Islahi Charitable Trust And Ors vs P.P. Khalid And Ors

Bechu Kurian Thomas, J

Revision petitioners assail the judgment dismissing their suit claiming prohibitory injunction. Revision petitioners were the plaintiffs in W.O.S. No.27

of 2005 before the Wakf Tribunal, Ernakulam. They had sought for a permanent prohibitory injunction to restrain the respondents from interfering with

the administration of a mosque situated in the plaint scheduled property. However, the Wakf Tribunal found that the plaintiff had failed to prove its

possession over the mosque and dismissed the suit. For the purpose of easier comprehension, the parties are referred to herein as they were arrayed

before the Tribunal.

Plaintiffs alleged that the Trust by name Islahi Charitable Trust was founded in 1986 and after purchasing the property it constructed a mosque.

Plaintiffs contended that after construction of the mosque, sub committees were appointed for the administration of the mosque, however from 2001

onwards, administration of the mosque was done directly by the Trust. Alleging that the plaintiffs apprehended interference and obstruction by the

defendants to the functioning and management of the Trust, the suit was instituted originally before the Munsiff's Court as OS.No.237/2002, which

was later transferred to the Wakf Tribunal and renumbered as W.O.S.No.27/2005.

In the written statement filed by the defendants, it was stated that the suit as framed was not maintainable and that the mosque was not constructed

by the plaintiffs, but by the Muslims all around, by raising funds of their own. It was also alleged that the Trust had not invested any money to

construct the mosque and instead a committee was formed for managing the construction, under the leadership of persons who later became the

Treasurer, Secretary and the President of the committee who are arrayed as defendants 1, 2 and 3. According to the defendants, the Trust had never

administered the mosque and also that the sub committee formed for construction of the mosque was never terminated and instead became the

committee of the mosque. It was claimed that the committee was independent of the Trust and the committee was in complete control of the property

and managing the mosque and hence the plaintiffs cannot claim any injunction.

In order to prove the plaintiff's case, the 2nd plaintiff was examined as PW1 and marked Exts.A1 to A55 while the defendants examined the first

defendant as DW1 and marked Exts.B1 to B48.

After analysing the facts and evidence adduced in the case, the learned Tribunal dismissed the suit after finding that the plaintiff failed to prove

possession of the Wakf property and hence injunction cannot be granted.

We have heard the learned Senior counsel Adv.T.Krishnanunni instituted by Adv.T.C.Suresh Menon for the revision petitioners and

Adv.Sri.T.K.Saidalikutty, Standing Counsel for the Wakf Board.

Admittedly, the property was purchased by the plaintiff Trust. In spite of the title to the property remaining with the first plaintiff, the Tribunal

refused to grant an injunction on the ground that the plaintiff had failed to prove any involvement of the Trust in the administration of the mosque. The

Tribunal also found that based upon the commission report, the actual possession and administration of the mosque was with the defendants and in the

absence of any scheme framed for the proper administration of the Wakf, the plaintiffs cannot be granted an injunction on the basis of the evidence

adduced.

The learned Senior Counsel Adv.T.Krishnanunni, submitted that the Advocate Commission Report ought not to have been relied upon by the

Tribunal to enter a finding of possession with the defendants since the commission was taken out when the suit was originally filed before the

Munsiff's Court from where it was returned for presentation in the proper court. It was submitted by the learned Senior Counsel that the marking of

Exts.C1 and C2, the Commission Report and Rough Sketch as court exhibits was therefore not valid in the eye of law and reliance upon the said

exhibits were completely erroneous. The learned Senior Counsel also submitted that the trial Court had erred in concluding that the possession was

with the defendants.

On a consideration of the submissions made across the Bar and on a perusal of the records, we find that Exts.C1 and C2, though written in the

Appendix to the judgment as court exhibits, it was actually marked through PW1 during his cross examination. Thus we cannot find fault with the

Tribunal in marking the Commission Report in the circumstances of the case.

However, the issues raised in the suit were not related to possession of the property but were relating to the administration and management of the

mosque on the property. In order to obtain an order of injunction, the burden is upon the person who wants the court to grant an injunction. In the

instant case the plaintiff sought for an injunction against interference in the management and administration of the mosque. Even though the first

plaintiff claims to be the owner of the property, that by itself will not confer on it a right to claim any injunction relating to the administration and

management of the mosque, since over the property, admittedly a mosque had been built.

Plaintiff will have to establish its entitlement for injunction on the basis of plaintiffs evidence and not on the weakness of the defendant's evidence.

Plaintiff has not adduced any evidence to prove that the plaintiffs are in administration and management of the mosque. The building of the mosque is

alleged to be assessed in the name of the committee and the plaintiff has not even enquired about the same. There is no evidence to show any

expense having been incurred by the plaintiff for the construction of the mosque. The contractor who constructed the mosque has not been examined

nor has any evidence been adduced by the plaintiff to prove payments to the contractor. The plaintiff‘s have thus failed to adduce sufficient

evidence to prove that the management of the mosque was at any point of time with the plaintiff. On a perusal of the evidence adduced in the case,

we find that the plaintiff had not been able to prove that the mosque was being administered by the plaintiff.

The issue can be viewed from another angle also. The first defendant is a trustee of the first plaintiff as well as the committee. The keys to the

mosque, the committee office, safety boxes etc. were retained by the defendants as can be understood from the evidence of DW1. Ext.B42 to

Ext.B47 are the quotations submitted by third parties to the committee for construction of the mosque. The details of the quotations received by the

committee find a mention in Ext.A12. On the other hand plaintiff has not adduced any evidence to show management and administration of the

mosque by the plaintiff. Plaintiffs have thus failed to discharge their burden. In the absence of sufficient evidence adduced by the plaintiffs, in relation

to the issues raised in the suit, we are of the view that the plaintiffs are not entitled to an order of injunction restraining the defendants from interfering

with the administration of the mosque.

Admittedly there is no scheme that has been prepared for the administration of this Wakf. Section 69 of the Wakf Act confers power upon the

Board even on its own motion to frame a scheme for the administration of a Wakf. We are certain that since the Wakf Board is also a party to these

proceedings, the matter will be taken note of by the Board for the purpose of continuing a smooth operation of the Wakf.

Taking note of the disputes arising in the instant case, we are certain that the Wakf Board being vested with the powers under the Wakf Act,

would initiate appropriate proceedings for framing a scheme for administration of the Wakf in accordance with Section 69 of the Wakf Act.

With the above observations, this revision petition is dismissed.