1991 PLP 1726 (MLD)

(2) Whether the suit is not maintainable in the present form? O.P.P. (3) Whether the suit has not been correctly valued for the purposes of court fee and jurisdiction? If so, what is the correct valuation. O.P. Parties. (4) Whether the suit has been riled by duly authorised person? If not, with what effect? O.P.P. (5) Relief.

5. The learned Additional District Judge did not separately deal with each issue. His discussion centres round issue No.1 and the conclusion drawn by him after appreciation of the evidence particularly R.L.-II (Exh.C.1) was that the land did not belong to the mosque and had rather been allotted to Makhdoom Shah defendant/respondent as Khidmat Guzar of the mosque. After hearing the learned counsel for the parties, going through the record and the judgments delivered by the two Courts below, it seems that violence has been done to the pleadings, the factual position and evidence mis-appreciated and totally incorrect conclusion drawn by the learned Additional District Judge.

6. In para. 1 of the plaint, it is asserted that the plaintiff Masjid is the owner in possession of the suit land it was fertile and under cultivation, yielding sufficiently to the Masjid. In para. 2, it is asserted that the defendants acting in a greedy manner had conspired and executed an exchange deed with respect to the suit land whereunder unculturable land had been given to the morgue In para 3 it is specifically pleaded that the suit land is Waqf and not alienable. In para.4 the plea is that Makhdoom Shah who asserts himself to be `Khidmat Guzar' of the plaintiff Masjid had no connection therewith nor he had any right of alienation/exchange.

7. In the written statement filed by Makhdoom Shah, it is recited that the land obtained in exchange was better than the previous one and this was in the interest of the Masjid. In para.2 as well, it was reiterated that the exchange was rather for the benefit of the Masiid. In para. 3 a somewhat contrary stand is taken, on the one hand it is pleaded that in the form (perhaps the form of allotment is meant), the property related to the mosque, Sajjada was not the Matwalli of the mosque and on the other it is asserted that the property had been obtained by Jaroob Kash (who this fellow is? It is perhaps Makhdoom Shah himself) for his services rendered to the mosque. In para. 4 again the plea is that the interest of the plaintiff namely Sajjada was not only against the defendant but also against the interest of the mosque. So, the whole of the written statement filed by defendant No.1 can be interpreted to say that the land belongs to Masjid and at the same time the claim of defendant No.1 as having obtained it in lieu of his services is also there.

8. Defendant No.2 filed separate written statement raising the preliminary objection that Sajjada was not Matwalli of the Masjid, so had no locus standi to file the suit and that defendant No.1 was the Matwalli. On merits it was pleaded that the said property belonged to Masjid, had not been alienated and it had been exchanged for the benefit of the Masjid.

9. R.L.-II (Exh.C-1) is a pivotal document and its consideration is sufficient to clinch the matter. It indicates that the suit land was allotted as evacuee property in lieu of land left in village Rampur, Tehsil Narain Garh District Ambala. In column No.2 the title-holder recorded is: In the first three columns note recorded is: In spite of this note the order recorded is: There is nothing to show in the order that the evacuee land in lieu of land left in India had been confirmed in the name of Masjid, if so, which Masjid or whether it was confirmed in the name of Khidmat Guzar Faqeer i.e. Makhdoom Shah defendant. It appears that the copy of R.L.II (Exh.C.1) perhaps was not correctly prepared. If in column No.2 instead of word "Waqiya" word "Bazrea'' is read, the entry would be in proper language and also very clear i.e.

10. Leaving this aspect aside, whether the property stands transferred to the Masjid or to Makhdoom Shah as Khidmat Guzar of Masjid, the matter can be disposed of on legal plane. From the pleadings of the parties as reproduced above what one gathers is that the suit land belongs to Masjid (though there is contradictory claim of Makhdoom Shah as well, as taken note of above). If the land has been transferred to Masjid, the question would arise, in favour of which Masjid? The pleadings of the parties are silent on the point. If we stretch the matter to say that the evacuee property having been allotted in village Mathruma it stands transferred to the Masjid of the said village, the suit by Sajjada is not competent for the management thereof. He is not the Matwalli of the Masjid nor there is any claim by him in this behalf. Similarly we have no claim by Makhdoom Shah that he is a Matwalli of the Masjid of the village. If the property belongs to Masjid then it is in the nature of a public charity/public trust. The suit for the appointment/removal of Matwalli or management and administration thereof/settling a scheme, could only have been instituted either by the Advocate- General or two or more persons interested therein after having obtained the consent in writing of the Advocate-General. The suit by Sajjada for protecting the public charity/public trust was not competent. It was badly instituted right from its inception.

11. The upshot is that the revision petition is accepted. The decrees of the two Courts below are hereby set aside. The plaint is rejected under Order VII, Rule 11, Cr.P.C. If it is considered by Sajjada or other residents of the village that the property is of Masjid of their village then proper suit under section 92 of the Code of Civil Procedure may be instituted afresh. Parties are left to bear their own costs throughout. A.A./M-2898/L Order accordingly.