D.D. Seth, J.
1. This is an appeal by the plaintiffs arising out of a suit for possession of a Dargah known as Dargah Khawaja Karak situate in a village near Kara. The plaintiffs also sought a declaration that they are the lawful Khadim mutwallis of that Dargah.
2. The plaintiff's case was that Hazrat Khawaja Karak was a well known Sunni Muslim saint and that his Dargah is visited by pilgrims throughout the year and that one Babu Shah Qalandar, who was the predecessor of the plaintiffs, was the Khadim of the Dargah, and that after Babu Shah Qalandar his descendants held the office of khadim and had been managing the affairs of the Dargah Paragraph No. 3 of the plaint may be reproduced because the learned counsel for the appellants have based their main contention on that paragraph. Paragraph No. 3 of the plaint reads as follows:--
'That ever since the time of the aforesaid Babu Shah Qalandar the plaintiffs and before them their predecessorshaving held the office of Kha-lifa and Khadims have been managing and look-ins after the Khandah, mosque and other buildings within the Ahata of the Dargah detailed at the foot of the plaint of the said saint and the annual 'Urs' also which is held on the 2nd day of the Hijri month of Rajah has been held under their management and control and the Sheerini, nazar and Chadar (i e. sweet, offerings and sheets) that the pilgrims (i. e. the Zaerren) offer were taken and appropriated by them in their own right as Khalifa and Khadim and the arrangement of light in the Khanqah and mosque and their maintenance has been done out of the proceeds thereof.'
3. The plaintiffs' case further was that four villages i. e. Sultanpur Khwaja Karak, Tilokpur, Roop Narainpur and Chak Narainpur Bengali were the subject matter of the wakf for the up-keep of the Khanqah and that Syed Shah Neyaz Ashraf, defendant No. 5, and Syed Badrul Hasan, defendant No. 6, and their predecessors were mutwallis of the wakf of the four villages but they had no right to manage the Dargah nor were they entitled to the offerings made in the Dargah and they were also not in possession of the same. According to the plaintiffs. defendant No. 5, Syed Shah Neyaz Ashraf had filed a suit (suit No. 14 of 1945) against the Sunni Central Board of Wakf in the court of the Civil Judge Allahabad praying for a declaration that the four villages did not constitute a wakf but were the personal property of the plaintiffs of that suit. The plaintiffs of the suit out of which the present appeal has arisen had contested that suit and that suit was ultimately dismissed and the four villages were held to be wakf property.
It was further stated by the plaintiffs that there were proceedings under Section 145 of the Code of Criminal Procedure between the parties and the learned Sub-Divisional Magistrate, by his order dated 2nd September 1950, ordered the Dargah to remain attached under Section 146, Criminal P. C. as it was not possible for him to decide which party was in exclusive possession and further directed the parties to get their title decided in a proper court of law. Against the order of the learned Sub-Divisional Magistrate a revision was filed before the learned Sessions Judge. Allahabad, and the learned Sessions Judge agreed with the learned Magistrate that question of the possession of the Dargarh was difficult to be decided in the circumstances of the case. The learned Sessions Judge also directed the parties to go to the civil court. In the meanwhile the U. P. Sunni Central Board of Wakf ap-pointed defendant No. 5, Syed Shah Neyaz Ashraf. as mutwalli of the Dargah under Section 56 of U. P. Muslim Wakf Act No. 13 of 1936 and also appointed defendants Nos. 2 to 8 as members of the Committee of the management of the Dargah, The plaintiffs alleged that those arrangements were illegal and without jurisdiction and the plaintiffs being the Khadims of the aforesaid Dargah were the only rightful persons entitled to the management of the Dargah and to the offerings made at the Dargah.
4. Defendant No. 1, Sunni Central Board of Wakf, hereinafter called the Board, and Syed Shah Neyaz Ashraf defendant No. 5, filed a joint written statement and a similar written statement was filed by defendants Nos. 2, 6 and 7. In defence it was admitted that the four villages referred to in the plaint were wakf property and were meant for the maintenance of the Dargah Khwaja Karak. It was placed that defendants Nos. 5 and 6 and their predecessors were mutwallis and Sajjadanashins of the Dargah. It was also pleaded that the plaintiffs were neither the descendants of Babu Shah Qalandar nor was Babu Shah Qalandar the mutwalli of the Dargah and it was further denied that plaintiffs were either khadims or mutwallis of the Dargah. It was further pleaded that the suit was barred under Section 26 of the Specific Relief Act and was also barred by limitation and by the principles of estoppel and acquiescence.
