KHATI Vs. MIRZA HOSSAIN BEG

JUDGEMENT

(1.) THE defendants are the appellants, in this second appeal, from a confirming decision of the learned First Additional Subordinate Judge of Cuttack whereby be affirmed a decision of the learned Additional Munsiff of Cuttack and decreed the plaintiffs' suit for a declaration that lots 1, 2 and 3 of the suit properties are Wakf properties and that the mortgage and the execution are collusive.

(2.) THE facts, shortly stated, are these: The suit properties were purchased by one kamiruddin Khan being the predecessor-in-title of the defendants appellants in execution of a mortgage decree in T. S. No. 244 of 1927. On October 10, 1929 the said Kamiruddin Khan took delivery of possession in execution of the decree. In 1953 the present suit was filed by the plaintiffs, being members of Muslim community in their respective capacity, for a declaration that the suit property belongs to Mohamadan public and not the defendants and further that the mortgage in favour of the said Kamiruddin Khan (husband of defendant No. 1), the mortgage decree the execution proceedings are illegal, fraudulent and inoperative against the public and for possession. The defence taken in the suit, is that none of the suit properties are Wakf properties though no doubt there is a Masjid in lot No. 1 originally meant for prayers to be offered by the mortgagor's family; hat lots 2 and 3 are not Part and parcel of the Masjid though they are adjacent vacant plots; that in the Provincial and Revision Settlements the said lots are not recorded as Masjid or Wakf property; in the current settlement lot No. 1 is shown in the name of the mortgagor mentioning a Masjid Ghar therein.

(3.) THE trial court held that the suit property is Wakf property; that lot No. 3 is the khela Padia where Moharum feats are shown; that the mortgage is collusive and accordingly decreed the suit in favour of the plaintiffs. The said findings were affirmed by the learned lower appellate Court in appeal. Hence this Second appeal.