The non-registration of a waqf under Section 29 of the U. P. Muslim Waqfs Act, 1960 does not make the waqf non-existent, and the question of whether a person is the Mutawalli of a waqf is a question of fact that cannot be disposed of on the mere ground that the waqf was registered subsequent to the filing of the suit.

( 1 ) THE plaintiff-appellant filed Suit No. 636 of 1992 before Civil Judge, Muzaffarnagar, alleging that waqf in respect of mosque Hauz Wali and other lands described in paragraph 2 of the plaint and the disputed land was created orally. The waqf is entered in relevant records under the U. P. Muslim Waqfs Act. 1936. By a subsequent amendment, it was also stated that the waqf is also registered under the U. P. Muslim Waqfs Act, 1960 (hereinafter referred to as the Act ). Further allegations are that Maulana Mohd. Irfan was appointed Mutawalli and Manager of the waqf property and is thus authorised to file the suit on behalf of the plaintiff-appellant. Certain people, namely, Akbar, Udai Ram and others had made unauthorised possession over part of the above property prior to 1883. Suit No. 841 of 1883 was filed in the Court of Munsif Deoband, district saharanpur. During the pendency of the suit, a commission was issued and map as contained in schedule A of the plaint was prepared by the Commissioner relating to the waqf properties. The suit was decided in favour of the plaintiff on 12th June, 1884. However, defendant Udai Ram continued to be in possession of the disputed land as tenant of the waqf and a document dated 9th March, 1885 was executed by Udai Ram in favour of the plaintiff. Thus, the plaintiff is owner of the disputed land and said Udai Ram was only tenant of the land and owner of the structures standing thereon. The defendant Nos. 4 to 8 are heirs of Udai Ram and have no right to transfer the disputed land. However, they have transferred the part of the land to defendant nos. 1 to 3 and defendant Nos. 9 to 12. Such transfers are not binding upon the plaintiff. The defendants have no right to raise constructions over the disputed land. However, defendant Nos. 1 to 3 and defendants Nos. 9 to 12 have unauthorisedly raised constructions without permission of the plaintiff. The plaintiff-appellant, therefore, prayed that :

(a) by a decree of mandatory injunction the defendants be directed to dismantle the constructions raised by them and in case they fail to do so the constructions be dismantled through Court ; and (b) by a decree of permanent injunction the defendants be restrained from raising further constructions over land shown in Schedule B of the plaint. The defendants filed written statements.

( 2 ) THE defendant No. 3 denied to have purchased the land or to have raised any construction and stated that he has been wrongly impleaded as a party. Defendant Nos. 9 to 12 do not appear to have filed any written statement. Defendant Nos. 1, 2 and 4 to 8 filed separate written statements but appear to have contested the suit on similar grounds.

( 3 ) DEFENDANT Nos. 1 and 2 in their written statements stated that the disputed land on which shops are constructed is not part of Khewat No. 38 and plaintiff has never been in possession or owner of the disputed land. Maulana Mohd. Irfan was never Mutawalli of the alleged waqf and, therefore, was not authorised to file suit. He had no right to file the suit. The disputed land was never registered as waqf property under the Muslim Waqfs Act. 1936 or under the U. P. Muslim waqfs Act, 1960 and Maulana Mohd. Irfan was never appointed as Mutawalli of any waqf property registered with U. P. Sunni Waqf Board. Lucknow. He had also no right to file suit In his personal capacity as the suit has not been filed under Order 1, Rule 8, C. P. C. As regards the alleged Suit No. 841 of 1883 the same was collusive and from the facts the disputed land is not established to be part of the waqf known as Hauz Wali Masjid. The details of the property involved in Suit No. 841 of 1883 are not known and the map is not proved to be relating to the land of the waqf. The land In question was never recorded as waqf property in the revenue records. In the alleged deed of lease, there is no mention of the land in dispute. The land belonged to defendant Nos. 4 to 8 who were in possession of the