WAJAD ALI SHAH Vs. SMDADANNESSA BIBI

JUDGEMENT

(1.) This appeal arises out of a suit in which the plaintiffs prayed for a declaration that the defendant had been dismissed from the post of Imam to a certain mosque and for recovery of possession of certain lands which the defendant had enjoyed in virtue of his holding the post of Imam. The defendant contested the suit, denying the plaintiffs claim to be the matwallis of the mosque in question, asserting his own right to the office of mutwalli, denying the assertion that he had been validly removed from the post of Imam, denying the assertion that some of the lands claimed in the suit belonged to this mosque and denying the assertion that he held any of the lands as a chakran tenant by virtue of his holding the office of Imam. The defendant also claimed compensation for the houses erected by him on the lands in suit. The suit was decreed in favour of the plaintiffs, but the defendant was awarded Rs. 800 as compensation. An appeal by the defendant and a cross appeal by the plaintiffs were both dismissed. This second appeal is by the defendant. Three arguments have been addressed to the Court on behalf of the appellant, viz., 1. that the lands were a gift to the original Imam, burdened with certain duties, it is true, and are not resumable by the mutwallis if the Imam is removed from his post,

(2.) that the plaintiffs are not the mutwallis and are not, therefore, entitled to remove the defendant from the post of Imam,

(3.) that there were no sufficient grounds for the removal of the defendant from the post of Imam; in support of the first argument, reliance was placed on a toahfnama Ex. 1. It is admitted that plaintiff's predecessor Hari Mandal founded the mosque and endowed it with certain lands. Hari Mandal or his widow China Bibi acting for herself and on behalf of her minor son Rakhal Mandal, appointed defendant's father Khidmatali Sha, to be Imam of the mosque. The wakfnama Ex. 1 was executed in 1884 by China Bibi and Rakhal Mandal in favour of Khidmatali Sha. The language of the document is the language of a deed of gift, and if the defendant had inherited the land from his father, there might have been some force in the argument. But admittedly China Bibi and Rakhal Mandal subsequently instituted a suit against Khidmatali Sha and recovered possession of the lands, and removed Khidmatali from the post of Imam. After Khidmatali's removal other Imams were appointed before the defendant was appointed. When the defendant was appointed Imam, he was given possession of the lands in suit. He did not derive title to the lands by virtue of the document Ex. l, and he is not, in my opinion, entitled to place any reliance on that document, in view of the decree obtained by the persons who executed the document against the person in whose favour it was executed. 2. There is no evidence to show how the plaintiffs became mutwallis of the mosque. They are admittedly the descendants of the founder; and admittedly the descendants of the founder in the past, exercised the functions of the mutwalli, without any appointment having been made. There is no suggestion that any other person has been appointed mutwalli. The suggestion apparently is that there has been no valid appointment in any manner sanctioned by Mahommadan law. In this connexion my attention was drawn to paras. 166 and 167 of Mulla's Principles of Mahommadan Law. The note to para. 167 makes it clear that a de facto mutwalli will be recognised by the Courts. In Ameer Ali's Mahomedan Law (Edn. 4) at p. 465 the learned author observes: In the absence of a mutwalli, the power of nomination and appointment of an Imam and muezzin to a mosque is given to the wakif's descendants and the members of his family preferentially to others, This is the view stated in the Ashbah. Therefore, either as de facto mutwallis, or as descendants of the wakif, acting in the absence of a mutwalli, the plaintiffs had the power of appointment of the Imam and, therefore, as it seems to me, the power of dismissal for sufficient cause. 3. The Courts below have found that the present appellant set up a claim to lands of the mosque adverse to the mutwallis, that he realised interest from his debtors; and that he neglected to call the Azan himself. They also found that these were sufficient grounds for removing the appellant from his post. The findings that he realised interest from debtors, neglected himself to call Azan and made claims adverse to the mutwallis are findings of fact which cannot be challenged in second appeal. I am not prepared to hold that the Courts were wrong in considering that these were sufficient grounds for removal. In the result, therefore, the appeal fails and is dismissed with costs. Leave to appeal under Clause 15, Letters Patent is asked for and is refused.