1. This appeal, under Section 96 of the Civil P. C. has been directed by the unsuccessful plaintiff Anjuman Islamia, Chhatarpur (hereinafter referred to as the 'Anjuman'), against the judgment anddecree dated 10-5-1978, passed by the District Judge, Chhatarpur, in Civil Suit No. 2-A/74, dismissing the suit of the plaintiff-appellant with costs.
2. It has not been disputed that the suit property has been shown and delineated in the plan Ex. P-2 which is called 'Badi-takia' Jama Masjid. It was also not disputed by the plaintiff-appellant that a small plot admeasuring 6' X 6' situated to the South of the main mosque belongs to the defendants in view of the decree passed in earlier Civil Suit No. 28/60. It has also not been disputed that Tegali was an Advocate by profession who was issueless and the predecessor of the defendants. Wazid Ali was the successor of the uncle of Tegali and that the defendants Nos. 5 to 7 are the successors-in-title to Wazid Ali. The defendants Nos. 1 to 4 are the successors-in-title of Ahmad Ali s/o Wazid Ali. Tegali, Wazid Ali and Ahmad Ali are all dead.
3. The property in dispute has been shown in the plan Ex. P-2, comprising of a mosque, open yard around the said mosque 'Imam-bada', a platform called 'Imam-chowk', a 'Hujra' (small room) adjoining the main mosque, a well adjacent thereto, water tank and tap adjoining the mosque of the South-East corner, a residential house of the defendants described as 'Panchayat-ka-kamra' towards the North, and a big room adjoining to it on the Eastern side described as 'Musafirkhana'. There are two graves on the Southern side of Masjid as well as some graves behind the mosque. No measure-ments have been given in the plan Ex. P-2. But the learned District Judge inspected the disputed property on 27-4-1978 and got the same measured, which has been shown in his inspection note as also the description and situation of the disputed property.
4. The plaintiff-appellant instituted the suit against the defendants-respondents for obtaining a declaration simpliciter that the property in suit was wakf property by user and that the defendants had no right, title or any interest therein except a small piece of land measuring 6' X 6'. The plaintiff averred that the property in suit known as 'Badi-takia' consisting of mosque, open compound and buildings were constructed by Mohammedans of Chhatarpur by raising funds as well as with the help and aid provided by the State-Rulers about 200 years back and the same is looked after and used by the Mohammedan community. The whole property is surrounded by a compound wall. The residential house shown in Ex. P-2, has been used for residence of Faquirs, appointed by the Mohammedans of Chhatarpur. After the construction of Imambada, the tazia is being erected there and placed on the Imam-chowk within the Maszid compound. The Musafirkhana has been used by outsiders who visit Chhatarpur and the Panchayatghar is being used for holding meetings. The plaintiff also averred that a school is also being run in 'Badi-takia' for imparting education to the Mohammedan children. The plaintiff's further case is that during 1d and weekly Friday prayers, Mohammedans in large number gathered in the mosque as also in the open compound of the mosque to offer prayer. In Muhurram and on the occasion of Id. Danka-nishan was supplied by the State Ruler and a procession of City-Kazi used to be taken from 'Badi-takia' to Idgah. The Mohammedans collected funds for maintenance of the property and some new constructions were raised from time to time. It has been further averred that the plaintiff Anjuman was formed by the Mohammedans of Chhatarpur about 100 years back, which is a registered society and that from the time of its formation, the Anjuman was in charge and looking after the property. The plaintiff appointed one Kutubshan as 'Faquir-cum-chowkidar' about 60 years back and about 40 years back Tegali was appointed as such, who started living in the residential house with his family. After Tegali became old, Wahid Ali was appointed as Faquir of 'Badi-takia', who also lived in the residential house. Later when Tegali and Wahid Ali claimed ownership over the property in suit, the Anjuman removed them from the post of Faquir. It has been further averred by the plaintiff that on settlement of the dispute Tegali and Wahid AH admitted that 'Badi-takia' belongs to the public and executed in that behalf an agreement dated 19-9-1953 (Ex. P-1223). The plaintiff further pleaded that the Civil Suit No. 28/60 was only in respect of a dispute about a small piece of land admeasuring 6' X 6' and therefore the decision given in Civil Suit No. 28/60 was not res judicata in respect of the property in the present suit.
