SULTAN AHMAD Vs. ABDUL GANI

JUDGEMENT

(1.) This is an appeal from the judgment and decree of the District Judge of Chittagong dated the 29th May 1915. The appellant is the plaintiff and the suit has a somewhat chequered history. It was brought to recover possession of certain lands which the plaintiff claims as part of the waqf properties appertaining to a mosque in the district of Chittagong of which he is the mutwalli. The trial Court made a decree in favour of the plaintiff. That decree was upheld by the lower appellate Court; but on remand by this Court the suit has been dismissed. All the material issues which arise in this case have been decided in the plaintiff s favour except the issue whether he is the de jure mutwalli of the mosque. On this question the learned District Judge has come to a conclusion adverse to the plaintiff. That conclusion, however, is based on a misapplication of Mahomedan Law to the facts of this case. The endowment is one of very old standing. It was apparently in existence when the district of Chittagong was taken over by the East India Company. There was a measurement of the district in the year 1764 when a person named Latfulla was the mutwalli. It appears that certain Lands belonging to the mosque were then resumed by the Revenue authorities and in their place a monthly grant of Rs. 52-14 was made to the mutwalli which is still at the present day being paid. In the year 1837, another measurement of the district was carried out. On that occasion other lands were resumed which were regranted in whole or in part, as a taluk at a nominal rent to the then mutwalli, Tafel Ali This taluk which comprises the land in dispute was afterwards held and treated as part of the property of the mosque. Tafel Ali appears to have been succeeded by his grandson Abdul Sobhan in the year 1850. Abdul Sobhan held the office for many years. On the 30th June 1902, six or seven months before his death, he executed a document described as a tauliatnamah, by which he designated the present plaintiff Sultan Ahmad, as his successor.

(2.) The case for the plaintiff is that during Abdul Sobhan s incumbency two persons were appointed to act as naib-mutwallis to whom the management of the endowment was entrusted. It is alleged that by their contrivance the taluk was allowed to fall into arrears of revenue. At the sale which followed in 1881 it was purchased by the naib-mutwallis themselves in the name of a third person as benamidar, from whom they subsequently obtained a deed of release. The defendants Nos. 1 to 5 in the suit are the present representatives of the two naib-mutwallis. The defendant No. 6 holds a lease of the land in suit from the defendant No. 1.

(3.) As I have said, all material questions of fact, pure and simple, have been decided in favour of the plaintiff, but while no one disputes that he is the de facto mutwalli, it has been held that he has failed to establish a de jure title.