Back
High Court Of Madhya Pradesh
G. P. Singh, C. J. and Faizanuddin, J.
ANJUMAN ISLAMIA - Appellant
Versus
NAJIM ALI - Respondents
First Appeal 138 Of 1978
Decided On : 09/23/1981
(2) Specific Relief Act, 1963 - S. 34, proviso - suit for declaration that property belongs to Wakf - suit brought not by mutawalli, but a person interested in Wakf - provision not attracted - even if attracted the suit is still maintainable.
The present suit does not fall under section 34 of the Act for the reason that the present suit was not instituted by the Anjuman for a declaration of its own right or title to property in suit, or its right to a legal character. But it was a suit, on the ether hand, to challenge the defendants assertion for right to property and their legal character in respect thereof. But assuming the suit falls under the provisions of section 34 of the Act yet it would be tenable for declaration simplicitor and the plaintiff will have locus standi to bring the suit because the plaintiff was not Mutwalli or trustee of the alleged Wakf and it did not claim to possess the property in its own behalf Therefore, the plaintiff was not legally entitled to possession. The plaintiff therefore could not have asked for any further relief for possession. In such a position it was not necessary at all for the plaintiff to claim any consequential relief. AIR 1936 Lah. 283 and AIR 1946 Nag. 401 relied on. [Para 8
(3) Civil P. C., 1908 - S. 11 - resjudicata - only the judgment of final Court in previous litigation should be considered - subject matter not the same - provision has no application.
The decision of the Supreme Court was final from which it is distinctly clear that the only point that the Court had to decide was whether the piece of land on which the Tazia was placed, that is, an area of 5' X 7-1/2' as shown within red lines in the map Ex. D-22, was Wakf property or not. Thus in the earlier suit the nature and character of 'Badi-takia' as a whole was never in issue and for the same reason the Supreme Court never decided whether the whole property of Badi-takia' constituted a Wakf or it belonged to the predecessors of the present defendants, but the Supreme Court confined its decision only to the extent of plot in dispute in that suit and the final Court did not decide anything about other properties at all. It is settled that where a judgment has been superseded by the decree and judgment of the superior and final Court in appeal, the former judgment cannot be pleaded as a bar by principles of res judicata. [Para 10
(4) Wakf Act, 1954 - S. 3 (l) - Wakf by user - land used for mosque or burial ground from time immemorial - land is Wakf by user - evidence of express dedication not necessary -Court is entitled to presume such Wakf.
Creation of a Wakf can be established by user, but the user must be of such an unequivocal nature which can only lead to an inference of dedication of the property to the Wakf. What is required to be established is the intention on the part of the owner to dedicate a particular property to religious or charitable purposes, or, in other words, the intention of the owner to create a Wakf of the property and that such an intention may be established by a declaration or may be inferred from user. AIR 1956 Nag. 257, AIR 1956 SC 713, AIR 1946 Nag 201 and AIR 1962 Orissa 95 relied on. [Paras 11 and 16
(5) Evidence Act, 1872 - S. 31 - admission is the best piece of evidence.
An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. AIR 1960 SC 100 and AIR 195 All. 1, relied on. [Para 12
(6) Words and phrases - word 'takia' as used in Mohammedan Law - means religious institution.
A 'takia' is a place where a fakir or pervesh resides, before his pious life and teachings attract public notice and before disciples gather round him, and a place is constructed for their lodgment. A 'takia' is recognized by law as a religious institution, and a grant or endowment to it is a valid Wakf or public trust for a religious purpose. AIR 1938 PC 202 relied on. [Para 16
(7) Limitation Act, 1963 - S. 10 - applicability of - suit property held in capacity of trustee by defendant - provision attracted.
Admittedly, the defendant No. 5 is holding the mosque and its adjuncts in the capacity of a trustee or Mutwalli thereof, and therefore, applying the principles of section 10 of the Limitation Act, the Suit could not be said to be barred by limitation. AIR 1956 SC 713 relied on. [Para 21
( 1 ) THIS appeal, under Section 96 of the Civil P. C. has been directed by the unsuccessful plaintiff Anjuman Islamia, Chhatarpur (hereinafter referred to as the 'anjuman'), against the judgment and decree dated 10-5-1978, passed by the District Judge, Chhatarpur, in Civil Suit No. 2-A/74, dismissing the suit of the plaintiff-appellant with costs.
( 2 ) IT has not been disputed that the suit property has been shown and delineated in the plan Ex. P-2 which is called 'badi-takia' Jama Masjid. It was also not disputed by the plaintiff-appellant that a small plot admeasuring 6' X 6' situated to the South of the main mosque belongs to the defendants in view of the decree passed in earlier Civil Suit No. 28/60. It has also not been disputed that Tegali was an Advocate by profession who was issueless and the predecessor of the defendants. Wazid Ali was the successor of the uncle of Tegali and that the defendants Nos. 5 to 7 are the successors-in-title to Wazid Ali. The defendants Nos. 1 to 4 are the successors-in-title of Ahmad Ali s/o Wazid Ali. Tegali, Wazid Ali and Ahmad Ali are all dead.
( 3 ) THE property in dispute has been shown in the plan Ex. P-2, comprising of a mosque, open yard around the said mosque 'imam-bada', a platform called 'imam-chowk', a 'hujra' (small room) adjoining the main mosque, a well adjacent thereto, water tank and tap adjoining the mosque of the South-East corner, a residential house of the defendants described as 'panchayat-kakamra' towards the North, and a big room adjoining to it on the Eastern side described as 'musafirkhana'. There are two graves on the Southern side of Masjid as well as some graves behind the mosque. No measure-ments have been given in the plan Ex. P-2. But the learned District Judge inspected the disputed property on 27-4-1978 and got the same measured, which has been shown in his inspection note as also the description and situation of the disputed property. ( 4 ) THE plaintiff-appellant instituted the suit against the defendants-respondents for obtaining a declaration simpliciter that the property in suit was wakf property by user and that the defendants had no right, title or any interest therein except a small piece of land measuring 6' X 6'. The plaintiff averred that the property in suit known as 'badi-takia' consisting of mosque, open compound and buildings were constructed by Mohammedans of Chhatarpur by raising funds as well as with the help and aid provided by the State-Rulers about 200 years back and the same is looked after and used by the Mohammedan community. The whole property is surrounded by a compound wall. The residential house shown in Ex. P-2, has been used for residence of Faquirs, appointed by the Mohammedans of Chhatarpur. After the construction of Imambada, the tazia is being erected there and placed on the Imam-chowk within the Maszid compound. The Musafirkhana has been used by outsiders who visit Chhatarpur and the Panchayatghar is being used for holding meetings. The plaintiff also averred that a school is also being run in 'badi-takia' for imparting education to the Mohammedan children. The plaintiff's further case is that during 1d and weekly Friday prayers, Mohammedans in large number gathered in the mosque as also in the open compound of the mosque to offer prayer. In Muhurram and on the occasion of Id. Danka-nishan was supplied by the State Ruler and a procession of City-Kazi used to be taken from 'badi-takia' to Idgah. The Mohammedans collected funds for maintenance of the property and some new constructions were raised from time to time. It has been further averred that the plaintiff Anjuman was formed by the Mohammedans of Chhatarpur about 100 years back, which is a registered society and that from the time of its formation, the Anjuman was in charge and looking after the property. The plaintiff appointed one Kutubshan as 'faquir-cum-chowkidar' about 60 years back and about 40 years back Tegali was appointed as such, who starte
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
