NABI HASSAN Vs. GAJADHAR SINGH

JUDGEMENT

(1.) This second appeal arises out of a suit for a declaration that certain lands are part of a mosque and the sale thereof is void and for confirmation of possession over the same. Both the courts having concurrently found against the plaintiffs the present appeal has been filed.

(2.) Briefly stated, the case of the plaintiffs was that there is a mosque in Mohalla Salempur in Chapra town appertaining to holding No. 36 within ward No. 2 of the Chapra Municipality. It was constructed by one Maulvi Naziruddin, the ancestor of Maulvi Habibur Rahman, Maulvi Naziruddin had dedicated this mosque for the use of Muslims. He had, however, 4 kathas 10 1/2 dhurs of land having a well thereon and a construction of five rooms contiguous east and north of the mosque. Maulvi Azizur Rahman, the father of Maulvi Habibur Rahman, it is said, made an oral gift in respect of 7 dhurs of this holding with one room and a pucca well contiguous to the mosque on the 27th of November, 1935 in order to provide for the recurring expenses over the repair of the mosque and possession was given to the donees, the plaintiffs, on behalf of the public. Maulvi Azizur Rahman thereafter executed a sale deed on the 27th of November, 1935 in respect of the remaining 4 kathas and 3 1/2 dhurs of land with four rooms in favour of one Jhola Mali for a consideration of Rs. 1,495/- and put him in possession thereof. It is said that the oral gift of the remaining 7 dhurs of land is mentioned in the sale deed to Jhola Mali. Maulvi Habibur Rahman, however, executed a sale deed dated the 25th of May, 1949 in respect of the 7 dhurs of land in favour of the first defendant. It is said that neither the vendor was in possession nor the vendee could get po.ssession on the basis of the sale deed. The latter, however, started claiming rent from the tenant in occupation of the room in dispute and even persuaded him not to pay rent to the plaintiffs. Hence the present suit.

(3.) The suit was contested by defendant No. 1, Maulvi Habibur Rahman not having appeared in the suit The case of the defendant was that the mosque was a private one and not a public mosque, that the lands aforesaid were in the possession of the vendor and his ancestors, that there was no oral gift ever made in respect of the lands in suit, that the plaintiffs never came in possession, that the sale deed in his favour was genuine and for consideration and that the defendant had been in possession since the purchase.