W. Comer Petheram, C.J.
1. I am of opinion that this appeal should be allowed, and the ground upon which I wish to base my judgment, is that the action as brought is not maintainable, whatever the facts may be. I desire to guard myself against expressing any opinion upon the question whether the property in dispute is or is not wakf. If it were necessary to consider that point, I think that a new trial would be necessary, in order that evidence might be adduced to determine the true character of the property. The evidence on the record is wholly insufficient for the determination of this question, and I therefore refrain from expressing any opinion in regard to it. I confine myself to saying that, under any set of circumstances which have been suggested in this case, the action is not maintainable.
2. The action is one of which the character has been formulated by the plaintiff himself in his plaint. He begins by stating that he is a Muhammadan. He then goes on to say that there is certain property situated in the Gorakhpur district, of which he is not a resident, and that this property is wakf, and is in the defendant's possession. He proceeds to state that, on the 26th August 1880, the defendant in certain legal proceedings asserted a title to the property, which was inconsistent with its character being wakf. He therefore claims a decree, declaring that the property in the defendant's possession is in the defendant, but that it is wakf.
3. I am of opinion that unless it can be shown that the action is maintainable under some statute, it cannot be maintained; and the question therefore is, whether there is any statute which enables such an action to be brought.
4. Now Act XX of 1863 is an Act which provides for the management of religious endowments, and Sections 14, 15 and 18 provide a machinery by which the rights and powers of trustees in reference to such property may be ascertained. Again, the Civil Procedure Code, Section 539, provides a procedure for ascertaining the rights of trustees of public property. The question then is, whether the present suit can be brought under the provisions of either of these statutes.
5. When these provisions are considered, it is obvious that the suit is not maintainable under any of them, because under them it is necessary that some permission should be given to the plaintiff to bring the suit. It is admitted that, in the present case, no such permission was obtained. So that the plaintiff in effect admits that this suit was not contemplated by either of the Acts I have mentioned. The only other provisions that could apply to the subject are those of Section 42 of the Specific Relief Act, which gives to persons who are entitled to certain interests the right to bring suits for the declaration of such interests.
6. As I have already observed, the only right asserted by the plaintiff is his right as a Muhammadan to have the property kept as wakf for the general body of persons who believe in the Muhammadan religion. Section 42 of the Specific Relief Act applies to 'any person entitled to any legal character or to any right as to any property,' and, in certain circumstances, allows such a person to bring a suit for a determination of his title to such character or right. But the scope of the section is confined to the two classes which it specifies. The plaintiff in this case cannot sue as one of the first class, because he has no 'legal character' which is denied by any one: he only asserts his character as a Muhammadan, and that has not been questioned. Nor does he for himself assert a right as to any property, and by no act of the defendant has his right to any property been denied.
7. The suit therefore does not come under the provisions of Section 42, and as it is not contemplated by either of the other statutes to which I have referred, I am of opinion that it is not maintainable. I may add that even if it were possible to hold that the suit was maintainable under Section 42 of the Specific Relief Act, I am of opinion that this is not a case in which this Court, in the exercise of its discretion, would be disposed to grant relief. Under Section 42, such relief is always a matter of the Court's discretion, and inasmuch as the evidence adduced by the plaintiff himself shows that the defendant was using the property for charitable purposes, I do not think that it would be proper to pass such a decree as the plaintiff asks for, even if he could bring the suit. Under these circumstances the appeal must be decreed with costs.
8. I am of the same opinion.