Revising an order where the Wakf Tribunal dismissed a partition suit for lack of evidence proving property was Wakf. The High Court dismissed the revision, holding the Tribunal's finding was correct.
Revision petition dismissed in limine.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MRS. JUSTICE ANNIE JOHN
THURSDAY ,THE 07TH DAY OF FEBRUARY 2019 / 18TH MAGHA, 1940
CRP(WAKF).No. 81 of 2018
AGAINST THE JUDGMENT IN OS 18/2014 of WAKF TRIBUNAL, KOZHIKODE DATED 07-08-2017
REVISION PETITIONER/22ND DEFENDANT:
KARAYIL HAMSA S/O.MUHAMMED @ MAMMAD,AGED 46 YEARS,KARAYIL HOUSE,PERINTHALMANNA AMSOM,PONYAKURSI DESOM,PERINTHALMANNA TALUK,PATTIKKAD.P.O,MALAPPURAM DISTRICT.
BY ADV. SRI.U.K.DEVIDAS
RESPONDENT/PETITIONER AND DEFENDANTS 5 TO 21 & 23 TO 43:
1 IBRAHIM
S/O.LATE KUNJAMMU,AGED 69 YEARS,KADAMTHODI HOUSE,KEEZHATOOR AMSOM,MULLYAKURSI
DESOM,PERINTHALMANNA TALUK,PATTIKKAD.P.O,MALAPPURAM DISTRICT-679325.
2 MARIYA
W/O.ANAMANGADAN ABU,AGED 60 YEARS,ANAMANGADAN HOUSE,KARKIDAMKUNNU AMSOM,KOLAPARAM DESOM,MANNARKKAD TALUK-676522.
3 SOUDHA BEEVI
W/O.THAYATT ALAVI,AGED 58 YEARS,THAYATT HOUSE, KADUNGAPURAM AMSOM,KATTILASSERY DESOM,PERINTHALMANNA TALUK,MALAPPURAM DISTRICT-679322.
4 KHALID AGED 56 YEARS,KEEZHATOOR AMSOM,MULLYAKURSI DESOM,PERINTHALMANNA TALUK,PATTIKKAD.P.O,MALAPPURAM DISTRICT-679325.
5 YUSAFALI AGED 52 YEARS,KEEZHATOOR AMSOM,MULLYAKURSI DESOM,PERINTHALMANNA TALUK,PATTIKKAD.P.O,MALAPPURAM DISTRICT-679325.
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6 KUNJAYAMMU
AGED 49 YEARS,KEEZHATOOR AMSOM,MULLYAKURSI DESOM,PERINTHALMANNA TALUK,PATTIKKAD.P.O,MALAPPURAM DISTRICT-679325.
7 USMAN
AGED 60 YEARS,S/O.KUNJAYAMMU,MATTUMATHODI HOUSE,KARIYAVATTAM AMSOM,MANNAMALA DESOM, PERINTHALMANNA TALUK,MALAPPURAM DISTRICT-679322.
8 MUHAMMED
AGED 58 YEARS,S/O.KUNJAYAMMU,MATTUMATHODI HOUSE,KARIYAVATTAM AMSOM,MANNAMALA DESOM, PERINTHALMANNA TALUK,MALAPPURAM DISTRICT-679322.
9 PATHUMMA
W/O.KUNNUMMAL MUHAMMED HAJI,NENMINI AMSOM,KONDIPARAMB DESOM,PERINTHALMANNA TALUK,MALAPPURAM DISTRICT-679322.
10 SAFIYA
AGED 70 YEARS,W/O.THAMARATH HAMSA,THAMARATH HOUSE,VALAMBOOR AMSOM,POOPALAM DESOM,PERINTHALMANNA TALUK,MALAPPURAM DISTRICT-679325.
11 MARIYA
AGED 62 YEARS,KARIYAVATTAM AMSOM,MANNAR MALA DESOM, PERINTHALMANNA TALUK,MALAPPURAM DISTRICT-679325. (DELETED)
12 MOIDEEN
AGED 73 YEARS,KARIYAVATTAM AMSOM,MANNARMALA DESOM,PERINTHALMANNA TALUK,MALAPPURAM DISTRICT679325.(DELETED)
13 ASIYA
W/O.KOORIMANNIL KAZHUKUNNUMMAL MUHAMMEDALI,KOORIMANNILKAZHUKUNNUMMAL HOUSE,PANTHALOOR VILLAGE,KADAMBOD DESOM,POST PANTHALOOR,ERANAD TALUK-676521.
14 KHADEEJA W/O.MUHAMMED @ MAMMAD(LATE),AGED 58 YEARS,KARAYIL HOUSE,PERINTHALAMANNA AMSOM,PONNYAKURSI DESOM,PERINTHALMANNA TALUK,PATTIKKAD POST,MALAPPURAM DISTRICT-679325.
