JUDGMENT : The present CRP is directed against the order of the Tribunal whereby the Waqf Original Suit preferred by the respondent No.1 seeking declaration to be the Muthawalli of the scheduled mosque along with 4th defendant namely C.K Ammed with a consequential relief of prohibitory injunction against the defendant Nos. 1 and 2, as per the document No.292 of 1968, the waqf deed, has been allowed. It is pertinent to mention here the defendant No.2 is the petitioner in this Court. 2. Respondent/plaintiff staked the claim on the basis of the waqf deed No.292 of 1968 and claimed the declaration of Mutawalli on the basis of succession and hereditary whereas the defendant Nos.1 and 2 set up a claim on the basis of document Nos. 43 of 1982 and 203 of 1987 and defendant Nos. 5 and 6 claimed to be the President and Secretary. Since the parties were at variance, the Tribunal framed six issues including the issue of relief. The plaintiff examined himself as PW1 and brought on record Exts.A1 to A15 whereas the defendant examined three witnesses DW1, DW2 and DW3 and brought on record the documents, Exts.B1 to B16. Besides commission report filed by Advocate Commissioner and rough sketch were exhibited as C1 and C2. On an analysis of the aforementioned evidence, the Tribunal granted the declaration in favour of the plaintiff and the defendant No. 4 and restrained from defendant No.1 and 2 from interfering into the joint Mutawalliship. 3. Learned senior counsel for the petitioner submitted that the Tribunal did not have the jurisdiction to entertain and try the claim set up in the suit in view of the following provisions of the Act ie., Section 32(2)(g), 63(1) and (2) and 83 (1) and (2) of the Act. In support of the contentions relied upon the judgment of the Supreme Court in S.V Cheriyakoya Thangal v. S.V P Pookoya and Ors. (Civil appeal No.4629 of 2024). In support of the contentions relied upon the judgment of the Supreme Court in S.V Cheriyakoya Thangal v. S.V P Pookoya and Ors. (Civil appeal No.4629 of 2024). It was next contended that he would not be addressing the argument on the merit and demerit of the matter as it would be the domain of the competent authority ie., the Waqf Board to adjudicate the issues and particularly, when the parties have already led an evidence, this court can issue appropriate directions to the Board to decide the matter on merits with 1:1 opportunity to lead any additional evidence, if they deem it appropriate with a time line, for, it has taken a valuable right of appeal before the Tribunal as provided sub Section 2 of Section 83 of the waqf Act. The judgment of the Division Bench empowering the Tribunal to decide the question has been set aside in view of the judgment of the Supreme court (supra). Therefore it would be farcical exercise in commenting upon the evidence or touching the merits of the matter. 4. On the other hand, learned counsel for the respondent submitted that petitioner is estopped to raise such plea as they submitted to the jurisdiction of the Tribunal. When the suit was tried, did not take up the objection and it is too late in the day to raise this plea by taking the assistance of the judgment, at the best the judgment would be taken into consideration prospectively and cannot be construed to be applicable to the matter, which were conceived as far back as in 2019 and a decree passed in November 2023. It would result into a very incongruous situation, in case, the matter is remitted to the Waqf Board. Moreover the question of jurisdiction at this point of time, cannot be raised, for, the petitioner has failed to take up any such objection as evident from the grounds of the revision petition. The power to determine the question with regard to Mutawalli vests with the Tribunal in view of the provisions of sub Section 1 of Section 83 of the Act and urged this Court for adjudication of the issue on the merits of the matter. 5. The power to determine the question with regard to Mutawalli vests with the Tribunal in view of the provisions of sub Section 1 of Section 83 of the Act and urged this Court for adjudication of the issue on the merits of the matter. 5. Learned counsel for the Waqf Board submitted that a very complacent situation has arisen in view of the findings of the Supreme Court, for, the judgment has to be construed prospectively and not retrospectively or in the alternative where the parties have submitted to the jurisdiction of the Tribunal, this Court can adjudicate the matter on merits keeping in view the provisions of Section 107 of the C.P.C. In support of the contentions, relied upon the judgment of the Supreme Court in Sunil Sikri v. Guru Karkrishan Public School & Anr (Civil Appeal No.5562 of 2017) wherein in an identical situation a teacher claiming the backwages had knocked the doors of the Educational Tribunal and on an analysis of the provisions, it was found that the appellate authority since had the trappings of the civil court, matter could have been decided without being referred to the court or the body having original jurisdiction. 