Syed Mohd. Salie Labbai & Ors Vs.
Mohd. Hanifs & Ors [1976] INSC 66 (22 March 1976)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
GOSWAMI, P.K.
CITATION: 1976 AIR 1569 1976 SCR (3) 721 1976
SCC (4) 780
ACT:
Mahommadan Law-Mosque its adjuncts and
graveyard, what constitutes dedication to public-Right to officiate as Imam,
when recognised.
Muslim Wakfs Act, 1954, s. 55(2), Scope
of-Code of Civil Procedure (Act 5 of 1908) s. 11-Res judicata, scope of.
HEADNOTE:
The land in dispute was originally acquired
by a Muslim saint, about two hundred years ago. Some years later the
predecessors of the respondents, who formed the major section of the Muslims of
the village, approached his successor, the ancestor of the appellants and the
then owner of the land, and sought his permission for building a mosque on the
land as there was no mosque at all in the village.
The predecessors of the respondents executed
an agreement in favour of the owner. It recited that, (1) the predecessors of
the respondents were constructing a prayer hall on the raised platform
belonging to the ancestor of the appellants, with his permission; (2) after
completion of the mosque, the predecessors of the respondents will have no
claim or right, except the right to worship therein; (3) the only right which
they would claim would be the right to worship and to light lamps, while they
will be responsible for the maintenance of the mosque; (4) the construction was
purely for the purpose of worship; and (5) there shall be a doorway and windows
on one side so as to serve as a separate entrance to the mosque in order to
constitute it as a separate entity. The mosque was built by the ancestors of
the respondents; and thereafter, in course of time, additional constructions
which form adjuncts to the mosque, were added. All the adjuncts were built for
the purpose of offering prayers in the mosque and by way of a gift to the
mosque. The adjacent vacant land was used as a graveyard for the Muslims of the
village. Subsequently, the appellants constructed shops on a part of the
graveyard, and the respondents, who regarded the constructions desecration of
the graveyard, filed a number of suits for the demolition of the shops. The
appellants, however, claimed the properties as their private properties,
excepting the prayer hall used as a mosque, and even there, they claimed that
they had a right to manage it and lead the congregation at prayers. The result
of the suits was inconclusive, and as a result of an observation in one of the
suits, that the only remedy for the constant quarrels between the two sections
of the Muhammadan community is a suit under s. 92, Civil Procedure Code, the
respondents filed a suit under the section, in a representative capacity. after
obtaining the sanction of the Advocate General. They alleged that the 3 items
of property, namely, (1) the burial ground which consisted of two parts, (2)
the Dargah over the tomb of the saint who first acquired the property, and (3)
the mosque and its adjuncts were all wakf properties of a public and charitable
nature dedicated by the predecessor of the appellants, that they were public
trusts dedicated to God, and that the appellants, who were de facto managers,
were guilty of acts of mismanagement and misfeasance. The respondents prayed
for the removal of the appellants and for framing a scheme for administering
the trust properties. The trial court dismissed the suit but on appeal. the
Court, while dismissing the suit with respect to the Dargah on the ground, that
it was the private property of the appellants, decreed it with respect to the
mosque and its adjuncts, and the graveyard, and remanded the matter to the
trial court for framing a scheme for the administration of those two trust
properties.
In appeal to this Court, the appellants
contended that.
(1) in the previous judgments between the
parties the public character of the properties was negatived and they operated
as res judicata; (2) There was no public wakf of the 722 mosque which was only
a private or family mosque; that there was no declalration of dedication for
the purpose of a mosque, and that the prayers offered in the mosque by the
respondents were only by leave and licence of the founder;
(3) the graveyard was also not a public wakf
but the family grayeyard of the appellants wherein corpses of other Muslims
were allowed to be buried on payment of pit fees and other charges. (4) even if
the mosque was a wakf of a public character the appellants had the hereditary
right to administer and govern it and so the respondents had no right to dislodge
them and ask for the framing of a scheme; (5) the suit was barred by s. 55(2),
Muslim Wakfs Act, 1954; and (6) section 92, Civil Procedure Code; has no
application as the appellants were not trustees.
Dismissing the appeal,
HELD: (1) The judgments relied upon by the
appellants do not operate as res judicata, because, the public character of the
wakfs was not in issue in those cases.
[738D] (a) Before a plea of res judicata can
be given effect to, the following conditions must be proved:- (i) that the
litigating parties are the same;
(ii) that the subject-matter of the suits is
identical;
(iii)that the matter was finally decided
between the parties; and (iv) that the earlier suit was decided by a court of
competent jurisdiction. [732A-733 B] (b) In the present case, the 2nd condition
is not satisfied, because, the public character of the mosque was never raised
in any of the earlier suits, and consequently, there was no decision or finding
upon the public character of the mosque. The only questions that were raised
were the questions regard ing the performance of certain religious ceremonies,
the question of the right to appoint the Imam, and as to who was to manage the
affairs of the mosque. In one suit, the appellants had put forward the claim of
being hereditary owners of the mosque, but that was only in a limited sense
namely, for the purpose of its management. In another suit, there was a finding
that the respondents were debarred from disputing the ownership of the
appellants of the mosque, and from asserting that the respondents were anything
more than licensees in respect of the mosque. But this observation has to be
understood in the light of the pleadings which show that the suit related not
to the public nature of the mosque but only to the management thereof.
[733B-C, E-F, 734D-E, 736G 737A, 738D-E] (c)
In two suits there was in fact a finding against the appellants, that the
mosque was public property and not descendible to the appellants. In one suit,
there were observations that the burial ground and other places were the
exclusive properties of the appellants but by 'exclusive property' it was never
meant that it was the private property of the appellants, but only that the
respondents had no interest in it. Even otherwise, as the suit was not for any
declaration that the mosque was a public one the observations would only be
obiter. [734G, 735F-G, 738B-C] (d) In a criminal revision case before the High
Court, the respondents admitted that they would not interfere with the rights of
the appellants and the respondents were acquitted thereupon. A perusal of the
order shows that the admission was not unqualified but only amounted to this
that the respondents would not take the law into their hands, but would take
recourse to legal remedies. Even if it is construed as an admission, it was in
a criminal case made in terrorem and loses much of its significance. Further
since the respondents filed the suit under s. 92, they had not acted against
the admission but have availed themselves of a remedy which was open to them
under the law. [738G-739B] (e) The earlier judgments between the parties show
that it was never disputed even by the appellants that the mosque was a public
mosque where prayers were offered by the Mahomedan public. [737A] 723 (2) Since
the public character of the mosque was never raised in any suit, the judgments
relied upon by the appellants do not establish that the mosque and its adjuncts
were not wakfs of a public nature. A consideration of the facts, circumstances
and the evidence in the present case, shows that the mosque and its adjuncts
constituted wakf properties as a single unit and had been used as such for a
long time so as to culminate into a valid and binding public wakf. [738D-E,
746B, 760B] (a) To create a valid dedication of a public mosque, under the
Hanafi school of Mahomedan law, the following conditions must be
satisfied:-[746B-C] (i) that the founder must declare his intention to dedicate
a property for the purpose of a mosque. No. particular form of declaration is
necessary. The declaration can be presumed from the conduct of the founder
either express or implied. It may be oral or in writing. [750-B, 755A-B] (ii)
that the founder must divest himself completely from the ownership of the
property, the divestment can be inferred from the fact that he had delivered
possession to the Mutawalli or an Imam of the mosque. Even if there is no
actual delivery of possession, the mere fact that members of the Mahomedan
public are permited to offer prayers with azan and ikamat, shows that the wakf
is complete and irrevocable.
It is not necessary for the dedicator of a
public mosque that a Muttawali or a Pesh Imam should be appointed. That could
be done later by the members of Muslim Community; and (iii) the founder must
make some sort of a separate entrance to the mosque which may be used by the
public to enter the mosque. [747A, 750B-D] As regards the adjuncts the law is
that where a mosque is built or dedicated for the public, if any additions or
alterations, either structural or otherwise, are made which are incidental to
the offering of prayers or for other religious purposes, these constructions
would be deemed to be accretions to the mosque and the mosque and such adjuncts
will form one single unit so as to be a part of the mosque.
[750D-E] Jewan Doss Sahoo v. Shah
Kubeer-ood-Deen, 2 M.I.A. 390;
Adam Sheik v. Isha Sheik, I.C.W.N. 76; Saiyad
Maher Husein v. Jaji Alimohomed 36 B.L.R. 526; Akbarally v. Mahomedally;
I.L.R. 57 Bom. 551; Miru v. Ramgopal; A.I.R.
1935 All. 891;
Abdul Rahim Khan v. Fakir Mohammad Shah, AIR
1946 Nag 401;
Masjid Shahid Ganj Mosque v. Shoromani
Gurdwara Prabandhak Committee, Amritsar; L.R. 67 I.A. 251; Musaheb Khan v. Raj
Kummar Bakshi, A.I.R. 1938 Oudh 238; Maula Baksh v.
Amiruddin; I.L.R. I Lah. 317; Mohammad Shah
Shah v. Fazihuddin Ansari, A.I.R. 1956 S.C. 713 referred to.
(b) So far as the mosque and its adjuncts in
the present case are concerned, they consist of, (i) the main prayer hall, (ii)
a covered platform, where, according to the respondents, prayers were offered
by the members of the Mahomedan public when the space in the main mosque was
not sufficient to accommodate a big crowd, and (iii) a small chamber in the
nature of a store room adjacent to the mosque, a thatched shed, a pond into
which water is pumped by a pump set which had been installed by the Mohomedans
of the village, a latrine to the south of the burial ground, and a minaret
fitted with a loud speaker. On special auspicous occasions, the entire Muslim
community flocks to the mosque for the purpose of prayers, because, offering
prayers on such days is, according to Islamic tenets, extremely auspicious
& highly efficacious. Before a Mussalman offers his prayers he has to do
wazoo or wash his hands and feet in the prescribed manner and for this purpose
arrangements are made in every mosque. Accordingly a tank or hauz where water
is pumped for the wazoo was provided. As a large number of Muslims assembled on
special occasions, the entire space-including the mosque, the raised platform
and a corridor-was used for the purpose of offering prayers. The store room was
used for keeping the mats which were meant to be used at the time of offering
prayers and the loud speaker for reciting Azan and for delivery of Khutbas or
religious sermons. Thus, the constructions were used for religious purposes
incidental to the offering of prayers and have become accretions to the mosque
so as to constitute one single entity. [754D-H, 758G-759C] 724 (c) In the case
of a mosque, the founder's permission or the bare act of allowing the members
of the Mahomedan public to offer prayers amounts to a complete delivery of
possession. The agreement in favour of the ancestor of the appellants clearly
shows the intention of the founder and on a proper interpretation of its terms,
amounts to a permanent and irrevocable dedication to God constituting a valid
public wakf. The owner of the land had given his tacit consent to all the terms
of the agreement and in the eye of the law, he being a party to the agreement,
he allowed the mosque to be constructed not for the private members of his
family but for the worship of God by the entire Mahomedan public. The document
thus unmistakably evidences the clear intention of the founder to consecrate
the mosque for public worship and amounts to a declaration of a public wakf. By
providing a separate entrance, the owner agreed to separate the mosque from the
rest of the property namely the Dargah and the compound; and by allowing the
entire Mahomedan Community of the village to worship in the mosque and to
perform other ceremonies, the owner of the land gave delivery of possession to
the mosque. [756B] (d) the owner, being a saint himself, unequivocally and
categorically divested himself of the entire interest in the mosque and made it
a public wakf. A place may be dedicated as a mosque or masjid without there
being any building. But, since the building in the nature of a mosque was
built, a clear case of dedication has been made out. Once the mosque was
constructed it stood dedicated to God and all the right, title and interest of
the owner got completely extinguished about a century and a half ago and since
then, the mosque had been used constantly for the purpose of offering prayers.
[756F-H] (e) Once there was a complete dedication to the mosque as a place of
public worship any reservation or condition imposed by the owner would be
deemed to be void and would have to be ignored. Therefore, it could not be
contended by the appellants that under the agreement, the respondents had
stipulated not to claim any right or interest in the mosque, and hence, cannot
claim the mosque as wakf property. Reading the statements in the agreement as a
whole what the respondents' ancestors meant was that the mosque would
undoubtedly be a public wakf meant for the purpose of public worship and that
they would not interfere with its management. But that did not mean that if the
appellants, who are the founder's descendants, indulged in mismanagement of the
mosque, the respondents, as members of the Mahomedan Community, could not take
suitable action under law against them. [757A-D] (f) Further, under the Muslim
law once the dedication was complete, the property passed from the owner to God
and it never returns to the owner and therefore, the question of the mosque
being private can never arise. The very concept of a private mosque is wholly
foreign to the dedication of a mosque for a public purpose under Muslim Law.
