( 1 ) THE present Second Appeal is filed by the original plaintiff. In this appeal the following two substantial questions of law are formulated. (1) Whether on the facts and in the circumstances of the case and having regard to the true legal position the lower appellate Court was right in law in holding that the appellant being merely a mutawalli had no right to file the present Suit? (2) Whether the lower appellate Court was right in holding that in the absence of a notice served upon the Wakf Board under sec. 56 of the Wakf Act 1954 the present suit was not maintainable?

( 2 ) THE relevant facts leading to the present appeal may be stated as under:-THE plaintiff has filed the suit against defendant No. 1 - the Bhuj Municipality for declaration that defendant No. ` has no right to make use of suit Kabrastan or to make Park or make any other construction on the suit Kabrastan which is owned and is in possession of the plaintiff that is Mutawali and for permanent injunction to restrain defendant No. 1 from making use of the suit Kabrastan of from making any construction on it and to restrain defendant No. 1 from obstructing the plaintiff from making use of it. The plaintiff has also claimed relief of mandatory injunction to direct respondent No. 1 to remove the construction made by it on the suit Kabrastan and to direct it to remove the articles kept by it on it. It was averred that there is a main Idgah that is the place where the Muslims of Bhuj observe namaz. It is situated on the western side of Hamisear tank. It is registered as Wakf in Kutch Wakf Board and its registration number is 130. There is a Kabrastan of Muslims adjoining the above place and the plaintiff is the owner of the above Idgah and Kabrastan. It was alleged that defendant No. 1 has started removing graves from Kabrastan and constructing a public park thereon and that defendant No. 1 has no right to do so. The plaintiff informed defendant No. 1 not to make any construction on the suit Kabrastan. However as no heed was paid to his request he filed the suit for declaration and injunction against defendant No. 1. But in the suit the contention was raised that the suit was not maintainable without statutory notice and therefore with the permission the earlier suit was withdrawn and thereafter after serving statutory notice fresh suit is filed as defendant No. 1 did not stop the work inspite of statutory notice.

( 3 ) IN the suit Kutch Wakf Board was joined as defendant No. 2 but the plaintiff has claimed only reliefs against defendant No. 1 and defendant No. 2 was joined as mere formal party. In tact defendant No. 2 has filed the written statement at Exh. 14 and has supported the plaintiff.

( 4 ) DEFENDANT No. 1 filed the written statement at Exh. 18 and did not admit the contents of the plaint. It was contended that the plaintiff had given application to the Collector Kutch and the Collector has also passed an order on it and that thereafter defendant No. 1 has not made any construction. It was denied that the land on which the construction is made or Idgah is used for observing namaz and the other Land which is open is used by the public for parking hand carts motors horse carriages etc. and they used this land since the time of the construction of Khengar Park. It was also contended that it is registered in the Wakf Board it is not legal and it is not final and binding to others. In view of the above pleadings the learned Trial Judge who heard the said suit being Regular Civil Suit No. 40 of 1973 raised the necessary issues at Exh. 19 and held that the plaintiff is in possession of Kabrastan which is in Survey Nos. 1567 and 1570. it was also found that defendant No. 1 was trying to encroach upon the suit property. It was also held that defendant No. I has illegally made construction over the suit property and ultimately he held that the plaintiff is entitled to the declaration and injunction as prayed for and passed decree declaring that de