Nisha Gupta, J. - (1.) This Second Appeal under Section 100 C.P.C. has been filed against the Judgment and Decree dated 27.8.1973 passed by the Munsif Magistrate, I Class Ajmer, District-Ajmet in Civil Suit No. 149/67, 141/71 by which suit of the plaintiff appellants has been dismissed and against the Judgment and Decree dated 18.10.2002 in Civil Appeal No. 51/2002 passed by Additional District Judge No. 3, Ajmer in Civil Appeal No. 51/2002 whereby the judgment and decree of the Trial Court has been affirmed.
(2.) The short facts of the case giving rise to filing of this Appeal are that initially a Suit No. 271/63 has been filed by Sayed Hussain Ali against Syed Mohd. Saddiq who is defendant respondent in the present Appeal and ex parte decree has been passed in favour of Sayed Hussain Ali. Thereafter, an application under Order 9, Rule 13 C.P.C. has been filed to set aside the judgment and decree on behalf of Mohd. Saddiq which was rejected, appeal has been preferred which has also been filed on behalf of the appellants (plaintiff-appellant No. 5 to 7 are sons of Syed Mohd. Saddiq and plaintiff appellants Nos. 1 to 4 are decedents of lmtiaz Mi and declaration has been sought of rights and injunction that they and defendant No. 2 are decedents of Hazi lmtiaz Ali and decree is not binding on them with the contention that the appellant and defendant No. 2 are heirs of common ancestor of lmtiaz Ali who died living behind certain immovable properties and Dargah rights of Haquq Baridari and Kalid Bardari in the Astana of Hazrat Khwaja Sahib and keys of Gumbad Mubarik Dargah Sharif. After the death of lmtiaz Ali, the defendant No. 2 having only surviving son had executed a registered Wakf Deed on 30.7.1934 wherein he gave the property including the Dargah rights of attendance and recovery of offerings to the Almighty and declared that three sons of his deceased Brother would be beneficiary and he appointed himself as Mutwali. Lateron, another Wakf deed dated 2.5.1940 has been executed and rights of beneficiary has been devolved on appellants. Both the Wakf deeds are registered and plaintiffs sought to enforce the above Wakf deeds in their favour and also the rights of Dargah. The defendant No. 2 has admitted the contents of the plaint and supported the version of the plaintiffs whereas defendant No. 1 who is the original decree holder was that they are the beneficiaries. The Wakf deed has been executed prior to the passing of the decree, hence the decree is not binding on them as they have beneficiaries in the Wakf deed. After the execution of the Wakf deed, Mohd. Saddiq was not the owner of the property he was only holding it as a Mutwali and once the property has been wakfed it cannot be revoked. After hearing all the parties, both the Courts below had dismissed the contention of the appellants hence this Second Appeal.
(3.) The Contention of the appellants is that both the Wakf deeds are registered hence there is presumption of genuineness in their favour and once the property has been given in Wakf, the Wakf cannot be revoked and rights of the appellants are independent of Hazi Mohd. Saddiq as they are the beneficiary in the Wakf and Hazi Mohd. Saddiq was holding the property only as a Mutwali. The Court below has erred obtained by fraud or mis-representation. the documents were 30 years old, hence there was no need to prove them, the Appeal the admitted on the question that the property once given in Wakf cannot be revoked and the ex parte decree is not binding on them as they are the beneficiaries in the Wakf. Per Contra, the contention of the respondents was that it has not been proved before the Court below that property belongs to Imtiaz Ali. As regards the immovable property no document has been produced to show the title of Imtiaz Ali and when Imtiaz Ali was not the owner of the property, the property could not devolve on Hazi Mohd. Saddiq and furthermore for the rights of Dargah of Haquq Baridari and Kalid Bardari only the registers Ex. 18 and 17 have been submitted which have rightly not been relied upon by the Courts below and both the Courts below are concurrent in finding that property does not belong to Hazi Mohd. Saddiq and when Hazi. Mohd. Saddiq was not the owner of the property, he has no right to give it into Wakf and appellants are claiming in the shoe of Hazi Mohd. saddiq they have no independent claim, hence the decree is binding upon them and Courts below has rights held so.;