KANCHANA Vs. SEETHI MARAKKARAKATH ALIKOYA WAKF

JUDGEMENT

(1.) This revision petition is directed against the judgment and decree dated 4.5.2017 passed by the Waqf Tribunal, Kozhikode in O.S.No.56 of 2011. The revision petitioner herein was the plaintiff and the respondents herein were the defendants, in the said suit. It was a suit for declaration that the order dated 13.06.2011 in proceedings No.F2-7073/08-02 passed by the Chief Executive Officer of the Kerala State Waqf Board is null and void, unenforceable and passed without any jurisdiction. The revision petitioner has also sought for a perpetual prohibitory injunction for enforcing or implementing the above order against her and the plaint schedule property. The grievance of the revision petitioner is that the Tribunal had failed to take into consideration the legal as also factual contentions while passing the impugned judgment.

(2.) We have heard the learned counsel for the revision petitioner, the learned counsel appearing for the first respondent as also the learned standing counsel for the second respondent.

(3.) For a proper consideration and appreciation of the contentions raised to mount challenge against the judgment and decree passed by the Waqf Tribunal it is only appropriate to state the facts of the case, in succinct. In the plaint, it is averred that the plaintiff/revision petitioner herein along with her family members have been residing in a hut constructed in the plaint schedule property belonged to one O.M.Subrahmania Chettiar and others who were occupying the said property as cultivating tenants under the original landlords of the property. It is also averred therein that she has been residing there along with her aunt Santha P Shenoy. The said Santha P Shenoy died in the year 2006 and thereafter she is residing in the said hut and therefore, she is entitled to get 'kudikidappu' right over the property in terms of the provisions under the Kerala Land Reforms Act (for short 'KLR Act'). Earlier, she had filed O.A.No.42 of 2008 before the Land Tribunal, Kozhikode. Admittedly, the said O.A. was dismissed. It is her case that as against the order of dismissal she preferred an appeal as A.A.No.22 of 2015 before the Appellate Authority (LR Kannur) and it is still pending consideration. In short, the contention is that the revision petitioner is entitled to fixity of tenure and kudikidappu right in the hut and the land appurtenant thereto in terms of the provisions of the KLR Act. Obviously, the revision petitioner has also made certain other averments in the plaint. According to her, she had modified and repaired the hut in question. It is her precise case that the property in question where the hut is situated is not a Waqf property and the first respondent Waqf is not a registered Waqf with the Kerala State Waqf Board. She has also taken up a contention that the first respondent got no title or possession over the property and if at all they had obtained registration certificate it must have been obtained by playing fraud on the authorities. It is also contended that herself and her family had been in possession of the hut over 58 years with the knowledge of the owners and intermediaries of the property. The specific contention raised by the revision petitioner before the Board to resist the application filed under Section 54(4) of the Waqf Act was that Chief Executive officer got no jurisdiction to entertain the said application. The first respondent filed a written statement before the Tribunal denying the allegations and raising the following contentions:-