P L D 1957 (W (PLP)

KAIKAUS, J.‑The suit out of which this appeal arises relates to a mosque which is adjacent to a well‑known shrine of Lahore, Khanqah Pir Makki. The plaintiff in the suit who is a minor alleged in the plaint that the mosque is attached to Khanqah Pir Makki, that his father Allah Ditta was the Sajjadanashin and Mutawalli of the Khanqah as well as the mosque, that he had by a will dated the 5th of May 1948, nomi nated the plaintiff: as his successor and that just after this nomination, lie had handed over the management of the shrine and tile mosque to the plaintiff, having appointed for the period of his minority a committee to manage on his behalf. It was further alleged that since then the committee had been managing tile affairs of the mosque and the shrine and had been appointing the Imam of the mosque but that some time before the institution of the suit the first of the two defen dants, Qari Bashir Ahmad, had assumed to himself the functions of an Imam while the second defendant, Hakim Zafar Ali, had set himself up as a Khatib. It is explained that on the 4th of August 1951 the supporters of the defendants had beaten and turned out of the mosque the Imam appointed by the plaintiff, that subsequently the matter having come up before the managing committee another Khatib and Imam was appointed by the committee and that on the 24th of August 1951 to prevent the appointee of the committee from discharging his duties, the two defendants came to the mosque along with their supporters and assaulted the General Secretary of the managing committee, at which a report had been made to the police. It was contended that the management of the mosque, which had been carried on during his lifetime by the father of the plaintiff: and since the nomination of the plaintiff: by the plaintiff through the managing committee, vested in the plaintiff: and that no person could act as an Imam or a Khatib unless he was appointed by the plaintiff. The defendants were, therefore, trespassers and had no right either to act as Imam and Khatib or to interfere in any way in the management of the mosque. The reliefs claimed were a perpetual injunction restraining the defendants from interfer ing in the management of the mosque and prohibiting them from acting as Imam and Khatib. The defendants denied that the mosque was, attached to the shrine of Pir Makki or that the plaintiff or his father was a validly appointed Sajjadanashin or Mutawalli. They claimed that they had been appointed by the mohalladars, i.e. the persons who said prayers in the mosque. The following issues were framed :

(1) Whether the mosque in question is attached to the shrine ? (2) Whether the plaintiff is the Mutawalli and as such the manager of the mosque ? (3) Whether Allah Ditta deceased was not entitled to appoint the Mutawalli or the managing committee ? (4) Whether the defendants have trespassed in the mosque and are carrying on as Imam and Khatib without any right ? (5) Whether the defendants were appointed by the mohalladars ? If so, whether such an appointment is valid ? (6) Relief. The learned Civil Judge Fourth Class, who tried the suit found all issues in favour of the plaintiff and decreed the suit. On appeal the learned Senior Civil judge came to the conclusion on issue No. 1 that the mosque is not proved to be attached to the shrine at all. He held further that there was no proof of Allah Ditta having been validly appointed Mutawalli of the shrine though he conceded that Allar Ditta as well as his predecessor Allah Bakhsh, whose balka he claimed himself to be, had been acting as Mutawallis of the shrine. He further held that even if Allah Ditta, the father of the plaintiff, was the validly- appointed Mutawalli, the plaintiff was not such. a Mutawalli, for in the first place his nomination was not proved to have been made during Marz-ul-Maut which was essential for a valid nomination and in the second place the plaintiff was a minor who could not become a Mutawalli except in circumstances mentioned in paragraph 164 of Mulla's Muhammadan Law which circumstances were not present. Holding, therefore, that neither the mosque was proved to be attached to the Khanqah nor the plaintiff was proved to be a validly appointed Mutawalli, he accepted the appeal and dismissed the suit. This is an appeal by the plaintiff. After going through the record, I have come to the conclusion that I should accept this appeal. The manner in which I will proceed is: I will first hold that this mosque is attached to the Shrine Pit Makki; I will then hold that there is no need of going into the question of the validity of the appointment of the Mutawallis, for there can be no doubt that the plaintiff as well as his father have been managing the mosque, and being de facto Mutawallis their management cannot be interfered with. On the question of the mosque being attached to the shrine, there is a finding of fact by the learned Senior Civil judge and it is first to be explained how that finding of fact is vitiated. It is vitiated for more than one reason. The first is that au important document, i.e., a judgment in a previous suit relating to Shrine Pit Makki has been improperly excluded from evidence by both Courts. This document was tendered in evidence on behalf of the plaintiff on the 18th of January 1955, the day on which the plaintiff closed his case, along with an application under Order VII, rule 18, Civil P. C., praying that the document be admitted in evidence. It was stated in the application that the plaintiff was a minor, that his next friend, i.e., his mother, was a pardanashin lady who was unaware of the suit in which the judgment was delivered and that the failure of the plaintiff to produce the document earlier was not due to any negligence. It was pointed out that the document was one about whose genuineness there could not be any doubt. On this application the learned Civil judge passed the following order:

