P. B. Gajendragadkar, J. - (1.) The suit from which this appeal arises relates to a shrine and tomb known as Darga Hazarat Syed Salar Mahsood Ghazi situated in the village of Singha Parasi and properties appurtenant to it. The plaintiffs who have preferred this appeal are members of the Waqf Committee, Darga Sharif, Bahraich, and, in their suit, they have claimed a declaration that the properties in suit were not covered by the provisions of the United Provinces Muslims Waqfs Act (XIII of 1936) (hereinafter described as the Act). The declaration, the consequential injunction and the two other subsidiary reliefs are claimed primarily against respondent 1, the Sunni Central Board of Waqf, United Provinces of Agra and Oudh. Two trustees who did not join the appellants in filing the suit are impleaded as pro forma defendants 2 and 3 and they are respondents 2 and 3 before us. It appears that respondent 1 purported to exercise its authority over the properties in suit under the provisions of the Act and that led to the present suit which was filed on October 18, 1946 (No. 25 of 1946). The appellants' case is that the properties in suit are outside the operative provisions of the Act and not subject to the jurisdiction of respondent 1, and so, according to the appellants, respondent 1 has acted illegally and without jurisdiction in assuming authority over the management of the said properties. That is, the basis of the reliefs claimed by the appellants in their plaint.
(2.) The appellants' claim was resisted by respondent 1 on several grounds. It was alleged that the properties in suit did form a waqf as defined by the Act and were covered by its operative provisions. It was urged that respondent 1 was a duly constituted Sunni Central Board and it was authorised to exercise supervision over the management of the said waqf. The case for respondent 1 also was that the appellants' suit was barred by limitation and was incompetent inasmuch as before the filing of the suit the appellants had not given the statutory notice as required by S. 53 of the Act.
(3.) On these pleadings several issues were framed by the learned trial Judge; but the principal points in dispute were three: 1. Are the properties in suit governed by the Act 2. Is the suit in time and 3. Is the suit maintainable without notice as required by S. 53 of the Act The learned trial Judge held that the properties in suit cannot be held to be waqf as defined by the Act. In his opinion it was not the village Singha Parasi but its profits free from land revenue that had been granted in trust for the shrine and its khadims; and since the usufruct of the profits was subject to the condition of resumption and since the profits had not been vested in the Almighty, the grant cannot be construed to be waqf as contemplated by Muhammadan law. On the question of limitation the learned Judge held that S. 5(2) of the Act applied to the suit; but, according to him, though the suit was filed beyond the period of one year prescribed by the said section, it was within time having regard to the provisions of S. 14 of the Limitation Act. The plea raised by respondent 1 under S. 53 of the Act was partly upheld by the learned trial Judge; he took the view that the first three reliefs claimed by the appellants were barred but the fourth was not. In the result the learned Judge granted a declaration in favour of the appellants to the effect that "the shrine in question together with its attached buildings and the Chharawa were not waqf properties within the meaning of the Act." As a consequence, an injunction was issued restraining respondent 1 from removing or dissolving the committee of management of the appellants; and respondents 2 and 3 "not otherwise than provided for under S. 18 of the Act in so far as the management and supervision of those properties are concerned in respect of which the appellants were not being granted a decree for a declaration sought for by them in view of the absence of the notice under S. 53 of the Act". The rest of the appellants' claim was dismissed. The decree was passed on April 15, 1947.;