Abdul Rahim and H. Hamsa Hajee vs Assan Kani Rawther and Others

P.S. Gopinathan, J.—This revision petition u/s 83(9) of the Wakf Act was filed by the 2nd and 6th defendants in O.S. No. 17/2001 on the file of the Wakf Tribunal, Kollam. The above suit was originally instituted by Mytheen Vava Rowther. Pending the suit he died. The next senior male member who is the first respondent got himself impleaded and prosecuted the suit. Main averments in the plaint are that the plaintiffs are the sons of deceased Amian Rawther to whom plaint A, B and C schedule properties belonged. He executed Exhibits A1 and A2 settlement deeds dated 29/9/1956 and 18/6/1958 in favour of his eldest son Mammed Rowther. As per Exhibits A1 and A2 on death of Mammed Rowther, the property would devolve upon the next elder son who was the original plaintiff and on his death it would devolve upon the next eldest male member, the supplementary 2nd plaintiff and so on. In plaint A schedule property there is a Thykkavu and Madrassa to which the Muslim community in the locality had right to worship and it should be maintained as such. Plaint B and C schedule properties are settled to the donees for maintaining the Thykkavu and Madrassa and ever since the donees in succession were managing properties. The defendants who are neighbours had no manner of right over the plaint A, B and C schedule properties and that they had been attempting to trespass into the plaint schedule properties and to interfere with the administration of the properties including Thykkavu and Madrassa by the plaintiffs for which they have no right. With these plea, the plaintiffs sought a decree for declaration of the right of administration and decree for prohibitory injunction restraining defendants from interfering with the administration and management of the properties.

Defendants in their joint written statement contended that the plaint schedule properties are Wakf properties and therefore plaintiffs had no right title or possession over the plaint schedule properties and that as per Exhibits A1 and A2 Wakf deeds, plaint A schedule property was set apart for the use of the local Muslims for their worship and therefore the plaintiff had no right to seek any injunction in respect of the plaint schedule properties. It was further contended that plaint B and C schedule properties were dedicated for the maintenance of plaint A schedule property and that ever since Exhibits A1 and A2, plaint B and C schedule properties were managed and used by the Muslims of the locality for their religious purpose. The local Muslims of the locality constructed a Mosque in the property using public funds. A committee was formed for the administration of the Mosque and preservation of the Wakf. Defendants were elected as office bearers of the committee which was functioning for the benefit of the Muslim community and was managing the requisite official documents like marriage register, attendance register etc and that the committee had planted 450 rubber trees in the plaint schedule properties. Plaintiffs had no right to obstruct the administration of the Wakf by the committee consisting of defendants and prayed for the dismissal of the suit. 4. In the light of the above pleadings following issues were raised before the Tribunal:

Whether plaint properties are Wakf properties?

Whether the plaintiff has title to and possession of plaint properties and right to restrain defendants from trespassing and taking incomes from the plaint properties?

Whether plaintiff has right to administer plaint properties and restrain defendants from interfering with the administration of properties?

Whether court fee paid is sufficient?

Reliefs and Costs?

Issue No. 4 was considered as preliminary issue and found that the court fee paid was sufficient with reference to the pleadings. Parties were sent for trial on other issues.

On the side of the plaintiffs, second plaintiff was examined as PW1. Second defendant was examined as DW1.

Exhibits A1 to A20, B1 to B13 and C1 and C1(a) were marked. On evaluation of the evidence, the Tribunal arrived at a conclusion that plaint A, B and C schedule properties are dedicated Wakfs and that in the plaint A schedule property, there is a Mosque and a portion of plaint B schedule property is used as public grave yard. Therefore, prayer for declaration of title and injunction was declined. Referring to Exhibits A1 and A2, it was found that the right to administer the Wakf or to act as Muthavalli in respect of B and C schedule properties is vested with the eldest male member of the Wakif''s family. Consequently, the suit was decreed in part. Defendants were restrained by a permanent prohibitory injunction from interfering with the management of the plaint B and C schedule properties by the 2nd plaintiff. All the reliefs sought in respect of A schedule was declined.

Assailing the above decree, defendants 2 and 6 have now come up in revision. We have heard Adv. SRI. T.H. Abdul Azeez, the learned counsel appearing for the petitioners and Adv. SRI. A.R. Dileep, the learned counsel appearing for the first respondent. Respondents 3 and 6 were deleted from the party array. None represented the other respondents.

Exhibit A1 is relating to A and B schedule properties. Exhibit A2 is relating to C schedule property. In Exhibit A1, in unambiguous terms, it is stated that the right to administer over the B schedule property is vested with his children and no other person has got any right. Averments in Exhibit A3 in respect of C schedule is almost identical. Relying upon Exhibits A1 and A2, the contention of the first respondent is that the right to administer B and C schedule properties are vested with the first respondent, who is now the eldest male member in the family of the Wakif. On the other hand, the case of the revision petitioners is that after the construction of the Mosque, there was a congregation of the members of the Muslim community and a committee was elected and thereafter the committee is in administration of the plaint A, B and C schedule properties. Curiously, there isn''t any bit of document to show that there was any such meeting of the members of the Muslim community or that any committee was elected for the administration of plaint B and C schedule properties or that the hereditary Muthavalli was ousted at any time or that the committee had taken charge of the administration of B and C schedule properties. In the evidence, it is revealed that for sometime there was a committee but later they gave their resignation and thereafter there was no committee at all. Having due regard to the facts and circumstances of the case, especially with reference to Section 42 of the Wakf Act, we find that we need not go deep into that dispute because Section 42 mandates that when ever there is change of Muthavalli that shall be reported to the Wakf Board. Admittedly, there is no any such report made to the Board from any source. Adding to that it appears that there is nothing on record to come to a conclusion that any committee is functioning or that the committee is taking income from the properties or that they are maintaining any account or that they had been submitting any statement of accounts before the Wakf Board. The other defendants who claimed to be members of the committee along with the revision petitioners no more support the petitioners. Two of them were removed from array of parties even at the instance of the revision petitioners. That fact itself would belie the plea of a committee administering B and C schedule properties. Such being the materials on record, we find that the Tribunal below was justified in arriving at a conclusion against the revision petitioners in respect of B and C schedule properties. It is also crucial to note that no other member who is a beneficiary to the Wakf is coming forward to claim the existence of any such committee for the administration of the Wakf. The evidence of DW1 is contrary to Exhibit A1 and A2 whereby the properties were settled and dedicated. The evidence of PW1 is in tune with the documents. There is no reason to disbelieve PW1. On the other hand the evidence of DW1 is not believable. In the above circumstance, we find that the judgment impugned is not at all vitiated so as to be rectified in exercise of the revisional powers. Revision petition is devoid of merits.

In the result, the revision petition is dismissed. No order as to costs.