5. The learned Additional Munsif, Allahabad, believed the plaintiffs' case and held that the plaintiffs were the descendants of Babu Shah Qalandar and that the ancestors of the plaintiffs were in possession of the Dargah in dispute. The trial court also held that the possession of defendant No. 5, Syed Shah Neyaa Ashraf or of his predecessors, of the Dargah was doubtful. According to the trial court it could not be said that the defendants or their ancestors ever managed the Dargah in suit. The trial court was of the opinion that under Section 56 of the U. PT Muslim Wakfs Act No. 13 of 1936 the Wakf Board could appoint a new mutwalli only when there was a vacancy in the Tauliyat or when there was no one competent to be appointed as mutwalli in accordance with the terms of the deed and since the plaintiffs were in possession of the Dargah in dispute prior to the appointment of Syed Shah Neyaz Ashraf there was no vacancy in the office of mutwalliship. The trial court was further of the opinion that the plaintiffs did not claim right of mutwalliship by inheritence but they claimed it on the basis of being khadims of the Dargah and the Board could not appointSyed Shah Neyaz Ashraf as mutwalli over the plaintiffs who were sitting mut-wallis by virtue of their being khadims of the Dargah. The trial court also held that from oral evidence it was evident that Syed Shah Neyaz Ashraf was not appointed as sajjadanashin of the disputed Dargah by pilgrims assembled or by any congregation and on these findings decreed the plaintiffs' suit for declaration and possession.
6. In appeal by the defendants the lower appellate court framed the following three points for determination in the appeal:--
1. Whether plaintiffs are the Khadim Mutwallis of the Dargah in dispute as alleged? Or whether defendant No. 5. Shah Ashraf appellant is a de jure mutwalli of the Dargah having been validly appointed by the Sunni Central Board of Wakf, appellant?
2. Whether the suit is barred by Sections 65 and 75 of U. P. Muslim Wakf Act No. 16 of 1960?
3. Whether the suit is barred by time?
7. The lower appellate court held that in view of the judgment of civil suit No. 14 of 1945 the property in dispute was held to be wakf liable to be managed by the Board vide Ex. A.7. The lower appellate court further held that Khwaja Karak was a Sufi which went to show that his family members could not be Shias and that the plaintiffs in no way appeared to be connected with Khwaja Karak by any relationship. According to the lower appellate court the wakf in dispute was a Sunni wakf. The lower appellate court was of the opinion that there was dispute regarding mutwalli rights as is clear from the fact that there were proceedings under Section 145 of the Criminal Procedure Code and, as such, the Board had jurisdiction to appoint a mutwalli because there was a vacancy in the office of mutwalli. The lower appellate court further held that the plaintiffs based their claim of mut-walliship on the basis of inheritance from Babu Shah Qalandar but they had failed to prove themselves the decend-ants of Babu Shah Qalandar. The following observations of the lower appellate court are relevant and may be quoted as follows:--
'It has to be remembered that no written pedigree is to be found connecting the plaintiff with Baboo Shah Qalandar who existed in the hoary past and having perused the evidence of the plaintiffs' witnesses on the point of pedigree I am of the view that their testimony is vague and general and it would be a travesty to justice to conclude from their evidence that the plaintiffs are decendants of Shah Qalandar.'
8. The lower appellate court held the plaintiffs had miserably failed to establish that they were descandants of Babu Shah Qalandar and hence their plea that they had become khadim mutwallis by inheritance was false. The lower appellate court also held that defendant No. 5, Syed Shah Neyaz Asharaf was a validly appointed mutwalli and that the plaintiffs could not question the valid appointment of Syed Shah Neyaz Ashraf as mutwallis by the Board. Accordingly, the lower appellate court allowed the appeal of the defendants and set aside the judgment and decree of the trial court.
9. Feeling aggrieved by the judgment and decree of the lower appellate court the plaintiffs have come up in second appeal to this Court.
10. I have heard Sri Section J. Hyder, Sri Inamul Haq and Sri K. C. Saxena learned counsel appearing for the appellants and Sri Bashir Ahmad and Sri N. A. Kazmi, learned counsel appearing for the defendants respondents.
