Judgment :- 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 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. 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. 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. 4. The 4th defendant filed a separate written statement, contending as follows: the suit is not maintainable as there was bar for filing such a suit under the provisions of the Wakf Act, 1995. 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. 4. The 4th defendant filed a separate written statement, contending as follows: the suit is not maintainable as there was bar for filing such a suit under the provisions of the Wakf Act, 1995. The Wakf Tribunal does not have jurisdiction to entertain and decide a suit of this nature and on that count also the suit has to be dismissed. The averment that the plaintiffs are the descendants of Hazrath Ubaidulla is denied. The averment that the offices of Mutawalli and Khazi devolved upon the Pattakal family is false and denied. The averment that the members of the Pattakal family are choosing a member of that family as defacto Mutawalli is also denied. The entry in the gazette notification of 1.11.1968 does not confer any right on the members of the Pattakal family. There is suppression of material facts as the plaintiffs have not stated the entire entry in the gazette notification. The averment that from time immemorial onwards the members of Pattakal family are performing the functions of Mutawalli and Khazi is denied. Late Pattakal Pakkoya Thangal was discharging the functions of Mutawalli not as the member of the Pattakal Tharwad, but in his personal capacity. Thee first plaintiff was employed in Lakahadweep and Health Services and was working as Health Inspector in Kavartti and various other Islands and that fact alone is sufficient to prove that he was discharging the functions of Mutawalli is false. In the year 1974 a committee was managing the affairs of the mosque. A dispute arose between the members of the Pattakal family and the committee regarding the Mutawalliship and O.S.10 of 1974 was filed by the then Karanavan of the Pattakal family and O.S.11 of 1974 was filed by the members of the committee. As per clause-5 of the compromise, it was agreed to by all parties that till a new committee was elected, the existing committee would govern the mosque and act as the Mutawalli of the mosque. The contention of the plaintiffs is that the compromise decree passed in O.S.10 of 1974 is not binding on the members of the Tharwad in disputed. The contention of the plaintiffs is that the compromise decree passed in O.S.10 of 1974 is not binding on the members of the Tharwad in disputed. There is no question of abandonment of the right of Mutawalliship or Khaziship because the pattakal Tharwad has no right for the same. The decree is binding on the plaintiffs and they are estopped from contending that the same is not binding on them. It is also contended that the said decree operates as res judicata. The members of Pattakal Tharwad are not having any right to hold the office of Mutawalli-cum-Traditional Khazi of the Mosque. In the year 1985, a dispute arose between two groups of people and the Executive Magistrate of Androth initiated proceedings to close the mosque and it was reopened in 1987. The plaintiffs’ group is a minority group and in fact they left the mosque and started their prayers in another mosque by name “Kunhammakka Palli”. The majority belongs to the Other group, known as “Lakshadweep Shareeath Pravarthaka Sambarka Samithi” (“LSPSS” for short) and the 4th defendant is the Secretary. According to the 4th defendant, that group is in management of the mosque. So, he also prayed for the dismissal of the suit. 5. The 5th defendant filed a written statement raising the contentions which are identical to those one raised by defendants 1 to 4. 6. The 6th defendant also filed another written statement raising the same contentions raise by the 4th defendant. 7. Defendants 7 to 9 filed a separate written statement disputing the right of the plaintiffs’ family to act as the Mutawalli and Khazi. It was contended that they are not in a position to deny the averment that the mosque was constructed by Hazrath Ubaiddulla, but the contention that the Pattakal family is the descendants of Hazratha Ubaidulla is denied. It was specifically contended at Pattakal family and Hazrath Ubaidulla are not in any way related. The contention that the members of Pattakal family are acting as mutawalli and Khazi is denied. The gazette notification dated 1.11.1968 does not confer any right to the members of Pattakal family to act as Mutawallies. The averment that traditionally the members of Pattakal Tharwad is discharging the functions of Mutawalli and Khazi from time immoral is denied. The contention that the members of Pattakal family are acting as mutawalli and