Under that system of law, once the founder dedicates a particular property for
the purpose of a public mosque, no Muslim can be denied the right to offer
prayers in the mosque to whatever section or creed he may belong, and that is
why the law is so strict that the moment even a single person is allowed to
offer his prayers in a mosque it becomes dedicated to the public, Also, any
adjuncts to a mosque, which are also used for religious purposes, become as
much a part of the mosque as the mosque itself. [734E-F; 735C-D;
736A-B; 746H] (g) There is not an iota of
evidence to prove the case of the appellants that the adjuncts were their
private property. Where any construction is made for the purpose of the mosque
or for its benefit or by way of gift to the mosque, that also becomes a public
wakf. The question of who made the construction is wholly irrelevant, because,
all constructions made by any person, used for religious purposes incidental to
offering of prayers in the mosque, would be deemed to be accretions to the
mosque itself. Even the appellants' witnesses admitted the nature and character
of the various adjuncts to the mosque. [757H; 758F; 759B-D] (h) The argument
that there was no formal dedication is unsound. The document recites that the
property being built on the land of the founder was a public mosque to be used
for the public purpose of offering prayers. Even otherwise, the act of
permitting the Mahomedans of the village to build a mosque, itself amounts to a
complee dedication or a declaration that the mosque is a 725 public property.
Further, by giving delivery of possession of the site for the purpose of
building a mosque and by allowing prayers to be offered in the mosque, the
founder made a complete public wakf in the shape of a mosque. [759D- F] Zafer
Hussain v. Mohd. Ghias-ud-din, A.I.R. 1937 Lah.
552; Nawab Zain Yar Jung v. The Director of
Endowments [1963] 1 S.C.R. 469 and Jawaharbeg v. Abdul Aziz A.I.R. 1956 Nag.
257 distinguished.
(3) (a) Under Mahomedan law graveyards may be
of two kinds, namely, family or private graveyards and public graveyards. The
rules for determining whether a graveyard is a public or private one are.
[742E] (i) that even though there may be no direct evidence of dedication to
the public, it may be presumed to be a public graveyard by immemorial user,
that is, where corpses of the members of the Mahomadan community have been
buried in a particular graveyard for a large number of years without any
objection from the owner. The fact that the owner permits such burials will not
make any difference at all; [744B-C] (ii) that if the graveyard is a private or
family graveyard, then, it should contain only the graves of the founder, of
the members of his family or of his descendants and of no others. Once even in
a family graveyard members of the public are allowed to bury their dead, the
private graveyard sheds its character and becomes a public graveyard; [744C-D]
(iii) that in order to prove that a graveyard is public by dedication it must
be shown by multiplying instances of the character, nature and extent of the
burials from time to time. In other words, there should be evidence to show
that a large number of members of the Mahomedan community, had buried their
corpses from time to time in the graveyard.
Once this is proved, the Court will presume
that the graveyard is a public one; and once it is held to be a public
graveyard it vests in the public and constitutes a wakf and it cannot be
divested by non user; and [744A, E] (iv) that where a burial ground is
mentioned as a public graveyard either in revenue or historical papers, that
would be conclusive proof to show the public character of the graveyard. [744F]
Ballabh Das v. Nur Mohammad, A.I.R. 1936 P.C. 83, Imam Baksh v. Mander Narsingh
Puri, A.I.R. 1938 Lah. 246, Sheorai Chamar v. Mudeer Khan, (1934) A.L.J. 809,
Qadir Baksh v.
Saddullah, A.I.R. 1938 Oudh 77, and Mohammad
Kassam v. Abdul Gafoor, A.I.R. 1964 M.P. 227 referred to.
(b) The position regarding the graveyard, in
the present case, is that even some of the judgments relied upon by the
appellants have affirmed its public character.
Further, the judgments relied upon by the
respondents show that the property had been dedicated as a public burial
ground. These judgments operate as res-judicata against the appellants so far
as the graveyard is Concerned. All the attempts by the appellans to get a
declaration from the courts that the graveyard was a private one failed and all
the courts have consistently held that both parts of the burial ground were a
public graveyard where corpses of the Mahomadan community of the village were
buried. The appellants, however, being the descendants of the founder, had
established a right by usage to charge pit fees and other charges. But the mere
fact that the appellants used to realise pit fees or other incidental charges
would not detact from the nature of the dedication. The appellants themselves
had filed an application before the Municipal Council for registering the
burial ground as a graveyard, showing that the appellants themselves treated
the burial ground as a public graveyard and had it so registered with the
Municipal Council. [738D; 739C-D; 742B-C; 744F-745B] (c) Even assuming that the
judgments do not operate as res judicata, there is overwhelming oral and
documentary evidence to prove that it is a public graveyard. [745F-G] (d) There
is no legal evidence to prove that the western part, adjacent to the Dargah,
should be held to be a private burial ground belonging to the family 726 of the
appellants. Both parts constitute one single burial ground and there is nothing
to show that in burying the dead any distinction had been made between the two
parts. [745H] (4) There is overwhelming evidence on record to show that the
appellants were guilty of grave mismanagement, and therfore a clear case for
formulating a scheme under s. 92, C.P.C., has been made out by the respondents.
Even the trial court found acts of mismanagement but explained away the acts of
misfeasance on the ground that the respondents undertook not to interfere with
the management or ask for accounts and held the appellants' negligence was not
actionable. But in view of the finding that the mosque and its adjuncts and the
burial ground are public wakfs, the question of negligence assumes a new
complexion. Apart from acts of mismanagement, the graveyard was not properly
managed or maintained, the boundary wall was broken allowing cattle to enter
and desecrate the graveyard, even the mosque was in a state of disrepair, and
the appellants had constructed shops on a part of the graveyard and in spite of
several decrees directing their demolition, the appellants had disobeyed the
orders of the Courts. [761G-762B] (5) Section 55(2) of the Wakfs Act provides
that the suit for the reliefs in s. 55(1) shall not be instituted without the
consent of the Board. But no Board had been constituted at the time the suit
was filed. Therefore, the provisions of s. 55(2) are not at all attracted and
were not capable of being acted upon. Hence, the non-compliance with its
requirements would not bar the maintainability of the suit. [760E] (6) Section
92, C.P.C., is clearly applicable to the case.
Section 92 applies only when there is any
alleged breach of any express or constructive trust created for a public
charitable, or religious, purpose. It also applies where the directions of the
Court are necessary for the administration of such public trust. In the instant
case the appellants have been looking after the properties as de- facto
managers, either as Pesh Imams or otherwise, and have been enjoying the
usufruct thereof. Therefore, they are trustees de son tort and the mere fact
that they put forward their own title to the properties would not make them
trespassers. [760G-H] Mahomed Shirazi v. Province of Bengal, I.L.R. [1942] 1
Cal. 211, Ramdas Bhagat v. Krishna Prasad, A.I.R. 1940 Pat.
425 approved.
But the scheme to be framed will be confined
to the mosque and its adjuncts and to the burial ground and not to the Dargah,
which has been held to be private property of the appellants. [762B-C] The
evidence also shows that the appellants were acting as Imams, although not for
a continuous period. There is no clear evidence of any usage or custom by which
the right to act as Imam is hereditary. The question of the right to officiate
in a public mosque, has to be decided according to the principles of Muslim Law
and usage. Once a mosque is held to be a public mosque Muslim Law does not
favour the right of a person to officiate as Imam to be hereditary in the
absence of a custom or usage to the contrary. An Imam must possess certain
essential virtues before he can claim to lead the congregations at prayers. The
property having been dedicated to God, it is not open to the founder or his
descendants to interfere with the performance of public prayers. But, since the
appellants were the descendants of the founder and under the agreement the
respondents undertook not to claim any right in the mosque, although it would
not act as an estoppel, the court may, at the time of framing the scheme,
consider the desirability of associating some of the appellants with the framing
of the scheme or even appoint one of them, if suitable, on terms, to look after
the properties subject to the primary consideration of the welfare of the wakf
properties. In case none of the appellants is suitable, the Court may withhold
the right from the appellants and act as it deems fit in the interests of the
Wakf properties. [736C; 737B-C; 762C-F]
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 1223- 1224 and 2026 of 1968.
From the Judgment and Decree dated 28-10-66
of the Madras High Court in Appeal Nos. 227/60, 427/61 and 227/60 respectively.
727 T. S. Krishnamurthy yer, K. Jayaram and
R. Chandrasekar for Appellants in C.A. Nos. 1223-1224/68 and for Respondents in
C.A. 2026/68. A. K. Sen, A. V. Rangam and A. Subhashini for Respondents in CAs.
1223-1224/68 and for Appellants in C.A. 2026/68.
The Judgment of the Court was delivered by
FAZAL ALI, J.-These appeals, by certificate granted by the High Court, arise
out of a common judgment and will be dealt with by one judgment. The appeals
have had a chequered career resulting from a highly contested litigation
spreading over a century and a half. A review of the historical background of
the case reveals a rather sad story and an unfortunate saga of a perpetual
strife and struggle, disputes and differences between the two sections of the
Muslim community of village Vijayapuram (situated in Tiruvarur District in the
State of Madras) setting up diverse rights and rival claims over the property
which was essentially a religious property originating from a fountain of
purity flowing from the life and teachings of a celebrated saint who was the
original founder of the property. Property essentially directed to God appears
to have been used for mundane purposes which evoked loud protests from another
section of the Mahomedan community who wanted to protect the public character
of the trust property and this has led to several suits in various courts.
The most unfortunate part of the drama long
in process is that the Courts before whom the disputes came up for decision
handed down judgments which were not strictly in accorance with the shariat and
the essential tenets of the Mahommadan Law which encouraged the parties to
plunge themselves into a long drawn and unnecessary litigation, until the High
Court of Madras in one of the litigations had to point out that the only remedy
to put an end to the disputes was to invoke the provisions of s. 92 of the Code
of Civil Procedure and this is what appears to have been done in the action out
of which these appeals arise.
With this pragmatic preface we now proceed to
consider the facts of the case which are by no means short and simple, but
present highly complicated and complex features.
It appears that some time towards the
beginning of the 18th Century Syed Sultan Makhdoom Sahib a Sufi saint was
residing at Vijayapuram who by his pious and saintly life attracted disciples
not only belonging to he Mahomedan community but also some non-Muslims of that
village. The saint was held in great respect and reveronce by the Hindus and
Muslims alike which is evidenced by the fact of a sale deed Ext. B-1 dated May
12, 1730 which forms the starting point of the existence of the properties in
suit which have been the subject-matter of such a long drawn litigation.
Exhibit B-1 shows that a part of the site where the properties in dispute are
situated and which was a punja land was sold to the saint Syed Sultan Magdoom
Sahib by Thirmalai Kolandai Pillai who was a resident of village Vijayapuram.
The sale deed conferred absolute rights on the saint with powers to alienate by
way of gift, exchange and sale etc. The sale deed also mentioned that there
were no encumbrances in respect of the land, and if any were found, the vendor
would discharge the 728 same. The saint died and about sixty years later
another sale deed was executed by Malai Kolanda Pillai in favour of Kaidbar
Sahib who appears to be a descendant of the saint and an ancestor of the
Labbais who are the defendants in the present suit. This sale deed also appears
to be in respect of the land which forms part of the disputed properties. The
sale deed was executed on May 22, 1797. This sale deed (Ext.
B-2) gives an indication that it consisted of
lands and gardens and could be used a grave-yard also. Thus the properties in
dispute are situated on the lands sold to the ancestors of the Labbais by the
two sale deeds referred to above. It may be pertinent to note here that in the
second sale deed Rowther Syed Uddin who is ancestor of one of the plaintiffs
was a witness. In course of time the saint and the descendants were buried on
the lands in dispute and a Dargah was set up which was managed by the
descendants of the saint. Several years later, the Mahomedans of the village
realised the necessity of having a mosque as no mosque existed in the village
and inspired by this laudable objective, the Rowthers approached Masthan Ali
Khader Sahib for permission to build a mosque on a part of the land in dispute.
The permission having been granted, an agreement was excuted in favour of Masthan
Ali Khader Sahib which is Ext. B. 4 and forms the sheet-anchor of the
dedication said to have been made by Masthan Ali Khader Sahib for the purpose
of a mosque. Thereafter in course of time certain additional constructions in
the shape of a platform, few rooms, a water tank, which form adjuncts to the
mosque, were added obviously without any objection from the Labbais. The vacant
land appears to have been used as a grave-yard where members of the Muslim
community buried their dead as a matter of right on payment of certain fees or
charges to the defendants or their ancestors. Subsequently the defendants
constructed a few shops on a part of the grave-yard which alienated the
sympathies of the Muslims particularly the Rowther community who regarded the
construction of the shops as desecration of the grave-yard and accordingly a
number of suits were filed for demolition of the shops. The defendants,
however, claimed the entire properties as their private properties excepting
the prayer hall which was admittedly used as a mosque. There also the
defendants claimed that they had a right to manage the same and to lead the
congregation at prayers. The present suit has been filed by the Rowthers who
were the other section of the Muslim community and whose ancestors are alleged
to have built the mosque and other constructions with the previous permission
of the ancestors of the defendants. This suit was brought in a representative
capacity under O.1 r. 8 Code of Civil Procedure after obtaining the sanction of
the Advocate General under s. 92 of the Code of Civil Procedure.
According to the allegations made by the
plaintiffs, there were three types of properties which were wakf properties of
a public and charitable nature dedicated by the ancestors of the defendants. These
properties consisted of :
(1) a huge vacant piece of land consisting of
two parts which is popularly known as burial-ground.
