1. This is an appeal from a decree passed by the learned District Judge, Moradabad, reversing that of a Munsif of that district in a suit brought by the plaintiff-appellant for recovery of possession of a certain 'chabutra' appertaining to a mosque situate in Mohalla Chilla, town Amroha, district Moradabad. The facts found by the lower appellate Court, and which can no longer be questioned in second appeal, are as follows:
The mosque in question was built nearly 300 years ago. The plaintiff's ancestor was a local saint, who became somehow associated with this mosque. In the courtyard of the mosque, there is a place known as 'chilla-gah,' which means a place where the saint used to retire in seclusion. As is not unusual in towns having Muslim population, a small 'maktah' or school for religious instruction inside the mosque premises was in existence. The mosque had on two sides of it spare land appertaining to it. On the land lying to the east of it three rooms and a verandah were constructed, partly by public subscriptions and partly by the plaintiff himself. These premises were intended for the school. Between the school building and the mosque an open space was left and is shown in the plan as 'sahan darsgah.' The entrance to the mosque is shown on the south. This entrance leads to the salian mentioned above, and therefrom to the mosque. On either side of the entrance there are open spaces admittedly appertaining to the mosque. On the land lying to the east of the entrance there is a well. To the west of it are two rooms which appear to be adjuncts to the mosque. These rooms have doors towards the south, opening on a 'pucca chabuttra,' which extends further south to the public road. The controversy in this case relates to this 'pucca chabutra.' The school located in the building to the east of the mosque appears to have made considerable progress.' When need for more accommodation was felt, a tiled shed was put up on the 'chabuttra' already referred to. A reference to the plan on the record will isbow that the 'chabuttra,' which is to the south of to mosque, is altogether detached from the main school building to the east of the mosque. The management of the school has for sometime been in the hands of a local committee, of which the defendants are some of the members. The latter pulled down the tiled shed and attempted to make a pucca construction on the chubattra to extend the accommodation for the school. The plaintiff who claim to be the 'mutwalli' of the mosque and entitled to the offerings made in the Chillahgah, already referred to, objected to any building-being erected on the pucca chabuttra. The defendants denied the plaintiff's right as a mutwalli and his right to prevent them from making the contemplated construction and insisted on their own right to build. The plaintiff instituted his suit immediately, claiming possession of the chabuttra and injunction restraining the defendants from making any construction. The plaint contains an allegation that the plaintiff is the 'mutwalli' of the mosque and of all land appertaining thereto, that the chabuttra is an appurtenance to the mosque and that the defendants had no right to build against the wishes of the plaintiff.
2. In defence the plaintiff's right as a 'mutwalli' was denied. The existence of the school and of the local managing committee was alleged. It was pleaded that the defendants were some of the members of the managing committee and were not liable to be sued, as the construction was being made by the managing committee, which should have been impleaded. It was averred that the school, for which the proposed construction is intended imparts religious education which cannot in any way be inconsistent with the purposes for which the chabuttra in dispute exists.
3. The learned Munsif found in favour of the plaintiff on all the points and decreed his suit. The learned District Judge held, in appeal by the defendants, that the chabuttra in dispute was an appurtenance to the mosque and that the plaintiff was the mutawalli of the mosque. He however held that the defendants were not trespassers and could not be ejected by the plaintiff. He thought that the plaint, which did not disclose the existence of the school, was 'disingenuous.' Accordingly the defendants should not have been described as trespassers, and are not such. The grounds on which the learned District Judge dismissed the plaintiff's suit may be stated in his own words:
It appears to me necessary to infer that whoever dedicated the mosque and with it the land adjacent to it did so for the benefit of the Mohammedan public of the immediate neighbourhood, and it appears to me that the mutawalli must be regarded merely as an officer whose duty it is to carry out the wishes of the founder of the trust. The school, which is a religious school and has been located on the land in the immediate vicinity of the mosque proper for at least ten years with the plaintiff's acquiescence, is an institution supported mainly, if not entirely, by the subscriptions of the Mohammedans of the neighbourhood and is managed entirely by a committee of those Mohammedans. It appears to me legitimate to infer that the action of the defendants in starting to replace a temporary thatched structure on the chabutra by a more permanent structure had the approval of the Mohammedan public in the neighbourhood in general. This inference is strengthened by the fact that all the defendants' witnesses are persons of respectability from the mohalla, while none of the plaintiff's witnesses are of the mohalla and the plaintiff himself admits that for years past he has seldom visited the mosque except to collect money annually at the fair.
It appears to me that when the Mohammedan public of the neighbourhood, for whose benefit a mosque was originally erected and dedicated, decided to put the land appurtainant to and in the immediate neighbourhood of it to a certain purpose, the mutawalli has no right to treat them as mere trespassers or to put an arbitrary veto on their proceedings. On a mutawalli going into Court as against the representatives of the public in such circumstances, the issue before the Court is, I take it, whether the (purpose, to which the defendants desired to put the land, is a proper and seemly purpose The question therefore appears to me to be narrowed down to this : whether the erection of a more permanent structure on the chabutra for the purpose of the existing school does or does not affect the convenience or dignity of worship in the adjoining mosque, and as nobody has ever suggested that it does, there can only be one answer to that question.
