- (1.) These two connected second appeals are directed against the appellate order passed by the Court of IIIrd Addl. District Judge, Gorakhpur in Appeal No. 83 of 1992, dated 23.3.2015, as well as counter objection registered in Civil Appeal No. 91 of 1996, both of which have been dismissed. The appellate court has held that the prayer of respondent no.1/4 ( appellant here in) to declare him as Mutawalli of the Waqf, is not maintainable before the Civil Court.
(2.) Shorn of unnecessary details, basic facts giving rise to filing of the appeal are that the father of the sole appellant Haji Abdul Hai instituted Original Suit No. 64 of 1964 against the defendants, who are respondents herein, as well as those claiming through them. Sunni Waqf Board, through its Secretary was also impleaded as Defendant No.16 in the Suit. In the suit, a prayer was made that the plaintiff ( father of the appellant herein) be declared as the Mutawalli of the Waqf properties given in list-A and list-B, on the basis of the Waqf deed dated 4.8.1931. Relief of injunction was also claimed against the defendant Nos. 4,5 & 8 as also their successor in interest, from interfering in the possession of the plaintiff as Mutawalli. Alternatively, it was claimed that in case the plaintiff is found to be out of possession of any part or whole of the property, then possession of such property of the waqf be delivered to the plaintiff. It appears that certain suits were also filed by the tenants of the property said to be belonging to the Waqf, which were all consolidated together. Trial court framed as many as 36 issues. It is not necessary to mention all such issues but it would suffice to note issues no. 1,2,3,4,5,6,15 and 25, as formulated which are reproduced below:- "1. Whether, the defendant no. 1 had created any valid waqf with respect of the properties given in list-A of the plaint? 2. Whether, the defendant no. 1 executed any valid waqf deed on 4.7.1931? If so, its effect? 3. Whether, Waqf in question was acted upon and whether the defendant no.1 had been in possession of the properties in suit as Mutawalli? 4. Whether, the properties given in list-B at the foot of the plaint, were acquired by the defendant no.1 with the income of the properties as mentioned in list-A? If so, its effect? 5. Whether, the defendant no. 1 was still in possession of the property in dispute till he died? 6. Whether, the plaintiff is entitled to be appointed as Mutawalli with respect to the properties in suit? If not which of the defendant is entitled of such? 15. Whether, the defendant no.1 validly gifted the properties in suit to defendant Nos. 4,5 & 6, if they are in possession of the properties in suit? If so. Its effect? 25. Whether, the plaintiff is illegitimate grand son of Abdul Samad? If so, whether he is not entitled to be appointed as Mutawalli?"
(3.) Parties led their oral and documentary evidence in support of their respective cases.;