Muhamed Mustaque, J.
Defendants 3 and 4 in a suit for injunction are the revision petitioners. First respondent herein was the plaintiff in the suit.
2. The plaintiff, a Committee registered under the Societies Registration Act, filed the suit in respect of Thottumukkam masjid and makham, which, admittedly, were managed by the karanavar of Thottumukkam tharwad. According to the plaintiff, the karanavar who was entrusted with the administration and management of the masjid and makham was unable to look after the masjid and makham and as a result, the masjid and makham became dilapidated. In the year 2002, the Sunni believers who were residing within the local jurisdiction of Thottumukkam masjid decided to form a committee to manage the masjid and makham. Accordingly, the plaintiff Committee was formed to manage the masjid and makham. It is also stated by the plaintiff that the karanavar of the tharwad expressed his inability to manage the masjid and makham and relegated his right of Muthavalliship of the masjid and makham in favour of the plaintiff Committee. To evidence this, the plaintiff produced Ext.A17. The plaintiff Committee initiated renovation of the masjid by collecting fund from the public and while the renovation work is in progress, the third defendant raised a false complaint before the Wakf Board. It is also stated that the defendants have made unlawful claim over the administration and management of the masjid and makham. Apprehending intervention of the defendants with the right of the plaintiff to manage the masjid and makham and also fearing that renovation works would be stalled at the instance of the defendants, the suit was filed.
3. Defendants 1 and 2 filed a written statement and contended that they are unnecessary parties to the suit. However, in the written statement they denied the plaintiff's right to manage the masjid and makham. It is also contended by them that the suit is bad for non-jointer of necessary parties including Wakf Board.
4. The third defendant also filed a separate written statement and contended that the statement in the plaint that Sunni Muslims residing near the mosque used to elect the karanavar of Thottumukkam tharwad as the Muthavalli is incorrect. It was contended that the mosque was managed by the eldest male member of Thottumukkam tharwad as Muthavalli and as per registration before the Wakf Board, bearing No.610, Syed Ahammed Mashhoor Muthukoya Thangal was the Muthavalli at that time and on his death, Syed Ummer Mashhoor alias Mulla Koya Thangal is functioning as the Muthavalli of the mosque. It was also contended that no committee was formed for the administration of the mosque. The fourth defendant was impleaded in the suit. The fourth defendant is contended to be the Muthavalli as per the written statement filed by the third defendant. The fourth defendant in the written statement contended that the mosque is being managed by the karanavar of Thottumukkam tharwad. The fourth defendant also resisted the claim of the plaintiff that the Committee is the Muthavalli of the mosque. The fourth defendant also specifically disputed the claim of the plaintiff that the fourth defendant being the Muthavalli had surrendered his Muthavalliship by executing Ext.A17 agreement. The fourth defendant claimed that defendants 3 and 4 are renovating the mosque.
5. Before the Wakf Tribunal, on the side of the plaintiff, PW1 to PW3 were examined and Exts.A1 to A63 were marked. On the side of the defendants, the fourth defendant was examined as DW1 and Exts.B1 to B4 were marked. The report of the Advocate Commissioner was marked as Ext.C1.
6. The court below framed the following issues:
“1. Whether the suit as framed is maintainable?
2. Whether the plaintiff committee has any legal right of muthavalliship over the mosque?
3. Whether the plaintiff committee is legally constituted one?
4. Whether the alleged surrender of muthavalliship by the 4th defendant is true and valid?
5. Whether the plaintiff is entitled to any relief of injunction against 4th defendant?
6. Whether defendants 1 to 3 are necessary parties to the suit?
7. Reliefs and costs?”
7. The court below decreed the suit restraining the defendants from trespassing into the masjid and makham, except for offering prayers, and from interfering with the peaceful possession and management of the masjid and makham by the plaintiff. This finding was essentially made on evaluation of evidence. The court below was of the view that the plaintiff Committee is managing the affairs of the masjid and mosque and that the dispute regarding muthavalliship has to be decided by the competent authority. The court below observed that till a decision is taken regarding muthavalliship, the present affairs relating to the masjid and mosque will continue. The court below held that interference in the management of the Wakf may be detrimental to the interest of the Wakf until the right of muthavalliship is decided by the competent authority.
