- (1.)The plaintiff-Wakf Board filed a suit in the court of the Principal District Munsif, Tiruchirapalli (0. S. No. 253 of 1975) for declaration that the suit property is wakf property and for possession and for other reliefs. A wakf-nama was executed on 1st April 1940 the registration copy of which has been marked as Ex. A. 2. The executant is one Ebramsa Rowilier and the document is called wakf-cum-settlement. One of the properties covered by this wakf was alienated by one Jaithoon Bibi to the, defendant on 26th Sept. 1963, for a sum of Rs. 2000 and the alienee was in possession. The Wakf Board stated that the alienation was beyond the powers of the alienor and that the alienation was not binding on the Wakf Board. The possession of the defendant was said to be unlawful and, therefore, the suit was filed for declaration and possession.
(2.)In the written statement the alienee defendant denied the existence of the wakf or its character as a public wakf. According to the defendant he had purchased the property from an absolute owner, namely, the said Jaithoon Bibi, and he was in possession of the property since then.
(3.)The trial Court decreed the suit with costs and on appeal the learned Third Additional Subordinate Judge reversed the judgment and held that the plaintiff-Wakf Board was not entitled to possession. The Wakf Board has filed the present second appeal and at the time of the admission the following substantial question of law was framed as arising out of the judgment of the lower appellate court- "On the finding of fact arrived at by the courts below, whether the plaintiff Wakf Board is not entitled to possession of the property?" The trial court found that after enquiry the Wakf Board issued a 'notification and that the formalities contemplated by Sec. 5 of the Muslims Wakf Act had been completed in the present case. The suit property was thus held to be, wakf property. The lower appellate court confirmed this finding. The only difference of view between the trial court and the lower appellate court was that Ex. A. 2, in the view of the lower appellate court, was a private wakf and possession and management could only be with the family of the settlor, namely, Ebramsa Rowther. It was on this reasoning that the lower appellate court has come to the conclusion that the plaintiff-wakf board was not entitled to recover possession of the suit property. It may be mentioned here that the effect of the decision of the lower appellate court is to hold that the alienation was not proper. The question that survives for consideration is whether, on the context of the facts of this case, the Wakf Board was entitled to recover possession of the property?