5. The defendants Nos. 1, 2, 5 and 6 filed a common written statement and the defendants Nos. 3 and 4, who are minors, filed their separate written statement through their guardian ad litem Shri Shiv Narain Khare, Advocate. The defendant No. 7 preferred to remain ex parte. The contesting defendants contested the suit by traversing almost all the claims advanced by the plaintiff. The defendants denied that the suit property was wakf property and claimed the same to be their private anscestral property known as'Badi-takia'. They asserted that the houses called as Panchayalghar and Musafirkhana by the plaintiff, were in fact the residential houses of the defendants and their predeces-sors-in-title, which were constructed about 250 years back by their anscestors. They denied that these buildings and the other properties in suit were constructed by the Mohammdans of Chhatarpur or the same were looked after by the Mohammedan community. The allegation of running of any school in the 'Badi-takia' has also been denied. The defendants however, admitted that the Mohammedans of Chhatarpur congregated in the mosque for prayers but they denied the use of open compound for prayers by them. In the alternative the defendants contended that whenever such an occasion arose on congregational prayers, the open compound was used with the permission of the defendants. The defendants further contended ihat the plaintiff Anjuman never took over charge of 'Badi-takia' nor ever looked after its affairs. The appointment of Kutubshah and Wahid Ali as Faquirs of the Anjuman, has also been denied. Kutubshah who was elder brother of Tegali, has been asserted to be the owner of the property in suit. Regarding the agreement of 1953 (Ex. P-1223) the defendants contended that it does not affect the title of the defendants in respect of the suit property. The defendants claimed that the defendant No. 5 Kayum Ali is the present Mutwalli of that property. It was, therefore, contended that the plaintiff had no locus standi to bring the present suit. The defendants further took the plea that the previous Civil Suit No. 28/60 was concerning the whole property and the decision rendered therein is also about the whole properly in suit and therefore, it operates as res judicata. The defendants' further plea was that since they are in possession of the property in suit therefore a suit for declaration simpliciter was barred without the consequential relief for possession. They further averred that the plaintiff had not obtained prior permission from the M. P. Wakf Board under 55(2) of the Wakf Act and therefore the plaintiff had no right to institute the suit. The defendants' further plea was that they were in adverse possession of the property in suit for more than 12 years and, therefore, the suit was barred by limitation.
6. After recording the evidence the learned trial Court held that the plaintiff Anjuman was not Mutwalli of the suit property and therefore the plaintiff was not competent to institute the suit. It also found that since the the plaintiff was not in possession of theproperty in dispute and therefore, the suit for declaration simpliciter without a further consequential relief was not tenable under Section 34 of the Specific Relief Act. The learned trial Court, however, held that no sanction of the Wakf Board was necessary under Section 55(2) of the Wakf Act as the suit was not for any of the reliefs mentioned in Section 92 of the Civil P. C. The learned trial Court further held that the plaintiff had failed to establish that the property in dispute was a wakf property by user. It found that the property in dispute was the self-acquired property of the anseccstors of the defendants. But the learned trial Court held that on account of long user the mosque had become a wakf property along with its 'hujra', tank and water taps. It has also been held that though the plaintiff Anjuman was formed in 1895 A. D. and that it was a registered society but it was never in possession of the property in dispute and that the Anjuman never appointed the defendant No. 5 or his anscestors as Faquirs of the disputed property. It has also been found that the agreement dated 19-9-1953 (Ex. P-1223) was executed by Tegali and Wahidali, the anscestors of the defendants but it did not amount to an admission of the fact that the property in dispute belonged to Mohammedans of Chhatarpur. The learned trial Court further held that the decision in Civil Suit No. 28/60 operated as res judicata and the suit was also barred by limitation as the defendants and their predecessors in interest, were in possession thereof for more than 12 years. On these grounds the learned District Judge dismissed the suit, against which this appeal has been directed.
7. We shall first consider the question whether the suit was not tenable at the instance of the plaintiff. In brief Section 195 of the Principles of Mohammedan Law by Mulla (18th Edition), is the complete answer to this question, which contemplates that a suit for a declaration that property belongs to a wakf can be brought by Mohammedans interested in the wakf. Anjuman is a society of Mohammedans registered under the Societies Act (Act No. 21 of 1860), as per registration certificate No. 104 of 1960-61 (Exhibit P-5). Admittedly the members of plaintiff Anjuman and its president Shri Mohd. Abdul Qadir (PW 1) are residents of Chhatarpur and belong to Muslim community. They are, therefore, persons very much interested in the property in suit which they claim to be wakf property. The suit, therefore, instituted at their instance would be perfectly competent and tenable and the learned District Judge was wrong in holding otherwise.