6. We have heard the learned counsel for the parties. Section 32(2)(g) of the Waqf Act reads as under: 32(2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be— a. xxx b. xxx g. to appoint and remove mutawallis in accordance with the provisions of this Act. 7. On perusal of the provision of sub Section (g) of Section 32(2), it is evident that the Board has the power to deal with the appointment of the Mutawalli. Sub Section (1), (2) and (5) of Section 83 of the Waqf Act reads as under: 83. Constitution of Tribunals, etc.— (1)The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals. (2) Any mutawalli person interested in a waqf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the waqf. (5) The Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or executing a decree or order. 8. On perusal of the aforementioned provisions, it is evident that the Tribunal would have a power of original jurisdiction in respect of the points and question for determination of a dispute between the parties specified therein but as far as with regard to Mutawalliship is concerned, it assumes the role of an appellate authority as per the plain and unambiguous language prescribed in sub Section (2) of Section 83 of the Act. Section 63 of the Waqf Act deals with the power to appoint mutawallis in certain cases. The same reads as under: 63. Power to appoint mutawallis in certain cases.— When there is a vacancy in the office of the mutawalli of a waqf and there is no one to be appointed under the terms of the deed of the waqf, or where the right of any person to act as mutawalli is disputed, the board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit. 9. The aforementioned section also on plain and simple reading reveals that the power in case of vacancy in the office of the mutawalli vests with the Board to appoint any person to act as Mutawalli. 10. Section 64 deals with the removal of the Mutawalli. The same reads as under: 64. 9. The aforementioned section also on plain and simple reading reveals that the power in case of vacancy in the office of the mutawalli vests with the Board to appoint any person to act as Mutawalli. 10. Section 64 deals with the removal of the Mutawalli. The same reads as under: 64. Removal of mutawalli.— (1) Notwithstanding anything contained in any other law or the deed of waqf, the Board may remove a mutawalli from his office if such mutawalli—(a) has been convicted more than once of an offence punishable under section 61; or(b)has been convicted of any offence of criminal breach of trust or any other offence involving moral turpitude, and such conviction has not been reversed and he has not been granted full pardon with respect to such offence; or(c)is of unsound mind or is suffering from other mental or physical defect or infirmity which would render him unfit to perform the functions and discharge the duties of a mutawalli; or(d)is an undischarged insolvent; or(e)is proved to be addicted to drinking liquor or other spirituous preparations, or is addicted to the taking of any narcotic drugs; or(f)is employed as paid legal practitioner on behalf of, or against, the waqf; or(g)has failed, without reasonable excuse, to maintain regular accounts for two consecutive years or has failed to submit, in two consecutive years, the yearly statement of accounts, as required by sub-section (2) of section 46; or(h)is interested, directly or indirectly, in a subsisting lease in respect of any waqf property, or in any contract made with, or any work being done for, the waqf or is in arrears in respect of any sum due by him to such waqf; or(i)continuously neglects his duties or commits any misfeasance , malfeasance, misapplication of funds or breach of trust in relation to the waqf or in respect of any money or other waqf property; or(j)wilfully and persistently disobeys the lawful orders made by the Central Government, State Government, Board under any provision of this Act or rule or order made thereunder;(k)misappropriates or fraudulently deals with the property of the waqf. (2) The removal of a person from the office of the mutawalli shall not affect his personal rights, if any, in respect of the waqf property either as a beneficiary or in any other capacity or his right, if any, as a sajjadanashin. (2) The removal of a person from the office of the mutawalli shall not affect his personal rights, if any, in respect of the waqf property either as a beneficiary or in any other capacity or his right, if any, as a sajjadanashin. (3) No action shall be taken by the Board under sub-section (1), unless it has held an inquiry into the matter in a prescribed manner and the decision has been taken by a majority of not less than two-thirds of the members of the Board. (4) A mutawalli who is aggrieved by an order passed under any of the clauses (c) to (i) of sub-section (1), may, within one month from the date of the receipt by him of the order, appeal against the order to the Tribunal and the decision of the Tribunal on such appeal shall be final. (5) Where any inquiry under sub-section (3) is proposed, or commenced, against any mutawalli, the Board may, if it is of opinion that it is necessary so to do in the interest of the waqf, by an order suspend such mutawalli until the conclusion of the inquiry: Provided that no suspension for a period exceeding ten days shall be made except after giving the mutawalli a reasonable opportunity of being heard against the proposed action. (6) Where any appeal is filed by the mutawalli to the Tribunal under sub-section (4), the Board may make an application to the Tribunal for the