On the western part of the gurial-ground some
shops had been constructed by the defendants and all attempts made by the plaintiffs
or their ancestors to get the 729 the plaintiffs or their ancestors to get the
shops demolished had so far failed;
(2) towards the western portion of the
grave-yard there is a tomb of the saint Syed Sultan Makhdoom Sahib over which a
Dargah has been built;
(3) a prayer hall adjacent to the Dargah
which is known as the mosque or Pallivasal. There is also a covered platform, a
pond and a thatched shed which appear to be adjuncts to the mosque.
According to the plaintiffs all the three
properties were public trusts dedicated to God and the defendants could not
claim any right of ownership over them. The plaintiffs alleged that these
properties were dedicated for public worship and were used for offering prayers
since a very long time and had become wakfs by immemorial user. It was further
alleged that property No. (1) was a public grave-yard and the defendants
wrongly claimed it to be their private grave- yard by refusing permission to
the plaintiffs to bury their dead. It was also alleged that the defendants had
been mismanaging the wakf properties as a result of which the mosque had fallen
in to a state of disrepair and the grave- yard was being converted into shops
and other places so as to lose its origin. Lastly the plaintiffs also contended
that the Dargah was also a public property dedicated to God and the defendants
had no individual or personal interest in the Dargah. The plaintiffs,
therefore, filed the present suit for removing the defendants who were de facto
managers and had been guilty of acts of mismanagement and misfeasance and for
framing a scheme to administer the trust properties.
The suit was contested by defendants 1, 2, 4
and 6 who contended, inter alia, that the entire property was acquired by their
ancestor Syed Sultan Makhdoom Sahib who died four years after the purchase and
was buried on a part of the land along with the members of his family. The
defendants admitted that members of the Rowther community were allowed to offer
their prayers in a raised platform in front of the Dargah over which a prayer
hall was built by them. The defendants, however, claimed that as the Rowthers
were allowed to offer the prayers by leave and licence of the founder, the
prayer hall was not a public mosque but a private property of the defendants. Even
if the mosque was a public property the adjuncts thereto were the personal
property of the defendants and were not used for any religious purpose.
Similarly with respect to the grave-yard it was alleged that this was a private
grave-yard and the defendants were entitled to charge pit fees and other
charges from those Muslims who wanted to bury their dead.
They further contended that the shops had
been built by the ancestors of the defendants in order to increase the revenue
of the Dargah and for the proper administration thereof.
Lastly the defendants pleaded that the
present suit by the plaintiffs was clearly barred by res judicata in view of
the previous judgments of the Courts pronouncing upon the rights of the parties
against the plaintiffs.
730 These were the facts pleaded by the
parties in original suits Nos. 9 of 1956 and 71 of 1957 heard by the Court of
Sub-Judge Mayuram. It appears that one suit being O.S. No. 9 of 1956 was filed
in the Court of the Sub-Judge Mayuram, whereas suit No. 71 of 1957 was
originally filed in the Court of the District Munsiff. Tiruvarur as O.S. No. 16
of 1957 but the same was transferred by the District Munsiff to the District
Munsif's Court at Nagapattinam and was later transferred to the Sub-Judge,
Mayuram to be tried along with O.S. No. 9 of 1956. The Trial Court conslidated
the two suits and decided them by one common judgment. It might also be
mentioned that the present action was preceded by proceedings under s. 145 of
the Code of Criminal Procedure wherein the possession of the properties in
dispute was found to be with the defendants. In Suit No. 9 of 1956 which was
filed in the Court of Sub-Judge, Mayuram, the Court framed the following issues
:
"1. Are the Pallivasal, Durgah, the
burial grounds, prayer hall etc. set out in Schedule `A' public trusts or are
they private trusts belonging to the Labbais ?
2. Is the suit for framing a scheme not
competent ? 2(a). If not, is it necessary or desirable to frame a scheme and if
so to what trusts ? 3. Is this suit barred by the decision in O.S.
No. 304 of 1898; District Munsif's Court,
Tiruvarur, and O.S. No. 8 of 1937. Sub Court, Tiruvarur ?
4. Is this suit barred under Section 55 of
the Muslim Wakf Act of 1954 ?
5. Is the Imamship and Muthavalli hereditary
in the family of Labbais and the defendants ?
6. Is the 2nd defendant a Imam and Muthavalli
?
7. To what reliefs, if any, are the parties
entitled ?" In suit No. 71 of 1957 where substantially the same pleas were
raised, the following issues were struck by the Court :
"1. Whether suit, as framed, prayed for
declaration that the order in M.C. 9 of 1955 and Cr. R.P. Nos. 784/55 are void,
is sustainable in law ?
2. Whether the suit properties are properties
of public trust as claimed by the plaintiffs ?
3. Whether the Rowther community of
Vijayapurarm are entitled to be in management and possession of the suit
properties as claimed in the plaint ?
4. Whether the pleas, covered by Issues 2 and
3 above are not barred by Res Judicata by the findings in the suits and appeals
in O.S. No.
167 of 1893, O.S. No. 304 of 1898 and O.S.
No. 8 of 1937 referred to in the written
statement ? 731 "5. Whether it is open to the plaintiffs to plead that
they are in possession and management in spite of orders in M.C. No. 9 of 1955
and Cr.
R.P. No. 784 of 1955 and C.C. No. 120 of
1955, Sub Division Magistrate, Nagapattinam?
6. Whether the suit for declaration is
maintainable ?
7. Whether the suit is not properly valued
for the purposes of court fees and jurisdiction ?
8. To what relief are the plaintiffs entitled
?" The Trial Court dismissed the plaintiffs' suits deciding the main
issues against the plaintiffs. Thereafter the plaintiffs of both the suits
filed appeals before the High Court of Madras and the High Court reversed the
decision of the Trial Court in many respects and accepted the plaintiffs' case
with respect to the mosque, its adjuncts and the graveyard but found that so
far as the Dargah was concerned it was the private property of the defendants
and the plaintiffs had no cause of action with respect to the same. The High
Court accordingly decreed the plaintiffs' suits with respect to the mosque, its
adjuncts and the grave-yard and remanded the case to the Trial Court for
framing a scheme for administration of the trust properties.
The suit regarding the Dargah was, however,
dismissed. Both the plaintiffs and the defendants have filed appeals by
certificate to this Court. Appeal No. 2026 of 1968 is by the plaintiffs
regarding the adverse decision given by the High Court in respect of the
Dargah, while appeal No. 1223 of 1968 which is the main appeal is by the
defendants 1, 2, 4 & 6 against whom the High Court decreed the suits with
respect to the mosque, its adjuncts and the grave-yard. Civil Appeal No. 1224
of 1968 has been filed against the decision of the Madras High Court which
arises out of original suit No. 71 of 1957.
We have heard the learned counsel for the
parties. Mr. Krishnamoorthy Iyer appearing for the appellants has raised the
following points before us:
(1) that the history of the litigation would
clearly show that the previous judgments between the parties operated as res
judicata and the High Court was wrong in not giving effect to the plea of res
judicata which would have put a final seal to the disputes between the parties
(2) that there is clear evidence of the manner in which the properties appear
to have been dedicated and there is no clear declaration of dedication for the
purpose of the mosque and the prayers offered in the mosque were only by leave
and licence of the founder, and there was no public wakf of the mosque at all
which was only a private mosque or a family mosque of the defendants. The
learned counsel submitted that the High Court has completely overlooked this
legal aspect of the matter;
732 (3) that even if the mosque was wakf of a
public character the defendants possessed the hereditary right to administer
and govern the same and in these circumstances the plaintiffs had no right to
dislodge them by asking the Court to frame a scheme. On a parity of reasoning
it was contended that the graveyard was also not a public wakf but the family
grave-yard of the defendants;
(4) that the suit was clearly barred by s.
55(2) of the Muslim Wakfs Act, 1954; and (5) that s. 92 of the Code of Civil
Procedure had no application to the present case inasmuch as the defendants
were not trustees within the meaning of s. 92 of the Code.
Mr. Asoke Sen appearing for the
plaintiffs/respondents conceded that he would not press his claim so far as the
Dargah was concerned which has rightly been held as the private property of the
defendants. On the other points, Mr. Sen repelled the arguments of Mr. Iyer by
submitting that the plea of res judicata was totally unfounded inasmuch as the
public character of the wakf never came up for decision before the Courts which
decided the previous litigation, where the question was confined only to
certain rights claimed by the defendants with respect to leading the
congregation and administration and management of the mosque. It was further
contended that there is overwhelming evidence to show that the grave-yard was a
public trust by immemorial user and the defendants had no right to construct
the shops thereon. On the question of the dedication it was argued that under
the Mahomedan Law an oral dedication is enough to create a wakf and Ext. B-3
contains an intrinsic evidence of a clear dedication of the property for the
purpose of the mosque along with its adjuncts, which were in fact used for the
purposes connected with the performance of the prayers. Lastly it was submitted
that s. 55 of the Muslim Wakfs Act had no application because at the time when
the suit was brought no Board was constituted under the Act.
As regards s. 92 of the Code of Civil
Procedure it was submitted that the defendants were undoubtedly trustees de son
tort and would, therefore, fall within the ambit of s. 92 of the Code of Civil
Procedure and as the Trial Court had itself held that the defendants were
guilty of gross negligence, the provisions of s. 92 of the Code of Civil
Procedure could be clearly invoked.
In the light of these arguments of the
parties and the history of a case, we would now proceed to decide the points in
controversy in this case. We would first deal with the question of res
judicata. In support of this plea the defendants have relied on Exts. B-5 to
B-9, B-12, B-16, B- 28, B-30, B-31 and B-73 in support of their case that these
judgments constitute and operate as res judicata, and particularly judgments
given in those suits which were brought in representative capacity under O. 1,
r. 8 of the Code of Civil Procedure. Before we analyse these judgments, it may
be necessary to mention that before a plea of res judicata can be given effect,
the following conditions must be proved- 733 (1) that the litigating parties
must be the same;
(2) that the subject-matter of the suit also
must be; identical;
(3) that the matter must be finally decided
between the parties; and (4) that the suit must be decided by a court of
competent jurisdiction.
In the instant case according to the
plaintiffs / respondents the identity of the subject-matter in the present suit
is quite different from the one which was adjudicated upon in the suits which
formed the basis of the previous litigation. In our opinion the best method to
decide the question of res judicata is first to determine the case of the
parties as put forward in their respective pleadings of their previous suits,
and then to find out as to what had been decided by the judgments which operate
as res judicata. Unfortunately however in this case the pleadings of the suits
instituted by the parties have not at all been filed and we have to rely upon
the facts as mentioned in the judgments themselves. It is well settled that
pleadings cannot be proved merely by recitals of the allegations mentioned in
the judgment. We would also like to note what the High Court has said on the
question of res judicata. The High Court found that although the litigation
between the parties lasted for a pretty long time it was never decided whether
all or any of the suit properties constituted a public trust. Both the parties
appear to have taken extreme stands but even despite the fact that the previous
judgments contained an incidental finding that the mosque was a public property
and so was the burial ground, the effect of these findings was nullified in
1939 when the High Court held that even if the properties in dispute were the
exclusive properties of the Labbais, this expression was not meant to indicate
that they were their private properties. This, in our opinion, clearly shows
that the public charcter of the wakf or of the mosque was never in issue. The
High Court on this point found as follows:
"We are, therefore, of the view, that
the issue as to whether the properties constituted a public trust having been
never raised and decided between the parties in any of the prior suits, O.S.
No. 9 of 1956 on that question was not barred by res judicata. The finding of
the Court below in this regard is affirmed." The Trial Court had also
negatived the plea of res judicata taken by the defendants.
With this background we would now proceed to
analyse the purport and the effect of the previous judgments relied upon by the
appellants. The first litigation between the parties started as far back as
1893 when the Labbais filed a suit against the defendants in the Court of the
District Munsif, Tiruvarur being O. S. No. 167 of 1893. This suit was decided
by the judgment Ext. B-5 dated March 26, 1895. A perusal of the judgment will
clearly disclose that the suit was confined to two points. In the first place
the plaintiffs claimed 734 certain rights for performance of ceremonies in the
properties and to a share in the income accrued to the mosque from the
disciples. Secondly, so far as the grave- yard was concerned the claim was
confined to receiving pit fees for the burials. Thus the Court had decreed the
plaintiffs' suit for injunction holding as follows:
"The result is that the plaintiffs will
have a permanent injunction restraining the defendants from interfering with
the plaintiffs' right of officiating at the Khutba, the daily prayers and the
Janaza and in reciting Mowlud, Khattam, Koran, and Fathas and, in the absence
of a Modin and Vangu (call for prayers) and of lighting the pallivasal and
doing such other duties as pertain to the Modin (it being open to the Levvai
plaintiffs to do the duties of the Moden when they please), during their turn
of office of four months (5th to 8th months of the Hijiri both inclusive)
subject of course to their conducting themselves agreeably to the rules
regulating their conduct as Lawais. Considering all the circumstances of the
case, I think it only right that the plaintiffs should have their costs from
the contending Rowther defendants in proportion to their success." It is,
therefore, clear that the Munsif did not at all decide either the public
character of the mosque or the mode and manner or even the effect of the
dedication of the site for the purpose of the mosque or the grave-yard. It is
true that the plaintiffs had put forward the claim of hereditary owners of the
mosque but that was only in a limited sense, nemely, for the purpose of the
management of the mosque.
