BHARGAVA, J. - (1.) THIS dispute in this second appeal by the plaintiffs relate; to the property situated in Tripolia Bazar, Jaipur City which they in their representative capacity claimed as Wakf being a Mosque of Manihar community.
(2.) THE suit was originally instituted in the court of Munsiff on 5th March, 1948 and after some evidence had been recorded and it being found that the valuation of the suit was beyond the pecuniary jurisdiction of the Munsif the plaint was returned for presentation to the competent court of jurisdiction on 4th May, 1953. THE plaint was then presented in the court of the Civil Judge, Jaipur District. Defendant No. 1 Mohd. Hussain was impleaded as heir of the original owner of the property while defendant No. 3 was impleaded as transferee who had purchased the property from Mohd Hussain for a consideration of Rs. 6000/- after the institution of the suit in the court of the Munsiff. The defendants asserted their rights of ownership to the property and denied that it was dedicated at any time to any religious or charitable purpose by the original owner or his heirs. It appears that before the present suit was filed disputes regarding the possession of the property had arisen between the plaintiff and defendant No. 1. Eventually in proceedings under sec. 107 of the Code of Crimi-nal Procedure, the key of the room which is the subject matter of dispute was handed over to the defendant by the Magistrate which gave the plaintiffs an immediate cause for the institution of the suit. Plaintiffs prayed for a declaration that the property in dispute being a mosque was wakf property and defendant No. 1 was not entitle to receive its key from the court of the Magistrate. They further claimed for a declara tion that the sale deed executed by defendant No. 1 in favour of defendant No. 3 be declared ineffective against their interests and they may be put in possession of the property in dispute. It was alleged in the plaint that the property in its original condition consisting of a roof and a Medi on the first floor of some shops in Tripolia Bazar Jaipur was purchased in the name of one Afzal with the monies set apart as wakf by Karimubux of Ajmer. Thereafter the members of Manihar community at Jaipur built a mosque over the roof with the funds raised by them and afterward that mosque was entrusted to the Panchas of Manihar community. The plaint further recites the facts about the property having been taken over in possesion by the erstwhile Jaipur State in whose possession it remained till the year 1923. The plaint then describes the release of property by the State and its possession by the plain tiffs till the year 1942 when defendant No. 1 is said to have taken its unlawful posses-sion which led to criminal complaint against defendant No. 1 and his eventual acquittal and then further proceedings on the determination of which key of the room was handed over to him by the Magistrate's court. The main question that fell for determination in the courts below was whether the suit property had been dedicated by its original owner and was wakf. Both parties led evidence in support of their respective contentions. The trial court on a consideration of the entire evidence came to the finding that it was wakf and defendant No. 1 had no right to transfer it. It therefore, passed a decree declaring the suit property to be wakf and the sale deed by Def. No. 1 in favour of defendant No. 3 being void and also decreed the suit for possession but at the same time holding that since the object of keeping the disputed property as mosque had failed, it would be used as wakf for cognate religious purposes. The latter finding appears to have been given because it was admitted on behalf of the plaintiffs that at the time the property was released by the State of Jaipur it was ordered that it would not be used as mosque. Against this decree the defts. Nos. 3 & 4 only preferred an appeal and impleaded the legal representatives of deft. No. 1 who had died during the pendency of the suit as respondents Nos. 4 and 5. But later on, on the application of the appellants to which the plaintiff respondents also agreed, their names were struck off from the array of respondents. The learned District Judge did not agree with the finding of the trial court and after reviewing the entire evidence held that the plaintiffs had failed to establish that there was dedication of the property and wakf was created for the purpose of a mosque. On this finding the appeal was allowed and the plaintiffs' suit was dismissed. Now two out of the three plaintiffs have filed this appeal against defendants Nos. 3 and 4 only without impleading the legal representatives of Mohd. Hussain defendant No. 1 whose names were substituted in the trial court. The above defect remained unnoticed and the appeal has been heard on merits. If this appeal were to succeed, it would not have been possible for this Court to grant any effective decree to the plaintiffs in the absence of the legal representatives of defendant No. 1 as they were necessary parties to the case. Since the appeal has been heard on merits, I propose to give my finding