Abrar Juma Mazjid and Others vs Myloor Juma Masjid and Others

P.N. Ravindran, J.—The first petitioner is the Abrar Juma Masjid represented by its Secretary, who himself is the second petitioner in the civil revision petition. The third petitioner is a member of the Jama-ath of the Abrar Juma Masjid. The first respondent is the plaintiff and respondents 2 to 6 are defendants 1 to 5 in W.O.S. No. 27 of 2012 on the file of the Wakf Tribunal, Ernakulam. In this civil revision petition filed with the leave of this Court granted by order passed on 2.9.2013 on I.A. No. 2293 of 2013, the petitioners challenge the decree and judgment passed by the Wakf Tribunal, Ernakulam in W.O.S. No. 27 of 2012. In the plaint in W.O.S. No. 27 of 2012 the first respondent/plaintiff had prayed for the following reliefs:-

"i. to pass a decree declaring that the defendants 1 to 3 or his supporters have no right to bury the deadbodies in the Kabarstan attached to the Myloor juma masjid without obtaining permission from the plaintiff/muthavalli in accordance with the custom and practice in the wakf.

ii. To pass an order of injunction restraining the defendants 1 to 3 and their supporters not to use the kabarstan attached to the Mylur juma masjid without obtaining permission from the muthavalli."

Such a relief was sought on the averment that defendants 1 to 3 who are the members of the plaintiff Jama-ath have openly declared that they will bury the dead bodies of their family members and others, without obtaining permission from the Mutavalli. The plaintiff had also averred that he reliably understands that defendants 1 to 3 have the support of the new masjids and its supporters. The new masjids are named in paragraph 4 of the plaint which reads as follows:-

"4. It is submitted that the custom and practice prevailing in the jama-ath for burying the dead-bodies in the kabarstan is by leading the Khatheeb and mukri appointed by the plaintiff and also after obtaining consent from the Muthavally. Now without the consent and knowledge of the plaintiff two juma masjid has been established recently within half kilometers and 100 meters respectively from the plaintiff''s jama-ath namely Chembazha Juma Masjid and Masjidul Abrar. The said jama-aths have no kabarstan attached to their masjid." 3. The first respondent had along with the plaint filed I.A. No. 229 of 2012 under Order I rule 8 of the Code of Civil Procedure to permit the plaintiff to prosecute the suit in a representative capacity representing all persons having the same interest and to permit it to take out notice by paper publication in the Ernakulam edition of the Chandrika daily or the Siraj daily or the Madhyamam daily. The said application was allowed by order passed on 1.11.2012 and the plaintiff was directed to publish the notice in the Chandrika daily. A draft paper publication dated 5.11.2012 was thereupon produced on 7.11.2012. The text of the draft paper publication is extracted below:-

"BEFORE THE HON''BLE WAKF TRIBUNAL, ERNAKULAM.

W.O.S. No. 27/2012

Myloor Juma Masjid, represented by its Muthavalli, A.M. Abdul Khader : Plaintiff

Azeez K.M. and others : defendants

NOTICE

The above suit was filed before the Hon''ble Wakf Tribunal, Ernakulam for declaration and injunction restraining the defendants and their men from burying the dead bodies without obtaining permission from the plaintiff as against the custom and practice followed in the jama-ath. The case is posted to 10/12/2012 at 11 a.m. for return of notice. If anybody is interested in the matter, can appear and defend the case on the same day, otherwise the case will be decided as nobody has interest in the matter."

After the aforesaid draft paper publication was approved, it was published in the Kochi edition of the Chandrika daily dated 28.11.2012 and it was produced in court on 7.12.2012.

In paragraph 8 of the plaint in W.O.S. No. 27 of 2012, the plaintiff had averred as follows:-

"8. It is submitted that on 26/10/2012 after the juma prayers in the new masjids the defendants 1 to 3 openly declared that they will use the kabarstan of the Myloor Juma Masjid according to their choice and also they will use the service of Khatheeb and mukri according to their choice. Since the matter is affect the larger interest of the members of the mahal and hence the plaintiff filed the suit in a representative capacity under Order 1 Rule 8 of the Code of Civil Procedure." 5. Though it may at first blush appear that the defendants or some among them were impleaded in a representative capacity, from a reading of the affidavit filed in support of I.A. No. 229 of 2012, the application for permission to institute the suit in a representative capacity and the relief sought therein it can be seen that the defendants were not impleaded in a representative capacity. What exactly was the nature of the dispute is also not clear from the draft paper publication which was approved and was later published as stated above. The two new masjids which had come into existence and which are referred to in paragraph 4 of the plaint were also not joined as defendants. Defendants 1 to 3 entered appearance and filed a written statement accepting the plaint averments. The fifth defendant who later got himself impleaded as per order passed on 18.1.2013 on I.A. No. 1 of 2013, filed a written statement supporting the plaintiff. Before the Wakf Tribunal, no evidence oral or documentary was adduced by the defendants. In view of the proof affidavit filed by the plaintiff in lieu of chief examination, in tune with the averments in the plaint and the written statement filed by defendants 1 to 3 and 5 who supported the plaintiff, the court below decreed the suit as prayed for by judgment delivered on 6.5.2013. The petitioners have, as stated earlier, filed this civil revision petition challenging the aforesaid decree and judgment.

