BABU KANHIYA LAL Vs. ASHRAF KHAN

JUDGEMENT

(1.) The dispute in this appeal relates to a house which was mortgaged along with another house by Najabat Khan in favour of the defendant-appellant and his brother Madho Prasad in 1892. On the death of Madho Prasad his interest devolved on the defendant-appellant. The defendant-appellant brought a suit to enforce his mortgage and got a decree for sale against the present defendants Nos. 2 to 6 as the heirs of Najabat Khan, and in execution thereof he got the two houses aforesaid put up to sale.

(2.) A suit was then brought by the present plaintiffs-respondents other than Musammat Umda Bibi for a declaration that the house now in dispute was used as an Imambara and was waqf property; that the other house was his exclusive property by inheritance from Fateh Khan, and that neither of those houses was liable to sale in execution of the above decree. That suit was dismissed in regard to the house now in dispute on a finding that it was not proved to be waqf property, but decreed in regard to a share in the other house which was found to be the property of Fateh Khan, the common ancestor of the then plaintiffs and the mortgagor.

(3.) The present suit has been filed by the same plaintiffs and a lady named Musammat Umda Bibi for the protection of their interests in the house, which was previously described as waqf property, from the impending sale. The Courts below decreed the claim.