JUDGEMENT
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(1.)THESES three Civil Revision Petitions arise from a common judgment passed by the Wakf Tribunal, Kavaratti disposing O. S. Nos. 1 of 1998 and 1 of 2001.
(2.)THE facts necessary for the disposal of the Civil Revision Petitions are as follows: The common respondents 1 to 3 in these three Civil Revision Petitions filed O. S. 1 of 1998 before the Wakf Tribunal, Kavarattti for a decree declaring that the Pattakal family is Mutawalli of the plaint schedule mosque and at present the first plaintiff is the Mutawalli of the same and also for a perpetual prohibitory injunction restraining the defendants from interfering with the rights of the members of the Pattakal Tharwad. Originally there were only six defendants. Subsequently, four more defendants were impleaded in the suit. The paint schedule property in the suit is Androth Jamayath Mosque. In the plaint it is averred that the plaintiffs and defendants are permanent residents of Lakshadweep and are muslims governed by Shafi Madhab. The plaintiffs are the senior most male members of different thavazhies of Pattakal family. Defendants 1 to 3 in the suit are members of Beethaathabiyyapura thavazhi of Aliyathummada Tharwad. The other defendants are staking claims against the interest of Patakal and Aliyathummada Tharwad and hence they are impleaded as the representatives of Androth public. The plaint schedule mosque is a public Wakf, registered with the lakshadweep Wakf Board, Kavaratti. The mosque was originally built and dedicated by Hazrath Ubaidulla, who had brought Islam to the Lakshadweep Island during the 7th Century A. D. His descendants constitute Pattakal family, represented by the plaintiffs. The original Mutawallin of the Wakf was the Wakif Hazrath ubaidulla himself and thereafter by custom and usage, the office of Mutawalli of the Wakf and traditional Khazi of the mosque has become vested and devolved on the members of the Pattakal family. The members of the Pattakal family were conferred with the discretion to choose the most eligible and qualified from among them to be the defacto Mutawalli. The entire body of members of the Pattakal family constitute the de jure Mutawalli. The defacto Mutawalli by virtue of his possession will become both defocto and de jure khazi of the Mosque. The members of the Pattakal Tharawad, who are the descendants of Hazrath Ubaidulla are exercising the powers, privileges and entitlements attached to the officers of Mutawalli and Khazi and also discharging all duties, obligations and responsibilities attached to the above offices. The mosque was registered with the Lakshadweep Wakf Board in the year 1967 and the registration was notified in the Gazette by the Wakf Board interalia showing the name of the members of the Pattakal family as the Mutawalli. At no point of time a person who was not a member of Pattakal Tharawad functioned as Mutawalli or Traditional Khazi The last Mutawalli was Pattakal Pookoya Thangal, who died on 20. 8. 1996. Subsequent to the death of Pattakal Pookoya Thangal, the first plaintiff became Mutawalli and has been functioning as such. According to the plaintiffs, the first Plaintiff was elected by the members of the Pattakal family, who is defacto Mutawalli. The members of the Pattakal family on assumption as Mutawalli of the Wakf has been submitting the requisite retunes under the provisions of the Wakf Act. It is admitted that in O. S. No. 10 of 1974 the then defacto Mutawalli had purported to have entered into a compromise decree by which an attempt was made to constitute an Advisory Committee to aid and advise the defacto Mutawalli. The decree passed in that suit was not binding on the members of the Pattakal family as it was not representative suit and the Mutawalli was not impleaded in his capacity as accredited and duly authorized Mutawalli. The members of the Pattakal family had an absolute right to function as the Mutawalli-cum-khazi and such right cannot be abandoned by any member of the family. The discharge of the function of Mutawalli-cum-Khazi is a sacred religious obligation on the part of the Pattakal family, which is incapable of being abandoned, released or surrendered. In spite of the decree, the offices of Mutawalli and Khazi continued to vest in Pattakal family and there was no divestment of the rights of the members of the Pattakal Tharwad. Notwithstanding the filing of O. S. 10 of 1974 and the decree passed in it, the offices of Mutawalli and Traditional Khazi were continued to vest in the members of the Pattakal family. On 20. 12. 1998 the Executive magistrate issued a direction to the police that the defendants 1 to 3 alone are entitled to lead the prayers in the mosque. Hence, the suit for declaration that the office of Mutawalli of the plaint schedule mosque is vested in the Pattakal family, that the first plaintiff is the duly chosen Mutawalli of the mosque and for consequential perpetual prohibitory injunction restraining the defendants from interfering with those rights of members of the Pattakal Tharwad.
(3.)DEFENDANTS 1 to 3 filed a written statement raising the following contentions: The suit is not maintainable. The plaintiffs are not permanent residents of Androth Island. The plaint schedule mosque is a public Wakf of Androth Island and the rights on the wakf properties are vested with the entire population of the Androth Island. In the past also the plaintiffs' family and members of Aliyathummada Tharwad made several attempts to establish that this mosque belongs to their family and in every such attempts they failed. The mosque was not constructed by Hazrath Ubaidulla. The plaintiffs are not the lineal descendants of Hazrath Ubaidulla. Hazrath Ubaidulla did not act as the Mutawalli of the mosque. So, there is no chance for the members of the Pattakal family to succeed to the post of Mutawalli by inheritance. They are not the hereditary Khazis also. When Hazrath Ubaidulla came to Androth Island, there was no family by name 'pattakal' and at that point of time that family was residing in Amieni Island. Before any member of Pattakal family took up residence in Androth Island, the people of the Androth Island constructed the mosque as per the directions of Hazrath Ubaidulla. The mosque was managed by Rulers (Naduvazhikal ). Khazis were elected by the entire people in the locality taking into consideration their integrity, character, public support, etc. occasionally the members of the Pattakal family were also elected as Mutawallies, but there was no question of inheriting the position of Khazi or Mutawalli. It was also contended that subsequent to the abolition of Rulers (Naduvazhikal) Amin and karnavans were appointed as the rulers of the Island and from that time onwards Amin and Karanvans were functioning as the Mutawalli as representatives of the people of the Island. The contention that the members of Pattakal family are Mutawalli is not true as can be seen from a petition filed by Pallikkutti Mukri in the year 1981 before the Amin Kachery, another application filed by Saidu Koya of Sheik House, the order passed by the Amin on 4. 4. 1922 removing Pattakal Kunhikoya from the post of Khazi and several other documents. Lakshadweep Wakf board has not declared Pattakal family as the Khazi or Mutawalli and even if the plaintiffs are able to create such documents, they are not genuine. When the posts of Amin and Karanavans were stopped, a committee consisting of 14 persons were formed and Pattakal Koyammakoya was elected as the President of the Committee. Differences of opinion arose between the members of Pattakal family and members of the committee. The members of Pattakal family filed O. S. 10 of 1974 and the members of committed filed O. S. 11 of 1974 and during the pendency of the suit, a compromise was entered into between the parties and a decree incorporating the terms of compromise was passed. In that decree, the plaintiffs family had admitted that the mosque belongs to the general public of Androth Island and hence the plaintiffs are estopped from raising any contention against the decree passed in those suits. It was contended that the plaintiffs are bound by the decree passed in O. S. 10 of 1974. Hence, they prayed for the dismissal of the suit.
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