Once the dedication was complete, the
property passed from the owner to God and it never returns to the owner and,
therefore, the question of the mosque being private can never arise. In fact we
might mention that the very concept of a private mosque is wholly foreign to
the dedication of a mosque for public purpose under the Mahomedan Law. In these
circumstances it is obvious, therefore, that as the public character of the
wakf of the grave-yard was not in issue in that suit, the subject-matter of the
judgment was not identical with that of the present suit. In these
circumstances, therefore, this judgment cannot operate as res judicata.
Exhibit B-6 dated March 16, 1897 is the
judgment in appeal from the aforesaid decision where at p. 394 of the Paper
Book the Subordinate Judge held that the Pallivasal or the prayer hall is
public property and not descendible to the plaintiffs of that suit. Thus if at
all there was any finding regarding the mosque it was against the defendants,
In these circumstances, therefore, we are satisfied that this judgment does not
appear to be of any assistance to the defendants.
Exhibit B-7 dated December 21, 1899 is the
judgment given by the District Munsif, Tiruvarur in O.S. No. 304 of 1898. This
was a suit filed by the members of the Rowther community regarding their right
to offer prayers and bury the dead in the mosque compound and for managing the
affairs of the mosque. In that case also while the Dargah was found to be the
private property of the Labbais i.e. the defendants, no finding was given
regarding the public nature of the 735 mosque although it was held that the
Rowthers had a right to make repairs and manage the mosque and to offer
prayers. On the vexed question regarding the public nature of the mosque, the
Court refrained from making any observation and stated as follows:
"I therefore studiously refrain from
giving any decision on that vexed question about which the Lavvais appeared to
be particular. If their rights, if any, in that matter is invaded by the
Rowthers, their proper remedy would be to seek compensation and get their
rights declared against the community once for all in a suit properly framed
for that purpose." In fact it seems to us that although that judgment
cannot operate as res judicata, the finding given by the learned District
Munsif was wrong on a point of law. Once the founder dedicates the site for the
purpose of building a mosque and prayers are offered in the mosque the site and
the mosque become wakf properties and the ownership of the founder is
completely extinguished. Under the Mahomedan Law no Muslim can be denied the
right to offer prayers in a mosque to whatever section or creed he may belong.
Thus that judgment also does not appear to be of any use to the defendants.
Exhibit B-8 is the judgment of the District
Judge dated November 13, 1902 in appeal against the aforesaid judgment which
was dismissed. The Appellate Court also held that the prayer hall was a public
property although some of the rooms which formed adjuncts of the mosque
belonged to the present plaintiffs i.e. the Rowthers. The ownership of the
plaintiffs was inferred merely from the fact that they held the keys of the
rooms. It is true that the grave-yard was held to belong to the defendants but
there also the principles of Mahomedan Law were completely overlooked.
Exhibit B-9 is the judgment of the High Court
of Madras dated July 24, 1906 in second appeals Nos. 541 & 542 of 1903.
Those appeals were dismissed with the modification that whereas the plaintiffs
had the right to bury the corpses of the members of their community in the
burial ground they had to pay the proper burial fees. Thus to a great extent
the decision of the subordinate courts was modified by the High Court and the
public character of the burial ground was in a way affirmed.
Exhibit B-12 dated September 4, 1923 is the
judgment of the Subordinate Judge, Nagapattinam, in appeal against the judgment
of the Munsif in suit No. 579 of 1920. The suit was brought by some members of
the Muslim community for an injunction restraining the defendant Labbai from
reciting prayers or conducting the worship in the prayer hall. The suit was
dismissed on the finding that the defendent Labbai had the right to recite
prayers and lead congregation in the prayer hall. The Subordinate Judge in
appeal differed from the judgment of the learned Munsif and held that while an
injunction could be granted with respect to the prayer hall alone, the
defendants were entitled to officiate at the prayers in the adjuncts of the
mosque. The decree of the Trial Court was accordingly modified. Here we might
mention that the judgment suffers from 736 a serious legal infirmity arising
from a complete ignorance of the essential principles of the Mahomedan Law.
Once the founder dedicates a particular property for the purpose of a public
mosque, the Mahomedan Law does not permit any one from stopping the Mahomedan
public from offering prayers and reciting Koran etc, Similarly the adjuncts to
the mosque which are also used for religious purposes become as much a part of
the mosque as the mosque itself and in these circumstances no injunction should
have been granted at all by the Court. However, as here also the public
character of the mosque was not at all involved either directly or indirectly
this decision also cannot operate as res judigata. The question of the right to
officiate in a public mosque has to be decided according to the principles of
the Mahomedan Law and usage and we shall deal with this aspect when we consider
the contention of the appellants regarding the public character of the mosque.
Exhibit B-16 dated September 13, 1926 is the
judgment of the High Court of Madras against the aforesaid judgment of the
Subordinate Judge in Second Appeal No. 1890 of 1923.
This appeal was decided on September 13, 1926
and it upheld the judgment of the learned Subordinate Judge. This judgment is
also confined only to the question whether public worship was carried on in
portions marked B & C in the plan. Thus the limited question which fell for
consideration of the High Court was not that the portions marked B & C
formed parts of public mosque but whether there was right of prayrers in those
places.
Exhibit B-28 dated August 31, 1937 is a
judgment of the Subordinate Judge in suit No. 8 of 1937 brought by the Rowthers
against the Labbais. To begin with this suit also related not to the nature of
the public mosque but only to the management thereof. The main question which
arose for decision in that suit was as to who was entitled to manage the
affairs of the mosque, whether the right of appointing Imam was hereditary.
Learned counsel for the appellants placed great reliance on the following
observations of the Subordinate Judge:
"My finding on Issue I, in so far as it
relates to O.S. 304 of 1898, will be that the decision therein operates as res
judicata as regards the ownership and physical control of the suit mosque, but
not as regards the person who is to appoint as Imam. That is to say, the
plaintiffs are debarred from disputing the Labbais ownership of the mosque and
burial ground as a whole and from asserting that the plaintiffs themselves are
anything more than licensee in respect of the mosque." It was submitted
that the Court had clearly found that the question of the ownership and
physical control of the mosque was finally adjudicated upon and operated as res
judicata as held by the Court. This observation made by the High Court has to
be understood in the light of the pleadings of the parties. In fact the Court
was merely called upon to decide the limited question as to who was to manage
the mosque.
From a review of the previous judgments 737
discussed above, it is absolutely clear that it was never disputed even by the
Labbais that the mosque was a public mosque where prayers were offered by
Mahomedan public. The only question which arose before the Subordinate Judge
was as to who was to manage the affairs of the mosque and whether the right to
appoint Imam was hereditary. The Court itself found towards the end of its
judgment that the plaintiffs could appoint a Muttavali to look after the
affairs in the suit mosque but they could not appoint Imam, but the right to
lead prayers as Imam was a hereditary right vested exelusively in the
defendant's family. We might hasten to add that once a mosque is held to be a
public mosque, the Mahomedan Law does not favour the right of a person to
officiate as Imam to be hereditary in the absence of a custom or usage to the
contrary. An Imam must possess certain essential virtues before he can claim to
lead the congregations at the prayers. The property having been dedicated to
God, it is not open to the founder or his descendants to interfere with the
performance of public prayers. In these circumstances, therefore, we are unable
to regard this judgment as barring the suit of the plaintiffs regarding the
public character of the mosque.
Exhibit B-30 dated February 26, 1941 is a
judgment of the High Court in original Suit No. 112 of 1935 brought in the
Court of the District Munsif against the Municipal Council, Tiruvarur praying
for an injunction restraining the Municipal Commissioner from interfering with
the plaintiffs right of access to the grave-yard. Here also the public
character of the Wakf was taken for granted and an injunction against the
Municipal Council was granted by the High Court. This judgment is of no assistance
in deciding either the question of res judicata or for that matter the question
of public character of the mosque.
Exhibit B-31 dated November 13, 1941 is a
judgment of the High Court in Second Appeal No. 252 of 1939, and appears to
have been relied upon by counsel for both the parties in support of their
respective cases. In our opinion, this judgment is really important in the
sense that for the first time the judgment opens up the real and the vital
issue which is to be decided in this case. Here also, the appeal arose out of a
suit No. 8 of 1937 brought by the Rowthers against the Labbais and the main
point in dispute was the right to officiate as Imam. The suit was brought in a
representative capacity and was dismissed by both the Courts holding that the
right to appoint Imam lay with the defendants Labbais. The High Court held that
there was overwhelming evidence in favour of the usage relied upon by the
defendants to be the Pesh Imams. The Court further pointed out that the only
remedy for these constant quarrels and fights between the two communities was a
suit under s. 92 of the Code of Civil Procedure. In this connection Somayya,
J., observed as follows:
"In this case I have found that there is
overwhelming evidence in favour of the usage by which the defendants are to be
the Pesh Imams. The only remedy for these constant quarrels and fights between
the two communities is a suit under section 92 of the Civil Procedure Code in
which the 738 Court might frame scheme having sole regard to the best interests
of the institution." Learned counsel for the appellants, however, relied
upon the observations of the learned Judge where he had mentioned that the
burial ground and other places were the exclusive properties of the Labbais.
The learned Judge, however, was careful enough to add that by exclusive
property he never meant that it was the private property of the Labbais but
only that the Rowthers had no interest in the same. As, however, the suit was
not for any declaration that the mosque was a public one the observations made
by the High Court were purely obiter dicta and cannot put the present
plaintiffs out of Court.
These are the judgments of the various courts
in the suits filed by one party or the other relied upon by the appellants in
order to prove- (1) that the judgments operated as res judicata;
and (2) that both the burial ground and the
mosque and its adjuncts were not wakfs of a public nature.
As discussed above, the judgments do not
prove any of the points relied upon by the appellants. The question of the
public character of the Wakfs in any suit filed by one party or the other was
never raised. The only questions that were raised from time to time were the
questions regarding the performance of certain religious ceremonies, the question
of officiation of the Imam and so on. Even as regards the grave-yard it was
never claimed by the defendants in the suits which formed the subject-matter of
the aforesaid judgments that the Mahomedan community had no right at all to
bury their dead in the grave-yard. All that was contended was that the
grave-yard was a family grave-yard of the defendants and they allowed corpses
of other Mahomedans to be buried only on charging pit fees and other amounts.
As to what is the effect of this will be considered by us when we deal with the
broader question as to whether or not the burial grounds shown in the sketch
map could be presumed to be public grave-yards by immemorial user.
Reliance was also placed on Ext. B-73 dated
April 5, 1957 an order of the High Court in Criminal Revision Petition No. 443
of 1956, where the Rowthers had admitted before the Court that they would not
interfere with the rights of the defendants and on the basis of that admission
they were acquitted. As perusal of the order would clearly show that the
admission was not unqualified, but it amounted only to this that the Rewthers
would not take the law into their own hands but would take recourse to legal
remedies.
This is clear from the following observations
of the High Court:
But that pretension is not persisted here by
the learned Advocate and it is stated that by reason of this reconstruction
they do not claim any right, title or interest which does not accrue to them
from the various litigations and that this will not be a precedent and that
they would not do in 739 future any such interference without obtaining the
orders of the appropriate authorities." Furthermore, the admission was
made in a criminal revision when the plaintiffs had been convicted and if the
admission was not made their conviction would have been upheld by the High
Court. The admission, therefore, being in terrorem loses much of its
significance. At any rate, since the plaintiffs have filed the present suit
under s. 92 of the Code of Civil Procedure for framing a scheme, they have not
acted against the admission, because they have availed of a remedy which was
open to them under the law. This is all the documentary evidence produced by
the appellants/defendants.
As against this the plaintiffs have produced
a large number of judgments in suits, particularly relating to the public
nature of the grave-yard and the attempts by the plaintiffs to get an
injunction from the Courts directing the defendants to demolish the shops which
they had built up in some parts of the grave-yard. These judgments, in our
opinion, clearly show that the burial ground was a public grave-yard and the
case of the defendants that it was their family gtave-yard has been completely
negatived by the judgments relied upon by the plaintiffs which extend right
from 1919 to 1932. We may now proceed to discuss these judgments.
Exhibit A-4 dated May 7, 1919 is a decision
of the District Munsif, Tiruvarur in O.S. 331 of 1915. This was a suit brought
by the Rowthers for an injunction restraining the defendants Labbais from
building shops on the burial ground in question and for a mandatory injunction
directing the defendants to remove the shops erected on some parts of the
burial-ground. The suit proceeded on the basis that the grave-yard was a public
one and the defendants who were managing the same had no right to construct
shops and thereby change the nature of the grave-yard. The defendants resisted
the suit on the ground that the grave-yard was their private property and was
at the most a family grave- yard. It may be noted that in their defence the
defendants did not contend that no member of the public was allowed to bury the
corpses and that only the members of the family of the defendants could bury
their dead. It was clearly alleged that the members of the public were allowed
to bury their dead on payment of burial fees. This point is of very great legal
significance in order to show the nature of the grave- yard. However, the
Munsiff found that although the burial- ground consisted of two parts yet he
found that there was no evidence to show that there was any distinction between
the first and the second part. The Court found as a fact that the property had
been dedicated as a public burial ground and the defendants were merely
trustees in respect of the burial ground and not absolute owners. The Court
accordingly granted the injunction as prayed for. It appears that the decree of
the learned Munsiff was upheld by the Subordinate Judge and also by the High
Court of Madras in Second Appeal No. 386 of 1921. The judgment of the High
Court has not been produced, but this fact is clearly mentioned in Ext. A-6
which is the judgment of the District Munsif, Nagapat- 740 tinam in another
suit wherein the observations made by the Munsiff are as follows:
"The learned Subordinate Judge says in
his judgment (copy Exhibit IV-a) as follows:
'As there is no doubt that the suit land on
which the shops are built forms part of the graveyards the Levvais have no
right to put up the shops'.
