Decided on July 25,2006

Gh Rasool Khuroo Appellant
Syed Gh Ahmad Qadiri Respondents


- (1.) THIS judgment will govern the above titled Civil First Appeal and revision petition directed against the judgment and decree dated 23rd of October, 2001 passed by Additional District Judge, Srinagar, in the case titled as Ghulam Rasool Khuroo and others vs. Syed Ghulam Ahmad Qadiri and others, hereinafter referred to as impugned judgment, whereby and where -under, the suit came to be dismissed.
(2.) IT is profitable to give briefly and precisely the flask back of the case which has given birth to the instant appeal. Management of Mosque and Ziyarat Sharief known as "DARGAHI GOUSIA" Aalikadal, situate at Mohalla Rahbaba Sahib, Srinagar, is the bone of contention in the lis. Defendant/respondent No.1 was managing the affairs of the Ziyarat and Mosque. Plaintiffs/appellants came to know that respondent/defendant No.1 mis -appropriated the property of the Ziyarat and also sold the landed property of the Ziyarat without any legal justification and accordingly they brought the said fact to the notice of the Intizamia committee 'Dargahi Gousia. Respondent No.1 was restrained from leading the prayers and managing the affairs of the Ziyarat. They also requested the revenue authorities to demarcate the entire landed property of the Ziyarat. Tehsildar Settlement submitted a report to Additional Deputy Commissioner, Srinagar, photostat copy whereof is annexure -PA to the plaint. Landed property known as 'Mandibagh situated at Rahbab Sahib, Srinagar, falling under survey Nos.1845, 1845/1 is the property of Ziyarat. Record disclose that the said landed property was originally belonged to ancestors of respondent No.1, which was either acquired, donated or was wakf property. After the death of father of defendant/respondent No.1, defendants 1 and 2 received the rent of the property.
(3.) IT is also averred in the plaint that defendant No.1 has executed a sale deed in respect of the 'Mandibagh property thereby deprived the Ziyarat of the said properties and mis -used his position as 'Sajada Nisheen. The said sale deed is also challenged in the suit and plaintiffs have prayed decree of declaration and injunction. Defendants filed written statement and resisted the suit on the grounds taken in the written statement and following issues came to be framed by the trial court: - "Issue No.1) Whether the suit is not maintainable u/s 92 of CPC? OPD 1 to 5. Issue No.2) Whether the suit is legally incompetent under Order 1 Rule 8 CPC? OPD 1 to 5. Issue No.3) Whether the suit is barred by time? OPD 1 to 5. Issue No.4) Whether the plaintiffs have no locus standi or right to institute the suit? OPD 1 to 5. Issue No.5) Whether the Courts lacks jurisdiction? OPD 1 to 5. Issue No.6) Whether the Court fee has not been paid and what will be its effect? OPD 1 to 5. Issue No.7) Whether the verification of plaint is not in accordance with Order 6 Rule 17 CPC? OPD 1 to 5. Issue No.8) Whether the suit is not maintainable u/s 115 of Evidence Act? OPD 1 to 5. Issue No.9) Whether the suit is liable to be stayed u/s 10 CPC ? OPD 1 to 5. Issue No.10) Whether the plaintiffs constituted Managing Committee and had entrusted as such, the defendant No.1 with the care of the property of Ziyarat? OPP Issue No.11) Whether the defendant No.1 had misconducted himself as Mutawali/Sajada Nashin of the Ziayarat and by such misconduct sold the Wakf property known as Mandi Bagh to the Vendees? OPP Issue No.12) Whether the plaintiffs/managing committee took up the issue with the Revenue Deptt. who after enquiry have returned the finding that the land was the personal property of defendant No.1? OPP Issue No.13) In case issue No.12 is proved in affirmative whether the case of plaintiffs is to be dismissed? OPD 1 to 5. Issue No.14) Whether the defendants 2 to 5 vendees of Mandi Bagh had raised their respective construction to the notice of plaintiffs since all these years and as such the plaintiffs have admitted the status of defendant No.1 and defendants 2 to 5 as owners of the land? OPD 1 to 5. Issue No.15) Whether the defendant No.1 is entitled as Mutawali/Sajadanasheen to perform and discharge duties assigned to him without any let or hindrance of plaintiffs? OPD1 Issue No.16) Whether the intention behind filing of the present suit is aimed at to reopen the controversy interse defendant No.1 and 6 at the behest of defendant No.6 so as to disentitle the defendant No.1 from performing the duties as Mutawali & Sajadanasheen? OPD1. 17. Relief.;

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