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Khalil Ahmad and anr. Vs. Sheikh Mohd. Askari and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 116 of 1952
Judge
Reported inAIR1965All320
ActsMahomedan Law; Debt Law; Uttar Pradesh Encumbered Estates Act, 1934 - Sections 11(2), 24 and 24(4)
AppellantKhalil Ahmad and anr.
RespondentSheikh Mohd. Askari and ors.
Appellant AdvocateN.A. Kazmi and ;K.C. Saxena, Advs.
Respondent AdvocateR.R. Agarwal and ;B.L. Gupta, Advs.
DispositionAppeal dismissed
Excerpt:
.....mosque in the muhammdan law. the general observations quoted above, therefore, relate only to a public mosque and not to a private mosque like the one in dispute. in the present case, though the appellants went to the extent of saying that the mosque situate in the compound of pili kothi was a public place of worship, yet they conceded that the main residential building as well as the outhouses etc. like a private chapel in england or a private hindu temple in india, there could also be a private mosque for offering prayers by the owner and the members of his family. obviously, it could not have been suggested that simply because those buildings were shaped and domed like mosques and the members of the royal family regularly offered prayers therein, the same had become wakf property..........liable to be sold for the satisfaction of the debts of the landlord, on the ground that it was a public mosque and all the muslims, specially those residing in the locality, had a right to say their prayers in it. two of the creditors as well as the aforesaidpurchasers, namely, smt. mansa devi and rajwanti devi contested the aforesaid objection mainly on two grounds, viz. (1) that the objection was barred by limitation prescribed under sub-clause (2) of section 11 of the act, and (2) that the mosque in question was a private one belonging to the owner of the pili kothi, to which the muslims at large had no access or right to offer prayers therein. it was, therefore, contended that the owner had full right to sell it away to the ladies aforesaid. 2. the learned special judge found that.....
Judgment:

Gyanendra Kumar, J.

1. This is an appeal by the objectors, whose objection under Section 11 of the U. P. Encumbered Estates Act thereinafter referred to as 'the Act') was dismissed by the Special Judge, First Grade, Saharanpur by an order dated 3rd December, 1951. Mohammad Askari (respondent No. 1) had made an application under Section 4 of the said Act, which, on being transferred to the Special Judge, was registered as Suit No. 35 of 1936. The written statement of the applicant and claims of the creditors were duly filed under Sections 8 and 9 of the Act respectively. Ultimately on 8-1-1938 a notice under Section 11 of the Act was published in the U. P. Gazette, specifying the property mentioned by the applicant under Section 8 of the Act. In due course, the Special Judge passed decrees under Section 14 of the Act, and transmitted them to the Collector of Saharanpur for execution in accordance with the provisions of the Act. Consequently the S. D. O. Roorke started liquidation proceedings. On 21-6-48 both the appellants filed an objection before the S. D. O. saying that a portion of the debtor's house known as 'Pili Kothi' was not liable to be sold in satisfaction of the debts of the landlord, inasmuch as there existed a pukka mosque in the north-western corner of the compound of this Kothi.

Thereafter the S. D. O. issued a sale proclamation fixing 26-11-48 for auction sale of Pill Kothi including the mosque in question. However, in the meantime, the landlord obtained permission of the S. D. O. to sell that property by private negotiations. The S. D. O. allowed the requisite permission, provided the entire sale consideration was deposited in his court for payment to the creditors. in this connection it may be mentioned that under Section 24(4) of the Act, the Collector may exercise all the powers of a Civil Court for the execution of a decree. Under Order XXI, R. 83 C. P. C. the execution court may postpone the sale of the property and allow the judgment-debtor to effect a private sale thereof. Thus the S. D. O was fully competent to allow the landlord to make a private sale of the Fill Kothi under the provisions of Section 24 of the Act itself.