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15 PATHUTTI
W/O.KIZHAKKE TALAKKAL HAMSA,KIZHAKKE THALAKKAL HOUSE,THAZHEKKKOD AMSOM,AYANIKKAD DESOM,PERINTHALMANNA TALUK,MALAPPURAM DISTRICT679326.(DELETED)
18 KARAYIL KHADEEJA AGED 48 YEARS,W/O.KHALID,KADAMTHODI HOUSE,PERINTHALAMANNA TALUK,MALAPPURAM DISTRICT679322.
19 KARAYIL YOOSAF
AGED 41 YEARS,KARAYIL HOUSE,PERITHALMANNA AMSOM,PONNYAKURSI DESOM,PERINTHALMANNA TALUK,MALAPPURAM DISTRICT-679322.(DELETED)
20 KARAYIL SHAHARBANU
AGED 42 YEARS,W/O.ABDUL RASAK,THALIYATH HOUSE,NOW RESIDING AT KACHERIPADIYIL HOUSE,MANNARKKAD TALUK,THIRUVAZHAM KUNNU AMSOM,DESOM,-678582.
21 USMAN
AGED 48 YEARS,S/O.KARAYIL KHADEEJA UMMA(LATE)PERINTHALMANNA TALUK,PULAMANTHOL AMSOM,PALOOR DESOM-679323.
22 THOTTASSERY MUHAMMED AGED 43 YEARS,S/O.KARAYIL KHADEEJA UMMA(LATE),PERINTHALMANNA TALUK,PULAMANTHOL AMSOM,PALOOR DESOM-679323.
23 THOTTASSERY ABOOBACKER AGED 33 YEARS,S/O.KARAYIL KHADEEJA UMMA(LATE)PERINTHALMANNA TALUK,PULAMANTHOL AMSOM,PALOOR DESOM-679323.
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AGED 38 YEARS,S/O.KARAYIL KHADEEJA UMMA (LATE),PERINTHALMANNA TALUK,PULAMANTHOL AMSOM,PALOOR DESOM-679323.(DELETED)
25 THOTTASSERY ALI AGED 31 YEARS,S/O.KARAYIL KHADEEJA UMMA(LATE),PERINTHALMANNA TALUK,PULAMANTHOL AMSOM,PALOOR DESOM-679323.(DELETED)(RESPONDENTS 11, 12, 15, 19, 24 AND 25 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER VIDE ORDER DATED 06.09.2018 IN IA 1506/18.)
26 THOTTASSERY MARIYAM AGED 35 YEARS,D/O.KARAYIL KHADEEJA UMMA(LATE),PERINTHALMANNA TALUK,PULAMANTHOL AMSOM,PALOOR DESOM-679323.
AGED 28 YEARS,W/O.ABOOBACKER,POOTHOTTATHIL HOUSE,OTTAPALAM TALUK,EDAPPALAM AMSOM,DESOM,P.O.EDAPPALAM-678308.
AGED 27 YEARS,W/O.VARIYAMKATTIL UMMER,VARIYAMKATTIL HOUSE,MANNARKKAD TALUK,PAYYANADAN AMSOM,DESOM,M.E.S.KALLADI COLLEGE,VELLAPADAM676122.
29 SHAJAHAN AGED 38 YEARS,S/O.MOIDU(LATE)KADAMTHODI HOUSE,MULLIYAKURSI AMSOM,PATTIKKAD AMSOM,PERINTHALMANNA TALUK,MALAPPURAM DISTRICT679325.
AGED 28 YEARS,D/O.MOIDE(LATE),KADAMTHODI HOUSE,MULLIYAKURSI AMSOM,PATTIKKAD AMSOM, PERINTHALMANNA TALUK,MALAPPURAM DISTRICT-679325. 31 ASEEFA
AGED 31 YEARS,D/O.MOIDE(LATE),KADAMTHODI HOUSE,MULLIYAKURSI AMSOM,PATTIKKAD AMSOM, PERINTHALMANNA TALUK,MALAPPURAM DISTRICT-679325.
32 AYISHA AGED 58 YEARS,D/O.MOIDE(LATE),KADAMTHODI HOUSE,MULLIYAKURSI AMSOM,PATTIKKAD AMSOM, PERINTHALMANNA TALUK,MALAPPURAM DISTRICT-679325.
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33 PONNYAMKURSI JUMA-MASJID COMMITTEE PRESIDENT PONNYAMKURUSI AMSOM,POST
PONNYAMKURSI,PERINTHALAMANNA TALUK,PERINTHALMANNA VILLAGE-679322.
35 UNNEEN KUTTY AGED 68 YEARS,S/O.MANNENGAL ILAYEDATH MUHAMMED HAJI(LATE),MANNENGAL ILAYEDATH HOUSE,PULAMANTHOL VILLAGE,CHENMALA DESOM,CHENMALASSERY-679323.
