BASANT MAHTON Vs. S M YUSUF

JUDGEMENT

(1.) The plaintiff-respondent no. I who was a Mutwalli of the Waqf estate created by one Bibi Mohammadijan, brought in the court of the Subordinate Judge, Patna a title -suit in the year 1959 against the defendant- appellants for recovery of possession over 1.93 acres of land comprised in 2 plots namely, plot nos. 1442 and 1443 situate in Diwan Mohalla of Ward No. 21 Circle No. 109 of the Patna Municipal Corporation, P. S. Khajakalan one of the quarters of Patna city. The suit was brought on the allegation that the appellants were trespassers and they did not obtain any title under the settlement from pro forma defendant no. 3 Khurshaid Hussain (Respondent no. 2) who had merely a right of residence in the building standing on the suit land under the Waqf-deed dated, 10th March, 1979. He also prayed for mesne profits from March, 1957.

(2.) The suit was contested by defendants 1 and 2 only who are the appellants. Their plea was that respondent no. 2 Khurshaid Hussain (defendant no. 3) was the Naib Mutawalli and he had a right to settle the land that these defendants appellant took the suit lands by oral settlemert from defendant no. 3 about 13 or 14 years ago for agricultural purposes at an annual rental of Rs. 110 and from that time they were in possession of the same by growing wheat, maize barley and vegetables etc., that they made it fit for cultivation and constructe a room on the same for agricultural operations, and that after 4-5 years a Hukamnama followed on 20 January 1952 in favour of defendant no. 1. They further claimed that the lauds were their raiyati lands and they had occupancy right therein. They alleged that on 1st February, 1957 defendant no. 3 settled through another Hukumnama the renaming land on which the dilapidated building existed. Thereafter they made the land fit for agricultural purposes. They spent Rs. 2,600 for improvement of the land. It was further said that the interest of the Waqf board vested in the State of Bihar on 1st January, 1956 and the plaintiff as Mutawalli had no right to sue for possession

(3.) The suit was decreed by both the courts below. Under the decree the plaintiff-respondent became entitled to recover possession over the suit land and also for mesne profits to be ascertained subsequently on the filing of a petition by him for that purpose.