11. Before mentioning the contentions raised by the learned counsel for the parties it is necessary to state how the word 'khadim' has been interpreted judicially. In Haji AH Md. v. Anjuman-i-Islamia, AIR 1931 Lah 379 a Division Bench of Lahore High Court defined 'khadim' as follows:--
'Nor should the word 'Khadim' be interpreted to mean a servant, since it is a mode of describing the peculiar relationship which exists between a spiritual perceptor and his disciple.'
12. Mutwalli has been defined in Section 3, Sub-section (3) of the U. P. Muslim Wakfs Act. 1936 (Act No. XIII of 1936) as follows:--
' 'Mutwalli' means a manager of a Wakf or endowment and includes an amin, a sajjadanashin, a khadim, naib-mutwalli and a committee of management, and save as otherwise provided in this Act, any person who is for the time being in charge of, or administering, any endowment as such,'
13. Mutwalli has been defined in Tayabji's Muslim Law (4th Edn. at page 490) as 'the person entrusted with the fulfilment of the object of the wakf, and the carrying out of the directions given at the time of its dedication.'
14. Mulla, in his Principles of Mahomedan Law (16th Edn. at page 198) defines Mutwalli as follows:--
'Under the Mahomedan law the moment wafk is created all rights of property pass out of the wakif and vest in the Almighty. The mutwalli has no right in the property belonging to the wakf; the property is not vested in him, and he is not a trustee in the technicalsense. He is merely a superintendent or manager. The admissions of a mutwalli about the nature of the trust are not binding on his successors.'
15. The office of a mutwalli is not hereditary. (See Mulla's Principles of Mahomedan Law 16th Edn. page 206). But the office may become hereditary by custom, in which case the custom should be followed.
16. According to Mahomedan Law the office of a mutwalli is a secular office while that of a khadim or a sajjadanashin is a religious office. In the instant case the appellants claimed to be khadims mutwallis as is clear from the relief claimed in the plaintiff. In other words the plaintiffs did not claim to be mutwallis simpliciter.
17. The first contention of Sri S. J. Hyder is that the lower appellate court has wrongly assumed that the wakf in respect of the four villages dedicated to the Dargah Khawaja Karak and the wakfs in respect of the Dargah were the same entity. The wakf in respect of the four villages dedicated to Dargah Khwaja Karak was challenged in suit No. 14 of 1945, Shyed Ashfaq Husain and others plaintiffs versus Sunni Central Board of Wakfs and others defendants, and it was held in that suit by the learned Civil Judge, Allahabad, that the villages were wakf properties 'attached to the Dargah of Khwaja Karak for its maintenance and performance of the functions connected with it first and residue for the maintenance of the plaintiffs and Khadims.' The judgment of suit No. 14 of 1945 is Ex. A.7 on record.
18. There is no evidence on the record of this appeal to establish that there were two wakfs one in respect of the four villages attached to the Dargah and the other in respect of the Dargah itself. The learned counsel for the appellants were unable to point out to me that the wakf in respect of the four villages and the wakf in respect of the Dargah were separate entities. The Dargah Khwaja Karak was situate in village Sulatanpur Khwaja Karak and it appears, therefore, that the Dargah derived its name from the village itself and there was no separate wakf for the Dargah, as urged by the learned counsel for the appellants. It cannot, therefore, be said that the finding of the lower appellate court that there was only one wakf is. in any way, incorrect.
19. The learned counsel for the appellants next contended that the appellants were khadims of Dargah Khwaja Karak and the finding of the lower appellate court to the contrary is wrong. There is no force in this contention. The appellants claimed to be khadims mutwalliaof Dargah Khwaja Karak being descendants of Babu Shah Qalandar, who was said to be a close associate of the sufi saint, Khwaja Karak, but the lower appellate court has recorded a finding of fact that the appellants were unable to prove that they were the descendants of Babu Shah Qalandar and hence there does not seem to be any force in the contention raised by the learned counsel for the appellants that the plaintiffs were the khasims as they had descended from Babu Shah Qalandar, who was the first khasim of the Dargah.
20. The learned counsel for the appellants next contended that the plaintiffs did not base their claim to be the khadims of the Dargah only as descendants of Babu Shah Qalandar but also on customary right to act as khasims of the Dargah. The contents of paragraph No. 3 of the plaint have already been quoted in extenso above. From paragraph No. 3 of the plaint it does not appear to me that the plaintiffs relied upon any customary right to act as khadims of the Dargah. Moreover, no issue regarding the plaintiffs having customary right to act as khadims of the Dargah was framed in the trial court and no specific ground to that effect has been taken in the memo of appeal in this Court. I, therefore, do not find any force in the contention of the learned counsel for the appellants.
