Dedication of Wakf property can be established by express declaration or inferred from user, and long user for religious purposes can establish Wakf even in the absence of express dedication.

S. BARMAN, J.

( 1 ) THE defendants are the appellants, in this second appeal, from a confirming decision of the learned First Additional Subordinate Judge of Cuttack whereby be affirmed a decision of the learned Additional Munsiff of Cuttack and decreed the plaintiffs' suit for a declaration that lots 1, 2 and 3 of the suit properties are Wakf properties and that the mortgage and the execution are collusive.

( 2 ) THE facts, shortly stated, are these: The suit properties were purchased by one kamiruddin Khan being the predecessor-in-title of the defendants appellants in execution of a mortgage decree in T. S. No. 244 of 1927. On October 10, 1929 the said Kamiruddin Khan took delivery of possession in execution of the decree. In 1953 the present suit was filed by the plaintiffs, being members of Muslim community in their respective capacity, for a declaration that the suit property belongs to Mohamadan public and not the defendants and further that the mortgage in favour of the said Kamiruddin Khan (husband of defendant No. 1), the mortgage decree the execution proceedings are illegal, fraudulent and inoperative against the public and for possession. The defence taken in the suit, is that none of the suit properties are Wakf properties though no doubt there is a Masjid in lot No. 1 originally meant for prayers to be offered by the mortgagor's family; hat lots 2 and 3 are not Part and parcel of the Masjid though they are adjacent vacant plots; that in the Provincial and Revision Settlements the said lots are not recorded as Masjid or Wakf property; in the current settlement lot No. 1 is shown in the name of the mortgagor mentioning a Masjid Ghar therein.

( 3 ) THE trial court held that the suit property is Wakf property; that lot No. 3 is the khela Padia where Moharum feats are shown; that the mortgage is collusive and accordingly decreed the suit in favour of the plaintiffs. The said findings were affirmed by the learned lower appellate Court in appeal. Hence this Second appeal.

( 4 ) THE point,--urged by Mr. M. S. Rao, learned counsel for the defendants appellants,--is that there is no documentary evidence of dedication. The learned counsel contended that it must be shown that there was dedication by somebody for the purpose of Wakf. The learned Counsel, by reference to authorities cited by him, relied on the undisputed position in law that what is required to be established is the intention on the part of the owner to dedicate a particular property for religious or charitable purposes or, in other words, the intention of the owner to create a wakf of the property; that, such intention may be established by declaration or may foe inferred from user; that the circumstances,--that the property had been mortgaged and that a mortgage decree was obtained and thereafter the property was sold,--are facts which, militate against the inference of dedication for religious or charitable purposes. On this point the learned counsel relied a decision of the Nagpur High Court in jawherbeg Umraobeg v. Abdul Aziz, AIR 1956 Nag 257 at p. 259. The point is that the dealing with the property by way of mortgage is on the basis that it was secular property and not Wakf property. This argument is repelled on behalf of the plaintiffs, submitting that on the facts of this case, the Nag-pur decision has no application here. In the present case, the alleged mortgage which was in 1919 was found to be collusive and accordingly it is to be treated as breach of trust on the part of the person dealing with the property. In 1927 the mortgage suit was filed. Still, in 1929 in the current settlement record-of-rights--which was published on May, 18, 1929,--it was recorded as containing a Masjid; notwithstanding such entry in the record-of-rights of the current settlement, the delivery of possession was made in execution of the mortgage decree. Thus, the mortgage, was clearly a breach of trust, and therefore is not binding on the plaintiffs. With regard to th