Accordingly the debtor sold the Kothi in question along with the mosque on 30th October, 1948, to Smt. Mansa Devi and Smt. Rajwanti Devi, who are respondents Nos. 8 and 9 to this appeal. However, on 23rd December, 1948, the objectors filed a similar objection before the Special Judge under Section 11 of the Act saying that a portion of the Kothi comprising of the mosque was not liable to be sold for the satisfaction of the debts of the landlord, on the ground that it was a public mosque and all the Muslims, specially those residing in the locality, had a right to say their prayers in it. Two of the creditors as well as the aforesaidpurchasers, namely, Smt. Mansa Devi and Rajwanti Devi contested the aforesaid objection mainly on two grounds, viz. (1) that the objection was barred by limitation prescribed under Sub-clause (2) of Section 11 of the Act, and (2) that the mosque in question was a private one belonging to the owner of the Pili Kothi, to which the Muslims at large had no access or right to offer prayers therein. it was, therefore, contended that the owner had full right to sell it away to the ladies aforesaid.

2. The learned Special Judge found that the claim of the objectors was barred by the limitation prescribed under Section 11(2) of the Act. It was further held that the mosque in question was not a public mosque but was the private place for worship by the owners of the Kothi. Accordingly the objection of the appellants was dismissed; hence this appeal.

3. Section 11(2) of the Act, as it stood at the relevant time, reads as under:

'Any person having any claim to the property mentioned in such notice shall, within a period of three months from the date of the publication of the notice in the Official Gazette make an application to the Special Judge stating his claim and the Special Judge shall determine whether the property specified in the claim, or any part thereof, is liable to attachment, sale or mortgage in satisfaction of the debts of the applicant:

Provided that if the claimant satisfied the Special Judge that he had sufficient cause for not making his application within the above period, the Special Judge may receive such application, if presented, at any time before such property is transferred to any person under the provisions of Sections 24 etc.........'

4. I have already shown above that under Section 24(4) of the Act the Collector was fully competent to allow the landlord to make a private sale of his house in the liquidation proceedings. The sale dated 30-10-1948 in favour of Smt. Mansa Devi and Smt. Rajwanti Devi respondents was well within the meaning of Section 24 of the Act, with the result that even if the Special Judge wanted to condone the delay on the part of the appellants in raising their objection under Section 11(2) of the Act, the same could not have been granted by the Special Judge after the property had been transferred to the two ladies aforesaid by virtue of the sale deed executed by the landlord on 30-10-1948.

5. Secondly, the period of limitation within which the appellants could have raised an objection under Section 11(2) of the Act is only 'three months from the date of the publication of the notice in the Official Gazette'. it is the admitted case of the parties that the notice under Section 11 was published on 8-1-38. Therefore the appellants could have, as of right, filed their objection under Section 11 by 8th of April, 1938. They could, how-ever, file the same later on as well, provided they succeeded in satisfying the Special Judge that they had sufficient cause for not making the objection within the prescribed period of three months. in their objection dated 23-12-48 the appellants had not given any reason for condonation of the delay.

In this Court, however, it has strenuously been argued by Mr. K. C. Saxena, learned counsel for the appellants, that his clients had been misled by the description of the property as given in the notice dated 8-1-38, duly published under Section 11 of the Act, in which the mosque had not been specified to be one of the properties liable to be attached or sold for the satisfaction of the debt of the landlord. it was further contended that the appellants having already filed a similar objection before the S. D. O. they were bona fide under the impression that the same would be transmitted to the Special Judge for necessary action. On 17-11-1950 the court below had recorded the statement of the learned counsel for the objectors on the point. Their counsel Sri Sham Ahmed accordingly stated as follows--the underlines (here into ' ') are mine .-

''The mosque' in respect of which the objection has been filed 'is included in the property shows by Mohammad Askari,' the debtor-applicant, in the list of property filed along with his written statement under Section 8 Encumbered Estates Act and published in the U. P. Gazette under Section 11 of the Act. Though full particulars of the mosque have not been mentioned, 'the objectors-applicants have filed this application only on this ground that the property in dispute does not belong to Mohammad Askari' the debtor, and 'he has wrongly shown it in his application under Encumbered Estates Actas his property.' As a matter of fact it is wakf property.'

