RANDHIR SINGH, J. :- This is a defendants appeal from the judgment and decree of the Civil Judge of Bahraich and the subject of dispute in this case is an endowment described as waqf Syed Salaar Masood Ghazi.

2. The facts of this case are a trifle complicated and the endowment has been the subject of litigation for a long time. In order, therefore, to understand the nature of the controversy between the parties it is necessary to set out in brief a history of the institution, various proceedings, and the prolonged litigation extending almost over three quarters of a century. The origin of the shrine is shrouded in antiquity but a record, more or less authentic, is to be found in the Gazetteer of the Bahraich district, as also in the judgment of the Chief Court in an appeal case.

3. Syed Salaar Masood Ghazi was said to be a nephew of Mohammad Ghazi and while on a visit to Bahraich met his death at the hands of a local chieftain. His remains were buried in village Singha Parasi by his devoted followers and a tomb-was subsequently constructed, which became, in course of time, an object of pilgrimage and veneration. An annual mela or Urs, is held at the shrine and is attended by a large number of persons who make offerings at the shrine. The tomb is maintained out of the income from the offerings and from the receipts of certain properties partly endowed by the charitably disposed emperors of Delhi and partly acquired out of the savings from the income of the property and the offerings at the shrine.

4. A body of persons known as the Khuddam of Dargah has been looking after and performing ceremonies and other services at the shrine generation after generation. They had been receiving income from the properties attached to the shrine as also the charhawa or offerings. The annexation of Oudh in 1856 was followed by a War of Independence, described by the British Rulers as Mutiny of 1857. As a sequel to this revolt, Lord Canning issued a proclamation confiscating all private property, which put an end to all previous titles. Fresh settlements were then made by the Government and rights which existed previously were, in most cases, revived by fresh grants or decrees of Settlement Courts. The property appertaining to the Dargah in this case also met the same fate.

5. In the year 1859 or 1860 a sanad is said to have been granted to one Faqirullah, who was the head of the Khadims of rent free tenure of village Singha Parasi and he was given the right to collect the usufruct of the village to be appropriated to the maintenance of the Dargah. Not satisfied with this limited grant, Inayatullah son of Faqirullah filed a suit in 1865 in the court of the Settlement Officer for a declaration of his proprietary rights in the village. This suit was, in effect, dismissed and Inayatullah was held entitled only to the usufruct of the village under the terms of the Sanad. Some of the Khadims also filed similar suits claiming proprietary rights in various other plots of land surrounding the shrine but all these suits were also dismissed.

6. Some years later in 1872, it was brought to the notice of the Chief Commissioner that the Khadims at the Dargah had been mismanaging the affairs of the Dargah and had not been maintaining the Dargah properly and a committee of Musalmans was appointed to examine the affairs and make a report. This committee submitted its report on 20-2-1877, and made certain recommendations. The committee suggested the appointment of a jury of five persons including two khadims to manage the Dargah and its properties.

7. Once again in 1892 Inayatullah and two others instituted a suit for the possession of the Pargah together with the buildings appertaining thereto and village Singha Parasi and also for certain other reliefs. This suit was decreed by the Subordinate Judge but was ultimately dismissed by the Court of the Judicial Commissioners, which also held that the property was waqf and it was neither proper nor open to the Gov