( 1 ) IN this Letters Patent Appeal, the only question that arises for consideration is whwther the plaint schedule property is "wakf property .

( 2 ) THE appellant is the first defendant in the suit. The respondent herein - andhra Pradesh Wakf Board - has instituted the suit, O. S. No. 232 of 1973 for recovery of possession of the plaint schedule property ad measuring Acs. 3-00 in s. No. 26 comprised in patta dakhal No,764 in Tadikonda village within the panchayat area of Tadikonda on the averments that the same is wakf property endowed for the maintenance and up-keep of the Ashurkhana at Tadikonda and for performance of Moharram festival every year, that the Mutawallies are performing the Moharram festival annually and that the Muslim public at large is treating the same as wakf property. After the Wakf Act (Act 29 of 1954) came into force, the State Government appointed a Commissioner to survey the Wakf properties and the Wakf Board published a list of wakf properties in the Andhra pradesh Gazette Part II dated 28-6-1962 in which the suit property was shown as wakf property. Alleging that the Mutawallies alienated the suit property in favour of the 1st defendant - Partnership Firm - by way of written lease for a period of 25 years on 26-9-1990 far in excess of the statutorily prescribed period of three years without there being any legal necessity or beneficial use to the ashurkhana, it was averred, the same is illegal and void. The first defendant in turn had leased out the said property in favour of the second defendant, which is void under law and the land has been put to non-agricultural purposes by the first defendant.

( 3 ) RESISTING the suit, the first defendant contended in the written statement that they have taken on lease the suit property on an annual rental of rs. 345/- for twenty five years from Sk. Hussan Bibi, wife of Sk. Munumaka bazeed Saheb and her undivided sons Kaza Saheb, Shasudd in and Himayuddin on 26-9-1960 by a registered lease deed and that the same is the personal private property of the lessors, but not wakf property, as pleaded in the plaint. As the lease was long prior to the constitution of the Wakf Board and also the Gazette notification listing the plaint schedule property as wakf property, the same would not in any manner affect their rights. The second defendant in his written statement has stated that he obtained lease for 8 years from 1-1-1966 to 31-12-1973 of the godown and vacant site from the first defendant, vacated the same and delivered possession after the lease period was over. He has been a bone fide lessee under the first defendant and was not aware of the nature of the plaint schedule property.

( 4 ) ON the pleadings, the learned trial Judge framed as many as six issues, out of which issue No. l is whether the suit property is wakf property .

( 5 ) DURING the course of the arguments, a contention was raised before the learned Judge that the first defendant was entitled to remain in possession of the suit schedule property by virtue of the provisions of the Andhra Pradesh (Andhra Area) Tenancy Act, but the same was rejected by the learned judge on the ground that the said plea was not taken in the written statement. After considering the evidence -both oral and documentary - the learned Judge held that the suit property is wakf property. He has examined the entries in Ex. A- 1 - the certified copy of the Inam Fair Register- and Ex. A-2 - the certified copy of the report of the Wakf Commissioner - and concluded that the Mutawallies are holding the office as hereditary trustees rendering all the necessary services for the administration of wakf which involved celebration of Moharram, meeting the expenses thereof and therefore, what was originally granted was an inam in favour of an institution, but not in favour of an individual As the names of the original grantor and grantee are not found in the Inam Fair register (Ex, A-l), the learned Judge expressed the vie