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Allahbad High Court
K.S.VARMA,K.N.MISRA
Kaniz Fatima - Appellant
Versus
Shah Naim Ashraf - Respondent
Decided On : 01/10/1983
WAQF - Sajjada Nashin - Appointment - Issues - Framing - Duty of Court - Abandonment of Pleas - Construction - Evidence - Admissibility - Remand.
Fact of the Case:
Plaintiff, Shah Naim Ashraf, filed a suit against defendants, Smt. Kaneez Fatima and Maqsood Ashraf, seeking a declaration that he is the legally appointed Sajjada Nashin of the Sajjada of Shah Ali Hasan Saheb and the latter's Imambara, including Khangah, and other movable properties attached to the Imambara. The plaintiff also sought possession of the aforesaid properties if the defendants were found to be in possession of the same.
Finding of the Court:
The court held that the Trial Court erred in not framing proper issues which arise out of the pleadings of the parties. The court also held that the Trial Court proceeded to record a finding against defendant 2 holding that he was not installed and appointed as Sajjada Nashin, without framing an issue on that point. The court further held that the Trial Court's observation that no issue on the plea of defendant 2 that he was installed and appointed as Sajjada Nashin on 17-3-1958 was framed, but in spite of it, it proceeded to record a finding rejecting the claim by pointing out infirmities in the evidence led by defendant 2, was not a correct approach in dealing with the matter specially in the absence of an issue.
Issues: 1. Whether the plaintiff was nominated Sajjada Nashin by Shah Hasan Ashraf and was elected as claimed by the plaintiff? 2. Whether the property in dispute is waqf property? if so, whether defendant 1 has perfected her title to the same by adverse possession for more than 12 years? 3. Whether the plaintiff is debarred from being Sajjada Nashin on the ground claimed by the defendants? 4. To what relief, it any, is the plaintiff entitled?
Ratio Decidendi: The court held that it is the primary duty of the court under Civil P. C. to see that proper issues, necessary for decision of the case, are framed. Even if the parties fail to point out relevant issues to be framed in the case or render no assistance to Court in the matter of framing issues, it would not absolve the court from discharging primary duty cast on it for framing proper issues on all the material points arising out of pleadings of the parties. If the court fails to frame proper issues covering all the pleas raised in the pleadings, the omission on the part of the Counsel for the parties to point out such omission in the framing of relevant issues, cannot be taken to mean that all those pleas, not covered by the issues framed, have been impliedly given up by the parties.
Final Decision: The court allowed the appeal, set aside the decree passed by the Trial Court, and remanded the suit for decision afresh after framing proper issues and taking evidence of the parties on the issues so framed.
K. N. MISRA, J.:- This first appeal was directed against the judgment and decree dt. 16-4-1969 passed by learned Civil Judge, Rae Bareli. After hearing arguments of the learned Counsel for the parties, we had allowed the appeal No. 10 of 1969, D/-10-1-1983 by a short Order for reasons to he indicated later. We now proceed to record our reasons here as under.
2. Shah Naim Ashraf filed this suit in forma pauperis against Smt. Kaneez Fatima, widow of Shah Hasan Ashraf and Maqsood Ashraf arraying them as defendants 1 and 2 respectively. The plaintiff sought a declaration to the effect that he is legally appointed Sajjada Nashin of the Sajjada of Shah Ali Hasan Saheb and the latters Imambara, including Khangah in its northern portion, and other movable property, detailed in list Ba, which were attached to the said Imambara: and the residential house of Shah Hasan Ashraf, shown in commissioners maps, papers 147C/10 and 147C/11, are the waqf properties of the Sajjada of Shah Ali Hasan and those are not the personal properties of defendants 1 and 2 and they have no concern with it. The plaintiff also sought a relief for possession of the aforesaid properties in case the defendants were found to be in possession of the same. The facts of the case and the pleadings of the parties, on which the plaintiffs claim was based, have been referred in detail in the judgment of the Trial Court hence the same will not be repeated and only a reference to relevant facts would be made.
3. It is admitted that Shah Hasan Ashraf, who was third Sajjada Nashin, died on 14-1-1958. He was Sunni Hanafi Mussalman and the parties also claim to be of the same sect. The plaintiff claims that Shah Ali Hasan Saheb got constructed an Imambara in the year 1873 and created the waqf. In the northern portion of the Imambara he used to impart religious teachings to his disciples which came to be known as Khangah. The entire building was however, the waqf property. Shah Ali Hasan Saheb appointed Sajjada Nashin as Mutwalli of the waqf property and enjoined on Sajjada Nashin to perform Urs and Azadari. A waqf deed was also executed laying down as to how Sajjada Nashin cum Mutawalli would be appointed. During his lifetime Shah Ali Hasan Saheb remained Sajjada Nashin and acted as Mutawali of the waqf property. After the death of Shah Ali Hasan Saheb in 1910, a dispute arose about inheritance of his personal and ancestral properties and also in respect of the aforesaid waqf property among the heirs of Shah Ali Hasan Saheb including Yahaya Ashraf, his sisters, son. The dispute was decided by an award given by the arbitrators, which was made Rule of the Court by decree dt. 20-5-1911 passed by learned Civil Judge, Rae Bareli Shah Yahaya Ashraf became Sajjada Nashin of the waqf property. After the death of Shah Yahya Ashraf his nephew and son-in-law Shah Hasan Ashraf because Sajjada Nashin of the Sajjada of Shah Ali Hasan Saheb. The plaintiff, who is sisters son of Shah Hasan Ashraf, claims to have been nominated by him as Sajjada Nashin. Shah Hasan Ashraf died on 14-1-1958 and the plaintiff claims to have been installed as Sajjada Nashin on 14-2-1958 after due performance of the ceremonies. On the motion of apposite party 1, proceedings under S.145, Cr. P. C., were taken and the Imambara in dispute, along with the movables therein, as detailed in list Ba, were attached on 18-2-1958. The plaintiff thereupon filed the present suit. During the pendency of the present suit, the attached properties were released in favour of defendant 1. The plaintiff has thus also claimed a relief for possession in respect of the property in suit.
4. The defendants 1 and 2 filed separate written statements contesting the claim of the plaintiff. It was pleaded by defendant 1 that Shah Ali Hasan Saheb had got constructed the building in suit and it is not an Imambara as claimed by the plaintiff. Shah Ali Hasan Saheb died issueless and the dispute regarding inheritance was decided in terms of an
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