- (1.) THIS is an appeal by the plaintiffs arising out of a suit for possession of a Dargah known as Dargah Khawaja Karak situate in a village near Kara. The plaintiffs also sought a dec laration that they are the lawful Khadim mutwallis of that Dargah.
(2.) THE plaintiff's case was that Hazrat Khawaja Karak was a well known Sunni Muslim saint and that his Dargah is visited by pilgrims throughout the year and that one Babu Shah Qalandar. who was the predecessor of the plaintiffs, was the Khadim of the Dargah and that after Babu Shah Qalandar his descend ants held the office of khadim and had been managing the affairs of the Dargah Paragraph No. 3 of the plaint may be reproduced because the learned counsel for the appellants have based their main contention on that paragraph. Paragraph No. 3 of the plaint reads as follows:- "That ever since the time of the aforesaid Babu Shah Qalandar the plain tiffs and before them their predecessors having held the office of Khalifa and Khadims have been managing and look ing after the Khandah. mosque and other buildings within the Ahata of the Dargah detailed at the foot of the plaint of the said saint and the annual 'Urs' also which is held on the 2nd day of the Hijri month of Rajah has been held under their management and control and the Sheerini, nazar and Chadar (i. e. sweet, offerings and sheets) that the pilgrims (i. e. the Zaerren) offer were taken and appro priated by them in their own right as Khalifa and Khadim and the arrange ment of light in the Khanqah and mosque and their maintenance has been done out of the proceeds thereof." The plaintiffs' case further was that four villages i. e. Sultanpur Khwaja Karak, Tilokpur, Roop Narainpur and Chak Narainpur Bengali were the sub ject matter of the wakf for the up-keep of the Khanqah and that Syed Shah Neyaz Ashraf, defendant No. 5 and Syed Badrul Hasan, defendant No. 6 and their predecessors were mutwallis of the wakf of the four villages but they had no right to manage the Dargah nor were they entitled to the offerings made in the Dargah and they were also not in pos session of the same. According to the plaintiffs. defendant No. 5, Syed Shah Neyaz Ashraf had filed a suit (suit No. 14 of 1945) against the Sunni Central Board of Wakf in the court of the Civil Judge Allahabad praying for a declaration that the four villages did not constitute a wakf but were the personal property of the plaintiffs of that suit. The plaintiffs of the suit out of which the present ap peal has arisen had contested that suit and that suit was ultimately dismissed and the four villages were held to be wakf property. It was further stated by the plain tiffs that there were proceedings under Section 145 of the Code of Criminal Pro cedure between the parties and the learn ed Sub-Divisional Magistrate, by his order dated 2nd September 1950, ordered the Dargah to remain attached under Sec tion 146. Criminal P. C. as it was not possible for him to decide which party was in exclusive possession and further directed the parties to get their title decided in a proper court of law. Against the order of the learned Sub-Divisional Magistrate a revision was filed before the learned Sessions Judge, Allaha bad and the learned Sessions Judge agre ed with the learned Magistrate that ques tion of the possession of the Dargarh was difficult to be decided in the circum stances of the case. The learned Sessions Judge also directed the parties to go to the civil court. In the meanwhile the U. P. Sunni Central Board of Wakf appointed defendant No. 5, Syed Shah Neyaz Ashraf. as mutwalli of the Dargah under Section 56 of U. P. Muslim Wakf Act No. 13 of 1936 and also appointed defendants Nos. 2 to 8 as members of the Committee of the management of the Dargah. The plaintiffs alleged that those arrangements were illegal and without jurisdiction and the plaintiffs being the Khadims of the aforesaid Dargah were the only rightful persons entitled to the I management of the Dargah and to the j offerings made at the Dargah.
(3.) DEFENDANT No. 1, Sunni Cen tral Board of Wakf, hereinafter called the Board and Syed Shah Neyaz Ashraf" defendant No. 5. filed a joint writte am statement and a similar written statement was filed by defendants Nos. 2, ( and 7. In defence it was admitted that I the four villages referred to in the plaint B were wakf property and were meant foci the maintenance of the Dargah Karak. It was placed that defendant Nos. 5 and 6 and their predecessors were mutwallis and Saj.iadanashins of the Dargah. It was also pleaded that the I plaintiffs were neither the descendants oil Babu Shah Qalandar nor was Babu Shah I Qalandar the mutwalli of the Dargah and I it was further denied that plaintiffs were I either khadims or mutwallis of the I Dargah. It was further pleaded that the I suit was barred under Section 26 of the I Specific Relief Act and was also barred I by limitation and by the principles of I estoppel and acquiescence.;