" I have heard the arguments of the learned counsel for both sides. The document is only tendered by the counsel for petitioner and by no witnesses. The document is allowed to be on the file as having been tendered." This order, to my mind, means that the document was allowed to be put in evidence subject to any objection on the ground of want of evidence connecting it with the subject-matter in dispute. However, in spite of this order, at the time when the case was argued, the learned Civil judge, on the objection of the defendants, excluded this document from consideration on grounds which I reproduce verbatim from the judgment :- " (1) No reliance was placed on the document in the list under Order VII, rule 14. (2) It was tendered at a very late stage. (3) The document was submitted not by any party but by the counsel for plaintiff. This quite deprived the defendant of any opportunity of cross-examination or explaining the document. It is just possible that the suit had gone in appeal or revision and also possible that the judgment might have reversed. Under the circumstances I don't find it safe to admit the document." I do not think the learned Civil Judge was entitled to pass this order which amounted to a supersession of his earlier order, for no fresh grounds had arisen after his first order for a reconsideration of the matter. I would also hold this order to be improper even if the earlier order did not exist, I have already dealt with the question of admission in evidence, of such documents in The Lahore Improvement Trust v. Messrs. Khuda Bakhsh-Meraj Din (1). Let me explain that whenever a document is produced before a Court to the admission of which objection is taken on the ground that it was not relied upon in the list of documents submitted by the party, or that it was not produced at the first hearing of the suit in accordance with Order XIII, rule 1, Civil P. C., the Court has to consider :(P L D 1956 Lah. 252) whether there are good grounds for the failure to enter it in the list or to produce it at the first hearing, (2) is there any doubt about the genuineness of the document (?) (3) will the opposite party be prejudiced by the fact that it had no timely notice of the intention of this party to produce the document and if there be possibility of such prejudice, will there be too great a delay in the conduct of the case by granting the opposite party an opportunity to rebut this document (?) whether the delay will be unreason able depends on the circumstances of each case. The learned Civil judge has failed to apply his mind to the relevant matters. He does not revert to the fact that plaintiff was a minor and that the reason given for lack of knowledge :of the document is a good one. Nor does he consider whether there will be any unreasonable delay in the conduct of the case if the other party is allowed an opportunity to rebut this document. His argument that the document had not been submitted by the party itself but by counsel does not at all appeal to me. I am unable to see that difference it could have made if the next friend of the minor had tendered the document instead of the counsel. While tendering documents it is not necessary for a party to take an oath. Nor does the argument appeal to me that there was a possibility of the judgment having been set aside on appeal or revision. The other party could easily have found out whether this was so and if the other party had ever brought to the notice of .the trial Court or the appellate Court that this judgment had been reversed or varied, the Court would, without hesitation, have received in evidence the order by which it was set aside or varied. On appeal the learned Senior Civil Judge did not deal with this matter at any length and simply observed that this document had been properly excluded from evidence. That this document contains evidence of some importance in connection with the question whether the mosque is attached to the shrine will appear when I deal with the evidence. I hold that its exclusion constitutes a legal defect in the finding of fact. In order to explain the second defect in the finding of the learned Senior Civil Judge, I have to refer first to the evidence on the record relating to the fact of the mosque being attached to the shrine. The mosque, as already stated, is adjacent to the shrine and on the gate of the mosque there is the inscription to the following effect :‑ As will appear from the inscription, this mosque was rebuilt in the year 1938 by Mst. Allah Rakhi widow of one Mian Badar Din. In addition to other evidence that was placed on the record relating to the management of this mosque by Allah Ditta, father of the plaintiff, and by the plaintiff, Miran Bakhsh, a nephew o: Mst. Allah Rakhi, had also been produced as a witness. He stated that he had got this mosque constructed at the instance of Mst. Allah Rakhi and that after the mosque was built he had handed it over to the Mutawalli of the shrine