We heard Sri. T.M. Abdul Latiff, learned counsel appearing for the petitioners, Sri. S.V. Balakrishnan Iyer, learned Senior Advocate appearing for the first respondent, Sri. M.S. Unnikrishnan, learned counsel appearing for respondents 2 to 4, Sri. K. Shibili Naha, learned standing counsel appearing for the fifth respondent and Dr. K.P. Satheesan, learned Senior Advocate appearing for the sixth respondent. We have also gone through the pleadings and the materials on record. It is evident from the pleadings and the materials on record that the relief sought in the plaint was really one directed against the members of the newly formed Jama-aths referred to in paragraph 4 of the plaint. Notwithstanding that fact, the plaintiff did not join the members of the newly formed Jama-aths as defendants in the suit. The persons who were joined as defendants were not impleaded in a representative capacity. Instead, permission to institute the suit in a representative capacity was sought. The relief sought in I.A. No. 229 of 2012, the application filed by the plaintiff under Order I Rule 8 of the Code of Civil Procedure was to permit it to prosecute the suit in a representative capacity, representing all persons having the same interest as the plaintiff. The plaintiff did not for reasons best known to it, implead the defendants in a representative capacity. It did not also implead the newly formed Jama-aths which admittedly to its knowledge had come into existence. Defendants 1 to 3 who were originally made parties and the fifth defendant who got himself impleaded supported the plaintiff. This resulted in a suit being decreed without the court below considering the question as to whether the permission of the Mutawalli is required to bury the dead.

The Apex Court has in Syed Mohd. Salie Labbai (Dead) by L.Rs. and Others Vs. Mohd. Hanifa (Dead) by L. Rs. and Others, held that if any member of the public is permitted to be buried in a graveyard and this practice grows so that it is proved by instances adequate in character, number and extent, then the presumption will be that the dedication is complete and the graveyard has become a public graveyard where the Mohammedan public will have the right to bury their dead. In Adbul Khader v. Mohammed Ali [ 1989 (2) KLT 146], a learned single Judge of this Court held that if a land is used as a burial ground or for the maintenance of a mosque or the establishment of a mosque from time immemorial, then the land becomes a Wakf by user and the Mutawalli has no right in the property but only a right to supervise and manage it. It was held that every member of the Muslim community has a right to bury the dead body of the family members in a public graveyard. The learned single Judge also held in identical circumstances that the contention of the appellants that the plaint schedule property which is used as a graveyard belongs to the organisation called Mangalam Dam Jama-ath and as the plaintiffs have established another mosque, they ceased to have any right to bury the dead bodies of the members of their families in the plaint schedule properties is untenable. The learned single Judge also held that the concept of universal brotherhood and the right recognised by Islamic Law relating to prayer in a mosque and the burial in a public graveyard are so fundamental that it cannot be brushed aside on the ground that the practical implementation of such a concept would weaken the organisational set up of the Mahal.

In the light of the binding decision of the Apex Court and of the learned single Judge of this Court in Adbul Khader v. Mohammed Ali (supra) with which we are in complete agreement, the impugned decree and judgment cannot be sustained. Though the learned counsel appearing for the respondents submitted that during the pendency of the suit an agreement as regards the burial of dead bodies in the disputed graveyard was entered into in the presence of the Revenue Divisional Officer, Muvattupuzha on 26.11.2012, we are of the opinion that as the suit was decreed after the aforesaid agreement was entered into and the civil court''s decree and judgment will govern the rights of parties, the fact that such a decision had been entered into cannot be a reason for us to desist from interfering with the impugned judgment. Though the learned counsel for the respondents submitted that the suit may be remanded to the trial court so as to enable them to prove the custom and practice prevailing in the Wakf, in the absence of any pleading to that effect in the plaint or proof of such custom or practice as regards the burial of dead bodies of Muhammadans belonging to other Jama-aths, we are of the opinion that such an exercise cannot be carried out in the instant case.

For the reasons stated above, we allow the civil revision petition, set aside the decree and judgment dated 6.5.2013 passed by the Wakf Tribunal, Ernakulam in W.O.S. No. 27 of 2012 and dismiss the suit. The parties shall bear their respective costs.