TMI Blog1976 (3) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ? 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 H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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, there fore, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acter 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 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 burialground 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 neve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment 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 Mahomedan public had no right to interfere with the same; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave-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 atte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned, 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 dedicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vine 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 build ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, 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 agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 storeroom. 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 perform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nting 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: 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 attempt is made to repair or maintain it properly. Further more, 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 La ..... X X X X Extracts X X X X X X X X Extracts X X X X
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