21. The last contention of the learned counsel for the appellants was that the Board could not have appointed Shyed Shah Neyaz Ashraf as mutwalli of the Dargah as there was no vacancy in the office of mutwalliship and the plaintiffs were already de facto khadims mutwallis of the Dargah and were competent to administer the affairs of the Dargah. According to the learned counsel for the appellants appointment of Shyed Shah Neyaz Ashraf as mutwalli of the Dargah by the Board was without jurisdiction. Ex. A. 10 is the order passed by the Secretary of the Board appointing Shyed Shah Neyaz Ashraf, as mutwalli of the Dargah and is dated 21st December 1957. It reads as follows:--
'In exercise of the power conferred under Section 56 of the U. P. Muslim Wakfs Act XIII of 1936, the President of the U. P. Sunni Central Board of Wakfs is pleased to appoint Sri Syed Shah Niyaz Ashraf as mutwalli of wakf Dargah Khwaja Karak No. 112. Allahabad. He will act as such till the Board directs otherwise.'
22. Ex. A. A. 1 is a certificate of the Secretary of the Board and is dated 17th October 1963 and reads as follows:
'This is to certify that the wakf relating to Dargah Hazrat Khowaja Karaksituate at Qasba Karak Distt. Allahabad is entered as a charitable wakf governed by the U. P. Muslim Wakf Act No. XVI of 1960 at No. 112 Allahabad in this office under the mutwalliship of Syed Niaz Ashraf. Villages Sultanpur Khowaja Karan. Roopnarainpur Goriaun, Narain-pur Bengali, Tilokpur and Sewad Khat Kara are recorded as wakf properties attached to this wakf. The said wakf was also published in the U. P. Government Gazette (supplement) dated 26-2-1947.'
23. Section 56 of the U. 'P. Muslim Wakfs Act, 1936 deals with appointment of mutwallis and reads as follows:--
'When there is a vacancy in the office of mutwalli of a wakf and there is no one competent to be appointed under the terms of the deed of wakf, or where the right of any person to act as mutwalli is disputed, the Central Board may appoint any person to act as a mutwalli for such period and on such conditions as it may think fit.'
24. It has already been stated above that there were proceedings under Section 145 of the Code of Criminal Procedure between the parties in respect of the Dargah, Thus, it is obvious that there was a dispute regarding mutwalliship and since the appellants claimed to be khadims and mutwallis of the Dargah as descendants of Babu Shah Qalandar and since they were unable to prove their descent from Babu Shah Qalandar there was obviously a vacancy in the office of the mutwaliiship and there being no deed of wakf the Board had full jurisdiction to appoint Syed Shah Neyaz Ashraf as the mutwalli of the Dargah.
25. The learned counsel for the appellants lastly contended that the lower appellate court has not taken into consideration some important documentary evidence such as Exs. 9, 10, 11 and 12, which are receipts of ground rent realised by the plaintiffs in respect of the Tehba-zari dues. There is no force in this submission. All the necessary and relevant documents were taken into consideration by the lower appellate court and if the lower appellate court did not specifically mention certain documents it does not mean that the judgment of the lower appellate court is vitiated for that reason.
26. The plaintiffs pleaded a specific case that they were khadims of the Dargah by virtue of being the descendants of Babu Shah Qalandar. In my opinion the plaintiffs neither pleaded custom or usage nor led evidence about custom or usage. Both the courts below found that the plaintiff's case was based on inheritance of khadimship from Babu Shah Qalandar and since the lower appellate court has recorded a finding of fact that the plaintiffs appellants werenot the descendants of Babu Shah Calan-dar that finding of fact cannot be set aside in second appeal and is binding on this Court.
27. As regards custom and usage they were not specifically pleaded by the plaintiffs in the plaint. If the plaintiffs based their case on custom or usage they should have actually pleaded custom in their plaint (See Salig Ram v. Munshi Ram. AIR 1961 SC 1374). The learned counsel for the appellants have taken me through the evidence adduced by the parties and I am not satisfied that the plaintiffs were able to establish that there was any special religious relationship with the plaintiffs and the religious preceptor, viz, saint khwaja Karak.
28. No other contention was raised by the learned counsel for the appellants.
29. For the reasons mentioned above I do not find any force in this appeal which is dismissed with costs.