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AYISHA v. HASANTHAL JANA JUMA MASJID - SA No. 528 of 1990(D)  RD-KL 5285 (13 March 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMSA No. 528 of 1990(D)
1. HASANTHAL JANA JUMA MASJID
For Petitioner :SRI M C SEN
For Respondent :SRI.P.K.MUHAMMED
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
O R D E R
M.SASIDHARAN NAMBIAR, J............................................ S.A.No. 528 OF 1990 ............................................
DATED THIS THE 13th DAY OF MARCH, 2007
Defendants in O.S.171 of 1986 on the file of Munsiff Court, Kasargod are the appellants. Plaintiff is the respondent. Respondent instituted the suit seeking a decree for surrender of possession of plaint A schedule property with future mean profits at Rs.350/- per month. The case of the respondent was that plaint A schedule property belongs to the respondent Wakf and Mammunhi, predecessor in interest of the appellants, obtained the property on ground lease pursuant to a registered lease deed dated 26.7.1966 for a term of ten years on a ground rent of Rs.350/- per month payable on 26th of every month and Mammunhi constructed the house and started residing therein and after expiry of the term of lease, he continued as a tenant holding over and on the death of Mammunhi his rights devolved on the appellants who defaulted to pay the rent from 26.3.83 and appellants thereby forfeited the tenancy and respondent is prepared to pay the value of the building and appellants are not entitled to the benefit of Kerala Land Reforms Act and respondent caused to send a notice on 10.2.86 terminating the SA 528/90 2 tenancy and calling upon them to surrender vacant possession of the property and they sent a reply dated 19.2.86 raising frivolous contentions and claiming that they purchased kudikidappu right in respect of the plaint schedule property as per order in O.A.No.907/72. It was contended that respondent Wakf was not a party to the O.A proceedings and the order of Land Tribunal is not valid and binding on the respondent and therefore respondent is entitled to the decree sought for. Appellants filed a joint written statement contending that Ahamad Ali Sherule who is alleged to be the Muthavalli in the plaint is not authorised to file the suit and respondent Wakf is not a registered Wakf and therefore suit is not maintainable. It was also contended that plaint A schedule property belonged to Kaikot Kadavath Tarwad Palli Bhandaram and it was obtained on ground lease by Mammunhi for the purpose of construction of a residential house and it is a kudikidappu as per the provisions of Kerala Land Reforms Act and the registered lease deed dated 26.7.66 is vitiated by fraud and is inadmissible and appellants purchased kudikidappu right as per order in O.A.907/72 and though the order was challenged in appeal before the Appellate Authority, confirming the order of the Land Tribunal, appeal was dismissed SA 528/90 3 and appellants have got assignment of six cents of property including plaint A schedule property and therefore suit is not maintainable. It was also contended that there is no landlord tenant relationship between the respondent and appellants.
2. Learned Munsiff framed necessary issues. On the evidence of PW1, A1 to A7 and B1 to B3 the learned Munsiff dismissed the suit holding that the fact that respondent Wakf is registered with Kerala Wakf Board was not established and Land Tribunal has already assigned the kudikidappu right to appellants and therefore suit is not maintainable. Respondent challenged the decree and judgment before Sub Court, Kasargod in A.S.79 of 1989. Learned Sub Judge, on re-appreciation of evidence, found that respondent is a Wakf registered with the Wakf Board was established by Exts.A3 and A7 which are admissible in evidence. It was also found that Ahamad Ali Sherule was the Muthavalli of the Wakf was proved by the evidence of PW1 and hence he was competent to institute the suit. It was also held that the order of the Land Tribunal is not binding on the respondent Wakf as Wakf was not a party to the O.A proceedings. It was held that respondent is entitled to the decree sought for. Appeal was allowed and decree and judgment SA 528/90 4 passed by learned Munsiff was set aside. Learned Sub Judge granted a decree directing appellant to put in possession of the plaint A schedule property on receipt of the value of the building to be ascertained in the execution proceedings. The decree and judgment passed by learned Sub Judge in A.S.79/89 are challenged in this second appeal.
3. Second appeal was admitted formulating the following substantial questions of law:- i) Whether first appellate court was correct in holding that Ahamad Ali Sherule was competent to file the suit. ii)Whether first appellate court was correct in receiving Ext.A3 and A7 in evidence and whether evidence establish that respondent is registered with the Kerala Wakf Board. Iii)Whether the purchase certificate issued by Land Tribunal in O.A.907/72 is valid against the respondent and if so whether the decree is sustainable.