In the above state of things, I am afraid it is not open to the appellants to set up a new case in this Court, which had not been taken before the Special Judge at the appropriate time. It wasessentially a question of fact, which had to be determined by the Special Judge whether the objectors had been so misled as not to be able to file their objection within the prescribed period. Moreover, as already observed above, the objectors had filed a similar application before the S. D. O. Roorke on 21-6-48. Therefore, it is abundantly clear that at least on 21-6-1948 the appellants knew that the mosque had also been considered to be the private property of the landlord and was being dealt with in the liquidation proceedings pending before the S. D. O. No reason whatsoever has been shown as to why the appellants waited for another six months to lodge their objection before the Special Judge on the 23rd December, 1948. When they had actually filed their first objection before the S. D. O., they could not have legitimately expected that the same would be transmitted to the Special Judge for orders. Such an objection under Section 11 of the Act is to be filed only before the Special Judge, which the appellants had failed to do in time. The Court below was, therefore, perfectly Justified in holding that the objection filed by the appellants was clearly barred by limitation.

6. The court below has dealt with the evidence of the parties in detail and has rightly come to the conclusion that the mosque in question was the private place of worship, constructed by the owners of the Pili Kothi for their personal use. The mosque is situate within the compound of the Kothi, surrounded on all sides by a boundary wall.

There is no separate compound or demarcation for mosque, nor does any independent road lead thereto. The road meant for the ingress and egress to and from the Kothi stops short at quite a distance from the mosque, which is not even served by a regular passage. The evidence led by the appellants to the effect that the members of the Muslim community in general used to offer prayers in the said mosque as of right, was wholly unsatisfactoryand was rightly rejected by the Special Judge. It is further on record that the owners of the Kothi had freely dealt with the property and had transferred the same to various persons from time to time (including the mosque in question). This also shows that it was a private mosque of the owners of the Pili Kothi and was by no means a public mosque, to which the Muslim community at large might have had a right of access and worship.

7. Mr. K.C. Saxena, learned counsel for the appellants has drawn my attention to the sale deed dated 30.10.48 (Ext. 10) executed by Mohammad Askari in favour of two of the respondents Smt. Mansa Devi and Smt. Rajwanti Devi. The relevant portion of the last sentence in the sale deedstates that in spite of the sate 'the old mosqueshall stand heretofore'. The suggestion of Mr. Saxena is that the special provision made at the and of the deed shows that the mosque was apublic place of worship, and on that account it was made Incumbent that the transferees shall not demolish the same. He maintains that there isnothing like a private mosque in the Muhammdan Law. Once a place is set apart for saying prayers, it is automatically dedicated to the Almighty God and becomes a wakf property. in support of his contention Mr. Saxena has relied upon a FullBench decision of this court in Ataullah v. Azimullah, ILR 12 All 494 (FB). That was a case admittedly relating to a public mosque in which themembers of the Sunni, Mohammedans claimed a right of worship, to the exclusion of other sects of Muslims. it was in that context that their lord ships had observed.-

'According to the Mohammedan Law, a mosque cannot be dedicated or appropriated exclusively to any particular school or seel of Sunni Mohammadans. It is a place where all Mohammadans are entitled to go and perform their devotions as of right, according to their conscience. No one sector portion of the Mohammadan community can restrain any other from the exercise of this right. Members of the Mohammadi or Wahabi sectare Mohammadans. and as such entitled to perform their devotions in a mosque, though they may differ from the majority of Sunni Mohammadans at particular points.'

AS already mentioned earlier, the above case related admittedly to a public mosque, though alleged to have been built by the Haneefi sect of Mohammadans. It was not a case of an alleged private mosque, as is the position here. The general observations quoted above, therefore, relate only to a public mosque and not to a private mosque like the one in dispute.

8. The appellants then relied upon the caseof Maher Husein v. Alimahomad Jalaluddin AIR 1934 Bom 257 in which the dispute related to a mosque at Ahmedabad, which had been raised by Momin sect of the Mohammadans founded by Pir Mushayak. His tomb was also constructed in the neighbourhood of the mosque and was an object of veneration to the devotees of the Momin faith. Amours was also held every year on the anniversary of the death of the saint. The contention of defendant No. 1 to that suit was that the properties in question had been dedicated to the Pir by his devotees, which were, therefore, claimed to be the personal properties of the Pir and his successors. In the above circumstances, their Lordships of the Bombay High Court had observed : --

'When once a building has been set apart as a mosque it is enough to make it a wakf if public prayers are once said there with the permission of the owner. But though a declaration of dedication and completion by some act giving practical effect to it are essential, it was not always necessary that there should be any direct evidence of these things. Dedication may be inferred from long user as wakf property.........

