ASHRAF ALI Vs. MAHAMMAD NURAJJAMA

JUDGEMENT

(1.) This appeal arises out of a suit brought by two worshippers of a mosque situated Rahmatgunge, one of the quarters of the town of Chittagong, for themselves and as representing other worshipers in the locality for a declaration that" a permanent lease granted by the Mutwallies, defendant No. 4 and another, in favour of defendants Nos. 2 and 3 in the name of their mother, the defendant No. J, is void and inoperative and for a decree for khas possession with mesne profits, either in favour of the Mutwallies or in favour of the plaintiffs, on the ground that it was not within the competency of the Mutwallies. to grant such a lease The plaintiffs have complied with the requirements of Rule 8, Order I. Both the Courts have decreed the suit in part only and have declared that the property in. still is part of the Wakf property dedicated to the mosque and that the permanent lease granted by the Mat-wallies in favour of the defendant No. 1 is void and inoperative. The prayers for: khas possession and mesne profits have been disallowed. The plaintiffs are satisfied with the decree. The defendant No I, who alone contested the suit, appeals.

(2.) Three, points have been raised before us by the learned Vakil for the appellant. In the first place it is urged that the suit is one of the nature contemplated by Section 14 of Act XX of 1853 and not having, been instituted in conformity with the provisions of that Act is not maintainable in its present form. I am not impressed by this argument. It is fairly clear that the, suit contemplated by section, 14 is a suit prostituted primarily against the trustee, manager or superintendent of a mosque, temple or religious establishment or the members of any committee Appointed under that Act, and that the only relief that can be asked for in such a suit is a decree directing the specific performance of any act by suet trustees, managers,, etc., a decree, for "damages and. costs against them, and a decree directing their removal The present suit is clearly not of that nature and the provisions of that Act are not applicable to it.

(3.) It is next argued that even if the suit is not one under Section 14, Act XX of 1863, it is a suit which could only be instituted in compliance with the provisions of Section 92 of the Civil Procedure Code and not having been so instituted is liable to dismissal. This contention is equally "unfounded. It is obvious that the reliefs claimed in this suit are different from those mentioned in Section 92. A suit under that section is primarily a suit against a trustee and can only be instituted either on the ground that there has been a breach of trust or that direction of the Court is necessary for the administration of the trust. In this case although the trustee is one of the defendants and although it is alleged that the, grant of the permanent lease was not within the competency of the trustee, no relief is claimed against him nor is the Court asked to give any direction for the administration of the trust. The contention, therefore, fails.