Lord Sinha:-

This litigation arises in connexion with an ancient mosque standing on a portion of holding 221 in the Government Khas Mehal of Dihi Panchannagram, near Calcutta. In a proceeding under Reg. 2 of 1819 between the Government of India as plaintiff and one Syed Miron Munshi of Kalinga as defendant, the whole holding, then 3 bighas 11 cottas and 3 chhataks in area (a portion has since been acquired under the Land Acquisition Act), was declared by the revenue authorities to be revenue-free as property dedicated long ago to religious uses, i.e., a wakf, of which the said Miron Munshi was the then mutwali. The mosque stood on a portion of this area and the rest of it was let out to tenants, the rents being appropriated for the expenses of the mosque.

Mir Miran or Miron Munshi continued to hold this area of land as mutwali of the mosque until his death about 70 years ago, and after him his son, Sheikh Mahommad Jan, succeeded him as mutwali. Mahomed Jan died about 50 years ago, and thereafter his widow, Rukia Bibi, assumed the office of mutwali. On the 27th October 1902, she executed a deed whereby she purported to nominate her son Mir Ramjan Ali as her successor in the mutwaliship.

Disputes having arisen, the heirs of Mahommad Jan instituted in 1907 a suit No. 78 of 1907 in the Court of the Subordinate Judge of 24 Parganas, on the basis that holding 221 was the secular property of Mahommad Jan and asking for partition thereof. A preliminary decree for partition was actually made in that suit in 1908. On the 18th July 1910, a suit No. 48 of 1910 was filed in the Court of the District Judge of 24 Parganas with the sanction of the Advocate-General under S. 92, Civil P. C. of 1908 by seven Mahommedans as plaintiffs against Rukia Bibi as defendant. It was sought by that suit to obtain the removal of Rukia Bibi from the office of mutwali, for accounts and for settling a scheme for the management of the said properties. The plaint in that suit was subsequently amended on the 15th December 1910 :

(1) By the addition of all the heirs of Mahomed Jan as defendants, who, it was alleged, were claiming the property as their personal property ; and

(2) by adding a prayer for the declaration that the property in suit was wakf property and not the personal property of the defendants.

No sanction of the Advocate-General was obtained for these amendments, and apparently the Advocate-General had nothing further to do with that suit at any later stage.

On the 15th September 1911, a petition of compromise was filed in that suit on behalf of plaintiffs 1, 2, 3 ; 4, 5 and 7 (i.e., all the plaintiffs except plaintiff 6, named Rahimbuksh). The first two paragraphs of the petition were as follows :

That your petitioners have on consideration of all the circumstances and facts as disclosed in the evidence produced in the case and which the parties may produce on their, behalf have decided that it would be to their best interest and in the interest of public for whose benefit the plaintiffs brought this suit to compromise the suit on the following terms and conditions :

That out of the disputed property the portions shown in the plan herewith filed and marked A, B, C, D, measuring 1 bigha 1 cotta 8 chhattaks, 24 square feet (1 bigha 1 cotta 8 chhattaks and 24 square feet) should be declared a valid Mahomedan public 'religious and charitable endowment, a wakf.

The rest of the petition dealt with the appointment of new mutwalis and the future succession to the mutwaliship. On the 16th September 1911, the following order was passed on the petition by the District Judge.

The compromise has now been accepted by all parties to the suit. The terms are set out in the petition filed by the plaintiffs on the 15th September, to which a plan is attached. My previous order refers to a petition filed on behalf of ten defendants.

A permission (petition ?) has now been filed on behalf of the remaining three defendants. Let a decree be drawn up in terms of the petition-a copy of