4. Learned counsel appearing for appellants and respondent was heard. The argument of the learned counsel was that first appellate court erred in accepting Exts.A3 and A7 which are only true copies and not certified copies and therefore relying on Exts.A4 and A7, first appellate court should not have SA 528/90 5 found that respondent is a Wakf registered with Kerala Wakf Board and therefore it should have been found that the suit is not maintainable as found by learned Munsiff. It was also argued that registration number of the Wakf shown in Ext.A7 and mentioned by PW1 at the time of evidence are different and therefore the finding of the first appellate court that respondent Wakf is registered with the Kerala Wakf Board is unsustainable. It was also argued that evidence of PW1 shows that he does not know who was the eldest member of the Kaikot Kadavath Tarwad and evidence of PW1 shows that respondent Masjid was formed only in 1971 and therefore the first appellate court should not have granted the decree. It was further argued that Ext.B1 purchase certificate issued by Land Tribunal upholding the kudikidappu should not have been ignored by the court below and it should have been found that appellants are entitled to kudikidappu right as affirmed by the Land Tribunal and respondent is not entitled to the decree.
5. Exts.A1 and A2, the order in R.I.A.592 of 1950 in O.S.71 of 1945 and the compromise petition filed in that suit before Sub Court, South, Canara establish that in O.S.71/1945, the dispute between the members of Kaikot Kadavath Tarwad was settled SA 528/90 6 and Ext.A2 compromise petition was filed and Ext.A1 order was passed. It is also proved that pursuant to the compromise the Tarwad house and the mosque in R.S.No.51/19 of Kasargod Kasba was dedicated as Wakf. Paragraph 3 of Ext.A2 establish that the Tarvad house and mosque shown in paragraphs 1 and 2 are retained and dedicated by members of the Tarwad as Wakf property under the Muhammadan law for religious and charitable purposes and the property thus dedicated is to be trust property of permanent character and members of Tarwad have no right in the said property thereafter and have no authority to sell, mortgage or alienate it in any manner possible. It also provide that the trust property is to be managed, subject to the terms mentioned therein, by the third defendant in that suit during his life time and after him by the senior most male member and thereafter by the eldest member of the female descendants. Paragraph 4 of Ext.A2 makes it clear that the Tarwad property R.S.No. 51/15, 51/16, 51/18 and three cents east to it and 51/19 of Kasargod Kasba containing the mosque and all buildings are retained undivided as trust property for the benefit of and expenses and maintenance of the said mosque situate therein and all the members of the Tarwad dedicate the SA 528/90 7 entire property comprised in the said survey numbers as Wakf property under the Muhammadan law for religious and charitable purposes. It also provides that out of the income of the property referred to therein the said mosque is to be managed properly and efficiently and members have no private or individual right over the property and no right to sell or mortgage or alienate the property. Learned Sub Judge, on the evidence, rightly found that a Wakf was created under Ext.A1 and A2 and on the creation of Wakf, members of the Tarwad lost their right over the property.
6. Though learned counsel appearing for the appellant relying on the decision of the High Court of Oudh in Khadim Ali V. Jagannath(1941 Oudh 77) and Section 76 of Indian Evidence Act argued that Exts.A3 and A7 should not have been relied on by first appellate court, I cannot agree with the argument. Ext.A7 is a certificate issued by the Kerala Wakf Board establishing that respondent Wakf was registered with Kerala Wakf Board. Ext.A3 is the copy of the audit report of accounts of the respondent Mosque. Though learned Munsiff did not rely on those documents, learned Sub Judge considered the evidentiary value of Ext.A3 and A7, in the light of the decision of SA 528/90 8 this court in Thatha V. Paru(1985 KLT 1069) and Joint Agricultural Marketing Adviser V. Baby(1982 KLT 850) and held that the documents are admissible in evidence. I do not find any reason to interfere with that finding. Though much was argued on the difference in the registration number of Wakf seen in Ext.A7 and the one pleaded, I do not find any substantial difference in the registration number except that letter B is also seen before the number in Ext.A7, there is no substantial variance in the number. Evidence establish that respondent Wakf is registered with the Kerala Wakf Board and is therefore entitled to institute the suit.
