MEETHIAN Vs. KERALA WAKF BOARD

JUDGEMENT

(1.) This Second Appeal is directed against the decree and judgment in A. S. No. 89 of 1987 of the Addl. Sub Court, Ernakulam, which was filed against the decree and judgment in O. S. No. 211 of 1983 of the Munsiff's Court, Moovattupuzha. The plaintiff before the Trial Court is the appellant and the defendant is the respondent who is the Kerala Wakf Board. The plaintiff filed the above suit for setting aside the decision of the Kerala Wakf Board declaring that the plaint schedule properties are Wakf properties, under S.27 of the Wakf Act, 1954. The plaintiff's case is that the Wakf Board suo motu conducted an enquiry with respect to 131/2 cents of property in survey No. 1401/5 and 14 cents in Survey No. 1401/4 of Kothamangalam Village and came to the conclusion that the property comprised in Sy. No. 1401/5 constitutes wakf and that the same is to be registered under the Wakf Act. According to the plaintiff, there was no permanent dedication in order to constitute the property a Wakf. The property and the building standing thereon were owned by one Outhal who is a member of Thadathikunnel family and as per his instructions Quran recitals were conducted in the building for 2 or 3 days during Kumbham each year and meals were served to the poor and faithful and the above practice was continued by his successors. It is also alleged in the plaint that there was no creation of Wakf nor an appointment of Muthawalli for the management of the property which is an ancestral property enjoyed by the members of the family for about 100 years prior to the date of the suit. They have effected mutation. It is also alleged that the Wakf Board has no jurisdiction to conduct such an enquiry and to render a decision. Therefore the suit was filed to set aside the decision of the Wakf Board and for a decree of permanent prohibitory injunction restraining the Wakf Board from further proceeding against the property.

(2.) The defendant Wakf Board filed written statement contending that the property is endowed with authority under the provisions of the Wakf Act, 1954, declaring certain properties as Wakf properties and to give direction to the Muthawallis to effect registration of Wakfs before the Board. According to them, the plaint schedule property constituted a wakf property as per the registered udambadi of the year 1950 executed by the predecessor of the plaintiff. The recitals therein relate to annual "Nercha". Recital of Holy Quran from inside the Nercha Palli and the collection of cash from the Bhandaram (chest of offerings) attached to the Nercha Palli coupled with the distribution of food to the poor and the needy constitute a valid wakf. They have conducted a comprehensive enquiry after giving sufficient notice to the plaintiff and passed an order on 26.6.1976. The plaintiff then filed a Writ Petition, O. P. No. 1191 of 1980 challenging the above order. That petition was disposed of with a direction to the Wakf Board to consider the question of applicability of S.27 of the Wakf Act, after affording an opportunity to the petitioner/plaintiff to be heard. Subsequently, the final enquiry was conducted and an order has been passed on 4.12.1982. It is also contended that the plaint schedule property was never treated or administered as a personal property of the plaintiff or his predecessors. After taking evidence the Trial Court decreed the suit with respect to 14 cents of property comprised in survey No. 1401/4 but dismissed the claim with respect to 13 cents of property and the building in survey No. 1401/5.

(3.) Aggrieved by the said decree and judgment the plaintiff filed A. S. No. 90 of 1987 of the District Court, Ernakulam, which was renumbered as A. S. No. 89 of 1987 of the Sub Court, Ernakulam. The learned Sub Judge dismissed the appeal with costs confirming the judgment of the Trial Court holding that there is wakf in respect of property in Sy. No. 1401/5. But there is nothing to show that there is dedication with respect to 14 cents in Sy. No. 1401/4. Board has no case that this property is a wakf property. Aggrieved by the said decree and judgment this Second Appeal is filed by the plaintiff.