on the questions that have been urged before me. It is not in dispute that the suit property in its original condition was purchased by one Afzal resident of Indore under the sale deed dated 12th Dec. 1894 for a sum of Rs. 399/- from Munna and Saji sons of Pirbux Manihar vide Ex. 7-A. According to the plaintiffs a mosque was built on the roof purchased by Afzal by the Manihar community of Jaipur with the funds raised by them. It is also the plaintiffs' case that for a few years prayers were offered in that room. Thereafter a report was made by the Intelligence Department of the Jaipur State about the construction of this mosque on Katik Badi 4 Smt. 1955 corresponding to 3rd October, 1898 on which the Imarat Department of the State after enquiry ordered on 9th May, 1899 that the building may be treated as State Property until the owner turned up. The arches and pulpit which were secretly made inside the room were also dismantled by the orders of the State and expenses of Rs. 4/11/3 were to be recovered at the time the property was to be released to the owner. The plaintiffs rely on the following circumstances to show that the property is wakf (1) that neither the original owner nor his heirs raised any objection about the property being used as mosque. (2) that they kept silent for a long period of 24 years when the property remained in possession of the State. (3) that defendant No. 1. in his application dated 28th May, 1924 presented before the Imarat Department praying for the release of the property to him admitted that the suit property was a mosque built by his father Noor Mohd. (4) that after the release of the property by the State its key was handed over to Mohd. Ullah plaintiff No. 1 who was Pesh-i-lmam of Jama Masjid Jaipur with whom it remained for a long period of 18 years without any objection on the part of defendant No. 1. (5) that the suit property was described as Maniharon-ki-Masjid in private documents and in certain official papers namely Exs. 2, 3, 6, 7, 8 and 9. (6) that during the period, the property was in possession of plaintiff No. 1, certain repairs were carried out in the property by the plaintiffs. On these facts and circumstances learned counsel for the appellants contends that the disputed property is wakf Now as will be noticed from the plaint allegations it is not the case of the plaintiffs that the property was dedicated for any religious or charitable purpose by Afzal or his heirs after it was purchased by the former under the sale deed Ex. 7-A. Their case as stated above was that it was purchased with the funds set apart as wakf by one Karimbux of Ajmer and then a mosque was constructed by Manihar community of Jaipur with the funds raised by them. These allegations have not been proved by any evidence. No accounts have been produced regarding the construction nor is there any evidence to show as to who had built the room and from where the funds had come. Besides there is no indication in the sale deed Ex. 7-A that Afzal had purchased the property with the intention of dedicating it to any religious or charitable purpose or for the construction of the mosque. It is neither the plaintiffs' case nor is there a shred of evidence to show that Afzal made any dedication of this property during his life time. It appears that Afzal who was living at Indore had died five or seven years after he purchased the suit property, without leaving any widow or a child. It also appears from the evidence that he had three brothers namely Alla Beli, Noor Mohd. and Wazir Mohd. all of whom have got children defendant No. 1 being the son of Noor Mohd. There is also no evidence that these three brothers of Afzal at any stage dedicated the property for building a mosque. There can however, be no doubt that, a room having arches and pulpit inside was constructed over the roof of the first floor. But there is no evidence as to who actually constructed this room. There is no evidence either that the room was constructed with the express or implied consent of Afzal or his heirs. If Afzal had really purchased the property for dedicating it then there is no reason why that fact should not have found place in the sale deed. Even if after purchasing the property, he had dedicated it for the purpose of building a mosque, there is no reason why members of Manihar community did not obtain a writing from him to that effect. There is nothing on record to show that Afzal or his heirs had any knowledge of the construction of a room or mosque over the property. Therefore, the mere fact that a mosque was built on the suit property by some unknown persons from funds whose source is also unknown, will not go to show that the original owner of the property or his heirs had dedicated it for that purpose. It is well settled that "under Mohammedan Law followed by the Hanfia sect even if no particular formality need to be observed to make a wakf complete, there must be unmistakable proof available that the owner made a clear declaration dedicating the property definitely and permanently to God. Even an owner's unexpressed intention to dedicate property can not have the effect of a formal dedication. In