of Pir Makki who had been managing it since then. This evidence if accepted as true was important. The learned Senior Civil Judge, however, disregarded the statement of Miran Bakhsh, saying that he was an interested witness. He did not state how he was interested. I have gone through the record and do not find anything which could show that he had an interest in making a false statement.. Nor has the respondent been able to draw my attention to anything which may show that the witness was interested. Another defect in the finding of the learned Civil Judge is that in considering whether the admitted possession of the plaintiff of the cellar of the mosque was evidence of his management, he omitted to note that in this cellar was kept movable property belonging to the moseque. It had been admitted on behalf of the defendants that the cellar was in the possession of the plaintiff through his mother. The learned Senior Civil judge said this was no good evidence of the possession of the mosque itself by the plaintiff because the mosque being adjacent to the plaintiff, the possession of the cellar may have been taken by the plaintiff without any, objection by any person. He did not note that according to the statement of Basin: Ahmad defendant himself in the wit mess‑box in this cellar was kept movable property belonging to the mosque. Having shown that the finding of the learned Senior Civil judge is vitiated by errors of law, I will now proceed to state in brief the evidence on the file relating to the fact of the mosque being attached to the shrine, A number of witnesses have stated that the mosque was in the possession and management of Allah Ditta during his lifetime and has since his death been in the possession, of the plaintiff through the managing committee. True, these witnesses are, with the exception of Miran Bakhsh, members of the managing committee, but in the first place there is no reason to doubt at least the statement of Miran Bakhsh and in the second place there is no counter‑story as to the management of the mosque. It is admitted that monthly bills of this mosque for electricity as well as water have to be paid and there is no suggestion even on the record on behalf of the defendants that these bills have ever been paid by any person except the managing committee. Some witnesses have been produced on behalf of the defendants who do make statements that this mosque is not attached to the shrine, but when they were asked as to payment of the bills for electricity and water, they pleaded ignorance. It was then suggested to one of them, and it has been asserted before me too, that the meter of the mosque and the shrine is common, but the witness did not accept or reject the suggestion. The evidence of the members of the managing com mittee is supported by the agenda‑book of the committee. It is impossible to say, and in fact it has not been suggested on behalf of the defendants, that this book is fabricated. On the other hand parts of these proceedings have been relied upon by the defendants themselves in cross‑examination. In the minutes of the proceedings for the 15th of October 1950. it is recorded that Khan Sahib Dr. Muhammad Abdullah and Malik Khuda Bakhsh, two members of the committee, were not agreeable to the proposal for turning out defendant No. 1, and they were of the opinion that defendant No. 1 should be employed as an Imam. These two members of the committee do not now accept that they had in fact differed with the other members, but that does not affect that infer ence as to the genuineness of the agenda‑book. It rather shows that the book is genuine because the entry of the difference of opinion between the members of the committee would not in any way be of help to the case of the plaintiff. The accounts of the expenditure incurred by the Khanqah for the mosque have been produced oil behalf of the plaintiff. The trial Court relied upon them. The learned Senior Civil judge ignored them oil the ground that they could be manufactured at any time, but Dr. Irshad Husain who proved them and who deposed to the fact that the amounts mentioned in the accounts had been spent under his supervision was not even cross‑examined on the point. I would agree with the trial Court and would rely upon the account (Ex. P.4) in proof of management of the mosque by the plaintiff. I have already referred to the admission of the defen dant in the witness‑box that the cellar of the mosque in which is lying the movable property of the mosque is in the possession of the plaintiff. This fact by itself is not unimpor tant evidence, in the absence of any explanation, of the management of the mosque by the plaintiff. Important also in this connection is the judgment which was excluded from evidence by both the lower Courts. This judgment was delivered in a suit filed by Khuda Bakhsh, etc., for a declaration of ownership as to one‑half share of 6 Kanals and 3 Marlas of land which area comprises the Khanqah and its appurtenant buildings. The plaintiff's father who was the contesting defendant in this suit pleaded that he and his predecessor Sufi Allah Bakhsh had been in possession of the Khanqah as well as the mosque for a very long time. The mosque and the Khanqah were represented by him as being parts of one and the same waqf. This fact was not even contested by the opposite party. The Court found that Sufi All Ditta and his predecessor‑in‑interest had been managing the waqf for long. It may