appointment of a receiver to manage the waqf pending the decision of the appeal, and where such an application is made, the Tribunal shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), appoint a suitable person as receiver to manage the waqf and direct the receiver so appointed to ensure that the customary or religious rights of the mutawalli and of the waqf are safeguarded. (7) Where a mutawalli has been removed from his office under sub-section (1), the Board may, by order, direct the mutawalli to deliver possession of the waqf property to the Board or any officer duly authorised in this behalf or to any person or committee appointed to act as the mutawalli of the waqf property. (7) Where a mutawalli has been removed from his office under sub-section (1), the Board may, by order, direct the mutawalli to deliver possession of the waqf property to the Board or any officer duly authorised in this behalf or to any person or committee appointed to act as the mutawalli of the waqf property. (8) A mutawalli of a waqf removed from his office under this section shall not be eligible for re-appointment as a mutawalli of that waqf for a period of five years from the date of such removal. 11. None of the sub sections of Section 64 vests any power with the Tribunal with regard to the removal of the Mutawalli. An argument that the Wakf Board would not have the trapping of a civil court to grant a declaratory decree as sought for in the present case or in any contemplated matters, therefore the Tribunal would be appropriate authority to deal with the matter, in our considered view, as per the provisions referred to above does not merit any acceptance, for, the plain and simple reading of the provisions of the aforementioned Act empowers the Board to deal with the disputes regarding Mutawalli and the appellate jurisdiction is conferred upon the Tribunal. The judgment of S.V Cheriyakoya Thangal (supra) reads thus: 1. Leave granted. 2. This case has got a chequered history. The lis which started in the year 1987 in the form of a Civil Suit O.S. No. 5/1987 on the file of Munsif Court, Androth, still continues in one form or another. 3. After the completion of the earlier round of litigation, the present lis was started at the instance of the appellant, duly followed by the respondents. Before the Waqf Board, both the parties claimed their respective rights to Mutawalliship and Sheikhship. By an elaborate order the Waqf Board held in favour of the appellant declaring him as a Mutawalli. 4. Being aggrieved, respondents filed an application by invoking Section 83 of the Waqf Act, 1995 before the Waqf Tribunal. 5. The waqf Tribunal, after affording opportunities to both the sides, inter alia, held that there is no perversity in the decision rendered by the Waqf Board. 6. A plea was also taken both before the Waqf Board and the Waqf Tribunal, on the question of jurisdiction. 5. The waqf Tribunal, after affording opportunities to both the sides, inter alia, held that there is no perversity in the decision rendered by the Waqf Board. 6. A plea was also taken both before the Waqf Board and the Waqf Tribunal, on the question of jurisdiction. It was contended by the respondents that it is the Waqf Tribunal which has got the original jurisdiction to decide the issue pertaining to Mutawalliship and, therefore, the Waqf Board did not have the jurisdiction. 7. On a revision being filed, the High Court was pleased to set aside the judgment and decree of the Waqf Tribunal inter alia holding that the Waqf Board did not have the jurisdiction and, therefore, the matter has to be decided afresh only by the Waqf Tribunal. 8. Challenging the said decision, the present appeal is filed before us. 9. Though arguments have been made at length, we are inclined to hold that the impugned order cannot be sustained in the eyes of law as the Waqf Board has rightly exercised the jurisdiction in exercise of power conferred under Section 32(2)(g) read with the definition under Section 3(i) which defines a ‘Mutawalli’. We have also perused Section 83 sub-Sections (5) and (7) of the Act which deals with the powers of the Tribunal. The Waqf Tribunal is deemed to be a civil court having the same powers that can be exercised by the civil court under the Code of Civil Procedure, 1908. In other words, a dispute can be tried like a suit by the Waqf Tribunal. Under sub-section (7) of Section 83 of the Waqf Act, the decision of the Tribunal shall be final and binding upon the parties and it shall have force of a decree made by a civil court. 10. The word ‘competent authority’ as mentioned in the definition clause contained in Section 3(i) makes the position further clear that it is the Waqf Board which has got the jurisdiction and not the Waqf Tribunal. After all, the Waqf Tribunal is only an adjudicating authority over a dispute while the Waqf Board is expected to deal with any issue pertaining to administration. After all, the Waqf Tribunal is only an adjudicating authority over a dispute while the Waqf Board is expected to deal with any issue pertaining to administration. The power of superintendence cannot be confined to routine affairs of a Waqf but it includes a situation where a dispute arises while managing the property and that would certainly include a right of a person to be a Mutawalli after all, it is the Mutawalli who does the job of administering and managing the Waqf. 11. In such view of the matter, we are of the view that the impugned order cannot be sustained in relegating the matter to an adjudicating authority by treating it as a competent authority, which is none other than the Waqf Board. 