MUNSHI BUSOID Vs. MUNSHI NEWAZ AHMED KHAN

JUDGEMENT

(1.) This appeal has arisen out of a suit which was instituted by three persons as plaintiffs under the provisions of Order I, Rule 9 of the Civil Procedure Code as members of, and for and on behalf of, the local Muhammadan Community.

(2.) The subject-matter of the suit is described in the plaint as a plot of land about 3 bighas 10 cottas in area. On this land stands a mosque, close to which there is a large tank with some sort of masonry structures and steps leading up to it, and the rest of the land is said to be a quantity of garden land with some fruit trees standing thereon, and it is also said that there are pucca godowns, etc., erected on a portion. The entire area is, or rather was, enclosed on all sides by a compound wall with an opening for gates. The wall is now more or less in ruins and on the east side has been completely demolished. There is some sort of an out-house standing near about the opening. The defendant Munshi Newaz Ahmed Khan is, according to the plaintiffs, the Khatib of the mosque. The entire property is alleged, on behalf of the plaintiffs, to have been made a wakf by one Misri Begum, a lady of the Mysore family, long ago. A strip of land, out of the premises, on the side of the road on the east having been acquired by the corporation of Calcutta for the purpose of "set back" in connection with the said adjoining road a sum of Rs. 1,200 was awarded as compensation and was still in deposit. The defendant had claimed the money as his own personal property and had also been of late setting up a title hostile to the endowment in respect of the remainder of the lands. The plaintiffs accordingly instituted this suit for a declaration that the entire property including the sum of Rs. 1,200 belongs to the wakf of Misri Begum.

(3.) The defence, in substance, was that the lands belonged not to Misri Begum but to the defendant's ancestor, one Faizulli Jamadar. that the mosque was constructed by the said Faizulla Jamadar with the aid of contributions received from the public including Misri Begum, and that the said Faizulla Jamadar and after him one Ghasi Khan (a brother of the defendant) and after him the defendant himself were mutwallis of the mosque, but that the lands and tank, etc., were never used as wakf and on the other hand continued to be secular property and have ultimately devolved on the defendant in his personal right.