JUDGMENT

M.M. DAS, J.

1. Both the aforesaid second appeals arise out of the same judgment passed in Title Suit No. 161 of 1980 by the learned First Munsif, Cuttack on 30.8.1983. As two Title Appeals were filed against the said judgment passed in the suit, being Title Appeal Nos. 89 and 98 of 1983, by two of the defendants in the suit the learned Second Additional District Judge, Cuttack by his common judgment dated 4.8.1986 passed in both the appeals reversed the judgment and decree of the Trial Court. Hence, these second appeals. These second appeals were heard together and are being disposed of by this common judgment.

2. In order to appreciate and answer the substantial questions of law on which the second appeals have been admitted, it would be necessary to narrate the facts in gist which gives rise to these second appeals, which are as follows.

3. T.S. No. 161 of 1980 was filed by the present appellants, who were plaintiffs and the legal heir of one of the plaintiffs who has expired in the meantime. In the said suit, a decree for declaration was sought for over 'B' schedule property as a Private Wakf belonging to the family of the plaintiffs-marfatdars where the general public have no right including the defendants and to declare the order of the defendant No.1, i.e. Commissioner-cum-Secretary, Board of Wakf dated 6.11.1980 as illegal and invalid which does not create any right in favour of the Muslim public and to restrain the Muslim community in general not to come over the suit property and exercise any right of worships by offering Fatiah and Prayer to the Shrine of plaintiff No.1.

4. The plaintiffs' case was that the plaintiff No.1 Mian Sahataz was the ancestor of Mir Ghashi and Chuni Bibi was the wife of Mian Sahataz. After their death, they were buried inside the family compound and whose Shrines were erected to commemorate their memory and in course of time, those Shrines were acclaimed as Pira for which incenses were offered daily and periodical Fatiah was also offered. Thereby the Pirsthan was recorded as Mian Sahataz Pir being represented by the family members of Mir Ghashi in the settlement papers. The said Pirsthan is situated over 'B' Scheduled property of the plaint and the same is used as a grave yard of the family members of the said Mian Sahataz Pir and is not a Public Wakf. The defendant No.2 with the help of certain Muslims of the locality and some outsiders forged the signatures of some of the Marfatdars of the said Private Wakf and filed an application before the defendant No.1, i.e. the Commissioner of Wakf under Section 25 of the Wakf Act, 1954 (hereinafter referred to as "the Act") for registration of plaintiff No.1 as a Public Wakf. The defendant No.1 without any proper enquiry and without visiting the local spot as well as without calling for any objection from the recorded Marfatdars registered the said plaintiff No.1 as a Public Wakf. When this fact came to the knowledge of the plaintiffs upon a certified copy of the register being maintained by the defendant No.1 under Section 26 of the Act, the plaintiffs-marfatdars filed their objections against the said registration before the Commissioner-cum-Secretary, Orissa Board of Wakf for cancellation of the registration of Plaintiff No.1 from the register. But the said defendant No.1 Commissioner-cum-Secretary in the said proceeding, which was numbered as Misc. Case No.1 of 1979, passed an order on 6.11.1980 that the plaintiff No.1 and its place of installation i.e. Schedule 'B' property of the plaint, is a Public Wakf and the registration of the same is in accordance with the Wakf Act, 1954. The plaintiffs challenged the said order in the suit alleging that the same is absolutely illegal as per the provisions of the Wakf Act, 1954 which has not been recorded as a Public Wakf and has not been notified in the Gazette as required under Sections 4 and 5 of the said Act. The defendant No.2 filed an application forging the signatures of the Marfatdars and