AZIZUDDIN MUSALMAN Vs. RAMZAN SHAH

JUDGEMENT

(1.) 1. The judgment in this appeal will govern the disposal of Second Appeal No. 319 of 1931, Azizuddin v. Mahbub Shah and Ors. Two small fields in Mouza Bhankheda are, according to the village records, the malik makbuza holdings of Mahbub Shah and four others: two other small fields in the same village are recorded as the muafi holdings of Ramzan Shah and Mt. Fatma Bi. Two suits were brought by the respective owners of these fields against persons who claimed to be in possession of the plots on behalf of a committee known as the Kaburistan Intazamia Committee. It was found by the lower Courts that the plots in suit were wakf property and for that reason the entries in the Record-of-Bights did not prove that the plaintiffs were private owners: the decrees have been given in favour of the plaintiffs on the ground that they were in reality holding the property as muttawalis and were for this reason entitled to an injunction and damages against the defendants.

(2.) IN second appeal it is urged that as the plaintiffs claimed as proprietors, their suits should have been dismissed. It seems clear to me that the plaintiffs who alleged that the land was their property cannot succeed if it is held that they are not the owners of the land. They desire to use the land for their own benefit and claim damages for the benefit of themselves. It is not material whether or not they would be entitled to use the land or to receive damages in the capacity of trustees. Had they claimed as trustees, they would be under liability to use the land and the sums awarded to them for the use of the trust: both the land and the money would accrue to the true owner; for a suit by the plaintiffs in the capacity of muttawalis would in reality be a suit by a true owner instituted through muttawalis. The respondents attack the finding that the land was wakf property. They place reliance on the decision of the Privy Council in Muhammad Raza v. Yadgar Hussain AIR 1924 PC 109. Their Lordships held that the nature of the grant in that case was 'not a wakf but was a grant sub condition.

(3.) THE fact that the respondents are entered as owners in the settlement papers then does not show that they were private owners and not muttawalis of the trust property. In the case I am considering the entries of the names of the respondents in the Record-of-rights are inconclusive and it is clear that the land was wakf by user. The plaintiffs-respondents then, whatever rights they may have as muttawalis cannot succeed in a suit based on a title as private owners. The appeal therefore succeeds. The suits are dismissed. Costs in all Courts must be borne by the plaintiff-respondents: counsel's fee in this Court Rs. 30.