Against this decree in A.S. 13 of 1920 there
was a Second Appeal (S.A. 386 of 1921) to the High Court. But the High Court
confirmed the lower Appellate Court's decree." It is, therefore, clear
that the suit brought by the plaintiffs in 1915 and the decree granted by the
Subordinate Judge was confirmed by the High Court in second appeal and this
undoubtedly operates as res judicata, because the same question has been raised
in the present suit by the defendants.
Not being satisfied with the judgment of the
Munsif which was confirmed by the High Court, the defendants Labbais appear to
have filed another suit being O.S. No. 53 of 1924 in the Court of the District
Munsif for a declaration that the decree in Suit No. 331 of 1915 was not
binding on them and for an injunction restraining the Rowthers from seeking to
demolish the shops. The Munsif by his judgment dated November 30, 1925 which is
Ext. A-5 dismissed the plaintiffs' (Labbais) suit and held that the judgment
and decree in O.S. 331 of 1915 Ext. A-4 was binding on the Labbais. Instead of
obeying the decree of the civil court the Labbais seem to have made up their
mind to obstruct the execution of the decree by filing suits after suits.
Consequently another suit was filed by the Labbais being O.S. No. 146 of 1928
for an injunction restraining the Rowthers from demolishing the shops or using
the burial ground as the grave-yard. This suit was also dismissed by the Trial
Court by virtue of its judgment dated January 14, 1939 (Ext. A-6). The Court
clearly observed that the Labbais have tried to circumvent the effect of the
High Court decree which could not be allowed. The Court also held that the
previous judgments operated as res judicata.
Thus it would appear that the three attempts
made by the Labbais to prevent the shops from being demolished and to assert
their private right to the grave-yard resulted in grotesque failure. As the
Labbais failed to get the previous judgments set aside either on ground of
fraud or otherwise, they appear to have thought of another ingenious device to
get rid of the decree passed against them. The Labbais then brought a suit
being O.S. 49 of 1932 for setting aside the previous decrees, particularly the
decree Ext. 4, on the ground that the grave-yard was injurious to public health
and, therefore, it should not be allowed to be continued.
This suit was also dismissed with the finding
that there was no question of any injury to public health and that the
grave-yard was a public one. This suit was decided by the District Munsif by
his judgment dated December 14, 1934 which is Ext. A-10.
741 It may be mentioned that while the above
suit was pending before the District Munsiff an ad interim injunction was
prayed for by the Labbias which was refused and the Labbias then filed an
appeal against this order to the District Judge who dismissed the appeal by his
order dated April 20, 1932 observing as follows:
"It appears to me that this is merely an
attempt to get over the adverse result of the litigation, and that having
failed in the higher courts the defendants have approached the Health
authorities and got something out of them by which they hope to circumvent the
decree." This judgment is Ext. A-86. Having failed to obtain an ad interim
injunction from the District Court, the Labbais filed a civil revision petition
No. 741 of 1932 in the High Court which was also dismissed by the High Court
observing that the Labbais wanted to circumvent the decree obtained against
them. The High Court observed thus:
"The learned Judge in the court below
was right when he said that the petitioners are merely trying to circumvent the
decree obtained against them after contest. The revision petition should not be
used for that purpose and this petition must be dismissed with costs."
This judgment is Ext. A-87 dated August 17, 1932. The Labbais then filed an
appeal against the aforesaid judgment to the District Judge who by his order
dated July 11, 1936 which is Ext. A-11, after allowing some amendments prayed
for remanded the suit for fresh trial. Thereafter the defendants (Rowthers)
filed an appeal to the High Court against the order of remand passed by the
District Judge and the High Court in A.P.P. No. 386 of 1936 allowed the appeal,
set aside the judgment of the District Judge and restored the judgment of the
Trial Court dismissing the suit. This judgment of the High Court is dated
October 7, 1938 and is Ext. A-13. The High Court clearly held that the plaint
did not disclose any cause of action and it was not open to a defeated litigant
to re-open the subject-matter on one excuse or the other. In this connection,
the High Court observed as follows:
"It is now argued before me in this
appeal that the decision of the learned District Munsif is right viz. that
neither the original nor the amended plaint discloses a cause of action. It
seems to me that that argument must be upheld. It is obvious that there can be
in general no right for a defeated litigant immediately to reopen the whole
subjectmatter of the litigation." Thus the High Court put a stamp of
finality on the frivolous suits brought by the Labbais to get out of the decree
passed against them by Ext. A-4 in the suit No. 331 of 1915. A close and
careful analysis of the judgments Ext.
A-4 to Ext. A-87 as indicated above reveals
two important facts:
(1) that the Labbais expressly pleaded that
the grave-yard in question was their family grave-yard and the 742 Mahomedan
public had no right to interfere with the same; and (2) that they had
constructed some shops on a part of the grave-yard and had been directed by the
decree of the Court to demolish them on the footing that the grave-yard was a
public one and several attempts made by them to get the decree vacated or
circumvented failed.
These judgments, therefore, in the first
place operated as res judicata so far as the grave-yard is concerned, and
secondly they constituted conclusive evidence to prove that the burial ground
had been used as public grave-yard from time immemorial and thus became a
public grave-yard by dedication. The Labbais, however, being the descendants of
the founder had established a right by usage to charge pit fees and other
charges. In these circumstances, therefore, the issue relating to the burial
ground being a public grave-yard does not present much difficulty and we would
like to deal with this issue first.
The High Court has clearly held that the
burial ground consisted of two parts as shown in the sketch map and has been
proved to be a public grave-yard by immemorial user.
There is overwhelming oral and documentary
evidence to prove this. In fact the defendants themselves have not denied that
the Mahomedan public of the village used to bury their dead in this grave-yard
and they have only sought to protect their right to realise pit fees and other
incidental charges which has been accepted by the High Court. The Mahomedan Law
on the subject is very clear. Under the Mahomedan Law the grave-yards may be of
two kinds-a family or private grave- yard and a public grave-yard. A grave-yard
is a private one which is confined only to the burial of corpses of the
founder, his relations or his descendants. In such a burial ground no person
who does not belong to the family of the founder is permitted to bury his dead.
On the other hand if any member of the public is permitted to be buried in a
grave-yard and this practice grows so that it is proved by instances adequate
in character, number and extent, then the presumption will be that the
dedication is complete and the grave-yard has become a public grave-yard where
the Mahomedan public will have the right to bury their dead. It is also well
settled that a conclusive proof of the public grave-yard is the description of
the burial ground in the revenue records as a public grave-yard. In Ballabh Das
v. Nur Mohammad (1) the Privy Council observed as follows:
"If the plaintiffs had to make out
dedication entirely by direct evidence of burials being made in the ground, and
without any record such as the khasra of 1868, to help them, they would
undoubtedly have to prove a number of instances adequate in character, number
and extent to justify the inference that the plot of land in suit was a
cemetery. x x x The entry "qabristan" in the khasra of 1868 has to be
taken together with the map which shows the whole of plot 108 to be a
grave-yard." 743 In Imam Baksh v. Mandar Narsingh Puri(1) a Division Bench
of the High Court of Lahore observed as follows:
"From the fact that the whole area now
mapped as Nos. 3095 and 3096 was described as a graveyard in 1868, it is
certain that the graveyard had been in existence a long time and the admitted
fact that since then it has been a mabaristhan is by itself presumptive
evidence that the land had been set apart for use a burial ground and that by
user, if not by dedication, the land is wakf: x x x It is still used as a
Mahomedan graveyard and the right to Mahomedans so to use it is admitted.
x x x x x In my view, once it is found that a
certain definite area of land has been dedicated for use as a graveyard it must
be presumed, in the absence of any proof that the dedication was limited, that
the whole of the land was set apart to be used solely for the purpose of
burying the dead." There is a decision of the Allahabad High Court in
Sheoraj Chamar v. Mudeer Khan,(2) where Sulaiman, C. J., observed as follows:
"But in cases where a graveyard has
existed from time immemorial or for a very long time, there can be a
presumption of a lost grant. It is open to a Court to infer from circumstances
that a plot of land covered by graves, which has been used as a graveyard, is
in fact a grave-yard and had been set apart as such by the original owners and
made a consecrated ground even though a registered document is not now
forthcoming." This case was followed by the Oudh Chief Court in Qadir
Baksh v. Saddullah. (3) In Mohammed Kassam v. Abdul Gafoor (4) the High Court
of Madhya Pradesh, while trying to distinguish between a private grave-yard and
a public graveyard observed as follows:
"On this point suffice it to say that we
are of the view that a Kabarstan cannot be a private Kabarstan unless it is
used for the family members exclusively.
Once the public are allowed to bury their
dead it ceases to be a private property. x x x There was no discrimination
about the user. It was being used by the predecessors of the defendants as well
as by the public. This will indicate that it was not a private Kabarstan.
Under the Mohammadan Law if a land has been
used from time immemorial for burial ground then the same may be called a Wakf
although there is no express dedication." 744 We are of the view that once
a Kabarstan has been held to be a public graveyard then it vests in the public
and constitutes a wakf and it cannot be divested by non-user but will always
continue to be so whether it is used or not.
The following rules in order to determine whether
a graveyard is a public or a private one may be stated:
(1) that even though there may be no direct
evidence of dedication to the public, it may be presumed to be a public
graveyard by immemorial user i.e. where corpses of the members of the Mahomedan
community have been buried in a particular graveyard for a large number of
years without any objection from the owner. The fact that the owner permits
such burials will not make any difference at all;
(2) that if the grave-yard is a private a
family grave-yard then it should contain the graves of only the founder, the
members of his family or his descendants and no others. Once even in a family
grave-yard members of the public are allowed to bury their dead, the private
graveyard sheds its character and becomes a public grave-yard;
(3) that in order to prove that a graveyard
is public by dedication it must be shown by multiplying instances of the
character, nature and extent of the burials from time to time. In other words,
there should be evidence to show that a large number of members of the
Mahomedan community had buried their corpses from time to time in the
graveyard. Once this is proved, the Court will presume that the graveyard is a
public one; and (4) that where a burial ground is mentioned as a public
graveyard in either a revenue or historical papers that would be a conclusive
proof to show the public character of the graveyard.
Applying these principles, therefore, to the
facts of the present case it would appear from the judgments Exts. A-4 to A-87
that right from the year 1915 to 1938 the public character of the burial ground
had been established by those judgments. All attempts by the defendants who
were the plaintiffs in the suits brought by them to get a declaration from the
Courts that the graveyard was a private one failed and all the Courts have
consistently held during the course of 22 years that both the parts of the
present burial ground were a public graveyard where corpses of the Mahomedan
community of the village were buried. The mere fact that the defendants Labbais
used to realise pit fees or other incidental charges would not detract from the
nature of the dedication. Apart from that there is a document Ext. A-8 dated
March 3, 1932 which is a certified extract of the proceedings of Municipal
Council, Tiruvarur which shows that the Labbais themselves had filed an
application before the Municipal 745 Council for registering the burial ground
as a graveyard.
This document appears at pp. 247-248 of the
Paper Book. It appears from this document that Syed Muhammad Kasim Sahib and
Syed Abdul Rahiman Sahib residents of Vijayapuram had applied to the Municipal
Council for registering the plot in dispute as a burial ground and the
Municipal Council by its resolution accepted the application and registered the
plot in question as a burial ground. This, therefore, clearly shows that as
early as 1932 the Labbais themselves treated the present burial ground as a
public graveyard and got the same registered in the Municipal Council.
Apart from this, the oral evidence led by the
parties clearly proves that the graveyard was a public one. P. W. 1 Mohamed
Hanifa who is an old man of 65 years has stated in his evidence that before
burial the Janaza prayers are offered and after the prayer the dead body is
taken to the graveyard and buried. Similarly P. W. 2 Hyder Ali has stated that
there is no other burial ground where bodies of the Rowthers could be buried,
implying that the Rowthers had been burying their dead in the burial ground in
question. P. W. 3 Yehiya has also testified that the remains of the Muslims of
Vijayapuram are buried in the burial ground attached to the mosque and that
there is no other burial ground. The defendants who had examined only two
witnesses, D. W. I Syed Muharak and D. W. 2 Syed Mohamed Salia, have not denied
that the Muslims of the village buried their dead in the burial ground. In this
state of evidence, therefore, the conclusion is inescapabie that the graveyard
has been used for burying the dead of all the persons belonging to the
Mahomedan community ever since the land was sold to the saint-the ancestor of
the defendants. It is true that the burial ground contains the graves of the
saint and the members of his family also, but that by itself would not show
that the graveyard was a private one. On a consideration of the oral and
documentary evidence and the circumstarnces of the case we find ourselves in
complete agreement with the finding of the High Court that the entire burial
ground as shown in the sketch map is a public graveyard and the Mahomedan
community have a right to bury their dead subject to payment of pit fees and
other charges that may be fixed by the defendants.
