Under Mohammedan Law, the Mutwalli for the time being may appoint a successor on his death-bed, but he cannot do so while he is in health. The Ahl-i-mahalla (people of the locality where the mosque is situated) can pull down a mosque and reconstruct it in better style, or improve it in any other way, and supply superior articles; but this they can only do with their own money, but not with the money of the waqf, unless the sanction of the kazi is obtained beforehand.

S. BARMAN, J.

( 1 ) THE plaintiffs are the appellants,--in this Second Appeal,--from a confirming decision of the learned Additional Subordinate Judge of Cuttack, whereby he affirmed a decision of the learned Munaif, Cuttack and dismissed the plaintiffs' suit for permanent injunction restraining the defendants from interfering with the management of Oriya Bazar mosque in Cuttack town, arising out of the disputed question of the Mutwalliship, in respect of the said mosque, which admittedly, is a public mosque, in the circumstances hereinafter stated.

( 2 ) THE plaintiffs are members of Mahomedan community, calling themselves managing committee for management of the said mosque, stated to have been elected by the general public of Oriya Bazar in Cuttack Town, for the purpose of looking after the said mosque which is said to be the only mosque in the locality. The defendant No. 1 is the son of defendant No. 2, who died during the pendency of this litigation; thus the defendant No. 1 is the only surviving defendant, who claims to be the Mutwali in respect of the said mosque.

( 3 ) THE plaintiffs' case, shortly stated, is this; The said mosque has no property, besides the site in which it stands and thus it has no income; it has to meet a lot of expenses which is met by public subscriptions; that a certain Wakf deed stated to have been executed by the original founder of the mosque was held in a prior suit,--filed as early as 1925 hereinafter fully discussed,--to be a fraudulent deed and not acted upon. One Mukram Ali, a rich local resident, is stated to have been managing the mosque at his own expenses since 1900 until 1940 when he retired from the management; that neither the defdt. 1 Md. Yusuf nor the deceased father of defendant No. 2 Mhd. Golam Gous, during his life time, could be the Mutwali nor did either of them ever act as Mutwali as alleged by the defendant; that the upkeep of the mosque is by the public by subscription, the public paying municipal taxes and electrical charges; that there is no documentary evidence of management of the mosque by either of the defendants.

( 4 ) FOR correct appreciation of the points involved herein it is necessary to give a short historical back-ground which gave rise to the present dispute among the rival claimants to the Mutawaliship of this public mosque. In the middle of the last Century, there lived in Cuttack town one Roshan mohammed who had two wives, Ekramunnissa being the second wife. They had two children, namely Mhd. Golam Gous (deceased defendant No. 2) and a daughter who was married to one Mhd. Hasim, also known as Patia Saheb. The defendant No. 1 Mhd. Yusuf is the son of the said Md. Golam Gous defendant No. 2 as aforesaid. Roshan Mohammad had properties in Cuttack town including plot no. 528 in Oriya Bazar with an area of 1. 68 acres in Khata No. 157 on which the mosque in question came to be constructed as hereinafter stated. On September 19, 1873 the said Roshan Mahammad executed a registered Hiba (gift) in favour of his second wife Ekramunissa as dower, in respect of all his properties including the suit land, on which the mosque is situate. Thereafter, ekramunissa intended to build a mosque in the suit land and registered a Wakf deed dated August 15, 1878 purported to appoint her husband Roshan Mohammad as Mutwalli for construction of the said mosque; Roshan laid the foundation of the mosque and after his death his son-in-law Mhd. Hasim (Patia Saheb) continued the construction of the mosque but he also died before completion of the mosque. Thereafter Roshan Mohammad's son Mhd. Golam Gouse (deceased defendant No. 2) constituted himself as Mutwali and undertook to complete the mosque but he is said to have abandoned it for want of funds because all the properties comprised in the Wakf deed dated August 15, 1878 were subsequently alienated. Thereupon the Mahomedan public of the locality approached the said Mukram Ali a rich and influential man of the locality and reques