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PETITIONER: SYED MOHD. SALIE LABBAI (DEAD) BY L.RS. AND ORS.

       Vs.

RESPONDENT: MOHD. HANIFS (DEAD) BY L.RS. AND ORS.

DATE OF JUDGMENT22/03/1976

BENCH: FAZALALI, SYED MURTAZA BENCH: 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

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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,

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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

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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

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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

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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,

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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]

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    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]

JUDGMENT:      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

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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

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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

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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

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              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

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    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 the  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

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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

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    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, 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 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

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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

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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

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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  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 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.

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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." Further more,  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-

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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

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    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

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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

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    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

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              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

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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 circumstanaes 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

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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  for ever; 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:

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         "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."

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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

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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-

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    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:

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         "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

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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

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    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

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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

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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 some time 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

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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 pro- 760

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perty 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      thereunder." 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.

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    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. 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

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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. 763