The main legal point established is that a wakf created by oral gift followed by delivery of possession is valid under Muslim Law, and sub-tenants have no standing to challenge the wakf.

JUDGMENT

N. Paul Vasanthakumar, CJ.

1. This appeal is filed against the order dated 22.11.1982 made in OWP No. 698/1982 wherein the appellants had challenged the order passed by the Special officer Auqaf, which was confirmed by the 1st respondent, the appellate authority.

2. The case of the appellants before the learned Single Judge was that they were given tenancy by the lessee of the land measuring 14 kanal and 18 marlas comprising of survey Nos. 325,328 and 330, which land was owned by one Issa Shah. The said Issa Shah created a lease in favour of one Samad Ghulam by executing a lease deed on 28th Baisakh 1997 Smvt (roughly in May 1940 AD) Said Samad Ghulam, in whose favour the lease was created, before going to Haj, created a wakf of the above land in favour of the 3rd respondent-Jamia Masjid. According to the appellants, they all were in possession of the land through Samad Ghulam from the year 1960. The revenue records were also reflecting the same, stating that appellants are in possession through Samad Ghulam. It was the contention of the appellants that once entries were recorded by the Consolidation authorities and the same having not been challenged, their possessory right is recognized and even the same was affirmed in proceedings initiated under Section 145 Cr. P.C. The challenge made by the Jamia Masjid before the Sessions Court in respect of proceedings under Section 145 were also dismissed against which the Jamia Masjid preferred Criminal Revision No. 1/1981 before this Court. The grievance of the appellants was that the property having been in possession of the appellants, the so called Wakf created by the lessee, namely, Samad Ghulam, without even executing a document is not valid.

3. It is also the contention of the appellants that the said Samad Ghulam being not the owner, has no right to create the Wakf. The Special officer thus ignored the revenue records while passing the order in favour of the 3rd respondent and the appellants were also non-suited by the appellate authority, as if they have no right to question the creation of the wakf and if at all any person can object to creation of the wakf it could be by the legal heirs of the owner of the property, namely, Issa Shah.

4. The said orders were challenged before the learned Single Judge and the learned Single Judge having noted the findings of fact rendered by the Special Officer and the Appellate Authority, that after creation of the Wakf the trees standing on the land were cut and used for heating the water in the Hamam and a shop existing on the site has been leased to one Mohamad Labroo by the 3rd respondent and the rent received from him is being used for charitable purposes, the 3rd respondent is in possession of the land from 1953. The learned Single judge also pointed out the finding recorded that Samad Ghulam who was in possession of the property crated Wakf and his sons came into the witness box before the authorities and stated that their father had created the Wakf in favour of the Jamia Masjid before proceeding for Haj and the land itself is unfit for cultivation, i.e. a barren land, therefore, the possession of the appellants will not arise.

5. The learned Single judge, having regard to the limited scope available to go into the factual aspects in the writ petition, dismissed the writ petition by holding that the persons who could have objected to the creation of the Wakf were the legal heirs of Issa Shah and they have not raised any objection. The legal heirs of the lessee namely Samad Ghulam having supported the creation of Wakf and positive findings having been recorded by the authorities constituted under the Wakf Act holding that a Wakf was created by oral gift followed by delivery of possession, the same cannot be set aside in writ proceedings.

6. The said order is challenged before this Court by the appellants in this appeal. The legal heirs of said Issa Shah also attempted to challenge the order of the learned Single Judge by seeking le