POOKKADAN MOIDEENKUTTY Vs. KUTTIYALI

JUDGEMENT

(1.) Petitioner, the 6th defendant in the suit seeks a writ of certiorari and quash Ext. P-3. Ext. P-3 is the order of the Wakf Tribunal, Kozhikode holding that the Tribunal has jurisdiction to try the suit filed. A declaration is sought that the dispute as to right to act as Muthawali is not a dispute required by the Wakf Act (hereinafter referred to as the "Act") to be decided by the Wakf Tribunal and the resolution of such dispute sought to be determined in Ext. P-1 falls within the realm of Sections 63, 67 and Clauses (d), (g) and (o) of sub-section (2) of Section 32 of the Act.

(2.) The 1 st respondent (hereinafter referred to as the plaintiff) filed Ext. P-1 plaint making the following allegations. Briefly put the plaint schedule property originally belonged to the tharavad of plaintiff. By document No. 137/1902 a Wakf was created for the purpose of Mosque. As per the document the eldest male member of the family is entitled to manage the wakf. Plaintiff's father was the Muthawali and after his death one K.K. Kunhimoideenkutty had become the Muthawali. The said Kunhimoidheenkutty is the first cousin of plaintiff. He expired five years ago. Plaintiff's brother is a mentally retarded and disabled person. According to the plaintiff he is entitled to act as the Muthawali. He was residing elsewhere and now he has settled down at his native place. It has recently came to the notice of the plaintiff that the 1 st defendant committee and some persons in the locality are having dispute regarding the management of the mosque. On enquiry he came to know that the management of the Wakf was entrusted to the committee on the basis of false documents and false representation. Nobody has right to transfer the Muthawaliship. Hence a declaration is sought that the plaintiff is the Muthawali of the mosque in question and wakf properties. He also sought permanent prohibitory injunction against defendants 1 to 3 restraining them from interfering with the management of the wakf properties. A written statement was filed by defendants 1 and 6 contending inter alia that the suit is not maintainable. Their case is that during 1978 pursuant to a move to form a committee for the management of the mosque some respected persons in the locality interfered in the matter and decided to call a meeting of mahal members. In the meeting a committee of 25 persons were formed. The plaintiff was a party to that committee. It is further alleged that the committee was registered in the year 1980 as per the Societies Registration Act. Elections were held and the plaintiff had participated in the meeting held on 15-3-1994. Thereafter, he resigned from the committee. P.W.1 to P.W.6 were examined and Exts. A-1 to A-9 and Exts. X-1 and X-2 were marked on the side of the plaintiff. On the side of the defendants D.W.1 was examined and Exts. B-1 to B-1 1, X-3 to X-16 were also marked. It is on the basis of the preliminary objection taken that the Tribunal has no jurisdiction in view of the decision of this Court in Mohammed Kunhi, M. A. v. Biju and others, I.LR. 2008 (2) Ker 290 that preliminary issue was considered and the Court proceeded to hold that the Tribunal has jurisdiction to the try the suit. This writ petition is directed against the said order of the Tribunal.

(3.) We heard Sri S. A. Razzak, learned counsel for the petitioner, T. Krishnanunni, learned senior counsel for the 1st respondent and Sri M. M. Saidu Muhammed, learned counsel for the 2nd respondent Wakf Board.