MUNICIPAL COUNCIL Vs. M P WAKF BOARD

JUDGEMENT

(1.) THIS is defendant's first appeal against the judgment and decree dated 15-9-1979 passed by Shri N. S. Chauhan, Additional District Judge, Narsinghpur in Civil Suit No. 4-A/71, renumbered as 3-A/77, directing the appellant to hand over the school building and the management of the Shiv Primary School, Kandeli to the respondent.

(2.) THE respondent/plaintiff is the body corporate under the provisions of the Wakf Act, 1954, and had filed the present suit for removal of the management, transfer of management of school and possession of the building. Their case was that the said school and building is the Wakf property of the Muslim Education Union Society, Narsinghpur and is in possession of the appellant only for purposes of its proper management. According to the respondent, one Syed Ali Mardan Saheb of Narsinghpur established an Arbi and Urdu Madarsa some times in the year 1885-86 for imparting Urdu-cum-religious education. According to them, the said school was started in a hut near his own house for the benefit of Muslim community. A school committee was also formed to manage the institution with Syed Ali Mardan Saheb as its Chairman. It was further submitted that later on in or about 1895, a temporary shed of clay and local tiles was raised for purposes of rnathersa on the Nazul land obtained from the Government and the said school was transferred to its new site and came to be looked after by Falah-E-Am School Committee. Later on, in or about 1925, a new building was constructed in the school at the instance of the Muslim community. It was the respondent's case that thereafter in the year 1940, the committee of the school offered to transfer its management to the appellant Municipal Committee and eventually the school was transferred to the appellant by agreement dated 11-1-1941 (Ex. P-1 ). It was further submitted that the appellant acted in violation of the said agreement and not only stopped imparting education in Urdu, but ultimately changed the name of the institution. That is how, the claim, as aforesaid, was made in the suit. The appellant defended the suit by submitting that the respondents/plaintiffs have no right to maintain the suit. They further pleaded that the school was handed over to them under agreement (Ex. P. 1) not only for mangement, but the ownership of the building was also transferred unconditionally. It was also submitted that there was no Wakf, as claimed by the respondent nor the said Wakf is continuing. As regards Urdu education, it was submitted that in the year 1947-48, no student was willing to learn Urdu and, therefore, those classes had to be closed. Inspite of several efforts made thereafter, no one came forward to learn Urdu. The appellants, however, offered to reopen Urdu classes and employ Urdu Teachers, in case sufficient number of Muslim boys and girls come forward to learn Urdu.

(3.) THE learned trial Judge, on the basis of oral and documentary evidence on record, concluded that the respondent Board was competent to maintain the suit. It, however, held that evidence on record does not establish that Syed Ali Mardan Saheb established an Arbi and Urdu Mothersa in the year 1885, as alleged, or that the said Mothersa was managed by the Committee. The learned Judge, however, found that the Nazul plot of land was obtained for purposes of running the school in the year 1895 in the name of Fallh-E-Am School Committee and a temporary structure was raised on the said site by the said School Committee at the instance of Muslim community and thereafter, the School started running at the site and was managed by Fallah-E-Am School Committee. The learned Judge also found that later on the School Building was constructed on the basis of subscription and donation and the school shifted into this new building in the year 1926. The learned Judge further found that the School was transferred to the appellant by agreement dated 11-1-1941 who took it over as a licensee. On these facts, the learned Judge found that a Wakf by user had come into force in 1895 and consequently held that the school building was the Wakf property and decreed as aforesaid.