Khazi is denied. The gazette notification dated 1.11.1968 does not confer any right to the members of Pattakal family to act as Mutawallies. The averment that traditionally the members of Pattakal Tharwad is discharging the functions of Mutawalli and Khazi from time immoral is denied. According to defendants 7 to 9, some members of the pattakal family also acted as Mutawalli, but not because of their connection with the Pattakal family but because they were elected from the people of Androth Island. It was also contended that the first plaintiff was employed in Lakashadweep Healthy Services and working as a Health Inspector in Kavaratti and other Island and as such the contention that he was discharging the functions as Mutawalli is false. The allegation that the decree passed in O.S.10 of 1974 was abandoned is denied. It was specifically contended that the plaintiffs are bound by the decree. It was also contended that in the year 1986 an ideological difference of opinion erupted among the members of the Mahal and majority of the people formed themselves into members of one group known as “Jumayath Himyathin Shariatil Islamiya” (“JHSI” for short) and the other group, as stated earlier, known as “LSPSS”. It was contended that disputes arose between these two groups and the Executing Magistrate had intervened and take proceedings under the Code of Criminal Procedure. It was also contended that in view of the fight between the two groups, number of proceeding were initiated by the Executive Magistrate and other officers and that is affecting the peaceful atmosphere of the mosque and taking advantage of that fact, the plaintiffs approached the Tribunal with the suit. It was also contended that for the smooth conduct of the affairs of the mosque it is necessary to convene an election under the guidance of a Commission appointed by the Court and after electing such a committee, the administration of the mosque shall be entrusted with such a committee. 8. It was also contended that for the smooth conduct of the affairs of the mosque it is necessary to convene an election under the guidance of a Commission appointed by the Court and after electing such a committee, the administration of the mosque shall be entrusted with such a committee. 8. The defendants 7 to 9 in O.S.1 of 1998 along with two others filed O.S.1 of 2001 before the Tribunal for a declaration that none of the defendants have got any special right to hold the post of Mutawalli or Khazi and the mosque belongs to the entire members of the Mahal and also for framing a scheme and for election of a committee. The plaint averments are as follows: the plaintiffs are the residents of Androth Island and they are members of the Mahal of Jumayath mosque. The suit is filed in a representative capacity and since it is not possible to impaled all the members of the Mahal, the plaintiffs may be allowed to publish notice under Order VIII Rule 1 of the Code of Civil Procedure. The plaint schedule mosque was constructed centuries back and there is dispute as to who actually gave leadership for the construction of the mosque, but one thing admitted by everybody is that this was constructed by the members of the Island as a whole. On several occasions the mosque was renovated, reconstructed and all such additional constructions, renovations or reconstructions were done by the members of the Mahal as a whole. It was contended that the mosque is not the property of any family of tharwad and no family or tharwad in the Androth Island had any special right in the management of the mosque. It belongs to the entire Muslim or Androth Mahal. The right to take a decision as to how the administration of the mosque shall be conducted also vest with the members of the Mahal. Disputes arose between the elected members and the family and certain decisions were rendered in those suites, but those decisions are not binding on the entire members of the Mahal. It was also alleged that from the year 1986 onwards majority of the members of the Mahal are either joined in LSPSS or another organization by name JHSI. There are lot of members in the Mahal who have not jointed these two organizations. It was also alleged that from the year 1986 onwards majority of the members of the Mahal are either joined in LSPSS or another organization by name JHSI. There are lot of members in the Mahal who have not jointed these two organizations. Number of disputes arose between LSPSS and JHSI and proceedings were initiated by the Executive Magistrate, which reached up to this court. Neither LSPSS nor JHSI has got any right over the affairs of the mosque. The plaintiffs in O.S.1 of 1998 are members of JHSI and 4th defendant in that suit is the secretary of LSPSS. Neither JHSI nor LSPSS or pattakal Tharwad has got any special right over the administration of the mosque. Because of the frequent disputes, peaceful atmosphere of the mosque had deteriorated and every year, even that the time of holy Ramzan, disputes are raising. In view of the sorry state of affairs it is absolutely essential to convene a meeting of the entire members of the mahal for the election of a committee for a particular period and that committee is to be nominated as Mutawalli for a specific period. For that purpose, it is essential to frame a scheme for the smooth administration of the mosque. All the plaintiffs and defendants in O.S.1 of 1998 are made defendants in O.S.1 of 2001 and some other persons are also impleaded. Hence, the suit for declaration and for framing of the scheme. 