In the first place the question of the
graveyard being public one is clearly barred by res judicata against the
defendants in view of the previous judgments discussed above, but even assuming
that there is no res-judicata there is overwhelming evidence in this case to
prove that the burial ground is a public graveyard. It was, however, faintly suggested
by learned counsel for the appellants that it would appear from the sketch map
that the burial ground consisted of two parts- the eastern part and the western
part-and as the western part is adjacent to the Dargah it should be held to be
a private burial ground belonging to the family of the defendants. There is,
however, no legal evidence on the record to prove this fact. Both the parts
constitute one single burial ground and there is nothing to show that in
burying the dead any distinction has been made between the eastern part and the
western part. In fact this aspect of the matter had been referred to in one of
the judgments discussed above. In these circumstances it is not possible for us
to accept the contention raised by 746 learned counsel for the appellants. For
these reasons we find ourselves in complete agreement with the finding given by
the High Court on this issue and we affirm the same.
This brings us to the second question,
namely, regarding the mosque and its adjuncts being public Wakfs. We have
already found that the judgments relied upon by the appellants did not operate
as res judicata and we now proceed to decide this issue on the facts and the
evidence that have been led in this case. The parties admittedly belong to the
Hanafi sect of the Mahomedans and are governed by the Hanafi (Sunni) School of
Mahomedan Law. Before, however, going into this question it may be necessary to
enter into an exhaustive discussion of the law on the subject, particularly
because we find that the Civil Courts before whom this question came up for
consideration from one angle or the other have betrayed a profound ignorance of
the Mahomedan Law (Hanafi School) of Wakf relating to a public mosque. The word
"wakf" means detention or appropriation.
According to the well recognized Hanafi
School of Mahomedan Law when a Mahomedan dedicates his property for objects of
charity or to God, he completely parts with the corpus which vests in God and
never returns to the founder. Mahomedan Law contemplates two kinds of Wakfs-a
wakf which is private in nature where although the ultimate object is public
charity or God, but the property vests in a set of beneficiaries chosen by the
founder who appoints a Mutawalli to manage the wakf property. We are, however,
not concerned with private wakfs which are normally known as wakf-alal-aulad.
We are concerned with public wakf i.e., dedication made for the purpose of
public charity e.g. an Imam-Bada, a mosque, a Serai and the like. So far as the
dedication to a mosque is concerned, it is governed by special rules and
special equity in the light of which a particular dedication has to be
determined. A mosque is obviously a place where the Muslims offer their
prayers. It is well-known that there are certain formalities which have to be
observed by the Muslims before they observe the prayers. These formalities are-
(i) Wazoo i.e. washing of hands and feet in a manner prescribed by Shariat;
(ii) the recitation of "Azaan" and
"Ikamat" which is usually done by the Pesh Imam or the Muazzin;
(iii)there must be a person who possesses
virtuous qualities and a knowledge of Koran and other religious rites who
should lead the prayers.
This is necessary in case of prayers offered
in congregation. A single Muslim can also offer his paryers with or without an
Imam but the prayers in a congregation or a Jamaat are offered only behind an
Imam who leads the prayers. As Islam is an extremely modern and liberal
religion. there is no question of any person being denied admission into a
mosque for the purpose of offering prayers and that is why the law is so strict
that the moment a person is allowed to offer his prayers in a mosque, the
mosque becomes dedicated to the public finally, it is not necessary for the
dedication of a public mosque that a Muttawali or a Pesh Imam should be
appointed which could be 747 done later by the members of the Muslim community.
All that is necessary is that there should be a declaration of the intention to
dedicate either expressly or impliedly and a divestment of his interest in the
property by the owner followed by delivery of possession. Here also the
delivery of possession does not involve any ritual formality or any technical
rule. For instance in the case of a mosque if the Mahomedans of the village,
town or the area are permitted to offer their prayers either on the vacant land
or in a mosque built for the said purpose that amounts to the delivery of
possession and divestment and after the prayers have been offered the
dedication becomes complete. Unfortunately the Courts which decided the
previous litigation between the parties do not appear to be aware of the
considerations mentioned above.
In Baillie's Digest of Moohummudan Law,
Second Edition, the following passage occurs at p. 615:
"If a man should make a musjid within
his mansion, and permit entrance to it, and prayers to be said in it, the place
becomes a musjid, in all their opinions, if a way is made to it; but not
otherwise according to Aboo Huneefa. According to the other two, however, it
becomes a musjid and the right of way follows, without any condition to that
effect. And if a door were opened to it on the highway, it would become a
musjid.
It was again observed at p. 616:
"When an assembly of worshippers pray in
a musjid with permission, that is delivery. But it is a condition that the
prayers be with izan, or the regular call, two times or more, and be public,
not private.
When a man has an unoccupied space of ground
fit for building upon, and has directed a kowm, or body of persons, to assemble
in it for prayers, the space becomes a musjid, if the permission were given
expressly to pray in it for ever, or, in absolute terms, intending that it
should be forever; and the property does not go to his heirs at his
death." It is also provided by the Shariat that once a musiid has been
established by dedication no condition can be attached by the founder and if
any such condition is attached the said condition would be void : Vide the
following observations of Baillie in his Digest of Moohummudan Law, 2nd Edn.,
at p. 617:
"When a man has made his land a musjid,
and stipulated for something out of it to himself, it is not valid, according
to all. It is also generally agreed that if a man make a musjid on condition
that he shall have an option, the wakf is lawful, and the condition void."
It was also pointed out by Baillie at p. 618; that where a person gives money
for the repairs of a musjid or its maintenance it operates 748 as a transfer by
way of gift to the mosque and is valid.
Baillie observed thus:
"A man gives money for the repairs of a
musjid, and for its maintenance, and for its benefit. This is valid; for if it
cannot operate as a wakf, it operates as a transfer by way gift to the musjid,
and the establishing of property in this manner to a musjid is valid, being
completed by taking possession." Ameer Ali in his book "Muhammadan
Law", Vol. 1, 3rd Edn., has given several instances of a complete and
irrevocable dedication made by the wakif or the founder and the consequences
flowing from the same. Ameer Ali obseved as follows:
"The proprietary right of the wakif in a
building or ground set apart for prayers becomes extinguished either on the
declaration of the wakif that he has constituted it a mosque or musalla or
consecrated it for worship, or on the performance of prayers therein or
thereon." Thus the moment a building is set apart for offering paryers the
proprietary right of the wakif is completely extinguished. Similarly the
following observations of the author indicate the various contingencies in
which a dedication can be made to a public mosque:
"So that when a person erects a building
with the object of dedication it as a mosque, and permits people to offer
prayers therein, without declaring that he has constituted it into a mosque,
and prayers are offered there bi'ljamaat, the mosque becomes irrevocably
dedicated.
When a mosque is erected or set up inside a
dwellinghouse or residence (dar), and permission is granted to the public to
come and pray, and a pathway is also made or set apart for their egress and
ingress, the dedication is good by general consensus. If a pathway is not
indicated, in that case, according to Abu Hanifa, the dedication is not
sufficient. But according to Abu Yusuf and Mohammed it is good, and the pathway
will be implied by the permision to pray, and this is correct." "At
the same time, though the public may have no right in a private mosque, it may
constitute a good wakf so as to exclude the rights of the heirs over it.
Where prayers have been once offered, it is
not necessary to prove an express dedication. The very fact of the prayers
being offered in it will imply a valid and good dedication."
"Similarly, as the purpose of a mosque is that people should pray there is
jamaat, it is required that where there is no express dedication, prayers
should have been offered there with the azan and ikamat." "If prayers
are offered once in a mosque it is sufficient to constitute a good
dedieation." 749 "According to Kazi Khan, 'the delivery of possession
as regards a masjid is complete when only one person has prayed in it with azan
and ikamat.' The view universally adopted is that prayers offered by one person
in a mosque is sufficient to constitute it a public mosque devoted to the
worship of God, for a mosque belongs to the Deity and there affixes to it a
right of the Mussalmans in general, and one person can be a proxy for the
establishment of the right of the Creator and the public."
"Therefore, if a person creates a mosque and gives permission to people to
pray therein, it is an absolute wakf, and this opinion we adopt." The
observations of the learned author are based on Radd-ul- Muhtar and other
original religious books which contain original law on the subject.
The entire law on the subject has been
explicitly and adroitly eluoidated by Tyabji in his book "Muslim Law"
4th Edn., where at p. 609 the author observes thus:
"Under Hanafi law erecting or specifying
a building for dedication as a masjid, does not complete and effectuate the
dedication of the land and building, nor cause the private ownership therein to
cease until the owner divides them off from the rest of his property, provides
a way to go to the masjid, and either permits public prayers to be said
therein, or delivers possession of it to a mutawalli, or to the judge, or his
deputy.
x x x x For example, delivery in the case of
a cemetery, is the burial of a person, and of a masjid, that people should pray
there in jamaat. In the case of a mosque where there is no express dedication
it is necessary that prayers should have been offered with the azan or
ikamat." It is also pointed out by the author in s. 550 at p. 612 of his
Book that a masjid cannot be consecrated for only a particular type of people
or people belonging to a particular locality and if any such reservation is
made it is void. In s. 551 it is pointed out that the site of a masjid never
reverts to its original owner, or his heirs.
Similarly Saksena in his "Muslim
Law"; 4th Edn., at p.
567 observes that under the Hanafi law a wakf
for a mosque will be completed only when the waqif separates the land and the
building from the rest of his property, so that his ownership completely ceases
in it, and either he delivers possession of the masjid to a mutawalli or to the
Judge, or allows public prayers to be read in it. Similar observations are also
found in Mulla's "Principles of Mahomedan Law", 17th Edn., at p. 184.
750 It would thus appear that in order to
create a valid dedication of a public nature, the following conditions must be
satisfied :
(1) that the founder must declare his
intention to dedicate a property for the purpose of a mosque. No particular
form of declaration is necessary. The declaration can be presumed from the
conduct of the founder either express or implied;
(2) that the founder must divest himself
completely from the ownership of the property, the divestment can be inferred
from the fact that he had delivered possession to the Mutawalli or an Imam of
the mosque. Even if there is no actual delivery of possession the mere fact that
members of the Mahomedan public are permitted to offer prayers with azan and
ikamat, the wakf is complete and irrevocable; and (3) that the founder must
make some sort of a separate entrance to the mosque which may be used by the
public to enter the mosque.
As regards the adjuncts the law is that where
a mosque is built or dedicated for the public if any additions or alterations,
either structural or otherwise, are made which are incidental to the offering
of prayers or for other religious purposes, those constructions would be deemed
to be accretions to the mosque and the entire thing will form one single unit
so as to be a part of the mosque.
We would now refer to some authorities on the
points discussed above.
In Jewun Doss Sahoo v. Shah Kubeer-ood-Deen(1)
the Judicial Committee explained the significance of the word 'dedication' and
observed thus:
"According to the two disciples, Wukf'
signifies the appropriation of a particular article in such a manner as
subjects it to the rules of divine property, whence the appropriator's right in
it is extinguished, and it becomes a property of God, by the advantage of it
resulting to his creatures. The two disciples therefore hold appropriation to
be absolute, though differing in this, that Aboo Yoosaf holds the appropriation
to be absolute from the moment of its execution, whereas Mahomed holds it to be
absolute only on the delivery of it to a Mutwaly, (or procurator), and,
consequently, that it cannot be disposed of by gift or sale, and that
inheritance also does not obtain with respect to it x x x x 'Bestow the actual
land itself in charity in such a manner that it shall no longer be saleable or
inheritable.' " 751 Similarly in Adam Sheik v. Isha Shaik.(1) a Division
Bench of the Calcutta High Court pointed out that a mosque becomes consecrated
for public workship either by delivery or on the declaration of the wakif that
he has constituted it into a Musjid, or on the performance of prayers therein
even by one person. In this connection the Court observed as follows:
"According to all the authorities, a
mosque becomes consecrated for public worship either by delivery to a Mutwalli
(see Baillie's Digest, page 616) or on the declaration of the wakf that he has
constituted it into a musjid or on the performance of prayers therein
(Ruddul-Mukhtar Vol. III, p. 571). The prayers of one individual alone would be
sufficient so long as it is accompanied by Azan. In the Fatwa Kazi Khan the
principle is thus stated :- the delivery of possession as regards a musjid is
complete when only one person has prayed in it with Azan and ikamat.
The view universally adopted is that prayers
offered by one person in a mosque is sufficient to constitute it a public
mosque devoted to the worship of God, for a mosque belongs to the Deity and
there affixes to it a right of the Musulmans in general, and one person can be
a proxy for the establishment of the right of the Creator and the public."
"Therefore, if a person create a mosque and give permission to people to
pray therein, it is an absolute wakf, and this opinion we adopt. (See also
Fatwa Alamgiri, Vol. VI, and Baillie's Digest p. 616). The special purpose of a
mosque is that persons should perform their devotions therein; and according to
the accepted doctrine even where there is no evidence of an express dedication
in words, if it appears that one single individual, (other than the wakif) has
offered his prayers at the place after the usual summons or call to the public,
the consecration is complete." To the same effect is the decision of the
Bombay High Court Saiyad Maher Husein v. Haji Alimahmed(2) where the following
observations were made:
"There are special rules in the case of
mosques- Wilson's Anglo-Mohamedan Law, s. 320; Ameer Ali's Muhammadan Law, Vo.