the absence of any such intention or declaration, no wakf can be said to have been created. It is true that a wakf can be created by user but that user too must be preceded by an intention on the part of the owner to creat a wakf. If no such intention is established, user alone will not be sufficient to divest the property of its private character. " (See Zahar Hussain vs. Mian Mohammad Ghias-ud-Din (1 ). Since the dedication involves the extinguishment of the rights of the original owner of the land, there should be strong evidence from which unequivocal intention of the owner to dedicate the property may be inferred. In the present case admittedly there is no deed creating the wakf. Nor is there any direct oral evidence about dedication. Whether the facts established are sufficient to raise an inference of dedication in this case has now to be seen. Their Lordships of the Privy Council in Mazhar Husain vs. Rao Bahadur Adiya Saran Singh (2) observed that : - "where there is no evidence that a person ever executed a wakf and no direct evidence of any oral dedication by him, but if the proper inference from the history of the matter, the dealings with the property in dispute, the litigation that he effected it and the admissions and assertions made by the predecessors in title of the persons who dispute the wakf is that such persons purchased the properties on the expressed footing that they were to be an endowment of an existing wakf all the requirements of Shia law necessary to the valid creation of a wakf attaching to the properties are satisfied. " Similarly in Mohammad Shah vs. Fasihuddin Ansari (3) it was observed that : - "as a matter of law a wakf normally requires express dedication but if land has been used from time immemorial for a religious purpose then the land is by user wakf although there is no evidence of an express dedication. " But the user also must be of such a nature that it can only lead to an inference of dedication of the property to the wakf. Before considering the circumstances relied upon by the learned counsel in proof of the property being wakf, it is necessary to narrate the circumstances in which the room or the mosque came into existence. They are mentioned in the document which is a report of two members of the Government of His Highness Maharaja of Jaipur submitted to the Cabinet and is dated 13th April, 1923 (Ex. 10 ). This report contains extracts from the previous revenue files relating to this matter. It appears from the extracts quoted in the report that Intelligence Department of the State on Katik Budi 4, Smt. 1955 made a report that one Madari Manihar had built a room over a shop and in a Panchayat of the Manihars the room had been declared a mosque. On this an explanation was called from the Imarat Department which made a report to the effect that one Madari had built a room and had declared it a mosque. It was further stated that because the people offering prayers in the room could be visible from the public road as there was no screen wall, the act would be disrespectful to His Highness when he would pass by the road and was also likely to the disturbance of the peace because there were two temples close-by it. On this report of the Imarat Department, the Revenue Court called upon Madari to furnish an explanation. From another extract dated 9th May, 1899 it appears that Madari denied having constructed the room and the name of the man who had constructed the mosque was disclosed as Noor Mohd. resident of Indore who was not at Jaipur. But it was not satisfactorily proved to the department as to who was the owner and who had built the room. The mosque was secretly built inside the room. The Imarat Department got the arches and pulpit which were the symbols of the mosque, demolished and ordered that the building may be treated as Khalsa. Orders were accordingly passed by the Revenue Court on 31st May, 1899. It will thus appear from the above that even at the time objection was raised regarding the construction of a mosque, the person who had built it did not come forward. On 31st May, 1899 by the orders of the Revenue Court the building was regarded as being Khalsa i. e. of the State until its owner turned up. The Manihars or any section of the Muslim community of Jaipur City did not put forward claim before the Government of Jaipur that the property was wakf and that it should be handed over to them, the real owner having no interest left in the property. No objection also appears to have been raised regarding the demolition of the symbols of a mosque built inside the room. It is clear that the constructions were not made in such a manner as to appear as a mosque from outside. On the other hand arches and pulpit were made inside the room so as to give it a shape of mosque. The fact that at the time when this property was taken over by the Jaipur Government no one from the community of Manihars put forward claim that it was wakf and even the person who had in fact built the room did not protest about the demolishing of the arches and pulpit, can justifiably lead to the conclusion that the room was made without the knowledge of the true owner