be explained here, as the judgment is one of the year 1921, that the mosque had only been rebuilt in 1938 as has already been stated. While admitting this judgment in evidence I have not felt the necessity of allowing the opposite party an opportunity of rebuttal because I have interpreted the order of the trial Court passed on the application for admission of this judgment in evidence as an order accepting the application and allowing the judgment to be produced in evidence. No prayer was made at the time by the defendant for an opportunity to lead further evidence in rebuttal of this judgment and the order had been passed before the plaintiff closed his case. In any case, the defendants could only be entitled, considering the circumstances, to produce an order by an appellate or revisional Court setting aside the judgment. It is not even contended on behalf of the respondents that this judgment was ever set aside. Holding that the mosque has been under the management of the plaintiff and his father, I do not feel the necessity of going into the question of the validity of the appointment of the plaintiff for his father. The plaintiff is without doubt the de facto Mutawaill of the mosque and as such he is entitled to continue his management without interference by any person till there is a valid appointment of a Mutwalli (assuming that his appointment is not valid). That a de facto Mutawalli has the right of the management and of taking proceedings in the name of the waqf is a proposition well established by authority. In Sheikh Ghulam Mohy‑ud‑Din v. Muhammad Din (A I R 1939 Lah. 313), one objection was raised in a suit for possession by the Mutawalli that the defendant who was contesting the suit on behalf of the waqf was not a valid appointed Mutawalli. The learned judge said: "The defendant claims to be the Mutawalli and is in possession as such. Whether his appointment is valid or not, is a matter which cannot be decided in this suit. He claims to be in possession on behalf of the khankah. If the plaintiffs or the other worshippers of the shrine think that his appointment is invalid, they may establish their contention in another suit. But so long as he continues to be the Mutawalli he cannot be dispossessed." In Muhammad Soleman Molla v. Tasadduq Hussain (A I R 1935 Cal. 623), it was held that a person without legal right but in actual possession of a math or any other endowment is entitled to maintain a suit for recovery of possession apper taining to it, not for his own benefit, but for the benefit of the math or endowment. The case was one of a Muslim waqf and the parties were Muslims. In Wajad Ali Shah v. Sm. Dadannessa Bibi (A I R 1947 Cal. 282), it was held that a de facto Mutawalli of a waqf can appoint an Imam. In Abdul Qadir Shah v. Straj‑ud‑Din (A I R 1937 Lah. 9), it was held that a de facto trustee can sue even for possession or property improperly alienated by his predecessor. Mahadeo Prasad Singh v. Karia Bharthi (A I R 1935 P C 44), Debendra bath Mitra Majumdar v. Sheikh Sefatula (A I R 1927 Cal. 130), Subramania Gurukkal v. Abhinaya Poornapriya v. Srinivasa Rao Sahib (A I R 1940 Mad. 617) and Hari Mohan Modak v. Ramaswar Das (64 I C 737), are cases of Hindu religious endowments wherein it has been held that a person in de facto management of the property as shebait or mahant is entitled to act on behalf of the endowment and to recover the property belonging thereto. The principle of these cases is applicable even to the case of a de facto Mutawalli, for they proceed not only on any ground peculiar to Hindu Law but on general principles. I hold, therefore, that the plaintiff is entitled in his capacity as a de facto Mutawalli to appoint an Imam and that no person can act as an Imam or Khatib against his will. I should state here that there can be no objection to my deciding this case on the basis of the plaintiff being a de facto Mutawalli although there was no specific issue in respect of it. I have no doubt that there is no question of any prejudice J to the defendants by adopting such a course. It had been alleged in the plaint that the plaintiff and his predecessor had been in the management of the mosque and this fact has been denied in the written statement. In the issues proposed by the defendant there was an issue relating to management. The evidence led by both parties relates mostly to the manage ment of the mosque. It cannot, under the circumstances, be urged, and in fact it has not been urged. that with respect to actual management or possession, there was any evidence which has not been led because there was no specific issue. An objection has been taken on behalf of the respondent that a minor cannot be appointed a Mutawalli except in special circumstances. As would appear from para. 203 of Mulla's Principles of Muhammadan Law, 13th Edition, a minor can be appointed as a Mutawalli if the offence is hereditary or if according to the mode of succession laid down by the founder a minor is to become a Mutawalli. There is, therefore, no insuperable objection to a minor becoming the Mutawalli of a mosque. If a minor can be appointed a Mutawalli under some circumstances, he can very well be recognised as a de facto Mutawalli. A de facto Mutawalli is one who is in actual management. As a result of the above findings, I accept the appeal and setting aside the decree of the learned Senior Civil judge, decree the suit with costs throughout. A. H. Appeal accepted.