AYYUTTY Vs. MOHAMMED

JUDGEMENT

(1.) Plaintiffs 3 and 4 in O.S. No. 146 of 1969 on the file of the Munsiff's Court, Wadakkancherry are the appellants. The suit was instituted by four plaintiffs for a declaration that the defendants are not entitled to demolish and reconstruct a mosque in the plaint property, and also for a permanent injunction to restrain them from demolishing the existing mosque or from constructing a new one in the property. Plaintiffs 1 and 2 died and the appeal is by plaintiffs 3 and 4 alone. The suit is one under O.1, R.8, Civil Procedure Code in a representative capacity representing all the members of the mahal of the mosque in the plaint property. The defendants are said to be the members of a sub committee formed for the purpose of the reconstruction of the mosque. The first defendant is the President and the 2nd defendant is the Vice President of the sub committee. The suit property is 10.34 acres in extent. The same belonged to one Ammunni who had as per Ext. B-1 dated 29th Kumbam 1067 made a dedication of the property for the purpose of construction of a mosque. The document is in the form of a sale deed for a consideration of Rs. 50 in favour of four persons mentioned therein. The purpose of the assignment as per the document is for the construction of a mosque for which permission had already been obtained from the Collector on an application made by the assignor and the assignees in that behalf. The document recites that the property and the mosque to be constructed on it shall belong to the entire community and that no person shall have any separate right thereto. The assignees are authorised to obtain mutation of patta in the name of the mosque. There is a subsequent document Ext. A-1, dated 20th Medam 1072 executed by the four assignees in Ext. B-1 describing themselves as karanavans of the Porappur Jamayath Puthen Palli. The document is in favour of the mosque itself and it is styled as a wakf deed. It refers to Ext. B-1. It specifically states that the executees of Ext. B-1 do not have any separate rights except as representing the Muslim Community. The document is occasioned for the reason that Ext. B-1 does not designate the property as wakf, eventhough it was a wakf in Substance and effect. Hence in the opinion of the people of the locality a separate document designating the property as wakf was necessary and that is said to be the reason for the execution of Ext. A-1. Ext. A-1 mentions that the mosque contemplated in the document Ext. B-1 was already constructed as per the dimensions stated in Ext. A-1. It is again reiterated that the property is wakf and all members of the community will have equal rights and access to the property. After the construction of the mosque it is stated in Ext. A-1 that religious rites are conducted therein and the compound is used for burying the dead. Towards the end of the document it is stated that the recital of consideration of Rs. 50 in Ext. B-1 is wrong, there was no such payment and that recital is also corrected by this document.

(2.) Another document was produced in appeal and marked as Ext. A-4. This document is dated 25th Makaram, 1067 i.e., one month and three days prior to the execution of Ext. B-1. Ext. A-1 is also by the same person who executed Ext. B-1 and in favour of the same four persons as in Ext. B-1. This document also purports to assign the property in favour of the four persons mentioned therein for the purpose of construction of a mosque and the consideration is stated to be 155 fanams. Both sides agree that the conjoint effect of the three documents - Exts. A-4, B-1 and A-1 - is to dedicate the property as a wakf. The object of the wakf, according to the plaintiffs, is nor merely for the construction of a mosque but also for a burial ground in the compound except as regards the area occupied by the mosque. The plaintiffs claim that the dedication as evidenced by those documents by way of wakf is for a burial ground in the compound and for a mosque which was constructed as mentioned in Ext. A-1 itself. According to the plaintiffs the defendants are attempting to demolish the existing mosque and construct another one in a place where there had been burial of bodies of dead relatives of the plaintiffs. The plaintiffs seek a declaration that the defendants have no right to demolish the existing mosque and construct a new one at the place of burial of the members of the community especially the relatives of the plaintiffs. They seek an injunction against the demolition of the existing mosque and the construction of a new one elsewhere in the compound. There is also a prayer for a mandatory injunction for the demolition of the basement that the defendants have put up for a new mosque and to restore the land to its original condition. The defence to the suit is that the existing mosque is too old and is in a dangerous condition, that it requires reconstruction, that the Kibla of the mosque is in a wrong angle, the existing mosque does not have sufficient accommodation for the Juma congregation and in those circumstances it was decided to have the mosque reconstructed at a more convenient place in the compound. They deny that there was any dedication of the compound as a graveyard. According to them the wakf is for the purpose of the mosque and the graveyard is only an appurtenant to the mosque itself. The mosque is being managed by a managing committee who, in law, is the Muthavally of the mosque. The suit is defective for non joinder of the managing committee. The defendants are the office bearers and members of a sub committee elected by the members of the mahal for the purpose of reconstructing the mosque and they are duly authorised by the managing committee to carry out the work. They contend that the suit is barred under S.55 of the wakf Act read with S.92 of the Civil Procedure Code for the reason that the sanction of the Wakf Board as required by S.55 had not been obtained before the institution of the suit.

(3.) The Trial Court found that the suit in so far as it relates to the relief of declaration and consequential injunction is barred under S.55 of the Wakf Act read with S.92 Civil Procedure Code, and that the plaintiffs have failed to prove that the Wakf is established as per Ext. A-1 document and not as per Ext. B-1 and that as per the document the entire property excluding the mosque is dedicated for use as a graveyard. It was also found that the mosque is administered by an elected committee and that the managing committee is entitled to manage the mosque and its properties. The property is dedicated as per Ext. A-1, that the dedication is for the construction of the mosque and the paramba is used as a burial ground appurtenant to the mosque. It was further found that the plaintiffs are the descendants of the four persons mentioned in Ext. A-1, but they are not entitled to any special rights under the document. Since the plaintiffs want relief only against the defendants who are the members of the sub committee authorised to carry out the work of putting up a new mosque, the suit is not bad for non joinder of the managing committee who is the Muthavalli of the mosque. Even though there is no evidence to prove that the Kibla is not in proper position, in view of the insufficiency of space to accommodate the Juma congregation, it is necessary to reconstruct the mosque with more space, and convenience. There is no inhibition against the construction of a mosque in a burial ground under the Mohammedan Law. It is also not shown that the place for reconstruction has been used as a burial ground. On the above finding the suit was dismissed by the Trial Court. In appeal, A.S. No. 7 of 1973, the Subordinate Judge of Trichur confirmed the decision of the Trial Court. The lower appellate court has, however, found that the suit is not bad for non compliance to the requirements of S.92 Civil Procedure Code read with S.55 of the Wakf Act. The sub committee consisting of the defendants were authorised to put up a new mosque at a different site in the compound and they are entitled to reconstruct the same. It is further found that the plaintiffs have failed to prove any burial at the place where the foundation had been laid and basement constructed for the new mosque. It is also found that there is no prohibition in the Mohammedan Law against the construction of a mosque in a burial ground.