers as sought for in the suit are ideally to be addressed before the Civil Court. The Wakf Tribunal has however, decreed the suit holding that the plaintiffs have every right to bury the dead bodies in the burial ground in the plaint schedule property and the defendants have no manner of right to obstruct the same. It is further decreed that the defendants are permanently restrained from obstructing the plaintiffs and other similarly situated persons from burying their dead bodies in the plaint schedule property. Since the petitioners have no grievance regarding that portion of the decree, we feel it is not necessary to dismiss the suit itself on the ground of non- maintainability.

6. The limited grievance of the revision petitioners is that while decreeing the suit