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Shah Ali Hammad Vs. Mohammad Nazir Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All329
AppellantShah Ali Hammad
RespondentMohammad Nazir Ali and ors.
Excerpt:
- - 1. this is a defendant's appeal arising out of a suit for possession of a house with a court-yard and a pucca well. it held that the plaintiff's title to the property was established, that the defendants had failed to prove that the property was dedicated and that the defendants were not in adverse possession of this property for a period of more than 12 years before the institution of the suit......right of purchase. the defendants denied the plaintiff's title and insisted that the property was waqf property and that the defendants' were in adverse proprietary possession for a period of more than 12 years before suit. the trial court decreed the suit. it held that the plaintiff's title to the property was established, that the defendants had failed to prove that the property was dedicated and that the defendants were not in adverse possession of this property for a period of more than 12 years before the institution of the suit. the lower appellate court has affirmed the findings of the trial court on all the aforesaid points and has dismissed the appeal.2. it is contended that the lower appellate court has misdirected itself in holding that the property was not dedicated property.....
Judgment:

1. This is a defendant's appeal arising out of a suit for possession of a house with a court-yard and a pucca well. The plaintiff came into Court on the allegation that he was the owner of this house by right of purchase. The defendants denied the plaintiff's title and insisted that the property was waqf property and that the defendants' were in adverse proprietary possession for a period of more than 12 years before suit. The trial Court decreed the suit. It held that the plaintiff's title to the property was established, that the defendants had failed to prove that the property was dedicated and that the defendants were not in adverse possession of this property for a period of more than 12 years before the institution of the suit. The lower appellate Court has affirmed the findings of the trial Court on all the aforesaid points and has dismissed the appeal.

2. It is contended that the lower appellate Court has misdirected itself in holding that the property was not dedicated property because it ought to have found upon a certain number of facts which were either admitted or proved that the property did, as a matter of fact, constitute waqf under the Shia law. It has been found by the lower appellate Court that the court-yard was known as imambara, that majlises were held in the court-yard at the time of Moharram and Chehlum and that tazias used to be kept in the court-yard in front of the dalan and that a number of graves of the family of Shah Husain Bakhsh were to be found in different portions of the property. The learned Counsel for the appellants contends that on these facts the Court ought to have held that the property was dedicated according to Shia law. It may be conceded that in order to constitute waqf under the law the existence of an instrument in writing is not necessary and that dedication may be inferred from long user. It cannot, however, be urged that upon the facts found by the lower appellate Court it was bound to come to the conclusion that the property was waqf property. It is a matter of common knowledge that tazias are kept in the court-yards of the houses of Shia Mussalmans and that majlises are held in their houses on the occasions of Moharram and Chehlum. It is also a fact of common knowledge that graves sometimes are to be found in the residential houses of Shia Mussalmans. The popular description of a place is of little or no evidential value to prove dedication. In these circumstances it could not be said that the learned Judge was bound to hold in this case that the property was waqf property. We think that the appeal is concluded by the finding of fact arrived at by the lower appellate Court and there are no circumstances pointed out to us to shew that the said finding is vitiated either by misapplication of substantive law or an error of procedure. The appeal is dismissed under Order 41, Rule 11, Civil P.C.


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