- (1.) THIS is a second appeal by the plaintiffs in a suit for recovery of rent. The appellants are Md. Shafiuddin, Ejaz Mahmood Khan, Nur Mohammad, Mahfooz Ali, and Haji M. Abdul Ghafoor Khan. A suit was instituted by them in the court of Munsif, Chhipabarod on the 20th of January, 1951, for recovery of Rs. 390/- as arrears of rent of three shops situated at Chhipabarod. The allegations were that there was a mosque known as Jama Masjid at Chhipabarod, which was managed by a Auqaf Committee of which the plaintiffs were members. Under the building of the mosque are several shops, the rent whereof is realised by the Auqaf Committee. It was alleged that the defendant Chaturbhuj was a tenant of the three shops, Nos. 1, 2 and 3, situated on the north side, at a rent of Rs. 13/ p. m. with effect from the 4th of January, 1947. It was alleged that he did not pay any rent from June, 1948, onwards inspite of demand and notices, and for that reasons the suit was instituted for recovery of Rs. 390/. as arrears of rent from June, 1948, to November, 1950.
(2.) THE defendant denied the plaintiffs to be the members of the Auqaf Committe, or that the said Auqaf Committee managed the affairs of the Jama Masjid. He pleaded that the plaintiffs were not authorised to institute the suit for the recovery of the rent of the said shops. It was also pleaded that the defendant had paid the rent to Maulvi Sarfraz Ahmed, and thereby had discharged his liability. The suit had a chequered career. The Munsif of Chhipabarod held that the frame of the suit was bad inasmuch as the Auquaf Committee was not a registered body. On appeal the plaintiffs were allowed to amend their plaint so as to make it on behalf of the plaintiffs as well as other Mahome-dans interested in the mosque for their benefit. The suit then came to be transferred to the file of the Munsif, Baran, and it was decreed in favour of the plaintiffs on the 29th of March, 1954. On appeal, the learned Civil Judge, of Baran allowed the appeal, and dismissed the suit on the ground that the plaintiffs were not authorised to institute the suit. The findings of the learned Civil Judge are that the shops, the rent whereof is claimed, pertains to the Jama Masjid of Chhabra. It was also held that the occupation of the defendant was only by way of a tenant. It was held proved that the property of the Jama Masjid at Chhabra is managed by a committee of which the plaintiffs were members. He, however, was of the view that there was no relation of land, lord and tenant between the plaintiffs and the defendant, as the defendant had been taken as a tenant not by the Auqaf Committee but by the department of Shara Sharif of the Riyasat of the then Tonk State, and it was not clear how the plaintiffs came to be the successors in title of that department. Mahfooz Ali P. W. 1 has explained that there was a department of Shara Sharif in the Tonk State, and used to deal with the affairs pertaining to waqfs at Chhabra. Maulvi Sarfraz Ahmed Khan was the Secretary of the Auqaf Committee under the department of Shara Sharif, but some time ago he had retired. It was then said that this department of Shara Sharif had come to an end, and the Aquaf Committee was re-organised by the Musalmans of Chhabra, and the present plaintiffs were its members. The statment of Chatur Bhuj makes it clear that Sarfraz Ahmed was the officer of the Shariyat Department, who had taken the defendant as tenant. It is also admitted by him that the affairs of this mosque Jama Masjid were then conducted by the Shariyat Department, and on behalf of that department Sarfraz Ahmed Khan had taken him as a tenant. The documents, which had been produced by the plaintiffs support this fact that the defendant was taken as a tenant of three shops by Sarfraz Ahmed as officer of the department of Shariyat. On the finding of the learned Civil Judge that the affairs of the Jama Masjid of Chhabra are now managed by the Auqaf Committee consisting or the plaintiffs, it is abundantly clear that the plaintiffs had the right to sue. Learned counsel for the defendant contended that the mosque had been constructed by the Nawabs of Tonk, and an officer on behalf of the Nawab used to manage the affairs and it had not been proved how the management came to the hands of the Auqaf Committee. In the matter of trusts it is the de facto trustee who has the right to take steps for the protection of the trust. If the taking of the management of the trust by the plaintiffs is in any way defective, that is a matter which can be agitated separately between the persons really entitled to the management thereof and the persons who have, so to say, usurped that management. But so-far-as the third party is concerned it is the de facto trustee who has a right to take steps for the protection of the trust property. It was urged that Jama Masjid was not a waqf property. This is contradiction in terms. A mosque is a place where people can say their prayers, and is a waqf property irrespective of the fact that the mosque was built by some private individual. The shops are situated under the mosque, and their rent is to be utilised for the benefit of the mosque. In the circumstances the lower court was wholly erroneous in dismissing the suit on the ground that the plaintiffs were not authorised to institute the suit. The appeal is accordingly allowed, the judgment and decree of the learned Civil Judge, Baran, dated 16th August, 1954, are set aside, and that of the learned Munsif dated 9th March, 1954, restored with costs throughout. . ;