9. Defendants 1 to 3, who are the plaintiffs in O.S.1 of 1998, filed written statement raising that following contentions: The fact that provisions of Wakf Act are applicable to Androth Jumayath mosque also and in the Act specific provisions are there for framing scheme are admitted it was contended that if the plaintiffs wand to frame scheme for the functioning of the mosque, their remedy is to approach the competent authority and not the wakf Tribunal. The power confers on the other authorities cannot be usurped by Wakf Tribunal and the Wakf Tribunal has no jurisdiction to entertain a suit for framing a scheme. The suit is filed with a mala fide intention of delaying the disposal of O.S.1 of 1998. the 5th defendant filed O.P.26419 of 1998 before the High Court of Kerala and obtained a stay of all further proceedings and that was vacated on 23.2.1999. The suit is filed with a mala fide intention of delaying the disposal of O.S.1 of 1998. the 5th defendant filed O.P.26419 of 1998 before the High Court of Kerala and obtained a stay of all further proceedings and that was vacated on 23.2.1999. In O.S.No.1 of 1998, the plaintiffs filed I.A.No.1 of 1998 for an order of temporary injunction to restrain the defendants from interfering with the plaintiffs’ right to discharge the functions of Mutawalli and that was allowed and the 4th defendant in the suit, who is the 8th defendant in the present suit, filed C.R.P.No.1448 of 1999 before the High Court and the High Court found that the Pattakal family is the Mutawalli. The contention that Jumayath Mosque belongs to the members of the entire Androth Island is denied. In each and every group there are separate mosques and the plaintiffs themselves are members of different Mahals. The plaintiffs are not members of the Jamayath Mosque in which the defendants 1 to 3 are discharging the functions of Mutawalli. The mosque was constructed by Hazrath Ubaidulla and additional facilities were also done by the members of the Tharwad of the defendants 1 to 3 and the present maintenance of the mosque was effected by Pattakal Tharwad. The members of the Pattakal Tharwad were holding the post of Mutawalli as well as Traditional Khazi. It was also contended that defendants 1 to 3 are lineal descendants of Hazrath Ubaidulla and their family is having an absolute right to manage the affairs of the mosque. Neither the members of the LSPSS nor JHSI have any right to interfere with the administration of the mosque. The Lakshadweep Wakf Board has admitted pattakal family as the Mutawalli of this particular mosque as per gazette notification date 1.11.1968. Hence, they prayed for the dismissal of the suit. 10. Defendants 4, 5, 6, 8 and 9 have filed a separate written statement contending that the defendants 1 to 3 in the suit, who are the plaintiffs in O.S.1 of 1998, have no special right. They virtually repeated the contentions raised in the written statement filed in O.S.1 of 1998. They have also admitted that they have no objection in the court framing a scheme for the proper management of the mosque. 11. They virtually repeated the contentions raised in the written statement filed in O.S.1 of 1998. They have also admitted that they have no objection in the court framing a scheme for the proper management of the mosque. 11. The 7th defendant filed a written statement admitting that the mosque belongs to the members of the Mahal and denying right of members of Pattakal Tharwad. It was contended that the members of Pattakal Tharwad has no special right and they were not performing the right of Mutawalli by way of inheritance. It was also contended that the members of the Pattakal Tharwad are not lineal descendants of Hazrath Ubaidulla. It was contended that from the year 1966 onwards the administration of the mosque was by a committee and thereafter a dispute arose between the committee and Pattakal Tharwad and the Pattakal family filed O.S.1O of 1974, in which the members of the Pattakal Tharwad admitted the right of the committee for administration of the mosque. It wad contended that the 7th defendant has no objection in framing a scheme as prayed for in the plaint. But, it was contended that the plaintiffs are not entitled to get a declaration that the defendants have no right to take part in the administration of the mosque. 