MOHAMMAD MUKHTAR AHMAD Vs. GHULAM ABDUL QADIR ALVI

JUDGEMENT

(1.) This is a defendant's appeal, under Order 43, Rule 1 (u) C.P.C., against the judgment and order dated 03.12.2011 passed by the Additional District Judge, Bansi, Siddharth Nagar in Civil Appeal No. 30 of 2010 by which the appeal of the plaintiff-respondent against the order dated 29.05.2010 passed by the Additional Civil Judge (Jr. Div.), Court No.1 Bansi, Siddharth Nagar, in Original Suit No. 474 of 1992, deciding issue nos. 4 and 10 against the plaintiff, was allowed, the trial court's order dated 29.05.2010 was set aside and the matter was remanded back to the trial court to decide the suit on merits.

(2.) The relevant facts are that the plaintiff-respondent instituted an Original Suit No. 474 of 1992 for declaration that he is the Sajjada Nashin of Khankha Faizur-Rasool situated in village Baraun Sharif and Nazim-e-Ala (Manager-in-Chief) of Darul-Uloom Faizur-Rasool (Madarsa). It was also prayed that a declaration be made that the Will dated 04.12.1991 allegedly executed by Mohd. Siddique Ahmad in favour of defendant was illegal and it conferred no right on the defendant as Sajjada Nashin and Nazim-e-Ala of the Khankha and Darul-Uloom respectively and that it does not bind the plaintiff or the property of the Khankha. In addition to above, a permanent prohibitory injunction was also sought to restrain the defendant from interfering in the internal and external administration of the Khankha as also to retrain the defendant from interfering in the functioning of the plaintiff as Sajjada Nashin and Nazim-e-Ala of the Khankha and the Darul-Uloom respectively.

(3.) The plaint case, in short, was that at Mauza Baraon Nankar (Sharif), Tehsil and District Siddharth Nagar, there was a Khankha Faizur-Rasool, which was established for the benefit of the Muslim Community, along with a Masjid (Mosque), Darul-Uloom and a residential portion, by Maulvi Mohd. Yar Ali son of late Fazar Ali. It was alleged that Mohd. Yar Ali by a registered deed dated 02.05.1961 created a Wakf of the said property. It was alleged that under the Wakf deed, a procedure was prescribed for selecting the Sajjada Nashin. It was alleged that after the death of appointed Sajjada Nashin i.e. Maulana Mohd. Siddique Ahmad on 24.01.1992, the plaintiff was selected as the Sajjada Nashin in accordance with the terms of the Wakf deed but the defendant, without any legal right or authority, by setting up an illegal Will dated 04.12.1991 of Mohd. Siddique Ahmad, had set up a rival claim. It was pleaded that as a special procedure for selecting the Sajjada Nashin was prescribed by the Wakf deed, the Will was inoperative and did not confer any right on the defendant. However, as the defendant was interfering in the management, the suit was necessitated.