JUDGMENT

UNTWALIA, J.:— This is an appeal by Special Leave. Bibi Siddique Fatima, the appellant, was the plaintiff in Suit No. 86 of 1952 filed in the Court of the Civil Judge at Aligarh, in which the defendant was Saiyed Mohammad Hasan. He was the sole respondent in this appeal also. He died during the pendency of the appeal and on his death his legal heirs and representatives were sub-stituted as respondents. For the sake of convenience hereinafter in this judgment by the respondent would be meant the original respondent.

2. One Smt. Sughra Begum was a Shia Muslim lady. She was a resident of Asgharabad in the District of Aligarh. She was possessed of vast Zamindari and other properties. On October 6, 1938, she created a waqf of the entire properties dividing them in three qurras. Raja Haji Saiyed Mohammad Mahmood Hasan was appointed by the waqifa as the Mutawalli of qurra No. 1. His brother was appointed the Mutawalli of the second qurra. The waqifa appointed herself the Mutawalli of the third qurra. The dispute in this case relates to a property concerning qurra No. 1. The Rajas first wife was Smt. Akbari Begum. She died in the year 1931 leaving behind four sons and six daughters. Raja Sahib, when he was about 50 years of age, took the plaintiff as his second wife in the year 1933. The plaintiff, at the time of her marriage with the Raja, was a young lady of Seventeen. Raja died in September, 1939. On January 22, 1935, a permanent lease was executed on behalf of one Saiyed Anwarul Rahman in respect of the disputed land in the name of the plaintiff. The rent fixed was Rs. 80/- per year. Between the years 1937 and 1939 a Kothi (Bungalow) was constructed on the said land, which was named as Mahmood Manzil. The suit property in this litigation is the said Kothi together with the land appertaining to it.

3. In short the plaintiffs case is that the disputed property belongs to her. The defendant was inducted as a tenant of the Kothi on and from 1st of March, 1947 on a rental of Rs. 60/- per month. He paid rent up to May, 1950 but did not pay any rent thereafter.In the year 1952, the plaintiff served a notice on the defendant to pay the arrears of rent and deliver vacant possession of the Kothi. The defendant, in his reply, refuted the claim of the plaintiff and asserted that the Kothi did not belong to her nor was he a tenant of the same. Hence the appellant instituted the suit for realization of arrears of rent, damages and recovery of possession of the suit property. The respondent, inter alia, pleaded that Raja Sahib, the first Mutawalli of qurra No. 1, had acquired the lease of the land and constructed the Kothi with the waqf fund as Mutawalli of the waqf. It was a waqf property. After the death of the Raja, the respondent became the Mutawalli of qurra No. 1 including the Kothi in question. He occupied the Kothi as a Mutawalli and not as a tenant. The trial Court accepted the case of the defendant, rejected that of the plaintiff and dismissed her suit. The Allahabad High Court has dismissed her appeal. She has preferred this appeal in this Court on grant of special leave.

4. Shri M. N. Phadke advanced a very strenuous argument in support of this appeal. Shri Lal Narayan Sinha combated his argument on behalf of the respondent. It would be convenient to refer to some facts and facets of the case from the pleadings of the parties and judgments of the courts below before enunciating and enumerating the submissions made on their behalf.

5. The case pleaded in the plaint by the appellant was like this. Raja Sahib out of great love for the plaintiff "used to pay her a handsome amount every month as pin-money and also a good deal of money occasionally." The plaintiff, with the object of constructing a Kothi, took on lease the disputed land measuring about 4 bighas and had been paying the annual rent of Rs. 80/- since the execution of the lease. She pleads in para. 4:-

"After the execution of the said lease, the plaintiff with her personal