MUHAMMAD ALAM Vs. AKBAR HUSAIN

JUDGEMENT

(1.) THE plaintiffs, who We seven in number and all residents of the city of Kanauj, instituted the suit, out of which this appeal has arisen, to have it declared that certain land in the village of Kandrauli is the pargana of Kanauj is waqf property appertaining as such to an Idgah or mosque which was built by the Moghal Emperors. It appears from the judgment of the lower appellate Court that the land in question was recorded as Bagh Idgdh of mauza Kandrauli No. 463 at the time of the settle-, ment made under Regulation IX of 1833 and No. 489 in the jamabandi of the Settlement of 1872. THE principal, defendants are the purchasers of a part of the zemindari of the village of Kandrauli. THE defendants set up a plea that neither the Idgah nor the land adjoining it was waqf property and upon this plea the main issue in the case was, framed. THE Court of first instance gave the plaintiffs a declaration that the Idgah was endowed property but dismissed the suit as regards the land adjoining it. Upon appeal the learned District Judge came to the conclusion upon the evidence that the land adjoining the Idgah was endowed property and he decreed the plaintiff's claim in full. From this decision the appeal, which is now before us, has been preferred and the main contention of the learned Vakil for the appellants is that the plaintiffs-respondents have no right to maintain the suit. It is contended that apart from the provisions of Section 42 of the Specific Relief Act and Section 539 of the old Civil P. C., corresponding to Secs.92 and 93 of Act V of 1908, a suit of the nature of the present suit cannot be maintained and that the plaintiffs,who are merely Muhammadan residents of Kanauj, could not show that they had any special interest in the mosque in question and had no right to bring the suit Reliance, in support of this contention, is based upon the ruling in Wajid Ali Shah v. Dianatullah Beg 8 A. 31. In that case a Muhammadan, not a resident of the district in which the alleged waqf property was situate, brought a suit against a person in possession of that property for a declaration that the property v as waqf and in his plaint he did not allege that ho himself was interested in the property further or otherwise than as being a Mubammadan. It was held by Petheram, C.J., and Oldfield, J., that unless it could be shown that the suit was maintainable under some statutory provision, it could not be maintained, that inasmuch as no permission had been given to the plaintiff to bring the suit, it was not maintainable under Act XX of 1863 or under Section 539 of the Civil Procedure Code and that the suit was not maintainable under the provisions of Section 42 of Act T of 1877 (Specific Relief Act). THE learned Judges in their judgment observed, as regards Section 42 of the Specific Relief Act, that the only right asserted by the plaintiff was his right as a Muhammadan to have the property kept as waqf for the general body of persons who believe in the Muhammadan religion and that Section 42 of the Specific Relief Act applies to any person entitled to any legal character or to any right as to any property" and, in certain circumstances, allows such a person to bring a suit for determination of his title to such character or light and that the scope of the section is confined to the two classes which it specifies and that the plaintiff could not sue as one of the first class, because he had no "legal character" which was denied by any one, as he only asserted his character as a Muhammadan, and that had not been questioned, and further that the plaintiff did not for himself assert a right to any property and by no act of the defendant had his right to any property been denied. This case is unlike the present in so far that in the present case the plaintiffs are Muhammadan residents of the city of Kanauj and as such are entitled to worship in any Muhammadan mosque in the city. If the decision to which we have just referred could be held to govern the case of the plaintiffs in the present suit, it appears to us to be inconsistent with the decision of a Full Bench of this Court in the case of Jawahra V/s. Akbar Husain 7 A. 178. In that case the Full Bench, consisting of Sir Comer Petheram, C.J., and Oldfield, Brodhurst, Mahmood and Duthoit, JJ., held that "every Muhammadan, who has a right to use a mosque for purposes of devotion, is entitled to exercise such right without hindrance and is competent to maintain a suit against any one who interferes with its exercise, irrespective of the provisions of Secs.30 and 539 of the Civil Procedure Code". In this case the Full Bench quoted with approval the case of Zafaryab Ali V/s. Bakhtawar Singh 5 A. 497. In that case certain Muhammadans sued to set aside a mortgage of endowed property belonging to a mosque, the decree enforcing the mortgage, and the sale of the mortgaged property in execution of that decree, and for the demolition of buildings erected by the purohaser and the ejectment of the purchaser. It was held that the plaintiffs, as Muhammadans, entitled to frequent the mosque and to use the other religious buildings connected with the endowment, could maintain the suit, and that Section 539 of the Civil Procedure Code had no application to the case, the endowment being a religious institution within the meaning of Section 24 of Act VI of 1871 and therefore, governed by the Muhammadan Law. Mr. Amir Ali in his work on Muhammadan Law (Volume I, 3 Edition) at page 455 referring to the case of Jawahara V/s. Akbar Husain 7 A. 178 observes as follows: ?THE judgment of the Allahabad High Court) seems to be in conformity with the provisions of the Muhammadan Law. As has been already pointed out from the Raddul Muktar and the Fatawai Kazi Khan, every Muhammadan, who derives any benefit from a waqf or trust, is entitled to maintain an action against the mutwalli, to establish his right thereto or against a trespasser to recover any portion of the waqf property, which has been misappropriated, without joining any other person who may participate with him in the benefit". At page 449 of the same volume the learned author comments on and expresses approval of the decision of this Court in Zafaryab Ali V/s. Bakhtawar Singh 5 A. 497 above cited. Now the plaintiffs have a right to frequent and use the mosque for devotion and the land adjoining is appurtenant to the mosque and according to the above rulings they can maintain their suit.

(2.) THE lower appellate Court has found that the land adjoining the Idgah is endowed property, and this finding of fact is hinding upon us in second appeal. In view of the finding, we are of opinion that the decision of the Court below is correct. We dismiss this appeal with costs including fees in this Court on the higher scale.