The alleged dedication was only for Fathiha and cannot be considered as Wakf property.

1. The unsuccessful defendants 1, 4 to 8 have filed the above second appeal. The plaintiffs are the sons of the first defendant. They filed a suit for declaration and for a permanent injunction or in the alternative for recovery of possession. The suit property is the landed property measuring 1 acre 57 cents.

2. According to the plaintiffs, the property originally belonged to one Sathakathulla Tharaganar. On 13.1.1905 he dedicated the first schedule property for the purpose of performing hie annual Fathiha on his death. This has been done orally. Under Ex.A1 dt.l7. 12.l921, Meeran Mohideen executed a settlement deed in favour of his grandson K.A. Mohamed Abdul Kader appointing him as Manager for performing the said Fathiha and to feed the poor people. Since the said Abdul Kader wanted to leave India in 1925, he executed Ex,A2 settlement deed dt. 12. 10.1925 in the name of his mother Mohamed Bathummal as his Manager for the wakf. After his return from foreign Country, his mother executed another document Ex.A3 settlement deed dt.20.1.1933 in favour of the said Abdul Kader as manager of the said property.

3. The said Abdul Kader was in possession and enjoyment of the said property and he was regularly performing the annual Fathiha till the date of his death. After his death, Muthawalliship of the wakf was devolved on defendants 1 and 2 as Abdul Kader had not nominated anyone else. The defendants 1 and 2 had been performing the annual Fathiha and poor feeding till 1978. After 1978, they have not performed the same and the 1st defendant started to sell the property to third party by taking Release deed from the second defendant. On that basis, the plaintiffs have come forward with a plea that they have no right to sell the wakf property.

4. The defendants contested the suit contending inter-alia that the first schedule property was not dedicated for the purpose of any Wakf as alleged by the plaintiffs. No wakf was performed by Mohamed Abdul Kader as per the settlement deed. It is also stated that no Wakf can be created for the purpose for which the documents are executed. The performance of annual Fathiha, as alleged by the plaintiffs, was also denied.

5. TheTrial Court, in O.S. No.88 of 1982, by Judgment dt.30.6.83, dismissed the suit holding that the plaintiffs have not proved the dedication and there is no evidence to establish the performance of Fathiha. The plaintiffs filed an appeal in A.S. No.145 of 1983 on the file of the District Judge, Tirunelveli. Learned District Judge reversed the judgment and decree of the Trial Court by declaring that the suit property if Wakf property and gave liberty to the Wakf Board to take appropriate steps for taking possession of the property under the Act and to appoint Muthavalli. So, the appellants have filed the above second appeal.

6. At the timeof admission, the following substantial questions of law are framed:-

"1. Whether the suit filed by the plaintiff by barred by reason of Section 57(2) of the Wakf Act as the plaintiff had not obtained sanction of the Wakf Board before filing the suit?

2. Whether the plaintiffs, who are admittedly not the beirs of the transferor or beneficiaries or Muthavallies under the Wakf have locus standi to file the suit for declaration of Wakf and recovery of possession?

3. Whether the appellate court is right in holding that the Wakf is deemed to have created by long user when there is absolutely no evidence of performance of Wakf at any point of time?

4. Whether in the absence of duty of trust and in the absence of any evidence regarding performance of trust at any time the inference of trust by long user is justified?

5. Whether the appellate Court is justified in interfering with the discretion exercised by the trial Court in having dismissed the suit for not paying the proper court fee, when the appellate Court itself have come to the same conclusion that proper court fee had not been paid?

7. The plaintiffs are the sons of the first d