MAULVI REZA ANSARI Vs. SHYAMLAL SAH

JUDGEMENT

(1.) Both these appeals have been heard together and are being decided by this common judgment.

(2.) The Question for consideration is whether a Mutawalli of a Wakf estate can institute and defend suits and proceedings in a court of law relating to wakfs after coming into force of Wakf Act 1954 (hereinafter referred to as the Act).

(3.) In order to appreciate the question arising in these appeals it will be necessary to give certain facts. One Hazi Tassadduk Hussain created a wakf in June, 1914 in respect of the suit property which is a pucca house consisting of seven rooms situate in Mohalla Nathnagar of Bhagalpur town. According to the wakf deed he was to act as Mutawalli till his death and after him his wife was to act as such. It was further stipulated that after the death of the wife also the Panches of Nathnagar were to appoint a person as Mutawalli whom they consider proper. Both Tassadduk Hussain and his wife died and after their death Maulvi Abdul Hamid was appointed as Mutawalli and manager. Garib Das, Govind Lal and Shyamlal Sah were in occupation of some of the rooms of the house in question. A suit was filed by Munshi Abdul Hamid, the elected Mutawalli, which was registered and numbered as Title Suit No. 2 of 1955. He sought for a declaration that the suit properties were endowed properties having been made wakf by Hazi Tassadduk Hussain and that Garib Das, Govind Lal and Shyamlal Sah had not acquired any title to the properties under their respective sale deeds dt. 27-12-1949 and that their possession over the suit properties was illegal and wrongful. It was contended that Garib Das. Govind Lal and Shyamlal Sah who were tenants having repudiated their tenancy had forfeited the same and their tenancies had been determined and as such they were trespassers and their possession was wrongful. 31 more persons were also impleaded as defendants in the suit and a declaration was sought against them that they were also trespassers. Munshi Abdul Hamid also claimed a decree for recovery of possession in favour of himself representing the wakf estate and restoration of the suit properties to the wakf estate. A decree for permanent injunction and mesne profits was also sought for. The suit was dismissed by the trial court on 29-1-1957. Munshi Abdul Hamid and others filed First, Appeal No. 557 of 1957 in this Court which was allowed by a judgment dated 7-9-1961* and the suit was decreed. It was held by this Court that Tassadduk Hussain had created the wakf in question in 1914 and continued to be the Mutawalli until his death; that defendants Govind Lal. Garib Das and Shyamlal Sah had not acquired any title in respect of the suit properties and they were trespassers after 27-12-1949 though they were tenants of some portions of the suit Property before that date that defendants 4 to 34 had no title whatsoever to the suit property and that the plaintiffs were entitled to a decree for recovery of possession of the suit properties with mesne profits. Govind Lal. Garib Das and Shyamlal Sah took the matter to the Supreme Court and the Supreme Court by a judgment, dt. 13-11-1969 remanded the appeal to this Court on the ground that reference was made to Sections 11 and 12, Bihar Building (Lease. Kent, and Eviction) Control Act, 1947, under which the decree for eviction could only be passed at the relevant time by the controller appointed under the Act and the High Court's judgment was not explicit on that point. It was directed that that question should be determined by the High Court. Except for the reasons aforementioned, the appeal was dismissed by the Supreme Court. When the appeal was placed for hearing before this Court on 13-1-1970 the parties entered into a compromise and the appeal was disposed of in terms of the said compromise. A decree, accordingly, followed. The decree was put under execution by the present appellant Maulvi Reza Ansari who claims to have been elected as Mutawalli after the death of the original decree-holder Abdul Hamid and two others, namely, Hazi Abdus Salam and Maulvi Iylas who claim to have been elected as Sadar and secretary respectively of the wakf estate in question on 2-1-1975. By that time two judgment-debtors Garib Das and Govind Lal died. Objection under Sections 47 and 151. Civil P. C. was filed by Girja Devi widow of late Garib Das and Sabitri Devi and Dr. Dinesh Prasad Gupta widow and son of late Govind Lal. This gave rise to Miscellaneous Case No. 2 of 1976. Another objection was filed by the third judgment-debtor Shyamlal Sah giving rise to Miscellaneous Case No. 3 of 1976. Their main objection was that the decree put in execution was null and void and could not be executed. The next objection was that the execution case was not maintainable.