NISHA GUPTA, J. - (1.) THIS Civil Second Appeal under Section 100 read with Order 41 Rule 1 of the Code of Civil Procedure, 1908 has been filed on behalf of the defendant -appellant against the judgment and decree dated 24/11/1984 passed by the Court of learned Additional District Judge, Kishangarhbas, District Alwar dismissing Civil Regular First Appeal No.92/1979 filed by the defendant -appellant and upheld the judgment and decree dated 20/08/1979 passed by the Court of learned Munsif and Judicial Magistrate, Kishangarhbas, District Alwar by which, it has decreed the suit in favour of the plaintiff -respondent.
(2.) THE facts giving rise to the filing of this civil second appeal in brief are that plaintiff -respondent filed a suit for possession, injunction, demolition and for mesne profit on the ground that in town Kotkasim, there is a Jama Masjid and on Southern side of the said Jama Masjid, there is a chowk of Jama Masjid measuring 45x28 yards, which is the property of the Jama Masjid. On 13/11/1968, the defendant -appellant opened three doors towards this chowk and also constructed a chabutra. As property is of Wakf, it has been alleged that defendant be restrained from opening the doors in the chowk and chabutra should also be get demolished and it has also been further pleaded that the shops have been let out and hence, the plaintiff is entitled for mesne profit.
(3.) THE contention of the defendant -appellant before the court below was that the chowk is a public property vested in the Gram Panchayat hence, defendant -appellant has also right to pass through the chowk. Property has never been declared as Wakf property under the provisions of Section 5 of the Wakf Act. There are other shops also in the chowk. It is in use for the public at large. Hence, the orders of the courts below be set -aside. The appeal has been admitted by this Court on 14/12/1984 framing three substantial questions of law, as follows: - "(1) Whether the land in dispute on which the chabutra has been constructed and shops open, is a Wakf property when no such entry has been made as required under Section 5 of the Wakf Act, 1954 have been placed on record? (2) Whether the Chowk in dispute is a thoroughfare and is meant for opening shops when the shops are already existing on the three side of this Chowk? (3) Whether in the facts and circumstances of the case the decree passed by the courts below is justified - ;