Judgment

SEN, J. :- This appeal by certificate is directed against the judgment of the Rajasthan High Court dated May 4, 1966 holding that inclusion of the disputed property in the list of wakfs published by the Board of Muslim Wakfs, Rajasthan under sub-s. (2) of S. 5 of the Wakf Act, 1954 is not binding on the respondents Nos. 1 and 2, the mortgagee-purchasers and restraining the Board from taking any steps under S. 36-B of the Act for evicting them from the same.

2. The subject-matter in dispute is a two-storeyed building, known as Dharamshala or Musafirkhana, situate on Mirza Ismail Road at Jaipur. The building was constructed by the late Haji Mohammad Ali Khan, a Sessions Judge of the erstwhile Princely State of Jaipur, who owned a considerable estate, on a plot of land admeasuring 5 bighas and 3 biswas obtained from the Mahakma Mansa Aliya Council with the approval of the Ruler of Jaipur under a Patta dated February 23, 1886 for construction of a Heveli and Dharamshala. It appears that Haji Mohammad Ali Khan before his death in the year 1912, had executed two wills, one on February 17, 1910 and the other on July 1, 1911, by which after making several bequests he acknowledged that he had dedicated the said property in wakf, for its use as a Dharamshala and appointed his son Ehsan Ali Khan as its mutawalli. After the death of Haji Mohammad Ali Khan, there was a suit for partition of the property brought by his son Faiyaz Ali Khan against his brother Ehsan Ali Khan, being Original Suit No. 128 of 1930 and the building was left out of partition, being wakf property.

3. It, however, appears that the mutawalli Ehsan Ali Khan mortgaged the property with possession, with Seth Bijaylal, farther of respondent No. 2, and Bhuramal, father of respondent No. 1, for Rs. 7,999 and executed a mortgage deed dated July 30, 1944 in their favour for the purpose of purchasing a strip of land in front of the building from the Municipal Council, Jaipur and thereafter constructed verandahs on the ground floor and the first floor. For making this construction, he raised a further loan of Rs. 9,999 by effecting a second mortgage by executing the mortgage deed dated July 7, 1945 in favour of the said mortgagees. The respondents Nos. 1 and 2 purchased the ground floor of the building from Ehsan Ali Khan for Rs. 19,999 by means of a registered sale deed dated November 23, 1954. The consideration was applied towards satisfaction of the two previous mortgages. Thereafter, they purchased the first floor of the said building from him for Rs. 13,999 by means of a registered sale deed dated July 31, 1956.

4. The Wakf Act, 1954 was extended to the State of Rajasthan on February 1, 1955. The Board of Muslim Wakfs, Rajasthan was constituted by the State Government on August 6, 1962 in accordance with S. 9 and thereafter the Government appointed a Commissioner of Wakfs under sub-sec. (1) of S. 4 for the purpose of making survey of wakf properties existing in the State, at the date of the commencement of the Act. On August 30, 1962, one Shaukat Ali Khan, the respondent No. 3 applied to the Commissioner of Wakfs alleging that the aforesaid property was wakf property and, therefore, its transfer by Ehsan Ali Khan, who was its mutawalli, in favour of the respondents Nos. 1 and 2 was invalid and consequently prayed that the property be declared to be wakf property and possession of the same be handed over to the Wakf Committee. The Commissioner of Wakfs accordingly issued notice to the respondents Nos. 1 and 2, the mortgagee-purchasers. In response to the notice, the respondents Nos. 1 and 2 appeared before the Commissioner of Wakfs on September 19, 1962 and raised a preliminary objection as to the jurisdiction denying that the disputed property was wakf property and contended that the Commissioner of Wakfs had no jurisdiction to make an enquiry as to whether a particular property is wakf property or not. The Commissioner of Wakfs by his order dated September 19, 1962