8. Challenging the decree and judgment, the revision petitioners/defendants 3 and 4 submit that the court below ought to have dismissed the suit as the Wakf Board was not made a party to the suit. Learned counsel for the revision petitioners points out to Section 90 of the Wakf Act and argues that the proceeding is vitiated as the same is concluded without notice to the Board and, therefore, it is liable to be declared as void. It is also pointed out by the learned counsel that the plaintiff having failed to establish their claim as muthavalli, the Tribunal ought not have granted the injunction restraining defendants 3 and 4, especially when the fourth defendant, being the eldest member of Thottumukkam tharwad, is admittedly the muthavalli of the masjid and makham. Learned counsel further submits that injunction against fourth respondent, whose right has been legally recognized as muthavalli, is unsustainable.
9. We notice Section 90 of the Wakf Act, which provides that in every suit or proceeding relating to a title or possession of a wakf property or the right of a muthavalli or beneficiary, the Court or Tribunal shall issue notice to the Board at the cost of the party instituting such suit or proceeding. Sub-section (3) to Section 90 further provides that in the absence of a notice under sub-section (1), any decree or order passed in the suit or proceeding shall be declared void, if the Board, within six months of its coming to know of such suit or proceeding, applies to the court in this behalf. We notice that essentially Section 90 of the Wakf Act contemplates to issue notice to the Wakf Board to protect interest in the Wakf and to avoid any collusive effort being made before Court or Tribunal to deprive the character of the property as wakf and therefore, it accord enabling provisions to the Board, in case the Board is of the view that such proceeding is detrimental to the Wakf, to apply before Court or Tribunal to declare that the proceeding is void. That provision does not enable the party to the suit to claim that the proceeding is liable to be declared as void because the Board was not arraigned as a party in the suit. Therefore, even in the absence of the Wakf Board in the party array, a suit is maintainable. Maintainability of the suit is to be determined on the basis of the averments made in the plaint and not with reference to the right available to the Board. Therefore, we are of the view that the court below rightly found that the suit is maintainable.
10. The next question to be considered is regarding denial of plaintiff's right as muthavalli and to maintain the suit. We find that, on going through the pleadings and evidence, the court below rightly came to the conclusion that the plaintiff committee is in the management of the mosque and makham and the renovation work is in progress. The court below did not accept the claim of the plaintiff committee that they are the muthavalli. The court below rightly held, based on evidence, that it is for the appropriate authority to decide the question of muthavalliship and not for the Tribunal to decide the same. The court below having found that the plaintiff committee is in possession of the masjid and makham, relegated all other issues relating to the right of management to be decided elsewhere. The Tribunal proceeded to decide the issue from a totally different angle that is to protect the mosque and makham. From the evidence adduced before Court it can be seen that the mosque is lying in a dilapidated condition. The plaintiff being in possession and management of the masjid and makham and also undertaking the renovation work, the court below was of the view that the present state of affairs as on the date of the suit shall continue till a decision regarding muthavalliship is taken by the competent authority. That approach, according to us, is perfectly legal as the paramount consideration in such situation is to protect the subject of the Wakf and not to deprive the committee/persons who are administering such Wakf. The court below also perfectly justified in its finding in the light of the facts revealed before Court that the fourth defendant (DW1) though claimed to be the muthavalli failed to establish that he ever functioned as muthavalli at any point of time. We do not find any reason to interfere with the findings entered by the court below.
Accordingly, we dismiss this Civil Revision Petition. However, without any order as to costs.
(K.T.SANKARAN) Judge (A.MUHAMED MUSTAQUE) Judge ahz/