MOHAMMAD KHODA BUKSH Vs. MOHAMMAD ISHAQUE

JUDGEMENT

(1.) This miscellaneous appeal under Section 54 of the Bihar Waqfs Act, 1947 (Bihar Act 8 of 1948), hereinafter to be referred to as the Waqfs Act for the sake of brevity, is directed against the order of the Additional District Judge declaring the order dated 25-4-1963 of the Sadr of the Majlis as invalid and illegal and also the appointment of a Committee by the Majlis to look after the Waqf properties in question (which appointment was made by the order dated 23-6-1963 of the Majlis).

(2.) The facts giving rise to this appeal are these. There is a mosque of Sher Shah in mahalla Agha Hussain Ka Chowraha in Patna City and there are certain properties appertaining to the said mosque. The mosque and the lands appertaining to it were registered by an order passed by the Sadr on 19-1-1963, and it was further mentioned that Mohammad Ishaque (respondent No. 1) was registered as Mutawalli. A certificate was issued in his name on 4-3-1963 showing him as Mutawalli of the said mosque and the properties appertaining to it. It appears that Syed Mohammad Qasim was the previous Mutawalli and his name stood recorded in the last Municipal survey records in respect of the properties of the mosque. He died in the year 1946 and thereafter there was no Mutawalli of the Waqf property. Respondent No. 1, however, took possession of the properties of waqf, including a piece of land adjoining the said mosque. Musammat Soghra, wife of Syed Mohammad Qasim, filed a petition before the waqf Board challenging the validity of the appointment of respondent No. 1 as Mutawalli, and she further alleged that respondent No. 1 was making an unauthorised construction on the piece of land adjoining the said mosque. On 8-4-1963 the residents of the said Mahalla also filed an application challenging the validity of the appointment of respondent No. 1, and some of them suggested that Mohammad Khoda Baksh (appellant No. 1) should be appointed as Mutawalli and appellants 2 to 11 should be appointed as members of the Committee to manage the waqf property. On 11-4-1963 a notice was issued to respondent No. 1 to stop the illegal construction of a house on the waqf land. One Moulvi Zamiruddin, a member of the Committee, was requested to make an enquiry, and he submitted the final report on 16-4-1963 recommending the replacement of the Mutawalli Mohammad Ishaque (respondent 1) by appellant No. 1, The first report of Moulvi Zamiruddin was dated 10-4-1963 about the construction which was being made by respondent No. 1 and that led to the issuance of the notice on 11-4-1963. As the Mutawalli (respondent No. 1) disobeyed the said order and did not stop the construction, the Sadr (respondent No. 3) passed an order on 25-4-1963 removing respondent No. 1 from Mutawalliship, as his continuance was likely to deprive the waqf of a valuable piece of land. Subsequently, this action of the Sadr was considered by the Majlis, and the Majlis passed a resolution on 23-6-1963 confirming the order of removal of respondent No. 1 which was passed by the Sadr on 25-4-1963. On the same date the Majlis constituted a Managing Committee consisting of appellants 1 to 11 as the members. Syed Mohammad Nazim, appellant No. 2 died during the pendency of this appeal and the remaining members of the Committee are now prosecuting this appeal.

(3.) Being aggrieved by the order of the Sadr dated 25-4-1963 and that of the Majlis dated 23-6-1963, respondents 1 and 2 filed an application before the District Judge under Section 27(3) of the Waqfs Act for setting aside those orders, and the application was registered as Miscellaneous Case No. 102 of 1963. Later on, it was transferred to the Court of the 3rd Additional District Judge, and be heard that case. By order dated 14-7-1966 he allowed the miscellaneous case registered before him as Miscellaneous Case No. 102/6 of 1963/66 and declared the order of the Sadr dated 25-4-1963 as invalid and illegal and also the appointment of a Committee by the Majlis to look after the waqf properties in question. Hence, the members of the Committee (appellants. 1 to 11) filed this miscellaneous appeal.