36 KHADEEJA AGED 53 YEARS,W/O.THANIKKAL MUHAMMED KUTTY,VILAYOOR AMSOM,DESOM,OTTAPALAM TALUK,POST VILAYOOR-679309.
37 BEEVI
AGED 48 YEARS,D/O.MANNENGAL ILAYEDATH MUHAMMED HAJI(LATE),MANNENGAL ILAYEDATH HOUSE,PULAMANTHOL VILLAGE,CHENMALA DESOM,CHENMALASSERY POST-679323.
AGED 38 YEARS,W/O.PEERALI MUHAMMED KUTTY,PULAMANTHOLE VILLAGE,PALOOR DESOM,PULAMANTHOLE POST-679322.
39 ALAVI
AGED 43 YEARS,S/O.MANNENGAL ILAYEDATH MUHAMMED HAJI(LATE),MANNENDAL ILAYEDATH HOUSE,PULAMANTHOL VILLAGE,CHENMALA DESOM,CHENMALASSERY POST-678323.
BY ADV. SRI.ANOOP.V.NAIR FOR R1
THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON 07.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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O R D E R
K. Harilal, J.
The revision petitioner is the 22nd defendant in O.S.No.18/2014 on the files of the Wakf Tribunal, Kozhikode. The aforesaid suit was filed by the respondents herein, seeking a decree for partition of plaint 'B' schedule property. Plaint 'B' schedule property consists of 11 items of property. Item No.3 in 'B' schedule is a landed property, having an extent of 18 cents comprised in Survey No.50/1A of Ponnyam Kurissi desom. The petitioner herein has raised a contention that the said property is a wakf property. In order to substantiate his contention, the petitioner herein has produced Ext.B1. In view of the contention raised by the 22nd defendant, the Wakf Tribunal considered the question whether item No.3 in plaint 'B' schedule property is a Wakf property. After
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considering the said objection, in the light of Ext.B1, the court below found that no scrap of paper has been produced to prove the contention raised by defendant No.22. So the Tribunal has no option, but to hold that item No.3 is not in existence and it is not a wakf property. The Tribunal rejected the Original Suit under Order VII Rule 10-A(2) of the Code of Civil Procedure and the parties were directed to appear before the Munsiff's Court, Perinthalmanna. The legality and correctness of the aforesaid finding, whereby the Wakf Tribunal rejected the Original Suit are challenged in this appeal.
2. Going by the impugned judgment, it could be seen that the question of jurisdiction has arisen on the basis of the written statement filed by Defendant No.22. He filed a written statement, in tune with the contention of the first defendant his father, to the effect that
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item No.3 is not available for partition, because it is already sold to Ponnyam Kurissi Juma Masjid Committee long time back and no documents are available by lapse of time. Respondents 37 and 38 also filed written statement contending that no such property as item No.3 in plaint 'B' schedule property, is in their possession, management and administration. Further, defendant No.22 produced Ext.B1 information obtained from the Village Officer, Perinthalmanna, under the Right to Information Act, with regard to the availability of item No.3 of B schedule property. The Village Officer also reported that a property having an extent of 18 cents in Survey No.50/1A is not available in the
Village Records. Thus, Ext.B1 also improbabilises the case of the plaintiff that this property is available for partition.
3. The plaintiff has not adduced any
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evidence to show that such a property is available for partition by taking out a commission with the assistance of a Surveyor. Though the first defendant and his legal heirs would contend that they sold item No.3 to Ponnyam Kurissi Juma Masjid Committee, no scrap of paper or evidence was adduced to prove the said contention also. In the absence of evidence to prove the claim that item No.3 in plaint 'B' schedule property is a wakf property, the Wakf Tribunal found that the Wakf Tribunal has no option but to hold that item No.3 is not in existence and it is not a wakf property and thereby the Tribunal has lost jurisdiction.
4. We do not find any kind of illegality in the aforesaid finding. In the absence of any reason to interfere with the impugned judgment under challenge, this C.R.P.(Wakf) requires to be dismissed in limine and we do so.
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It is made clear that the parties are at liberty to raise their respective contentions during the course of trial and the Munsiff's Court shall dispose of the Original Suit, untrammelled by the findings in the impugned judgment.
Sd/-
K.HARILAL JUDGE
Sd/-
ANNIE JOHN JUDGE
okb
//True copy// P.A. to Judge
2 issues framed by the court
Whether the High Court can interfere under Order VII Rule 10-A(2) CPC when the Wakf Tribunal dismissed a suit due to lack of evidence proving specific property was Wakf property.
Whether non-suit or dismissal by Tribunal for lack of evidence on Wakf status vitally affects the lower civil court's jurisdiction to try the partition suit.
1 provisions across 1 enactments
Karayil Hamsa
Karayil Hamsa
Muhammad Kutty
Ponnyam Kurissi Juma Masjid Committee
K. Harilal
Annie John
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