Where for a considerable number of years the public have been offering prayers in a mosque close by a tomb of a Mahommedan Saint and an annual urs attended by persons belonging to Momin sect of Mahommedans has been regularly held it must be presumed that the mosque and the tomb have been duly dedicated and have become wakf by user, and the presumption might fairly be extended to other buildings and land enclosed within a compound wall which might be regarded as appurtenant to the tomb.'

From the above observations it is quite apparent that before a building could be called a public mosque, the requisite essentials are that (1) the building must have been set apart as a mosque; (2) public prayers must have been said in it at least once, even with the permission of the owner; and (3) there must have been long user of the same as a place of worship by the public at large.

9. As observed earlier, none of the above mentioned ingredients exists in the present case. There is neither absolute setting apart of the building of the mosque as a separate entity from the rest of the buildings and compound of the Pili Kothi, nor has any public prayers been proved to have been offered in it at any time, nor is there any evidence of long user by the members of the public. In the present case, though the appellants went to the extent of saying that the mosque situate in the compound of Pili Kothi was a public place of worship, yet they conceded that the main residential building as well as the outhouses etc. situate in the same compound were admittedly the property of the landlord. Therefore the case of Maher Husain AIR 1934 Bom 257 (supra) has no application to the present dispute.

10. A more or less similar problem had come up for consideration before the Chief Court of Oudh in Musaheb Khan v. Raj Kumar Bakshi AIR 1938 Oudh 238, in which the property in question was a compound situate in the city of Lucknow, measuring 5 bighas 7 biswas add. The compound contained a mosque, an Imambara and a number of tombs. It was claimed that the same were not liable to be attached and sold in execution of a decree obtained against their owner, inasmuch as they were alleged to have become dedicated property or wakf, on account of a term contained in the will executed by the owner, whereby ho had transferred full proprietary rights to a legatee and Us representatives in perpetuity, but had made a direction to continue certain religious celebrations on the premises. it was held that the above clause for continuance of religious celebrations did not constitute the property as wakf so as to render it inalienable. Relying upon certain passages appearing in Baillie's Commentary on Mohammedan Law, Syed Ameer All's Principles of Mohemmadan Law and Tyabji's Mohammedan Law, the Avadh Chief Court held as follows:

'Even if a mosque, that is a building having the appearance of a mosque, is built in a place which is not enclosed, that is, is not situated in such a man's house, something more than the mere appearances of a mosque are needed before it will become entitled to be treated as a mosque for all time. There must be proof of dedication or of permission or of user such as by the saying of prayers in congregational manner .......... Themere construction of a mosque in a private house does not make it a mosque in the sense of a public place of worship.'

11. The facts and questions involved in Musaheb Khan's case AIR 1038 Oudh 238, supra were almost identical with those involved in the instant dispute. In fact the instant case is on astronger footing, inasmuch as, here the mosque and the residential house of the landlords stood within the compound of the Kothi, and there was no convincing evidence of any dedication or congregational prayer having ever been offered in the said mosque. Like a private chapel in England or a private Hindu temple in India, there could also be a private mosque for offering prayers by the owner and the members of his family. Such private mosques were not unknown in India. We have two gearing examples of such mosques in the red forts at Delhi and Agra, where the members of the Moghal Royal family used to offer prayers in the mosques situate within the four walls of their forts. Obviously, it could not have been suggested that simply because those buildings were shaped and domed like mosques and the members of the royal family regularly offered prayers therein, the same had become wakf property so as to entitle the general public to get into such private mosques and offer prayers in congregation as of right. I, therefore, find no Justification for interfering with the findings arrived at by the trial court.

12. The appeal has no force and is accordingly dismissed with costs.


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