G. M. LODHA, J. - (1.) THIS is a defendants civil second appeal against the judgment of Addl. District Judge, Sawai Madhopur upholding the judgment and decree of Additional Munsif and Judicial Magistrate, Sawai Madhopur.
(2.) THE plaintiff respondents instituted a suit against defendant-appellants and respondents No. 4 to 15 with the allegations that a Haveli situate at Sawai Madhopur was purchased by the plaintiffs from Mst. Fatima Begum widow of Mirza Liyakat Ali Beg, Jagirdar on 18th September, 1958 for Rs. 5000/- by a registered sale deed and since then the plaintiffs are in possession. But defendants No. 2 to 12 with the assistance of other Muslims wanted to take forcible possession over two Kothas and Ikdare in the Haveli shown by Nos. 1 to 4 in the site plan, upon which the plaintiffs instituted a suit for permanent injunction against them but during the pendency of that suit these defendants on 14. 7. 59 took forcible possession over the said premises. THE plaintiffs and their tenants are in possession over the rest of the Haveli. THE plaintiffs withdrew the previous suit with liberty to file a fresh suit and thereafter they instituted the present suit. THEy alleged that these rooms are owned by the plaintiffs and the defendants or the other Mohammadans of Sawai Madhopur have no connection with the same. THE plaintiffs, therefore, instituted the suit for possession and for mesne profits at the rate of Rs. 10/- per month, amounting to Rs. 105/- upto the date of the institution of the suit. THE suit was filed against the defendants in representative capacity as representing the Muslims of Sawaimadhopur. THE suit was originally filed with Shri Syed Abid Ali, President of Anjuman Islamia, Sawai Madhopur as defendant No. 1 and also against the other defendants. Later on, on the death of Syed Abid Ali, Syed Farooq Hussain was substituted being the succeeding President, Anjuman Islamia Sawai Madhopur. Two written statements were filed, one by Syed Abid Ali and the other on behalf of the other defendants. THE defence took was that Mirza Liyakat Ali Beg was the Jagirdar of Thikana Sherpur, whose ancestor was Mirza Imam Bux, who was a Tazimi Sardar of former Jaipur State and on that account the places in Sawai Madhopur were called by the name of Mirza Ji ka Mohalla, Mirza Ji Ka Bagh, Mirza Ji Ki Masjid and Mirza Ji Ki Haveli. But Mirza Imam Bux or his heirs Mirza Liyakat Ali Beg or his wife had no connection with that Haveli. This Haveli was Wakf property for the last 100 years and in the disputed property Tazias etc. used to be prepared and kept and Majlis used to be held. THE property was thus Wakf property and was known as Imam Bada. From old times Tazia used to be prepared, kept and taken out of this property and was thus used as wakf property from very old times. It was never in the personal use of Mirza Liyakat Ali Beg or his wife. Even in the 1932 record there is a mention of Tazia of Mirza Mohalla. The learned trial court framed the following three issues : 1. Whether the disputed property was purchased by the plaintiffs from Mst. Fatima Begum w/o Mirza Liyakat Ali Beg on 18. 9. 58, and the said Fatima Begum had the right to sell it ? 2. Whether the defendants No. 1 to 12 took possession over the disputed property on 14. 7. 59 on behalf of the Muslims of Sawai Madhopur. 3. Relief. The plaintiffs examined 16 witnesses while the defendants examined 15 witnesses- Both the parties also produced documentary evidence. The learned trial court decreed the plaintiff's suit. On appeal the learned Additional District Judge upheld the judgment and decree of the trial court. Mr. Tikku appearing for the defendant-appellants has submitted that the judgment of both the courts are vitiated because no issue was framed on the relevant question whether the property in dispute was Wakf property nor there was any specific pleadings to the effect in the application or rejoinder of the plaintiff. Mr. Tikku's contention is that unless there is specific pleading on the point and an issue is framed, the parties could not have been accepted to lead evidence and this has resulted in failure of justice. The learned counsel for the respondents on the contrary was pointed out that the defendants lead evidence to show that the property in dispute was public wakf and having miserably failed in this attempt now this feeble attempt is being made in this court to raise a boggy of failure of justice.
(3.) THE learned counsel for the respondents pointed out that a bare perusal of the judgment of the first appellate court would show that both the courts were alive to the relevant issue because issues Nos. 1 & 2 makes it clear. It was argued that unless the defendants are liable to prove that it was a public wakf property they cannot succeed. In this connections issues No. 4 and 5 were also pointed out. The learned counsel for the respondents further submitted that in order to declare the property as wakf property there must be clear evidence of dedication and the ground of user is not sufficient nor it can become a substitute for dedication. Both the learned counsel tried to show the relevant evidence in this connection. Whereas Mr. Tikku pointed out that from the evidence it is proved that Tazia used to be prepared in this property and the access to this property for seeing Tazia. Mr. S. M. Ali, learned counsel for the respondents pointed out that the plaintiffs have proved that this was the personal property and Tazia used to be prepared on the personal expenditure incurred by Mirza Saheb and the property was never dedicated. ;