I, p. 394 and Tyabji's Principles of Muhammadan Law, s. 514. When once a
building has been set apart as a mosque it is enough to make it wakf if public
prayers are once said there with the permission of the owner. x x x x
Dedication may inferred from long user as wakf property.
752 In my opinion it must be presumed that
the roza and the mosque have been duly dedicated and have become wakf by user,
and the presumption may fairly be extended to the other buildings and the land
enclosed within the compound wall which may be regarded as appurtenant to the
roza." In Akbarally v. Mahomedally(1) the Bombay High Court pointed out
that even a vacant place may be dedicated as a mosque without having the
appearance of a mosque. The High Court observed as follows:
"The general law of Islam in regard to
devotions is so broad and liberal that the mosque in question will, even if not
endowed with an Amil, be capable of furnishing for any devout Muslim (at least
of the Dawoodi Hohra community) a place where he may-with or without the
ministrations of an Amil or authorised leader of prayers-five times every day
of his life offer prayers.
x x x x The books speak of an open space of
building ground being consecrated as a masjid. Nor is it necessary for the
purpose of consecrating a place or building as a masjid that there should be an
Amil or any other religious officer appointed." It is also well settled
that where a mosque has been in existence for a long time and prayers have been
offered therein, the Court will infer that it is not by leave and licence but
that the dedication is complete and the property no longer belongs to the
owner. In Miru v. Ramgopal(2) the High Court of Allahabad observed as follows:
"But where a building has stood on a
piece of land for a long time and the worship has been performed in that
building, then it would be a matter of inference for the Court which is the
judge of facts, as to whether the right has been exercised in that building for
such a sufficiently long time as to justify the presumption that the building
itself had been allowed to be consecrated for the purposes of such rights being
performed. Where there is a mosque or a temple, which has been in existence for
a long time, and the terms of the original grant of the land cannot now be
ascertained, there would be a fair presumption that the sites on which mosques
or temples stand are dedicated property." To the same effect is the
decision of the Nagpur High Court in Abdul Rahim Khan v. Fakir Mohammad
Shah.(3) The same principles are legally deducible from the decisions in Masjid
Shahid Ganj Mosque v. Shrimani Gurdwara Parbandhak Committee, Amritsar; (4)
Musaheb Khan v. Raj Kumar Bakshi(5) and Maula Baksh v. Amiruddin.(6) 753
Similarly regarding the portions which are adjuncts to the mosque the Bombay
High Court has clearly observed that the said adjuncts will form part of the
mosque and would not be the private property of the founder. The Nagpur High
Court has also made similar observations. These observations have already been
quoted above. This Court also in Mohammad Shav v. Fasihuddin Ansari(1) observed
as follows:
"After a careful survey of the evidence
we have reached the following conclusions:
(1) that the old mosque as it stood in 1880
is proved to be wakf property but that nothing beyond the building and the site
on which it stood is shown to have been wakf at that date;
(2) that this property has been added to from
time to time and the whole is now separately demarcated and that the additions
and accretions form a composite and separate entity as shown in the plaintiffs'
map. This is the area marked ABCD in that map;
(3) that this area is used by the public for
religious purposes along with the old mosque and as the area has been made into
a separately demarcated compact unit for a single purpose, namely, collective
and individual worship in the mosque, it must be regarded as one unit and be
treated as such. The whole is accordingly now wakf.
(4) that the accretions were made by Gulab
Shah and the defendant both of whom claimed to be Mutwallis of the mosque;
(5) that this area also includes the shops
and chabutra shown to the west of the mosque in the plaint map on a triangular
piece of land;
(6) that the urinal, water pipe and bathroom
were constructed for the use of the worshippers and so must be regarded as an
adjunct of the wakf;" Having discussed the law on the subject, we will not
examine the question as to whether or not the mosque and the adjuncts thereof
constitute a public wakf. We have already mentioned that the entire land in
dispute consisting of the mosque, its adjuncts, the burial ground etc. was
originally acquired by virtue of the documents Ext. B-1 dated May 12, 1730 and
Ext. B-2 dated May 22, 1797 which have been referred to in an earlier part of
this judgment. The land in Ext. B-1 was acquired by the saint Syed Sultau
Makhdoom Sahib who has been entombed in the land on which the Dargah has been
built. A part of the site has been used continuously as a public burial ground
and has become a public grave-yard as wakf as held by us. So far as the Dargah
is concerned the Courts below have 754 concurrently found as a fact that it was
a private Dargah of the defendants Labbais and that there was no evidence to
show that it was ever constituted as a public wakf. Learned counsel for the
appellants in Civil Appeal No. 2026 of 1968 has not pressed his appeal relating
to the Dargah. On a perusal of the evidence both oral and documentary we are
satisfied that the Dargah has not been proved to be a public property, but is
the private Dargah of the Labbais whose ancestor the original saint has been
entombed therein. As Sayed Sultan Magdoom Sahib was a great saint and was held
in great respect by all the villagers and as there was no mosque in the village
at all it was only natural that the Muslims of the village would think of
building a mosque in the village and they could find no better place to
construct a mosque than the land in dispute, a part of which contained the
Dargah of the great saint where he was entombed. The entire land was acquired
by Ext. B-1 which was executed by Thirumalai Kolanda Pillai in favour of the
saint as far back as May 12, 1730. The rest of the land was acquired by another
sale deed Ext. B-2 dated May 22, 1797 executed by Malai Kolanda Pillai in
favour of Kaidbar Sahib who was a direct descendant of the saint. This is the
origin of the lands in dispute. So far as the mosque and its adjuncts are
concerned, it would appear from the sketch map as also from the evidence
produced by the parties that this part of the land consists of the following
constructions:
(1) the main prayer hall which is commonly
known as the mosque or Pallivasal;
(2) Mandapam or Vang Mandai as described by
the witnesses which is a sort of a covered platform where according to the
plaintiffs prayers are offered by the members of the Mahomedan public when the
space in the main mosque is not sufficient to accommodate the big crowd.
(3) There is a small chamber in the nature of
a store room adjacent to the mosque and a thatched shed. There is also a pond
where water is pumped in through a pump-set which has been installed by the
Mahomedans of the village, particularly the plaintiffs. There is also a latrine
to the south of the burial ground sons east of the mosque which is used for the
persons who come to offer prayers in the mosque and the Mandapam.
Apart from these constructions the evidence
shows that a few years back the whole place was electrified and a tower was
also built in the nature of a minaret in the mosque and a loud-speaker was also
fitted for the purpose of reciting Azan and Khutbas etc. According to the
defendants the mosque itself was a private mosque of the saint who had merely
permitted the plaintiffs' ancestors to construct the prayer hall there, but
there was no formal dedication of the property as a mosque. The defendants
further averred that even if the prayer hall be regarded as a public mosque the
other constructions which were made subsequently were the private property of
the defendants and did not form part of the mosque.
755 We would first take up the question
whether the prayer hall i.e. the Pallivasal which is shown in the sketch map
towards the south of the Dargah was dedicated as a mosque.
We have already pointed out that under the
Mahomedan Law a dedication may be oral or in writing and no particular form or
method for constituting a wakf has been prescribed by the Mahomedan Law. It is
largely a question of the intention of the founder who after having made a
declaration divests himself of his interest in the property and gives delivery
of possession of the same in accordance with the manner in which it is capable
of being delivered. In the case of a mosque his permission or the bare act of
allowing the members of the Mahomedan public to or prayers amounts to a
complete delivery of possession. In the instant case fortunately there is an
important document Ext. B-3 a better translation of which is Ext. B-4 which
clearly shows the intention of the founder and which in our opinion, on a
proper interpretation of the terms thereof, amounts to a permanent and an
irrevocable dedication to God constituting a valid public wakf. We would now
examine the contents of this document, the relevant portions of which may be
extracted thus:
"Whereas we are constructing a
Pallivasal at the Durga MEDAI (raised platform) belonging to Karrath Sultan
Mahdoom Sahib with the permission of the Sahib avergal for the purpose of
worship, after the completion of the said Pallivasal (mosque) by the Grace of
Allah, we shall claim no right whatsoever in respect of the said Pallivasal
except that we shall worship therein. At the time of Kanduri (annual festival)
we shall act according to usual practices (mamool). We shall not require the
income derived either from the Sultan Mahdoom Sahib Durga or from the
Pallivasal we now build. In the Pallivasal we build, we shall claim no other
rights whatsoever except worshipping therein, we shall by lighting lamps and
attending to the maintenance of the same. There shall be a doorway and two
windows affixed on the southern wall of the said Pallivasal and one doorway on
the eastern side with a wall around it. To this effect is this deed of
agreement executed with consent by all of us living in this village in favour
of Saheb Avergal." Before analysing the terms of the above document, the
following admitted facts may be reiterated:
(1) that the Mahomedans of the village sought
permission of Masthan Ali Khader Sahib for erecting a building for the purpose
of worship on the land belonging to him;
(2) that the evidence establishes that there
was no mosque at all in the village of Vijayapuram which consisted of a
substantial portion of the Muslim population;
756 (3) that the idea of constructing the
mosque originated from the plaintiffs' ancestors who constituted the bulk of
the Muslim population in the village, the defendants' ancestors being a very
small family in that village.
Against the background of these facts we
might now analyse the terms and conditions of the agreement which shows the
nature of the dedication. To begin with, the agreement recites (i) that the
Rowthers were constructing a Pallivasal at the raised platform belonging to the
Labbai Masthan Ali Khader Sahib with his permission, (ii) that after completion
of the construction which is described as a mosque in the agreement, the
Rowthers will have no claim or right, except the right to worship therein;
(iii) that the only rights which the Muslims would claim would be the right to
worship, to light lamps and will also be responsible for the maintenance of the
mosque; (iv) that the said construction was made purely for the purpose of
worship; (v) that there shall be a doorway and two windows affixed on the
southern wall of the mosque and one doorway on the eastern side so as to serve
as entrances. In other words this important recital in the agreement clearly
shows that the agreement was to make a separate entrance to the mosque in order
to constitute it as a separate entity. The owner Masthan Ali Khader Sahib had
given his tacit consent to all the terms of the agreement and in the eye of law
he being a party to the agreement he allowed the mosque to be constructed not
for the private members of his family but for worship of God by the entire
Mahomedan public. The document thus unmistakably evidences the clear intention
of the founder to consecrate the mosque for public worship and amounts to a
declaration of a public wakf. By providing for separate entrance through
doorway and windows the owner agreed to separate the mosque from the rest of
the property namely the Dargah and the compound. Thirdly by allowing the entire
Mahomedan community of the village to worship in the mosque and to perform
other ceremonies the owner of the land gave delivery of possession to the
mosque.
A perusal of the terms and recitals of the
document Ext. B-4, therefore, manifestly shows that Masthan Ali Khader Sahib
being a saint himself unequivocally and categorically divested himself of the
entire interest in the mosque and made it a public wakf. We agree with the view
that a place may be dedicated as a mosque or masjid without there being any
building as held in Akbarally's case (supra). But in the instant case since the
building in the nature of a mosque was built a clear case of dedication has
been made out. Once the mosque was constructed it stood dedicated to God and
all the right, title and interest of the owner got completely extinguished.
This happened as far back as February 16, 1829, i.e. about a century and a half
ago. Since then the mosque has been used constantly for the purpose of offering
prayers. This fact has been proved by the documents which we have discussed
above and also from the oral evidence led by both the parties which we will
consider hereafter.
It is further contended that under the
agreement, the plaintiffs clearly stipulated not to claim any right or interest
in the mosque 757 and, therefore, they cannot now be heard to say that the
mosque was a wakf property. This argument appears to have found favour with the
Trial Court. But in our opinion it is based on a serious misconception of the
Mahomedan Law on the subject. Once there was a complete dedication to the
mosque as a place of public worship any reservation of condition imposed by the
owner would be deemed to be void and would have to be ignored. Moreover we do
not construe the so- called stipulation by the plaintiffs' ancestors at the
time of erecting the prayer hall as an assertion that the mosque was not a
public wakf. Reading the statements made in the agreement as a whole what the
plaintiffs' ancestors meant was that the mosque would be undoubtedly a public
wakf meant for the purpose of public worship and that they would not interfere
with the management of the same. This does not mean that if the founder's
descendants indulged in mismanagement of the mosque the plaintiffs as members
of the Mahomedan community could not take suitable action under the law against
the defendants. This argument is, therefore, negatived.
As regards the adjuncts of the mosque the
details of which have been given by us, the same were built by the Mahomedan
community from time to time for the purpose of the mosque or by way of a gift
to the mosque. We would now refer to the oral evidence on the point.
P. W. 1 Mohamed Hanifa who is an old man aged
65 years and is one of the Rowthers states that there are 200 houses of
Rowthers and only 7 to 8 houses of the Labbais in the village. The witness
mentions the various adjuncts to the mosque, namely, the tank, pump house,
installed pump set, the latrine to the east of the pump house and a plaform which
he calls as Vang Madai. The witness further goes on to state that the mats and
loud-speakers are kept in the store- room. The mats are usually used by the
Mahomedans for offering their prayers and the loud-speaker is used for reciting
Azans or reading Khutbas (relgious sermons) which are usually done after the
prayers are over. This witness's evidence also shows that when the Muslims want
to bury their dead they come to the mosque for performing Namaz-e-Janaza
(special funeral prayers). According to P. W. 1 the corridor which connects the
thatched shed with the plaform was built by Ismail who was not a Labbai. The
Vang Medai was built by Mustapha Rowther and this was constructed about 30 to
35 years ago and so was the Verandah which is shown in the sketch map as the
thatched shed. The witness also states that so far as the doorway is concerned
it is there since a long time and it actually finds mention in Ext. B-4.