who lived at Indore. It is quite likely that the Manihars of Jaipur might have come to know that Afzal who had purchased the property had died without leaving any child or widow and taking advantage of that fact might have constructed a room giving it a shape of a mosque from inside and also started offering prayers there. These facts therefore, unmistakably show that there was no dedication by the owner or his heirs of this property for the construction of a mosque. Admittedly the property remained in possession of the State till 1923 as it appears from the same report Ex. 10 that the stair-case leading to the room above, which had been closed was broken open by some unknown persons. On this on 13th March, 1923, the Revenue Court passed an order that the property should be brought to some use. Either some property of the Government may be kept in it or it might be let out to a tenant. This order was confirmed by the Council of the Jaipur State. On this order being passed, some Mohammadans appeared to have made an application to the Jaipur Government on which the two members of the Cabinet of the Jaipur Government were asked to submit their report which is Ex. 10. The applications which were submitted to the Jaipur Government have not been brought on the record of this case and it is not known whether even at that stage the property was claimed as wakf. The appellants' contention that prayers were offered in the mosque for some period also does not assist them in any way because as already observed there is no evidence that it was done with the permission or within the knowledge of the original owner. The period during which prayers were offered in the room has also not been established with certainty. The evidence of Noor Mohd (P. W. 2), Rasool Bux (P. W. 3) and Abdul Zabar (P. W. 4) examined in this connection is of little value. The statements of there witnesses were recorded on 1st March, 1955 and according to them they offered prayers in the room about 50 years back which comes to the period after the year 1900. Admittedly the possession of the property was taken over on 9th May, 1899 and thereafter, continuously till 1923 it remained in the possession of the State. That being so prayers could not have been offered in the room after the year 1900. It may be that for some months some people offered prayers in this room but it is not proved that they were offered in a congregation. The user of the property therefore, for offering prayers is not for such a length of time that an inference of dedication by the owner maybe made from this fact. It is not the plaintiffs' case that Afzal or his heirs ever offered prayers in this room or prayers were offered in their presence by other persons. I now take up the other circumstances relied upon by the appellants. Much stress has been laid on the application Ex. 1 alleged to have been presented by Mohd. Hussain to the Imarat Department for the restoration of the property. It is urged that this application contains an admission that a mosque was built by Noor Mohd in the suit property. This application does not bear Noor Mohd's signatures nor the name of the person who had scribed it. Mohd Hussain in his statement which was recorded by the Munsif denied having presented this application in the Imarat Department. In para 4 of the plaint it is mentioned that an application was submitted by Mohd. Ullah at the instance of Manihar Community on which the Imarat Department handed over the key of the mosque to Amir Bux Mukhtiar-Am of Mohd. Hussain and Amir Bux gave it to Mohd. Ullah on the instructions of Mohd. Hussain and Panchas of Manihar community. On behalf of the plaintiffs reliance is placed on the statements of Har Prashad who was reader in the Imarat Department in 1924 (Ex. 14), Amir Bux Mukqtiar-Am of Mohd Hussain (Ex. 11) and Mohd. Hussain Himself (Ex. 13) recorded in the court of the Munsif to show that Ex. 1 was written at the instance of Mohd. Hussain by Amir Bux and its contents were read over to him and he himself had presented it in the Imprat Department. Learned counsel for the respondents urges that these statements were not admissible in evidence as they were recorded by a court which had no pecuniary jurisdiction and as such they cannot be said to have been recorded in a judicial proceeding. Reliance is placed on (Sri) Iswarananda Bharathi Swami of Ednir Mutt Vs. Board of Commissioners for Hindu Religious Endownments, Madras, (4 ). Learned counsel for the appellants on the other hand says that the said statements were admitted in evidence by the trial court without, any objection on the part of the defendants and as such in a second appeal this objection cannot be raised. In support of this he relied on Full Bench decision of Madras High Court in Jainab Bibi Saheba Vs. Hyderally Sahib (5) which was followed in Radha Kishan Vs. Kedar Nath (6), and Nitya Nanda Mandhata Vs. Binkayak Sahu (7 ). Assuming for the sake of argument that these statements can be read in evidence they do not help the appellants much. Har Parshad was not able to identify Mohd. Hussain who was present in the court at the time of his statement and he was unable