7. Then the question is whether the signatory to the plaint namely Ahamad Ali Sherule is competent to act as Muthavalli of the respondent Wakf. Though learned Munsiff held that evidence of PW1 does not establish that Ahamad Ali Sherule is the seniormost member of the Tarwad under Ext.A2 the seniormost male member has to manage the property. Learned Sub Judge rightly appreciated the evidence and found that the signatory to the plaint was the Muthavalli. Appellants have no specific case that somebody else was the Muthavally. The evidence of PW1 establish that Ahamad Ali Sherule , who was SA 528/90 9 the 73rd defendant in Ext.A1 suit, was the present Muthavalli and he is competent to institute the suit. I find no reason to interfere with that factual finding entered into by learned Sub Judge, in exercise of the powers of this court under Section 100 of Code of Civil Procedure.
8. Then the question is whether Ext.B1 certificate of purchase of Kudikidappu granted in O.A.907/72 is binding on respondent Wakf. As rightly found by learned Sub Judge from the date of Ext.A2 members of Kaikot Kadavath Tarwad have no right over the Wakf property as there was a dedication and creation of Wakf. Therefore the order obtained by the appellants from the Land Tribunal or the purchase certificate issued pursuant to that order impleading the members of the Tarwad is not binding on the respondent Wakf or its properties. Even though it was argued by learned counsel appearing for respondents in O.A.907/72 eldest male members of the Kaikot Kadavath Tarwad were impleaded, there is no case that they are the Muthavalli of the Wakf or the persons authorised to manage the Wakf. Therefore learned Sub Judge rightly held that the order in O.A.907/72 obtained without impleading the Wakf is not valid and binding on the respondent Wakf or its properties. SA 528/90 10 Learned Sub Judge rightly found that on the strength of Ext.B1 purchase certificate in O.A.907/72, appellants are not entitled to contend that they cannot be evicted from the plaint schedule property.
9. But then the crucial question is whether respondent is entitled to get the decree for surrender of possession of the property without deciding the question whether appellants are entitled to the benefit under Kerala Land Reforms Act. Unfortunately this question was not property considered by the courts below. In view of the order obtained from the Land Tribunal in O.A.907/72, whereunder appellants were permitted to purchase kudikidappu right, appellants did not contend that the suit is to be referred to the Land Tribunal as provided under Section 125(3) of Kerala Land Reforms Act. On the other hand in view of Ext.B1 purchase certificate it was contended that appellants were the absolute owners of six cents of property including the plaint schedule property and therefore there is no landlord tenant relationship. Once it was found that the order in O.A.907/72 is not valid and binding on respondent, before taking delivery of the property, claim of the appellants for the benefit under Kerala Land Reforms Act is to be decided. The question is SA 528/90 11 whether for that purpose suit is to be remanded. While considering that question it is to be borne in mind that appellants did not contend before the courts below or in the second appeal that question of kudikidappu should be decided by referring the question to the concerned Land Tribunal.
10. Learned counsel appearing for respondent argued that necessary ingredients to claim kudikidappu right was not pleaded and therefore the question whether appellants are entitled to kudikidappu will not arise for consideration at all and therefore there is no necessity for a remand.
10. Learned Sub Judge while granting the decree for surrender of possession of the plaint schedule property directed respondent to deposit the value of the building, which is to be ascertained by the executing court. Therefore before granting delivery of possession of the plaint schedule property, value of the building is to be ascertained in the execution proceedings and respondent has to deposit the value. If that be so, the question whether appellants are entitled to kudikidappu right could also left open to be decided in the execution proceedings. When the respondent files an execution petition, to fix the value of the building, to be deposited by respondent, the executing SA 528/90 12 court shall decide the question whether appellants are kudikidappukars entitled to the benefit of Kerala Land Reforms Act. That question has to be decided by the executing court in accordance with law after referring the question to the Land Tribunal under Section 125(3) of KLR Act. If executing court finds the appellants are entitled to the benefit of kudikidappu, then the decree for recovery of possession cannot be executed. It is made clear that respondent is entitled to apply to the Land Tribunal to shift the kudikidappu to any other suitable place belonging to the Wakf as provided under Kerala Land Reforms Act. Second appeal is allowed in part modifying the decree providing that in the execution proceeding the value of the building and the question whether appellants are entitled to kudikidappu right shall also be decided. No cost.
M.SASIDHARAN NAMBIAR, JUDGElgk/-
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