JAMAL UDDIN Vs. MOSQUE AT MASHAKGANJ

JUDGEMENT

(1.) THIS appeal arises out of a suit filed on behalf of the mosque at Mashakganj, Lucknow and its Mutawalli Abdul Haq, who are respondents Nos. 1 and 2 before us, in the Court of Musif North Lucknow on 24-4- 1958 for possession over a piece of land situate in Mohalla Mashakganj of Lucknow City which was half part of Plot No. 292 of First Settlement. The suit was originally filed against Jamaluddin de fendant- appellant No. 1 and his nephew Qamaruddin. Qamaruddin died during the pendency of the suit and his legal represen tatives who were his widow Smt. Nanhi and his brother Shamshuddin (defendant- appellant No. 2) were substituted for him.

(2.) THE suit had a chequered career. It was originally dismissed by the trial Court on 16-8-1960 on the finding that the plaintiffs had not been in possession of the property in suit within twelve years and the suit was barred by limitation under Article 142 of the Limitation Act. The plaintiffs filed an ap peal. The Appellate Court allowed certain amendments to be made in the pleadings and without reversing that finding of fact allow ed the appeal and remanded the suit for re trial after considering the new pleas taken through amendment of the pleadings. After remand the plaintiffs impleaded Zawar Husaia (Respondent No. 3) also as a pro forma defendant in the suit. This time the suit was decreed by the trial court on 20-5-1963. An appeal filed against that decision was dismissed by the Civil Judge Mohanlalganj at Lucknow on 28-7-1966.

(3.) THE plaintiffs' case as set out in its final shape after repeated amendments of the pleadings was that Mehar Ali and Qasim Ali who are real brothers were owners of a house, an Ahata and Plot No. 292 which they had inherited from their ancestors. On 29-3-1881 Qasim Ali and Mehar Ali made a usu fructuary mortgage of this property in favour of one Wazir Khan for a sum of Rs. 50.00 by means of a registered document. The period for redemption stipulated in the mortgage deed was two years and within this period the mortgage was redeemed by making pay ment to Wazir Khan of the mortgage money. Qasim Ali then executed a registered sale deed dated 12-6-1883 in favour of Bulaqi, predecessor of the defendant-appellants, trans ferring the house and the Ahata to him for a sum of Rs. 18.00 Plot No. 292 was not, however, included in this sale deed and it remained in possession of Qasim Ali and Mehar Ali. Qasim Ali died issueless and his interest in the property was inherited by his brother Mehar Ali. After Mehar Ali's death, his soa Azam Husain succeeded to that property. When Azam Husain died, he left a widow Smt. Sanwli Begum, a daughter, Smt. Sayada Begum, and a son Nazir Husain as his heirs. According to the plaintiffs there was a cus tom in this family excluding the daughter from inheritance. So it was alleged that Nazir Husain alone became the owner of Plot No. 292 as the ultimate successor of Mehar Ali. Adjacent to Plot No. 292 was a mosque which figured as plaintiff No. 1 in the suit and of which Abdul Haq plaintiff No. 2 was alleged to be the Mutawalli. Nasir Husain made an oral wakf in respect of half of Plot No. 292 in favour of this mosque some time before 1940 and after wakf the mosque was extended over this portion.