H.N. Tilhari, J. - (1.) This civil revision has been filed by U.P. Sunni Central Board of Waqfs under Section 76 of U.P. Muslim Waqf Act, 1960, challenging the judgment and award dated 2-2-1978 given by Shri K.N. Ojha, Civil Judge, Bahraich, as a Muslim Waqf Tribunal, in Regular Suit No. 98 of 1975 Mohd. Nizamuddin Khan v. U.P. Sunni Central Board of Waqf, Lucknow . The brief facts of the case are that a reference was made by the plaintiff i.e. opposite parties, under Section 8 read with sub-section (9) of Section 29 and Section 33 of U.P. Muslim Waqf Act U.P. Act 16 (sic) of 60 (hereinafter referred to as the Act) for the cancellation of the registration of the property in dispute as Waqf No. 86, district Bahraich and for Rs. 111/- as expenses of notice sent by the plaintiff to defendant in reply to letters and notice. The plaintiff-opposite parties has prayed for the cancellation of registration of the Waqf of property in suit which is said to be a Muslim Musafirkhana situate in Kazipura, city Bahraich, consisting of 24 rooms, one Court-yard, Verandah, open land, passage, four shops, office room and some portion under construction indicated at the foot of the plaint. The plaintiffs have stated that there exists a mosque within this accommodation but the same has been excluded from the claim in the plaint. The plaintiffs' case is that the property in suit was owned by a society, of which the plaintiff-opposite parties have been the office bearers. The plaintiff opposite party No. 1 Shri Nizamuddin Khan is said to be the President of the society and plaintiff No. 8 Shri Mujibullah is its secretary. The property of the society which is in suit has been asserted to be managed by the plaintiffs. The plaintiffs further alleged that the land on which the construction in question exists was purchased sometimes in 1966 and the plaintiffs are managing the said property, the plaintiffs' case is that the defendant-revisionist wrongfully interfered with the administration of the plaintiffs. According to the plaintiffs the officers of the Board in collusion with Shri Gayas Alam and Shri Rafiuddin Rehmani, without making any enquiry served a notice on plaintiff No. 1 on 14-1-1975 to get the property in suit registered under Section 29 of the Act. The notice dated 14-1-1975, according to the plaintiffs was replied by plaintiff No. 1 but later on the defendant without affording any opportunity to the plaintiffs in 1975 registered the property in dispute as a Waqf property. The plaintiff-opposite parties' case is that they have been in possession of the property in suit. They have purchased the land, on which the accommodation exists, on 18-10-1966 for a sum of Rs. 6,100/- from Smt. Badrunnisa and one another lady and thereafter the plaintiffs I got the accommodation in suit constructed on I that land. The plaintiffs have asserted that I defendant did not make any enquiry as required by the provisions of Sections 4 to 6 of Act No. 16 of 1960 and registered the property as Waqf property. The case of the plaintiffs I has been that the provisions of Sections 29 to 33 did not apply and so the registration of the property in dispute has been illegal, null and void. They asserted that the property in suit was neither acquired from the funds of Musalman public at large nor the building in dispute or property in dispute has been made for any religious or charitable purpose. The mosque just close to the construction in dispute has no concern with it. The plaintiffs further asserted in the plaint that Board had no jurisdiction and authority to register the property in dispute under Section 29 of the Act and so the plaintiff-opposite parties prayed for the cancellation of the registration as well as claimed Rs. 111/- along with the costs. The defendant-revisionist filed the written statement denying the plaint allegations. The defendant has asserted that Musalmans of Bahraich were in need of a Musafirkhana because every year many Musalmans come to Bahraich in Dargah Sharif and on other occasions also they have to visit time to time at Bahraich. There being no accommodation at Bahraich in which those Musalmans coming to Bahraich could stay and considering the problem of the Musalmans coming to Bahraich from outside the Musalman Public at Bahraich found it necessary to get the Muslim Musafirkhana constructed so that there be no problem for the residence of the outsiders. With this object in view a meeting of Musalmans was called for in 1960 and it was decided that a Muslim Musafirkhana be got constructed, an appeal was issued to Musalmans to make contributions for the construction of a Muslim Musafirkhana and thereupon lacs of rupees were collected by way of subscription for Muslim Musafirkhana being constructed. In the year 1960, according to the defendant, when the collections were made no such committee was registered, no account of subscription realised was made and no doubt lacs of rupees were collected; so Muslim public interested in the construction of Muslim Musafirkhana persuaded and encouraged plaintiff No. 1 to proceed with the object in view and the plaintiff No. 1 was the sole person to obtain the money and to use it, the land was purchased from the subscription given by Musalman public and building was also constructed out of the same funds. The purpose of collections of this fund or donation made by Musalmans in general was charitable one, i.e. construction of Muslim Musafirkhana for the stay of outsiders in order to relieve them from the shortage of residence and for religious purpose a mosque was also constructed within Musafirkhana and so according to the defendant the entire property in dispute has been of charitable and religious nature. The sale deed of the land on which Musafirkhana was made had been obtained according to defendant, in the name of plaintiff Mohd. Nizamuddin Khan and Shri Mujibullah Khan and it was expected of them that they would serve the Muslim public without any self interest. Defendant further asserted that plaintiffs 1 and 2 have been the senior Vakils of the district they knowingly avoided to get the property registered by Waqf Board. Looking to the misuse of the funds one Shri Shafiullah Khan, who was the president of the Muslim Majlis met Secretary of the Sunni Central Board of Waqfs and made complaint against plaintiff No. 1. Defendant further asserted that a representation was also sent by one Shakir Ali to Sunni Central Board of