MAULVI HAKIM ABUL FATEH Vs. DELHI WAKF BOARD

JUDGEMENT

(1.) The present appeal arises out of the judgment dated 24th November, 1976 of Additional District Judge, Delhi. The learned Judge disposed of the appeal by affirming the findings of Sub Judge, First Class, Delhi, in Suit No. 79 / 66 which was dismissed on November 30, 1972.

(2.) The appellant filed a suit for declaration under Section 6 of the Wakf Act to the effect that the mosque in dispute was private mosque, that it was not public Wakf but was Wakf-ul-Aulad and that as such the notification issued by the respondent/defendant, Delhi Wakf Board dedaring the said property to be Wakf was of no consequence. it was alleged in the plaint that mosque bearing No. 387(new), 239(old), 220 (oldest), Hauz Qazi, Delhi was private mosque situated in the residential house of the appellant and was Wakf-ul-Aulad. The respondent contested the suit alleging that the property was a mosque and it has been notified correctly as Wakf property. The following issues were framed on the pleadings of the parties:

(3.) The Trial Judge disposed of issue No. 3 byholding that the property was not established to be Wakf-ul-Aulad. lt will not be necessary to refer to the other issues as the suit was dismissed on the basis of finding on issue No. 3. Issues I and 4 were not pressed. The appellant felt aggrieved by the judgment of the Trial Court and filed an appeal in the Court of Additional District Judge. The.learned Appellate Judge recorded finding on the basis of the admitted fact that the appellant had not placed on the record any Wakf Nama. The relevant finding in this regard is contained in paragraph 6 of the judgment which reads as follows: The learned Counsel for the appellant has rightly conceded that the appellant has not placed on the record any Wakf Nama. It needly hardly be mentioned that there must be a grant to create a Wakf. It is also not disputed that in order to prove that the Wakf in question is Wakf-ul-Aulad, the appellant was required to place on the record documentary evidence to prove that any such Wakf has been created. However, it is argued that as the appellant has placed on the record deed Ex. PI, it must be assumed to be sufficient in itself to show that a Wakf-ul-Aulad had been created. Before I proceed further, I may mention that the reading of Ex. PI goes to show that by this Maulvi Hakim Mohd. Gaffar had appointed his two sons, Maulvi Hakim Mohd. Abdul Fateh and Hakim Mohd. Abdul Fareh as the Mutwali and Naib Mulwali respectively. In this document, there is a reference to another deed of 7.6.1957. It is mentioned in Ex: P.I that Wakf was created by the said deed of 7.6.57. Needless to repeat again that no document with respect to the grant has been placed on the record and even that document of 7.6.57 has not seen the light of the day. In short thus, the appellant has kept back the main document which could throw light on the creation of any grant. At the most Ex. PI can be treated as secondary evidence with respect to the purpose of the grant and in the absence of primary evidence which could easily be produced, this document (Ex.P1) cannot be treated to be of much assistance."