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2012 Supreme(Online)(KER) 33618
HIGH COURT OF KERALA
K.HEMA, P.S.GOPINATHAN, JJ
DARUSSALAM ARABIC COLLEGE COMMITTEE – Appellant
Versus
SYED ABDUL KHADER BAFAKYH – Respondent
CRP 781 2007
SRI.K.JAYAKUMAR (SR.), SRI.P.B.KRISHNAN, SRI.MANJERI SUNDERRAJ, SRI.B.PREMNATH (E), SRI.MANJERI SUBIN SUNDER RAJ, SRI.P.A.ABDUL JABBAR, SC, WAKF BOARD
Construction on Wakf properties must align with settlement terms, and the evidence of encroachment must be clearly established.
Headnote:
Wakf - Property Dispute - Wakf Act - Section 83 - The court addressed the validity of construction over Wakf properties, highlighting provisions of management and protection of graveyards under the Wakf Act. The absence of specific evidence regarding encroachment influenced the decision to remand the case for further examination.
Fact of the Case:
The case concerns a dispute over Wakf properties where the plaintiff alleged unauthorized construction over graveyard land by the defendants, violating the terms of a settlement deed.
Issues: Whether the construction of a shopping complex on Wakf properties violated the settlement deed and if it encroached upon graveyard space.
Ratio Decidendi: The court established that constructions on Wakf properties must comply with specific settlement agreements and appropriate evidence is necessary to support claims of encroachment.
Final Decision: The revision petition is allowed, and the matter is remitted back for fresh disposal.
ORDER
Gopinathan, J.
This revision petition under Section 83 of Wakf Act was filed by defendants 1 and 2 in O.S.No.2/2004 on the file of the Wakf Tribunal, Kozhikode. The first respondent herein is the plaintiff before the Tribunal. The second respondent is the third defendant, the Wakf Board. The plaint schedule properties are Wakf properties. It is revealed by the submission from the Bar that the properties were dedicated by the predecessor in interest of late V.Syed Alavi Thangal. By Ext.B1 settlement deed executed by late Syed Alavi Thangal along with the first respondent and two others, the Wakf properties managed by late Syed Alavi Thangal as Muthavalli was handed over to the first petitioner committee, then headed by the first respondent as President. The first respondent later demitted the office of the President and at present, the second petitioner is the Secretary of the committee. The description of the Wakf properties, disclosed from Ext.B1, CRP 781/07 2 would show that at the time of execution of Ext.B1, it contained a srambi, some vacant space and a graveyard. The committee was authorised to renovate the srambi and to protect the graveyard by constructing compound walls. The committee was at liberty to use the vacant space in the manner beneficial for the Wakf.
2. The suit was filed by the first respondent contending that the srambi was re-constructed as Mosque covering the vacant space and the remaining area was the graveyard and that the petitioners were making arrangements for constructing a building in the graveyard over the kabars and that such attempt is not only in utter violation of the terms in Ext.B1 but also high handed, irreligious and immoral and that the first respondent is not in a position to resist the same. With that pleading, the first respondent sought a decree of permanent prohibitory injunction restraining the petitioners from defacing or defiling the plaint schedule properties in any manner in violation of the terms of Ext.B1 settlement. Along with the suit, a petition for interim injunction was also moved.
CRP 781/07 3
3. The Tribunal declined the interim injunction sought for mainly on finding that the petitioners had already commenced the construction. Assailing the said order, first respondent moved this Court in revision as C.R.P.No.485/04. This court declined to interfere with the order on finding that the construction had already commenced, but directed the Tribunal to dispose of the suit on merits.
4. The first respondent had taken out a commission and obtained Ext.C1 report and Ext.C2 sketch. At the time when the Commissioner inspected the property, the proposal for construction was on the southern side of the entrance to the Mosque. On the northern side of the entrance, the Commissioner had noted certain kabars and an existing building having three shop rooms. The revision petitioners, after completing the construction on the southern side of the entrance, the then existing building on the northern side was demolished and in that area a two storied building was constructed. The revision petitioners having completed the constructions, first respondent CRP 781/07 4 amended the plaint seeking a decree for mandatory injunction for removing the newly constructed shopping complex with the allegation that the constructions were made without obtaining necessary permission from the local authority as well as from the Wakf Board and that the constructions were over the kabars.
5. On conclusion of trial, it was found that the Wakf Board and the local authority had given necessary permission for construction of the shopping complex. The Tribunal further found that the construction of the shopping complex on the northern side of the entrance was over the graveyard. Consequently, the suit was decreed directing the petitioners to demolish the shopping complex constructed on the northern side of the entrance. Assailing the above decree of mandatory injunction, this revision is preferred.
6. Recurringl
