Judgment

MITTER, J.: This is an appeal from a judgment of the Patna High Court reversing a judgment of the Subordinate Judge, Bhagalpur and decreeing the plaintiff s suit for a declaration that a pucca house situated in Mohalla Nathnagar within the Bhagalpur municipality was an endowed property under the deed of wakf dated June 21, 1914 and for recovery of possession of the same with mesne profits from defendants 1 to 3 (the appellants to this court) who had obtained sale deeds in respect of this property on December 27, 1949.

2. One Tassaduk Hussain was the owner of the disputed house and admittedly executed a deed of wakf on June 21, 1914 in respect of the same for the benefit of a mosque and Madarsa at Nathnagar and had the same registered. In terms of the deed the donor was to remain in possession of the house as Mutawalli and his wife was to be the Mutawalli after his death. The document provided that after the death of both the husband and wife the Mutawalli would be elected by the panchas of the Muslim community of Nathnagar and so long as the donor and his wife were living they would maintain themselves from the income of the property and spend the balance left for the mosque and the Madarsa. Tassaduk Hussain executed and registered three deeds on 10th December, 1949 by one of which he purported to cancel a gift deed dated November 4, 1939 executed in favour of some of his relations in respect of the disputed house. By the second document he cancelled another registered deed of gift dated August 2, 1948 executed in favour of another relation of his in respect of the identical property. And by the third document he purported to cancel the deed of wakf of 1914. Thereafter he executed and registered three separate sale deeds on March 27, 1949 one in favour of the appellant Garib Das, a second in favour of Shamlal and a third in favour of Gobind Lal. All these three deeds were in respect of portions of the disputed property. Tassaduk Hussain died in July, 1950.

3. The suit was filed by the first plaintiff as the elected Mutawalli of the wakf created by Tasaduk Hussain joining with him plaintiffs 2 and 3 as members of the Sadar Nathnagar Masjid Committee. Garib das, Shyam Lal and Gobind Lal, the aliencees from Tasaduk Hussain were impleaded as defendants first party. There was a number of other defendants also. The first three defendants were described as tenants in the suit properties. The plaintiffs claimed to set aside the deeds in favour of the said persons on the ground that as a valid wakf had already been created in favour of the mosque and Madarsa and had been acted upon, the deed of cancellation of December 10, 1949 and the sale deeds in favour of the first three defendants could not affect the wakf. A prayer was also made that as the said three defendants who were tenants had repudiated their tenancy they had forfeited the same and they had become trespassers and were liable to eviction as such.

4. The Subordinate Judge who tried the suit found the deed of wakf to be invalid holding, inter alia, that there could be no reservation for the benefit of the donor in the case of an endowment purportedly in favour of a mosque. He also held that the endowment was bad for uncertainty on the ground that the mosque and the Madarsa mentioned in the wakf could not be identified and that Tasaduk Hussain never had any intention to create a wakf.

5. The High Court set aside the findings of the Subordinate Judge holding that there was no evidence to indicate that for at least 25 years before the execution of the document of 1914 Tasaduk Hussain did anything to justify the inference that it was not his intention to create the wakf in question. The High Court held that the inference sought to be drawn by the Subordinate Judge from the fact that the original deed of wakf was not in possession of the panchas but came from the custody of the defendants as showing that no dedication to wakf was ever intended was not justified. According