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Mahammad Siraj-ul-haq and ors. Vs. Iman-ud-din - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad High Court
Decided On
Judge
Reported in(1897)ILR19All104
AppellantMahammad Siraj-ul-haq and ors.
Respondentiman-ud-din
Excerpt:
act no. xx of 1863, sections 14, 15 - religious endowment--jurisdiction court fee--act no. vii of 1870 (court fees act) scheduled ii, article 17, clause 6. - .....duly appointed or not, as the mutawalli of a mosque. the suit was filed in the court of the district judge. an objection was taken that the district judge had no jurisdiction, and he made an order returning the plaint to be presented to the proper court. there was no question as to the local jurisdiction of the district judge. the real question was--was the suit one to which section 14 of act no. xx of 1863 applied? the district judge considered that that section did not apply; hence his order. the plaintiff has appealed.2. for the respondent-defendant it has been contended that section 14 of act no. xx of 1863 can only apply to a mosque which has been endowed with land, and that it can only apply when it is alleged that the defendant was lawfully appointed trustee of the.....
Judgment:

John Edge, Kt., C.J. and Blennerhassett, J.

1. This appeal has arisen in a suit against one Hafiz Imam-ud-din, who was acting, whether duly appointed or not, as the mutawalli of a mosque. The suit was filed in the Court of the District Judge. An objection was taken that the District Judge had no jurisdiction, and he made an order returning the plaint to be presented to the proper Court. There was no question as to the local jurisdiction of the District Judge. The real question was--was the suit one to which Section 14 of Act No. XX of 1863 applied? The District Judge considered that that section did not apply; hence his order. The plaintiff has appealed.

2. For the respondent-defendant it has been contended that Section 14 of Act No. XX of 1863 can only apply to a mosque which has been endowed with land, and that it can only apply when it is alleged that the defendant was lawfully appointed trustee of the mosque.

3. The contention as to the land arises in this way. Certain Muhammadans in the city subscribed and purchased with the subscription certain shops with which the mosque was endowed. They became waqf. They are not the less Waqf because they are the result of subscription and not the result of a dedication by a single owner. When the shops were purchased and dedicated to the mosque the land upon which they stood passed with them. Indeed there is nothing in the point. The contention appears to be that because it is not said in the plaint that the land on which the shops stood was specially dedicated to the mosque there was no dedication of the land.

4. We agree with the judgment of the High Court of Calcutta in Dhurrum Singh v. Kissen Singh I.L.R. 7 Cal 767 that Section 14 of Act No. XX of 1863 is generally applicable to all religious endowments of this nature. In Sheoratan Kunwari v. Ram Pargash I.L.R. 18 All. 227 it was decided by this Court that it was not essential to bringing a suit under Section 14 of Act No. XX of 1863 that the endowment should ever have been taken under the Board of Revenue.

5. As to the other point, the defendant, although he appears to have entered upon the mutawalliship without election or specific appointment does not pretend that he is a trespasser. He does not say that he is not the mutawalli of the mosque. We find him in possession professing to be the mutawalli of the mosque, and as such Section 14 of Act No. XX of 1&63 would apply to him.

6. The suit was properly brought in the Court of the District Judge, who alone had jurisdiction. We allow this appeal with costs. We set aside the order of the Court below with costs and direct the District Judge to receive the plaint and to enter it on the file of pending suits in his Court and to proceed with the suit according to law. The plaint, which is at present on the file in this Court, will be returned to the counsel for the appellants that it may be presented to the District Judge.


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