Waqfs containing signature of a large number of persons of Bahraich and making complaint against the misuse of funds regarding monopoly of plaintiff No. 1 over the funds and it was according to defendant's case in that representation that the plaintiff No. 1 was not furnishing the accounts nor had deposited the amount in any bank which came by way of subscription or from these earnings of shops of the accommodation in suit and a prayer was made for registration of the waqf and a second application in that regard was moved by Shakir Ali in Sept. 1979 with the prayer that the property in suit be got registered as Waqf property to save the same from the misuser by plaintiff No. 1 and his associates. According to defendant's case Board got an enquiry made through his officials and came to the conclusion that the property in dispute was the waqf property as the same had been raised from the funds of the Muslim Public and for the welfare of the Muslim public and that its purpose was religious and charitable. The defendant's case further has been that a notice under Section 29 read with Section 31 of the Act was issued by the Board to plaintiff No. 1 as he was the person dealing with the property and this notice was served on plaintiff No. 1 on 13-1-75. According to defendants this notice was replied by the plaintiff on 28-1-75 and the plaintiff refused to get the property registered as waqf property because as per reply dated 28-1-75 it was asserted that the property in dispute was of a registered society consisting of plaintiff No. 1 and 5 more persons in which Muslim public at large had no interest. Notice was issued to plaintiff No. 1 as he alleged himself to be the President to appear before the Board with papers to show cause why the property be not registered as waqf property but in spite of opportunity being given to plaintiff to appear before the Board, the Board, according to the defendant-revisionist's case came to the conclusion that the property in dispute was a waqf property and so it was registered as Waqf property No. 86 of district Bahraich. The defendant further alleged that though the subscription was collected in lacs but plaintiff No. 1 did not maintain the account nor was it deposited in Post Office or in any bank instead the amount was misused and so Shri Ghulam Mustaq, Mujibullah withdrew themselves from the management and the whole control and dictatorship was that of plaintiff No. 1, according to defendant's case. The defendant further took the plea that the suit was barred by time and so it was not maintainable. A further plea was taken that the suit had been filed by the plaintiffs in their individual capacity while it should have been filed by them as office bearers and as individual they had no right to sue. As such, the reference according to defendant was not maintainable being one against the provisions of Section 31 of the U.P. Muslim Waqf Act. It was further asserted in defence that as the registration has been done under Section 31 of the Act, the Civil Court had got no jurisdiction to try the suit, as, such, it was asserted on behalf of defendant-revisionist that the suit in question was not maintainable and was liable to be dismissed.
(2.) On the basis of pleadings of the parties the following issues were framed:- (1) Whether Muslim Musafirkhana is a public Waqf ? (2) Whether the Board has no jurisdiction to register under Section 29 of the U.P. Muslim Waqf Act ? (3) Whether plaintiffs spent the amount as alleged in para 10 of the plaint ? If so, is he entitled to recover the same ? (4) Whether plaintiff has no right to file petition as alleged in para 35 of the written statement ? (5) Whether the petition is barred by time? (6) To what relief, if any, is the plaintiff entitled ? (7) Whether the plaintiffs have no right to sue ? (8) Whether the suit is not maintainable as alleged in para 38 of the written statement ? (9) Whether this Court has no jurisdiction to try the suit ?
(3.) The learned Civil Judge acting as a Tribunal after considering the material on record including the evidence oral and documentary after having recorded the following findings decreed the claim for cancellation of the registration of the property in suit as Waqf No. 86 Bahraich but dismissed the claim for a sum of Rs. 111/- vide its order dated 28-2-73. This order was passed by the Civil Judge acting as a Tribunal appointed under U.P. Muslim Waqf Act. The Tribunal recorded the following findings:- (a) that the mosque is part and parcel of Musafirkhana and has got a religious purpose. The Musafirkhana though for one of the ingredients of the waqf i.e. charitable purpose is present in the property in dispute and Musafirkhana has also got a religious character which is increased, no doubt, by the existence of a mosque as a part and parcel of Musafirkhana but other ingredients have not been fulfilled as there appears to be no dedicator which in case of a waqf ought to exist i.e. the property alleged to be waqf should be proved to have been dedicated permanently by dedicator and dedicator must be one professing Musalman faith then along with these ingredients being the purpose of dedication is proved to be religious, pious and charitable then a waqf may be said to have come into existence and so in absence of proof of dedication by a dedicator having Muslim faith the property in dispute could not be said to be waqf property and cannot be deemed to be waqf property. (b) that the Board did not make necessary enquiries as it is required under sub-section (7) of Section 29 of the Act so the Board had no jurisdiction to register the waqf. (c) that the suit had been filed within time. (d) that the argument of the learned counsel for the defendant that reference was not maintainable under Sections 8 and 33 of the Act has got force but the reference is good one under Section 29 (8) of the Act. (e) that the suit would be held to be not maintainable on the ground that it has been filed by the plaintiffs as ordinary individuals and not as office bearers. (f) that the Court has got jurisdiction to try the suit of reference which has validity been made by the plaintiffs. The plaintiffs are entitled to get the relief-claimed in the suit i.e. cancellation of the waqf. With these findings as mentioned above, the Civil Judge Bahraich acting as a Tribunal decreed the suit for cancellation of the registration of the suit property as Waqf Property No. 86 - Bahraich.;