12. However, in the case on hand, the High Court did not go into the merits of the case. 13. In such view of the matter, while setting aside the impugned order, we are remitting the matter to the High Court to decide the revision on merits, in accordance with law except the issue of jurisdiction as decided by us in this appeal. 14. We request the High Court to expedite the hearing and make an endeavour to dispose it of as early as possible in view of the fact that the revision is of the year 2015 and the dispute is pending from the year 1987 onwards. 15. The appeal accordingly stands allowed. 16. All issues are left open to be decided by the High Court. 17. Pending application(s), if any, stand disposed of. 12. As far as the applicability of Section 107 of the Code of Civil Procedure is concerned, there is no quarrel to the arguments as well as the language of the legislature, that provisions have to be read in conjunction with the other powers prescribed in Rule 23, 24, 25, 27 and 33 of the Order 41 of the Code of Civil Procedure. In paragraph 15 and 16 of the judgment in Guru Harkrishan Public School & Anr (supra) referred by the learned counsel for the Wafq Board, Supreme Court had an occasion to deal with the Section 107 of the Act. The same reads as under: 15. In paragraph 15 and 16 of the judgment in Guru Harkrishan Public School & Anr (supra) referred by the learned counsel for the Wafq Board, Supreme Court had an occasion to deal with the Section 107 of the Act. The same reads as under: 15. As far as Section 107 of the Code of civil Procedure is concerned, it declares that subject to such conditions and limitations that may be prescribed, the appellate court has the power to determine a case finally. It is also blessed with the power to remand a case. It can also frame issues and refer the issues for trial. It is also authorised to take additional evidence or permit the evidence to be taken. Section 107(2) declares that the appellate court would have the same power and perform nearly the same duty as are conferred and imposed on the courts of original jurisdiction in respect of suits instituted therein. 16. Reliance placed on Section 107 of the CPC, if inspiration is sought to be drawn to the emphasis supplied to the words “may decide the case finally”, to find that there is express power to decide on the question of emoluments as well, does not appeal to us. The purport of the provisions in Section 107 is to only declare that the Appellate Court has a wide range of options, which include the power to finally decide the case. This should be understood to only mean that there is also a power to remand the case or to grant other relief, which may not result in the final disposal of the case. This cannot be understood as meaning that the Appellate Court has the express power to grant the relief of back-wages or to decide upon the question as to whether the period of absence should be treated as duty. This is the power coupled with a duty which is squarely vested with the Management. The right of appeal under Section 8 is given with respect to the order of termination which has been interpreted by this Court in Shashi Gaur (supra) to include all kinds of termination except for termination which occurs by efflux of time. This is the power coupled with a duty which is squarely vested with the Management. The right of appeal under Section 8 is given with respect to the order of termination which has been interpreted by this Court in Shashi Gaur (supra) to include all kinds of termination except for termination which occurs by efflux of time. The argument of the appellant is that the disciplinary authority is to be treated as the original authority and, therefore, the tribunal in terms of Section 107(2) of the Code of the Civil Procedure must be likened to an Appellate Court and what is more, the disciplinary authority must be equated with the Trial Court. Therefore, there is power o award back wages. The comparison between an Appellate Court and the Trial Court and the vesting of powers on the Appellate Court in terms of the power available to the Trial Court may not be an appropriate and apposite analogy when it comes to the tribunal considering an appeal against the order of disciplinary authority under Section 8. The tribunal will no doubt have the power to pronounce on the legality of the original order, the impugned order of termination and also order reinstatement. The events subsequent to the termination which have been recognized as relevant in cases including Deepali Gundu (supra) which decision has been relied upon by the appellant himself may not strictly be the subject matter of the appeal for reasons, which we will more elaborately dwell upon. We repel the argument of the appellant. 