12. Both these suits were tried jointly. The Tribunal decreed O.S.1 of 1998 and dismissed O.S.1 of 2001 on the ground that the Wakf Tribunal has no jurisdiction to entertain a suit for framing scheme. C.R.P.1757 of 2003 is filed by defendants 1, 2, 3, 5 and 6 in O.S.No.1 of 1998 challenging that part of the decree by which O.S.1 of 1998 was decreed. C.R.P.1978 of 2003 is filed by plaintiffs 1, 2 and 5 in O.S.1 of 2001 challenging the decree passed by the Tribunal dismissing their suit for framing a scheme. Defendants 7 and 8 in O.S.1 of 1998, who are the petitioners 1 and 2 in C.R.P.1978 of 2003, have filed C.R.P.1978 of 2003 challenging the decree passed in O.S.1 of 1998 by which the Tribunal found that the members of Pattakal family are Mutawallies of the mosque. 13. Defendants 7 and 8 in O.S.1 of 1998, who are the petitioners 1 and 2 in C.R.P.1978 of 2003, have filed C.R.P.1978 of 2003 challenging the decree passed in O.S.1 of 1998 by which the Tribunal found that the members of Pattakal family are Mutawallies of the mosque. 13. The learned counsel appearing for the petitioners in C.R.P.Nos.1958 and 1908 of 2003 have strenuously argued before me that the finding of the Tribunal that it has no jurisdiction to entertain a suit for framing scheme is not legal an liable to be set aside. It is argued that on that simple ground the suit has to be remanded for fresh consideration. It is argued that the learned Tribunal failed to construe the scope of Exhibit A3 gazette notification properly and that gazette notification itself will disprove the case of the plaintiffs in O.S.1 of 1998. The learned counsel appearing for the revision petitioners in all these Revision Petitions Vehemently argued that the Tribunal relied on irrelevant materials in arriving at a conclusion that the members of Pattakal Tharwad are the Mutawalli and Traditional Khazi of the mosque. It is argued that there is no iota of evidence to hold that the members of Pattakal family are lineal descendant of Hazrath Ubaidulla and the mosque belongs to that family. 14. I shall first deal with the contention raised by the petitioners regarding the finding of the Tribunal that it has no jurisdiction to entertain a suit for farming scheme. In this connection, it is to be noted that the contesting defendants in O.S.1 of 1998, including the plaintiffs in O.S.1 of 2001, raised a contention in O.S.1 of 1998 that the jurisdiction of the Tribunal is limited to consider only those maters which are enumerated in the provisions of the Wakf Act and not for any other matters. The Tribunal overruled that contention. Challenging the jurisdiction of the Tribunal to entertain such a suit, the 5th defendant in O.S.1 of 1998 filed O.P.26419 of 1998 before this court. A learned single Judge of this Court by judgment dated 23.2.1999, reported in Pookoya Haji v. Cheriyakoya (1999 (1) KLT 794), repelled that contention and found that the jurisdiction of the Tribunal is wide enough to determine any dispute or question or other matter relating to the Wakf or Wakf property. A learned single Judge of this Court by judgment dated 23.2.1999, reported in Pookoya Haji v. Cheriyakoya (1999 (1) KLT 794), repelled that contention and found that the jurisdiction of the Tribunal is wide enough to determine any dispute or question or other matter relating to the Wakf or Wakf property. Challenging the decision of the learned single judge, the 5th defendant filed W.A.2273 of 1999, which was decided by a Division Bench of this Court to which I was also a party. In the meanwhile another learned single judge of this Court in a subsequent decision reported in Abdul Rahiman Musliar v. Muhammed Sahib (2002 (3) KLT 742) took a view that only those matters which are required by or under the Wakf Act to be determined by a Tribunal the bar under section 85 would apply and for the rest of the matter Civil Court’s jurisdiction is not ousted. The Division Bench elaborately considered the jurisdiction of the Tribunal and found that the principle laid down in Abdul Rahiman Musaliar’s case (supra) is not correct and overruled the same. The Division Bench affirmed the decision rendered by the learned single judge in Pookoya Haji’s case (supra). The Division Bench in Pookoya Haji v. Cheriyakora (2003 (3) KLT 32) held as follows:- “The words any dispute, question or other matters relating to wakf or Wakf property under S.85 are wide enough to take in within its sweep not only matters which are specifically conferred on the Tribunal by the various provisions of the Act but also any dispute, question or any other matter relating to any Wakf or Wakf property since those powers have also been conferred on the Tribunal by the Wakf Act itself. On examining the scheme of the Act and various provisions we are of the view that the intention of the Legislature is to resolve all disputes by one machinery and forum provided in the Act itself, that is, the Wakf Tribunal and not by the Civil Courts in the State.” So, there is absolutely no merit in the contention raised by respondents 1 to 3, who are the plaintiffs in O.S.1 of 1998, that the Wakf Tribunal has no jurisdiction to entertain a suit for framing a scheme. 