Raju, J. - (1.) This appeal has been filed against the judgment dated 29-1-1985 of a learned single Judge of the Allahabad High Court in Second Appeal No.591 of 1973. whereunder the suit filed by the respondents-plaintiffs came to be decreed by reversing the judgments of the Courts below. For a proper appreciation of the nature of controversy and the grievance expressed before us, it becomes necessary to state the relevant facts and the conclusions recorded by the Courts below at some length. The suit, out of ,which the present proceedings emanate, had been filed for a declaration that the property in dispute, which is the western portion of House, No. D 50/222 (old No. D12158). Mohalla Qazipura Kalan, Varanasi, is the subject-matter of Wakf and for recovery of Possession of the same from the defendant. The case of the plaintiffs was that two houses Nos.D50139 and D501222, Mohalla Qazipura Kalan, Varanasi, belonged to Smt. Zohra Bibi, who was in her early years leading a life of a Prostitute. Subsequently, she got married to Haji Mohammed Siddiq. Thereafter , Zohra Bibi executed a deed of gift dated 10- 4-1923 in favour of her husband and he, in turn, on 15-4-1923 executed a Wakf Deed comprising the above mentioned properties, according to which the original owner Smt. Zohra Bibi was to be the first Mutawalli and on her death her husband Hazi Mohammed Siddiq was to be the next Mutawalli. The income from the property was to be spent for charitable purposes and one of which was that Rs. 5/- per month from the income was to be given, to the Mosque Rangileshah for the expenses of the same. Smt. Zohra Bibi died in the year 1948. The evidence on record established that the registry in respect of the house, originally recorded in the name of Smt. Zohra Bibi Tawayaf, was cancelled and got recorded in the name of Smt. Zohra Bibi, wife of Hazi Mohammed Siddiq as Trustee in the year 1923 and thereafter it was mutated again in 1949 in the name of Allah- owner and Hazi Mohammed Siddiq Mutawalli, in cancellation of entry made in 1923, apparently after the death of Smt. Zohra Bibi in 1948. After the death of Zohra Bibi, her husband appears to have apparently become avaricious and started adopting ways and means to appropriate the same for himself. As part of such endeavours, he first seems to have moved an application before the District Judge, Varanasi, for permission to sell House No. D 50/39 in Miscl. Case No. 139 of 1949 and sold the same after obtaining permission. Thereafter, he got a suit filed in SuitNo.46/53 by the original defendant in the present suit by name Mubarak Hussain. Hazi Mohammed Siddiq did not put up any defence and, therefore, it appears to have been decreed on 12-9-1953. A pretended effort to get the decree set aside was made, but was not successful. As per the final decree passed in the said suit, the defendant in the present suit came into possession of western portion of house bearing No. D 50/222. On 2-1-1957, Hazi Mohammed Siddiq died and before his death he appears to have appointed the plaintiffs as Mutawallis of Waqf Mosque Rangileshah and also of the Wakf created by him. The plaintiffs also claimed that they were appointed Mutawallis by Sunni Central Board of Waqf. The partition suit filed by Mubarak Hussain, the defendant in the present suit as well as the other proceedings instituted by the Hazi Mohammed Siddiq were said to be collusive and manipulated and consequently could not affect the claim of the plaintiffs in the present suit.
(2.) The defendant in the present suit, who was said to be the brother of late Smt. Zohra Bibi, contended that the properties in question were purchased from out of the income earned by Smt. Zohra Bibi as a prostitute and, therefore, the same could not be the subject-matter of a Wakf under the Muhammadan Law; that the gift deed by Zohra Bibi and subsequent wakf deed by her husband are manipulated documents brought into existence by her husband and that Hazi Mohammed Siddiq never came into the possession of the properties as donee. It was further claimed that after the death of Zohra Bibi, the defendant, as brother, was entitled to one half and her husband came to inherit the other half of the property and it is only in such context and consequences, in the partition suit filed by the defendant in Original No. 46/53, that there was a compromise decree and in terms of the preliminary and final decree passed therein the defendant was legally put in possession of his share. The status of the plaintiffs as Mutwallis was disputed and put in issue and it was contended for the defendant that not only they have no locus standi to file the present suit but in any event the previous judgment and decree of the competent Court is binding on the plaintiffs and the present suit was also barred by res judicata.
(3.) On the above claims and counter claims, the suit was tried by the learned Civil Judge, Varanasi, in which about 13 issues came to be framed. While dealing with the respective claims and disposing of the suit, the learned trial Judge initially sought to decide the other issues on the supposition that the property held by Smt. Zohra Bibi was not a tainted one, relegating the question of tainted nature or otherwise of the said property for consideration separately at the end. On such consideration, the learned trial Judge upheld the claim of the plaintiffs to be the Mutwallis not only on the basis of a joint application said to have been given by the plaintiffs and Hazi Mohammed Siddiq before his death on 26-2-1956 informing the Tax Superintendent, Municipal Board, Varanasi, that the plaintiffs are the Mutawallis, but also on the basis of the order dated 26-7-1957 said to have been passed by the Sunni Central Board of Waqf, appointing the plaintiffs as Mutwallis. The right to sue, therefore, was held to enure to the plaintiffs. On the question of validity of the gift executed by Smt. Zohra Bibi and the wakf deed executed by her husband, the learned trial Judge held that not only the deeds were valid and a valid wakf had been created but the same had been acted upon. As for certain proceedings instituted by Mohammed Siddiq before the Court as also the partition suit and decree said to have been passed in the partition suit instituted by the defendant in the present proceedings, they were held also collusive and they did not have any legal force or effect in law. As a sequel to the above finding of facts specifically recorded on the basis of the oral and documentary evidence produced before the trial Judge, it was also held that the decree in the partition suit being collusive in nature and void could not be held to be binding on the present plaintiffs and the present suit cannot said to be hit by the principles of res judicata engrafted under Section 11, CPC. Despite these findings of facts, surprisingly, the learned trial Judge went on to rely upon the self-serving claims made by the Mubarak Hussain defendant in the present suit, that the suit properties were acquired out of income earned by Smt. Zohra Bibi as a prostitute and, therefore, as per Mohammadan Law, no valid wakf can be said to have come into existence. Reference has also been made to the non-inclusion of the wakf in question in the list of wakfs published under the Wakf Act, 1936 and the learned trial Judge further held that since within the time stipulated in Sections 4 and 5 of the Muslim Wakf Act, no action has been taken by the plaintiffs to get the wakf included in the said list of wakfs, the plaintiffs cannot be granted any relief and, therefore, the suit was dismissed by a judgment and decree dated 10-5-1960.;