13. Section 107 of the Act has to be read for the sake of repetition in conjunction with the provisions of the Rules aforementioned and Rule 33 in particular, for, if one of the party has even not assailed the decree but is affected by the observations recorded in the judgment, can always challenge the said portion by taking the aid of the provisions of Rule 33 Order 41. Rule 33 of Order 41 of CPC reads as under: The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection [Provided that the Appellate Court shall not make any order under section 35A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.], [and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]: 14. The Supreme Court also had an occasion to deal with the aforementioned Rules. Paragraph 29 of the judgment in Cheriathan C. vs. P. Narayanan Embranthiri and Others (2009 KHC 121) reads thus: 29. Submission of the learned counsel that contentions raised before us on behalf of the appellant were not available as the finding of the learned First Appellate Court to the effect that the transaction evidenced on mortgage with conditional sale does not appeal to us. Despite arriving at the said finding, the appeal of respondent was dismissed and in that view of the matter, it was not open to appellant to prefer an independent appeal thereagainst. Order 41 R.22 of the Code of Civil Procedure, therefore, had no application. It is in the aforementioned situation, it was legally permissible for the appellant to support the decree passed in his favour by attacking the finding of the First Appellant Court which were made against him. Order 41 R.33 of the Code of Civil Procedure, therefore, was available in this case. It is in the aforementioned situation, it was legally permissible for the appellant to support the decree passed in his favour by attacking the finding of the First Appellant Court which were made against him. Order 41 R.33 of the Code of Civil Procedure, therefore, was available in this case. In S. Nazeer Ahmed v. State Bank of Mysore and Others, 2007 (1) KHC 441: 2007 (11) SCC 75 : JT 2007 (2) SC 500: AIR 2007 SC 989 : 2007 (2)KLT369, this Court held: 'Order 41 R.33 enables the Appellate Court to pass any decree that ought to have been passed by the Trial Court or grant any further decree as the case may require and the power could be exercised notwithstanding that the appeal was only against a part of the decree and could even be exercised in favour of the respondents, though the respondents might not have filed any appeal or objection against what has been decreed.' 15. Sub Section 18 of Section 2 of the Code of Civil Procedure defines the Rule which would mean rules and forms contained in the First Schedule or made under section 122 or section 125 of the code. Section 122 and 125 empowers the High Court to make the Rules whereas Section 121 under Part X defines that the Rules in the first schedule shall have the effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this part. Section 121 reads thus: 121. Effect of rules in First Schedule.- The rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this Part. 16. For all intents and purposes, Rules of the CPC are integral and inherent part of the Code of Civil Procedure and therefore Section 107 cannot be read in isolation. Thus, the Sections and the Rules of the CPC have to be read homogeneously/conjunctivly. In paragraph 15 and 16 of Guru Harkrishan Public School & Anr (supra), the provisions of Section 121 and 125 of the Code of Civil Procedure have not been taken into consideration while dealing with the controversy raised in the cited judgment. Thus, the Sections and the Rules of the CPC have to be read homogeneously/conjunctivly. In paragraph 15 and 16 of Guru Harkrishan Public School & Anr (supra), the provisions of Section 121 and 125 of the Code of Civil Procedure have not been taken into consideration while dealing with the controversy raised in the cited judgment. Keeping in view the provisions, ibid, the argument of the learned counsel for the Waqf Board that the Tribunal would have the trapping of the original civil court must fail and hereby rejected. 17. In case the said arguments are accepted, it will be totally in contradiction to the ratio of decidendi culled out in S.V Cheriyakoya Thangal (supra). For the reason aforementioned, we thus uphold the submissions of the learned senior counsel for the petitioners viz-a-viz the jurisdiction of the Tribunal and therefore refrain ourselves from delving upon the merits of the issue; set aside the judgment only on the ground of jurisdiction and remit the matter to the Board to decide the controversy afresh with the same set of pleadings and the evidence on record with a caveat that if either of the parties to the lis deem it appropriate to lead additional evidence, the same may be permitted in accordance with law and decide the matter as expeditiously as possible. Parties through their counsel or themselves are directed to appear before the concerned Waqf Board on 19.8.2024. The judgment of the Tribunal is set aside being without jurisdiction. 18. We have also been apprised that many matters of similar nature regarding appointment, removal or declaration of the muthawalli are pending before the Tribunal. Without putting the parties to any inconvenience or protracted litigation, we thus issue a directions by exercising the power under Article 227 of the Constitution of India to transfer all the matters pertaining to the controversy with regard to the one which we have dealt in the judgment to the Waqf Board instead of deciding the matter on the merits.