GYASUDDIN Vs. ALLAH TALA WAQF MAUSUMA

JUDGEMENT

(1.) This is defendant's appeal.

(2.) According to the case of the plaintiff, one Mehendi Hasan was the owner of the property in dispute specified in the plaint besides other land. He died nearly twenty-four years prior to the suit instituted on Sept. 6. 1968, leaving as his heir the son, namely, Hadi Hasan. The death of Hadi Hasan took place in the year 1964. Part of the property had dilapidated during his lifetime; the property in dispute, it is alleged, was being made use of for purposes of Majlis during Moharram and Chehlum and for taking out Tazia on Chehlum. Hadi Hasan himself lived in Basti, where he was employed; the property is situated in Ghazipur. He had a wish that the property in question be dedicated for use as Imambara. Subsequent to his death the widow Srimati Ummed Laila executed a registered deed of waqf dated July 5, 1965, for self and her minor son Shah Shahid Hasan. She herself is the mutawalli under the waqf. The management was looked after on her behalf by Karam Abbas and on his death by his son, namely. Akhtar Husain through him the suit was instituted. In or about Dec., 1965, the defendants trespassed over the disputed land and raised certain constructions without authority. Karam Abbas, aforesaid, initiated proceeding under S. 145, Code of Criminal Procedure. Preliminary order was made on Jan. 3, 1966 followed by attachment dated Jan. 4, 1966. Upon reference the Munsif found on Aug. 24, 1968, that the defendants had been in possession within two months preceding the preliminary order. At this stage the plaintiff brought the suit on Sept. 6, 1968, claiming the relief for permanent injunction and demolition of the wall unauthorisedly raised on part of the disputed land by the defendants.

(3.) For the defendants it was asserted that the property in dispute did not belong to Mehandi Hasan or his son. The title of the plaintiff to sue was disputed asserting that there had been no valid waqf created by Srimati Umme Laila. Hadi Hasan left two sons and three daughters besides the widow, who were the co-heirs. All of them had migrated to Pakistan and are nationals of that country. The defendants have been in possession in their own right. There was no Will executed by Hadi Hasan nor was he competent to do so.