According to the witness the platform, the
Vang Medai, was built when he was 10 to 12 years of age i.e. about 50 years
from the date of his deposition. These facts do not appear to have been denied
by D. Ws. 1 and 2 who have appeared on behalf of the defendants except with
respect to the persons who made these constructions. In our view the question
of the person who actually made the construction is wholly irrelevant because
all the constructions made by any person used for religious purposes incidental
to offering of prayers in the mosque would be deemed to be accretions to the
mosque itself and there is unchallenged evidence to show that all the
constructions were used by the 758 Mahomedan community for the purpose of
offering their prayers in the mosque on special occasions.
P. W. 2 Hyder Ali who is a Labbi admits that
he acted as an Imam and that 300 to 400 of Muslims assemble for prayers and
when so many persons assemble the entire space of the mosque right from the
prayer hall to the corridor is fully occupied. The witness further says that
after Khutbas, Koran is read and explained.
Similar is the evidence of P. W. 3 Yehiya who
also says that Muslims offer their congregational prayers when their number
swells upto 400 to 500 and that mats and carpets are kept in the store room.
P. W. 4 Mohamed Mesra Hussain who is aged 64
years affirms that prayers have been offered in the mosque for the last 50
years and that there is no other mosque in Vijayapuram. He also testifies to
the fact that the mosque is administered by the Rowthers since last 30 years
and the Dargah was managed by the Labbais. He also states that on the occasion
of Friday prayers about 300 persons assemble in the mosque right from the main
hall to the corridor.
P. W. 5 Abdul Majeed says that Vanga Mandapam
and the corridor were constructed by Abdul Rahzan sometime in 1931 and the
people assemble right from the mosque to the corridor.
This is all the evidence given by the
plaintiffs.
D. W. I Syed Mubark who is the contesting
defendant admits that the Mandapam was constructed by Sayed Mohd.
Hussian about 30 to 35 years ago and that the
mosque was constructed by the Rowthers. He further admits that the defendants
never objected or obstructed the Rowthers from offering their prayers. He
further admits that a pump set was installed to pump water into the tank. He
also admits all Muslims gather and pray in the mosque.
D. W. 2 Mohamed Salis admits that the Hauz
and the Verandah were built by Abdul Rahman under the supervision of Qasim
though the funds were supplied by Ismail.
Thus even the witness for the defendants
clearly admitted the nature and character of the various adjuncts to the
mosque. The D. Ws., however, have tried to minimise the number of people who
assembled during Friday prayers by saying that it would be between 40 to 50.
But that is obviously wrong. It is well known that on special occasions like
Fridays, Id, Ide-Milad and other auspicious occasions the entire Muslim
community flock to the mosque for the purpose of offering prayers, because
offering of prayers on such days is, according to the Islamic tenets, extremely
auspicious and highly efficacious. It is also established from the evidence
that the constructions referred to above had been made for the purpose of the
mosque. Before a Mussalman offers his prayers he has first to wash his hands
and feet in the prescribed manner and for this purpose arrangements are made in
every mosque, and Pallivasal is no exception. Accoedingly a tank or a Hauz,
where water was pumped in was meant for the purpose of Wazoo i.e. for washing
hands and feet which is a prerequisite for offering the prayers. Similarly as a
large number of 759 Muslims assembled on special occasions as mentioned above,
the entire space including the mosque, the Mandapam, and the corridor was used
for the purpose of offering prayers. Thus these constructions were used for
religious purposes incidental to the offering of prayers and have become
accretions to the mosque so as to constitute one single entity. Similarly the
mats are meant for the Mahomedans to be used at the time of offering prayers.
Lastly the loud speaker is used for reciting Azan and delivering Khutbas i.e.
religious sermons. Thus all the adjuncts of the mosque are meant for purely
religious purpose connected with the offering of prayers in the mosque.
The case of the defendants was that these
constructions were their private property, but there is not an iota of evidence
to prove the same. The law on the point is well settled that where any
construction is made for the purpose of the mosque or for its benefit or by way
of gift to the mosque, the same also becomes a public wakf. The statement of
the law on the subject as mentioned by Baillie in his Digest of Mohummudan Law
has already been extracted by us.
In these circumstances, therefore, the
conclusion is inescapable that the mosque as also all its adjuncts referred to
herein constitute one single unit and the entire thing a public wakf.
Mr. Krishnamoorthy Iyer appearing for the
appellants submitted that although Ext. B-4 shows that a mosque in the shape of
a raised platform was constructed by the Rowthers but there is no evidence of
any formal dedication or dedication to the wakf. This argument fails to
consider the essential requirements of a public wakf under the Mahomadan Law
and particularly the rules which require dedication to the mosque. The act of
permitting the Mahomedans to build a mosque itself amounts to a complete
dedication or a declaration that the mosque is a public property. Further by
giving delivery of possession of the site for the purpose of building a mosque
and by allowing prayers to be offered in the mosque, the founder, namely
Masthan Ali Khadar Sahib made a complete public wakf in the shape of a mosque.
Nothing, therefore, remained with the founder
or his descendants. Mr. Iyer relied on a decision in Jafar Hussain v. Mohd.
Ghias-ud-din.(1) This case is, however, clearly distinguishable because it was
not a case of a mosque which is governed by special rules for dedication. In
that case the property used was a Haveli or a house and on the facts of that
case the Court held that there was no validly constituted wakf. Reliance was
also placed on a decision of this Court in Nawab Zain Yar Jung v. The Director
of Endowments (2). This also was not a case of a mosque and this Court, on the
facts of that case, held a that the trust created was not a wakf but a secular
public charitable trust. If the instant case, however, agreement Ext. B-4
clearly recites that the property being built on the land of the founder was a
public mosque to be used for public purpose of offering prayers.
Lastly our attention was drawn to the
decision of the Nagpur High Court in Jawaharbeg v. Abdul Aziz(3). That case
also is of no assistance to the appellants because while the Court held a part
of the property to be a mosque the other parts which had absolutely no
connection to the wakf property were held to be the private property. For these
reasons, therefore, the contention put forward by the appellants is over-ruled
On a consideration, therefore, of the facts, circumstances and the evidence of
the present case, we are satisfied that the mosque as also its adjuncts
constituted wakf properties and had been used as such for a long time so as to
culminate into a valid and binding public wakf. We have already held that as
the public character of the wakf was not in issue in the previous judgments
relied upon by the appellants, the said judgments did not operate as res
judicata. We, therefore, affirm the finding of the High Court on this issue.
It was next contended by the appellants that
the suit was barred by s. 55(2) of the Wakf Act, 1954, which runs thus:
"No suit to obtain any of the reliefs
referred to in sub-section (1) relating to a wakf shall be instituted by any
person or authority other than the Board without the consent in writing of the
Board:
Provided that no such consent shall be
required for the institution of a suit against the Board in respect of any act
purporting to be done by it in pursuance of this Act or of any rules or orders
made there under." The High Court has dealt with this aspect of the matter
and has pointed out that at the relevant time when the present suit was
brought, no Board contemplated by the provisions of the Wakf Act had, however,
been constituted and therefore the provisions of s. 55(2) were not at all
attracted, nor were those provisions capable of being acted upon. In these
circumstances, therefore, the non-compliance with the requirements of s. 55(2)
of the Wakf Act
would not bar the maintainability of the present suit.
Lastly it was contended that even assuming
everything against the appellants the conditions of s. 92 of the Code of Civil
Procedure were not at all fulfilled in this case, because the defendants could
not be called the trustees within the meaning of s. 92 of the Code of Civil
Procedure and the Advocate-General committed an error of law in granting the
sanction to file the present suit. It is true that the defendants have only
been de facto managers of the properties in suit either as Pesh Inams or
otherwise but that does not make any difference so far as application of s. 92
of the Code of Civil Procedure is concerned. It is true that s. 92 of the Code
applies only when there is any alleged breach of any express or constructive
trust created for a public, charitable or religious purpose. It also applies
where the direction of the Court is necessary for the administration of any
such public trust. In the instant case the defendants have no doubt been
looking after the properties in one capacity or the other and had been enjoying
the usufruct thereof. They are, therefore, trustees de son tort and the mere
fact that they put forward their own title to the properties would not make
them trespassers.
In Abdul Rahim Khan's case (supra) a Division
Bench of the Nagpur High Court observed thus:
761 "The defendants' predecessors who
were parties to that suit as defendants were in law not trespassers but
trustees. They claimed to be so. They acted as such, but had wrongly begun to
assert title to which they were not entitled to and therefore the suit against
them, a suit under s. 529 (equivalent to the present s.
92) of the Civil Procedure Code does lie for
removal of such de facto or constructive trustees, as has been laid down in
I.L.R. [1942] 1 Cal 211 at pp. 215, 219 and A.I.R. 1940 Pat. 425 The plaintiffs
in their plaint never stated that the defendants were trespassers, and it is
the allegations in the plaint that determine the nature of the suit and the
jurisdiction. The defendants' denial in the pleadings will not in any way
affect the nature of the suit under S. 92, as held in 11 Pat. 288 and 63 Cal.
74." To the same effect are the decisions in Mahomad Shirazi v. Province
of Bengal(1) and Ramdas Bhagat v. Krishna Prasad(2). In our opinion these
decisions lay down the correct law on the subject. We, therefore, hold that s.
92 of the Code of Civil Procedure is clearly applicable to the case.
Counsel for the appellants lastly argued that
there is no evidence to show that the appellants have committed any negligence
in managing the trust properties. Even the Trial Court which had dismissed the
plaintiffs' suit had returned a clear finding of fact that the defendants were
guilty of gross negligence in managing the properties. In this connection the
Trial Court found as follows:
"It was pointed out that there was
mis-management.
That there is mis managment cannot be
disputed. For one thing, in spite of the decree of the court for removal of
certain superstructures on the burial ground the Labbais evaded the Issues for
a period of over twenty years. The plaintiffs have proved that plaint
B-schedule property has been dedicated to the Dargah.
But this property has been alienated by the
predecessors-in-interest of the defendants. In exchange, they have obtained
C-schedule property. The next contention was that the defendants havve not
maintained accounts. It is true that the evidence does not disclose that any
accounts were maintained or being maintained by the Labbais defendants."
The learned Judge, however, tried to explain away these acts of misfeasance on
the ground that as the Rowthers undertook not to interfere with the management
or ask for the account, the negligence committed by the defendants, if any, was
not actionable. In view of our findings, however, that the mosque, its adjuncts
and the burial ground are public wakfs the question of negligence assumes a new
complexion. Apart from the acts of mismanagement, there is definite oral
evidence of the plaintiffs to show that the graveyard is not properly managed
and maintained. The boundary wall has broken and cattle enter the graveyard
leading to its desecration. The evidence of the plaintiffs also shows that even
the mosque is in a state of disrepair and no 762 attempt is made to repair or
maintain it properly. Furthermore, the defendants have constructed shops on a
part of the graveyard and in spite of several decrees of the Courts to demolish
those shops they have not yet obeyed the orders of the Court to demolish the
same. In these circumstances, therefore, there is overwhelming evidence on the
record to show that the defendants were guilty of grave mismanagement, and
therefore a clear case for formulating a scheme under s. 92 of the Code of
Civil Procedure by a suit has been made out by the plaintiffs. The schemes,
however, will be confined only to the mosque, its adjuncts and the burial
ground and not to the Dargah which has been held to be the private property of
the defendants.
There is some dispute about the right to act
as an Imam. We have already pointed out that the Mahomedan Law does not favour
the hereditary right of being an Imam because an Imam must possess certain
special qualities and certain special knowledge of the scriptures before he can
be allowed to lead the prayers. The evidence shows that the Labbais have
undoubtedly been acting as Imams, though not for a continuous period. This,
however, is a matter for the entire Muslim community to decide because an Imam
is normally chosen under the Mahomadan Law by the Muslim community. There is no
clear evidence of any usage or custom by which the right to act as Imam is
hereditary in this case. Nevertheless we would like to observe that the
defendants are after all the descendants of the founder of the entire premises
which had been constituted as public wakf by their ancestors. Under the
agreement Ext. B-4 the Rowthers on behalf of the Muslim community undertook not
to claim any right in the mosque and although that would not act as an estoppel
once the property becomes a public wakf we think that the Court at the time of
framing a scheme would consider the desirability of associating some of the
defendants with the framing of the scheme and may even appoint a suitable
person from among the Labbais to look after the properties on imposing such
terms and conditions as the Court thinks fit. But the primary consideration
should be the welfare of the wakf properties. In case the Labbais are not found
suitable for being given any share in the administration of the mosque, the
Court will be free to withhold the right.
We, therefore, affirm the judgment of the
High Court in all the appeals. The result is that the appeals filed are
dismissed, but in the peculiar circumstances of the case there will be no order
as to costs in this Court.
V.P.S. Appeals dismissed.
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