to say whether he had seen him before. Amirbux stated that he himself presented the application in the Imarat Department and as already stated the plaint states that it was presented by Mohd. Ullah. Though much value may not be attached to these discrepancies in the statements but the fact remains that the application was not signed by Mohd Hussain. The contents of the application show that Mohd. Hussain was specially brought from Ajmer to claim restoration of the property. No plausible reason has been suggested as to why the application was not signed by him. This application contains an admission that Mohd. Hussain's father Noor Mohd had built this mosque. But this is no one's case that the mosque was built by Noor Mohd. It is said that the statement of Modh. Hussain was recorded on the same day in the Imarat Department which is part of Ex. 1. Although Mohd. Hussain has denied that he gave that statement yet a perusal of it clearly shows that he made no mention of the making of a mosque by his father. On the other hand he stated that the room was built by his father Noor Mohd, So the statement is not in conformity with the contents of the application and that is another fact which shows that the application was not written at his instance and its contents were not made known to him. Therefore, the admission contained in Ex. 1 is of no avail to the appellants. The appellants did not produce copy of the final order which was passed by the Imarat Department on this application and it is not known as to whom the property was handed over and on what date and with what conditions attached to it. The appellants then relied upon the contents of notice Ex. 4 alleged to have been given by Mohd. Hussain to Mohd. Ullah dated 19. 5. 1942 wherein it is admitted that the key of the property was given by Amir Bux his Mukhtar-Am to Mohd. Ullah on the same day. It is urged that the fact of handing over of the key of the property to Mohd. Ullah who was Pesh-i-Imam of Jama Masjid shows that Mohd. Hussain regarded the property as wakf. But it is abundantly clear that in this notice Mohd. Hussain asserted his own claim to the property and demanded its key from Mohd. Ullah. Mohd. Hussain was not cross-examined as to when and with what object his Mukhtar Am had handed over the key of the property to Mohd. Ullah. There is also no other evidence explaining as to why the key of the property was handed over to Mohd. Ullah. Therefore, on the basis of this fact too it cannot be inferred that Mohd. Hussain regarded this property as wakf. The very fact that the property was restored to the original owner shows that it was not regarded as wakf No particular use of the property has been proved to have been made either by Mohd. Hussain or by the plaintiffs till the year 1942. There is no evidence that it was used for any religious or charitable purpose by the plaintiffs. Nor is there evidence to indicate that they ever sought permission of the Jaipur State to use the property as a mosque because by that time His Highness the Maharaja of Jaipur had attained majority and had been invested with full powers of a Ruler. After the year 1942, disputes arose between Mohd. Hussain and the Manihar community which led to criminal litigation wherein Mohd. Hussain asserted his own right. Eventually the key of the property was handed over to him by the Magistrate's court.
(3.) EX. 2 is a map and EX. 3 copy of the Khasra prepared by the Survey and Record Officer, Jaipur and is of 30th July, 1947. EX. 6 is a notice issued by the Municipal Council Jaipur to Mohd. Ullah, asking him to make repairs of the house known as mosque of Manihars and to have it colour washed. This is dated 12th February, 1946. EX. 8 again is a notice issued by the Assistant Record Officer City Survey Jaipur to Mohd. Ullah. EX. 9 is also a copy of verification slip issued by the City Survey Office Jaipur. This is dated 2nd July, 1947. EX. 7 is a copy of the sale deed regarding the shops situated below the suit property and is dated 14th March. 1916 in which the property is described as mosque of Manihars. This document was executed between strangers to the suit and its recitals are not admissible in evidence in this case. The other documents EXs. 2,3,6,8 and 9 relate to the period when disputes had arisen between the parties regarding the nature of the property and as such are of no avail to the appellants. Even the small repairs alleged to have been carried out by the plaintiffs after 1942, are of little consequence and do not help the plaintiffs. Thus from all the circumstances relied upon on behalf of the appellants an inference of dedication of the property for building of a mosque or for any religious or charitable purpose cannot be made. On the facts and circumstances mentioned above I have no hesitation in holding that the property is not wakf and could consequently be transferred by defendant No. 1 to defendant No. 3. I, therefore, agree with the learned district Judge that the plaintiffs have failed to establish their case, This appeal has therefore, no force and is hereby dismissed with costs. Learned counsel prays for leave to appeal which is refused. .;