4. These observations are based on a misapprehension of the object of the mosque, of the right of the mutawalli and of the rights of the local Mohamedans as against the mutawalli. It is an unwarranted inference that whoever dedicated the mosque, and with it the land adjacent to it, did so for the general benefit of the Mohamedan public of the immediate neighbourhood. A mosque, from its very nature, is dedicated for worship and is open to all Muslims, local and others. It is dedicated for a specified purpose and not to the local Muslims for such benefit as they may choose to derive therefrom. They cannot of right claim to use it for any other purpose however meritorious or beneficial it may be to the members of the local Muslim community.
5. It is true that a 'wakf' property is not vested in the 'mutawalli,' but the latter is the only individual who has the right of administration vested in him; and so long as he is in charge of the 'wakf' property, no outsider has any right of interference. The view that the 'mutawalli 'must be regarded merely as an officer, whose duty it is to carry out wishes of the founder of the trust' may be correct, but it is not suggested that the original founder dedicated the chabuttra for the educational needs of the locality. It may be inferred from its situation that it was meant for purposes incidental to the use of the mosque. The rooms and the chabuttra in front of it might have been intended for temporary stay of Muslim way farers as is not uncommonly the case with mosques in this country. Moreover the 'mutawalli' for, the time being is to carry out the known objects of the 'wakf' and is not bound to allow such use of the wakf property, however laudable, as is not shown to have been one of the objects of the wakf.
6. It is open to the mutawalli to throw open the wakf property for purposes other than those originally intended by the wakf provided they do not conflict with and in no way prejudice the latter, but he cannot be compelled to do so by those claiming to be the beneficiaries. It may be, as the learned District Judge has inferred, that the action of the defendants has the sympathy of the Mohamedan public in the neighbourhood. This, is however, beside the point. The question is whether the Mohamedan public, represented by the defendants, assuming they do represent the Mohamedan public, have any right to impose their will on the 'mutawalli' of the mosque in respect of the property appertaining to it. The only ground on which the learned Judge thinks that they have such right is that the mosque and the land appertaining to it were intended by its founder for the benefit of the Mohamedan public of the neighbourhood. As already stated, this is an unwarranted assumption, except so far that the Muslim public of the locality, in common with all other Muslims have the right of worship in the mosque but have no right to interfere with the actual management or with the possession of the mosque property so long as there is a 'mutawalli' in whom the administration of the property and the mosque is vested. To recognise the rival claim of the Mohamedan public of the neighbourhood to have concurrent authority with that of the 'mutawalli' will be to introduce chaos in the administration of the 'wakf' property. There is a likelihood of constant friction, and the interests of the 'wakf' are bound to suffer. In any given case, if the conduct of the 'mutawalli' is antagonistic to the objects of the 'wakf' or his administration of the wakf property is such as to render him unfit for the office, it is open to those interested in the wakf to obtain his removal in due course of law; but so long as he remains the 'mutawalli,' he has practically the same right of management and possession in relation to outsiders as an individual owner has in respect of his own property. Beneficiaries are entitled merely to participate in the benefit arising from the 'wakf' but they cannot arrogate to themselves the right of setting up a committee to displace the authority of the 'mutawalli.' As to whether the purpose for which part of the 'wakf property' is sought to be used by persons other than the 'mutawalli' is 'proper and seemly' is a matter for the 'mutawalli' to consider. If the latter disapproves of it, his decision cannot be vetoed by the beneficiaries.
7. The plaintiff's objection to the 'chabuttra' of the mosque being built upon for the purposes of the school is, in my opinion, not unreasonable. Once it becomes the site of a 'pucca' building, it cannot be resumed for the purpose of the mosque proper. It will pass out of the plaintiff's management and be under the control of the managing committee of the school. It was with the plaintiff's permission that the committee put up a thatch on the chabuttra to afford accommodation for the growing needs of the school. The position of the committee was no better than that of a licensee. The powers of the 'mutawalli' to deal with 'wakf' property are limited. He will be acting beyond the scope of his authority if he allows the chabuttra in question to be irrevocably taken possession of for the construction of a substantial building thereon. So long as there was only a thatch the mutawalli could revoke the license but be will not be entitled to do so after a permanent structure is erected.
8. The defendants' attempt to build on the 'chabuttra,' the plaintiff's protest, and the denial of his right followed by the institution of the suit are circumstances which give rise to the inference that the plaintiff revoked the license originally granted by him. The fact that he sued for recovery of possession of the 'chabuttra,' from which he has been dispossessed, is itself a clear indication of the fact that he 'does not desireto continue the license.
9. I do not think that the plaint can be rightly characterised as 'disingenuous.' If the facts therein alleged be accepted as true - and they have been accepted to be so by the learned District Judge - the defendants' position in law is clearly that of trespassers, that is to say, persons having no right to be in possession of land which they insist on retaining. The fact that the plaint did not disclose the existence of the school does not in any way lay it open to objection. It did state that the defendants were attempting to make some construction on the chabuttra.' Whether the contemplated; building was intended for school or otherwise can make no difference since the plaintiff had an absolute right to prevent the defendants from making, the construction on the 'chabuttra.' A. subsidiary relief was also claimed by the plaintiff. The defendants had cut a 'mm' tree which existed on the 'chabuttra,' and he claimed Rs. 25 as compensation. The trial Court decreed it. There can be no doubt that, if the plaintiff is entitled to the main relief claimed by him his right to recover damages for the 'nim' tree cannot be disputed.
10. In the view of the case I have taken, this appeal must succeed. It is accordingly allowed with costs. The decree of the lower appellate Court is set aside and that of the Court of first instance is restored. Leave to appeal under the Letters Patent is asked for and is granted.