15. 15. It is argued that, at any rate, in a suit for framing scheme the plaintiffs cannot seek a prayer for declaration and on that count also the suit is not maintainable. In Amrithakurmari v. Ramanathan (1998 (2) KLJ 143), a learned single Judge of this court had taken a view that merely because a declaratory relief is also sought in a suit, it will not take it out of the scope of section 92 of the Code of Civil Procedure. So, the mere fact that in a suit for framing a scheme the plaintiff seeks a declaration also it is not ground to hold that the suit is not maintainable. The Tribunal has got a duty to consider the entire contentions and grant appropriate reliefs. 16. The learned counsel appearing for respondents 1 to 32 in C.R.P.1978 of 2003, who are the plaintiffs in O.S.1 of 1998, argued before me that under the provision of Wakf Act, the Wakf Board is the competent authority to frame the scheme. So, if anybody wants to frame a scheme, they have to approach the competent authority under the Act. They relied on the decision rendered by this court on 6.7.1998 in A.S.No.485 of 1991 and cross Objection, in which a learned Single Judge of this court while allowing the appeal and dismissing the suit directed the Wark Board to enquire into the affairs of the mosque and appoint a Mutawalli, if circumstances exist. This court did not consider whether the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 has jurisdiction to entertain a suit for framing a scheme. There cannot be any dispute regarding the right of the statutory authority to frame a scheme. But, the question arising for consideration in this particular case is whether the provision of section 69 takes away the jurisdiction of the Tribunal constituted under the Act to entertain a suit for framing a scheme. 17. Section 15 of Wakf Act, 1954 (Act 29 of 1954) dealt with the power of the State Wakf Board. Section 15(2)(d) conferred right on the Wakf Board to settle schemes of management for a Wakf. Section 55 of the Act as substituted by Act 34 of 1964 dealt with institution of the suit under section 92 of the Code of Civil Procedure. Section 15(2)(d) conferred right on the Wakf Board to settle schemes of management for a Wakf. Section 55 of the Act as substituted by Act 34 of 1964 dealt with institution of the suit under section 92 of the Code of Civil Procedure. Section 55 reads as follows:- “Section 55: (1) A suit to obtain any of the reliefs mentioned in Section 92 of the Code of Civil Procedure, 1908, relating to any wakf amy, notwithstanding anything to the contrary contained in that section, be instituted by the Board without obtaining the consent referred to therein. (5 of 1908). (2) No suit to obtain any of the reliefs referred to in section 92 of the Code of Civil Procedure, 1908, relating to any wakf shall be instituted by any person or authority other than the Board without the consent in writing of the Board and for the institution of any such suit, it shall not be necessary to obtain the consent referred to in that section, notwithstanding anything contained therein: Provided that nothing in this sub-section shall apply in relation to any such suit against the Board.” So, under the 1954 Act power was conferred on the Wakf Board or any person or authority other than the Board to approach the Civil Court for framing scheme. The right of the members of the Mahal to approach a civil Court for framing of a scheme for Wakf was also recognized in the 1954 Act in addition to such power given to the Wakf Board. It is interesting to note that under the old Act the very Wakf Board which is conferred with the power to frame scheme was given power to approach the Court. 18. In the year 1984, drastic amendments were introduced to Wakf Act, 1954 by Act 69 of 1984. Section 15(2)(d) of the Act was to be deleted by taking away the power of the Board to frame a scheme. Section 55 was amended by introducing appointment of Tribunals. Section 55 provides that the State Government shall, by notification in the official Gazette, constitute as many Tribunal as it may think fit for the determination of any dispute, question or other matter relating to wakf or wakf property which such Tribunal may be required to determine under the 1984 Act. Section 55 was amended by introducing appointment of Tribunals. Section 55 provides that the State Government shall, by notification in the official Gazette, constitute as many Tribunal as it may think fit for the determination of any dispute, question or other matter