( 1 ) THIS appeal arises out of a suit instituted by the plaintiff appellant for declaration that property no. W. D. 15/125 to 127 called Razvi Manzil situate in Mohalla Behariour, Bareilly, is a waqf property and is not liable to be transferred by the defendants as property of the evacuees.

( 2 ) THE case set up by the plaintiff was that under the waqfnama dated 26-9-1931 executed by smt. Abbasi Begum a waqf was created in respect of the property in dispute. The Mut-walli appointed under the waqf deed and the members of his family migrated to Pakistan and the management of the property has been taken over by defendant No. 5. Under the mistaken belief that since all the beneficiaries have migrated to Pakistan defendant No. 5 intends to sell the property as evacuee property belonging exclusive- ly to the evacuees. The plaintiff claimed that he was the ultimate beneficiary under the waqf and the property could not be said disregarding the waqf and the ultimate benefit of the plaintiff. The plaintiff served a valid notice on the defendants under Section 80, C. P. C. but the defendants did not recognise the rights of the plaintiff. Hence the suit.

( 3 ) IN defence it was pleaded that under the waqf deed dated 26-9-1931 Kanat Ali was the mutwalli who migrated to Pakistan and he was declared an evacuee under the provisions of the evacuee Property Act and since the waqf was Alal Aulad the property was managed by defendant No. 5 as Custodian. Subsequently Wazir Ali migrated to Pakistan and after him the other two beneficiaries Sugra Begum and Mohammad Ali continued to live in the house as they had a right of residence. Thereafter Mohammad Ali also migrated to Pakistan and Sugra Begum was allowed to live in Gular Wala Portion. She also migrated to Pakistan subsequently. It was asserted that no beneficiary under the waqfnama remained in India. The property was acquired under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act and vested in the Central Government. It was further asserted that the plaintiff had no cause of action nor was a beneficiary under the deed. The defendants also pleaded that the suit was barred under the provisions of the Administration of Evacuee Property Act and the Displaced Persons (Compensation and Rehabilitation) Act and the Court had no iurisdic-tion to try the suit. A further plea was raised that the notice under Section 80 C. P. C. was not valid.

( 4 ) THE trial Court held the notice under Section 80, C. P. C. to be valid but dismissed the suit on the finding that the plaintiff was not a beneficiary and had no right to sue and that the suit was barred under the provisions of the Administration of Evacuee Property Act and the Displaced persons (Compensation and Rehabilitation) Act and the Court had no jurisdiction to entertain the suit. Aggrieved by the decree of the Court below the plaintiff has come up in appeal.

( 5 ) THERE is no controversy that Smt. Abbasi Begum under a registered deed dated 26-9-1931 created a Waqf Alal Aulad in respect of the property in dispute. She named her son Kanat Ali as the first Mutwalli. It was further stipu lated that after the death of Kanat Ali. Ishtiaq Ali son of akbar and after him his eldest son and thereafter the eldest son generation after generation shall be the Mutwalli who will have right of residence in the pro perty. It was lastly stipulated that if the line of the beneficiaries indicated above became extinct, the income of the property after meeting expenses of the repairs etc. would be spent on the Mazar of Shah Mohammad Ahmad raza Khan.

( 6 ) IT has not been disputed that all the beneficiaries under the waqf deed have migrated to pakistan. The plain- tiff led no evidence to prove that the beneficiaries who migrated to Pakistan are dead or that the line of beneficiaries indicated under the waqfnama has become extinct. The contingency contemplated under the waqfnama for spending the income of the waqf property over th