COMMISSIONER OF WAKFS Vs. SHAHEBZADA MOHAMMED ZAHANGIR SHAH

JUDGEMENT

(1.) This appeal is by the Commissioner of Wakfs, Bengal, the added defendant 9 in a suit for a declaration that the entries in the Cadastral Survey Khatian No. 866 in respect of Cadastral Survey Dag No. 1118/1341 in the remark column as "Pirosthan for use of Mahomedan public" and in the Northern boundary column as Hedayetulla are incorrect. The cadastral survey record was finally published on 7 September 1931, and the present suit was instituted on 29 July 1937. The Khatian No. 866 is Ex. D in this case, and it relates to a lakheraj comprising more than 50 plots of lands. Yusuf Sultan, the original plaintiff, is recorded as one of the cosharers of this lakheraj. Plots NOS. 1118/1841, 1119, 1118/1366 and 1118/1367 are recorded as being in the possession of Yusuf Sultan, though in the remarks column against the first two of these plots the right of user of the Mahomedan public is also entered. Of these the present suit relates only to the entries in respect of the Dag No. 1118/1341. Admittedly, the entry regarding its Northern boundary is wrong. The dispute relates only to the entry in the remarks column. The plaintiff's case is that this plot of land is his secular property in his personal enjoyment. It is not a Pirosthan and the Mahomedan public has no right of user in it. The entry in the remarks column of the khatian against this plot describing it as Pirosthan, the Mahomedan public having right to use it (Pirsthan-Musalman sadharaner byabaharjya), is wrong.

(2.) As has been stated above, the cadastral survey record recorded the plot as the secular property of the plaintiff in the plaintiff's possession but with the above remarks. The plaintiff instituted the present suit on 29 July 1937, for a declaration that these remarks in the cadastral survey khatian were wrong. Six persons were named by him in his plaint as the defendants representing the Mahomedan public under C. l, Rule 8, Civil P.C. and he took the necessary permission of the Court for the purpose. The notice of the institution of this suit was given to the Mahomedan public by public advertisement. Summonses on the defendants were issued on 31 July 1937, and were served on them on 6 August 1937. It appears from Ex. B that on 26 August 1937, the Commissioner of Wakfs, Bengal, enrolled Cadastral Survey Dag No. 1341 as wakf under Section 29, Bengal Wakf Act, 1934. Defendants 3 and 6 appeared on 30 August 1937, and took time for filing written statements. Defendants 3 and 6 filed a written statement on 20 September 1937. One Syed Osman Ali appeared and got himself added as defendant 7 on 20 September 1937. He filed his written statement on 27th September 1937. Later on, on 3 May 1938, one Majibar Rahaman Molla appeared and got himself added as defendant 8. He filed his written statement on 12 May 1938. The original plaintiff was Sahebzada Mahammad Yusuf Sultan. He died during the pendency of the suit and on his death the original defendant 3 Sahebzada Mohammad Jahangir Shah, became substituted in his place as his heir and legal representative on 5 December 1938.

(3.) It appears that defendants 7 and 8 in their written statements stated that the Commissioner of Wakfs, Bengal had declared the disputed property to be wakf property under the provisions of the Bengal Wakf Act. The substituted plaintiff on 19 December 1938, applied for amendment of the plaint by adding the Commissioner of Wakfs, Bengal, as defendant 9 in the suit. This application was granted on 5 January 1939, and the Commissioner of Wakfs, Bengal, appeared on 10 February 1989, and filed his written statement on 25 February 1939. The plaint also was amended by the addition of prayer 2 (a) which ran thus: To declare that the decision of the Commissioner of Wakfs, Bengal, that the property in suit is wakf is illegal and ultra vires.