relating to wakf or wakf property which such Tribunal may be required to determine under the 1984 Act. Section 55 of the Act of 1954 was proposed to be substituted by Section 51 of the Wakf (Amendment) Act, 1984 (Act 69 of 1984). But, a comparison of Section 55 proposed to be amended with Section 83 of the present Act shows that both are in pari materia. As I already stated, one of the amendment proposed was to take away the power of the wakf Board to frame scheme. It is to be noted that if that amendment was brought into force, thereafter neither the Wakf Board nor a beneficiary of Wakf could have approached the Civil Court for framing a scheme. If the argument of the plaintiffs in O.S.1 of 1998 that the Tribunal is having no jurisdiction to entertain a suit is accepted, after 1985 there would have been no forum a person could have approached for framing a scheme at all. That cannot be the intention of the Legislature. It is evidently clear that the Legislature wanted to take away the power of the wakf board to frame scheme and to confer the same on the Tribunal. Sections 66G and 66H introduced by Act 69 of 1984 alone were notified. So, though the wakf Amendment Act, 1984 (Act 69 of 1984) introduced drastic amendments to various Sections of the 1654 Act, those amendments were never brought into effect except Sections 66G and 66H. So, the position prior to 1985 continued and no Tribunals were constituted under the Act and the power to frame scheme also continued with the Board as well as the Civil Court. 19. In the new Act of 1995, Section 69 confers power on the wakf Board to frame scheme. But, there is absolutely nothing in Section 69 of the Wakf Act, 1995 to show that the Board alone is having exclusive jurisdiction to frame a scheme. Section 83 of the present Act deals with constitution of Tribunals. 19. In the new Act of 1995, Section 69 confers power on the wakf Board to frame scheme. But, there is absolutely nothing in Section 69 of the Wakf Act, 1995 to show that the Board alone is having exclusive jurisdiction to frame a scheme. Section 83 of the present Act deals with constitution of Tribunals. While interpreting the power of the Tribunal under Section 83 this Court has held that the jurisdiction of the Tribunal is wide enough to determine any dispute or question or other matter relating to the Wakf or Wakf property. It cannot be held that the Tribunal is clothed with jurisdiction only when an order is passed by Wakf Board under the Act. Merely because the Board is also given power to frame a scheme, it is not a ground to hold that a Tribunal constituted under the provisions of the statute has no jurisdiction. If the intention of the Legislature was to confer exclusive jurisdiction on the wakf Board, definitely it would be so stated in the Act. As already stated, going by the scheme of 1954 Act also the inference possible is that the Legislature never wanted to take away the power of the Tribunal which is constituted in the place of a Civil Court which originally had jurisdiction to frame a scheme. So, the finding of the learned Tribunal that in view of Section 69 of the Act of 1995 the Tribunal has no jurisdiction to entertain a suit for framing scheme is illegal and liable to be set aside. I do so. Since the learned Tribunal has not considered the case on its merits, the suit is to be remanded to the Tribunal for fresh disposal in accordance with law. 20. Now I shall consider the contention raised by the revision petitioners in C.R.P.Nos.1757 of 2003 and 1908 of 2003 whether the finding of the Tribunal that the members of the Pattakal Tharwad are the Mutawallies of the mosque is how far correct. The contesting respondents-plaintiffs have raised & contention that the Tribunal by allowing I.A.1 of 1998 in O.S.1 of 1998 had held that the members of Pattakal Tharwad are the Mutawallies and in C.R.P.1448 of 1999 this Court had confirmed that finding. I have gone through the order passed by this Court in C.R.P.1448 of 1999. This Court had not considered the issue on its merits. I have gone through the order passed by this Court in C.R.P.1448 of 1999. This Court had not considered the issue on its merits. This Court only held that the Tribunal relying on Exhibit A3 had found that Mutawalli is shown as members of Pattakal under the supervision of Amin and Karanavan and no grounds are made out to reverse the interim order. That finding was entered into only for the purpose of deciding the Civil Revision Petition filed against an interim order. That will not operate as res judicata. So, that issue is to be decided. 21. The specific contentions raised by the contesting respondents are that the plaintiffs in O.S.1 of 1998 are not the lineal descendants of Hazrath Ubaidulla and they have no right to claim that they are the Mutawallies and Traditional Khazis. Both sides have produced a number of documents. The learned Tribunal has placed much reliance on Exhibit A3, a Gazette notification. Item No.158 of the schedule (list of Wakfs) attached to the notification deals with the disputed mosque. The notification contains the following details: A perusal of the entire notification shows that the nature and object of each Wakf changes. In Androth the nature and object of all Wakf is “for prayer”, whereas in many other Island like Kalpeni, Agattim etc. the nature and purpose of the Wakf is “for maintaining the mosque”. There is yet another aspect. Item No.147 is another mosque in the same Island. There, the Mutawalli is shown as “under the supervision of Amin and Karanavans”. But in the disputed mosque, Mutawalli is shown as “members of pattakal under the supervision of Amin and Karanavans”. If, as a matter of fact, the Mutawalli is the plaintiffs’ family, there was no need to say “under the supervision of Amin and Karanavans”. If the nature and purpose is only for prayer, what exactly is the arrangement for maintaining the mosque? If the members of the tharwad is having exclusive jurisdiction to elect a Mutawalli, in the normal course the entry should have been “members of the Pattakal family”. The Tribunal had not considered any of these aspects while considering the notification. 22. If the nature and purpose is only for prayer, what exactly is the arrangement for maintaining the mosque? If the members of the tharwad is having exclusive jurisdiction to elect a Mutawalli, in the normal course the entry should have been “members of the Pattakal family”. The Tribunal had not considered any of these aspects while considering the notification. 22. The learned counsel appearing for the revision petitioners relied on a decision reported in Byran Pestonji Gariwala v. Union of India (AIR 1991 SC 2234) to argue that the terms of compromise is bind on all parties who claims under it. The learned Tribunal found that the decree passed in O.S.10 of 1974 is binding on the members of the Tharwad because it was filed by the then Karanavan of the Tharwad. If the decree which is binding on the members of the Tharwad makes a provision for electing a committee, how far the members of the Tharwad who are bound by the decree can maintain a suit for declaration that they are the Mutawallies is not considered by the Tribunal. How the decree will ineffective or inoperative is not explained by the Tribunal. Of course, since the decision is not on merits, no question of res judicata will arise. But, in view of the decree how far the members of Pattakal Tharwad can raise a contention against the terms of that decree was not considered. According to the contesting respondents, the plaintiffs in O.S.1 of 1998 are estopped from raising a contention against the terms of that decree. That aspect was not considered by the Tribunal. 23. The learned counsel appearing for the revision petitioners has raised a contention that the Tribunal had committed a mistake in referring to the Text Books in deciding a civil case. The plaintiffs claim that the members of their Tharwad are the Mutawllies of a mosque and they are the lineal descendants of Hazrath Ubaidulla. It was for the plaintiffs to adduce positive evidence to prove these facts. The learned Tribunal had not considered any of these aspects while declaring that the Pattakal family are the Mutawallies and Traditional Khazis. The matter requires reconsideration. For that purpose, the decree passed in O.S.1 of 1998 is to be set aside and case remanded. 24. It was for the plaintiffs to adduce positive evidence to prove these facts. The learned Tribunal had not considered any of these aspects while declaring that the Pattakal family are the Mutawallies and Traditional Khazis. The matter requires reconsideration. For that purpose, the decree passed in O.S.1 of 1998 is to be set aside and case remanded. 24. The Tribunal had not considered the claim of plaintiffs in O.S.1 of 2001 to frame a scheme on the ground that it has no jurisdiction. O.S.1 of 1998 was decreed without considering the effect of decree passed in O.S.10 of 1974 and also without properly considering the evidence on record. It is only just and proper that the Tribunal itself considers both suits afresh in accordance with law. In the result, C.R.P.Nos.1757 of 2003 and 1908 of 2003 are allowed. The decree passed by the Court below declaring the right of plaintiffs in O.S.1 of 1998 is hereby set aside. C.R.P.1978 of 2003 filed by the plaintiffs in O.S.1 of 2001 is allowed. The decree passed by the Court below dismissing O.S.1 of 2001 is also set aside. Both suits are remanded to the Tribunal for fresh disposal in accordance with law after giving a reasonable opportunity to both sides to adduce further evidence, if any. The parties shall appear before the Tribunal on 19th October, 2005.

Aliyathammada Beethathabiyyappura Murthukoya v. Pattakkal Cheriyakoya