8. It has been contended by the defendants/respondents that the suit as framed for a declaration simpliciter was not maintainable under the proviso to Section 34 of the Specific Relief Act, 1963, for the defendants are in possession of the property in suit. In our view the defendants as well as the Court below misconceived the provisions of Section 34 of the S. R. Act. Section 34 of the S. R. Act provides that any person entitled to any loyal character or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right and the Court may in its discretion make such a declaration. There is a proviso attached to Section 34 which contemplates that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title omits to do so. It is under this proviso that the defendants contended that the suit for mere declaration was not tenable without seeking further relief of possession. Tn our opinion the present suit does not fall under Section 34 of the Act for the reason that the present suit was not instituted by the Anjuman for a declaration of its own right or title to property in suit, or its right to a legal character. But it was a suit, on the other hand, to challenge the defendants as-sertion for right to property and their legal character in respect thereof. But assuming the suit falls under the provisions of Section 34 of the Act yet it would he tenable for declaration simpliciter and the plaintiff will have locus standi to bring the suit because the plaintiff was not Mutwalli or trustee of the alleged wakf and it did not claim to possess the property in its own behalf. Therefore, the plaintiff was not legally entitled to possession. The plaintiff therefore could not have asked for any further relief for possession. In such a position it was not necessary at all for the plaintiff to claim any consequential relief and in our opinion there can be no doubt that in the circumstances of ihis case the plaintiff had a right to ask for a declaratory relief only that the suit property was wakf and not the private property of the defendants. In this view of the matter we are supported by the decisions in Ram Rup v. Sarn Dayal, AIR 1936 Lah 283 decided by Coldstream, J.-- and Abdul Rahim v. Faqir Mohd, Shah, AIR 1946 Nag 401(i).
9. The learned counsel for the appellant then assailed the findings of the learned trial Judge that the decision in Civil Suit No. 28/60 operated as res judicata against the plaintiff and therefore the suit was barred under the provisions of Section 11 of the Civil P. C. In order to apply the principles of res judicatathe existence of essential conditions are (1) that the litigaling parties must be the same; (2) that the subject matter of the suit also-must be identical; (3) that the matter must be finally decided between the parties, and (4) that the suit must be decided by a Court of competent jurisdiction. As laid down by the Supreme Court that the best method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suits and then to find out as to what had been decided by the judgments which operate as res judicata. We shall therefore, proceed to examine the pleadings of the parties in the earlier Civil Suit No. 28/60 and the judgments rendered by the Courts.
10. Ex. D-13 is the plaint filed in the earlier Civil Suit No. 28/60 filed by the predecessors in interest of the defendants against the present plaintiff and some other persons. This suit was contested by the said defendant of that suit filing a joint written statement (Ex. D-21). A perusal of the plaint (Ex. D-13) will go to show that though the plaintiffs of that suit (predecessors in interest of the defendants of present suit) had averred that they were owners in possession of Badi-takia at Chhatarpur and that the opposite party had wrongfully placed their tazia on the graves of their ancestors in the 'Badi-takia' land but the relief for possession of an area of 5' X 7 1/2' only as shown within red lines in the Map Ex. D-22, by removal of tazia was claimed. Ex. D-22 is the map which was filed in the said earlier suit showing the disputed land in that suit within red lines as said above. Accordingly the Civil Judge Class II, Chhatarpur by his judgment dated 24-2-1960 (Ex. D-1) held that the plaintiffs of that suit proved their possession over the property and unauthorised possession by other side, they were, therefore, entitled to possession and damages. It was further held that the tazia has since been removed from Ihe disputed land, the plaintiffs be put in formal possession of the plot in suit. This judgment was reversed in first appeal. But in Second Appeal No. 156/62 the High Court by its judgment dated 6-4-1966 (Ex. D-3) reversed the judgment of the first appellate Court and restored that of the trial Court by holding that the mosque had become wakf property on account of long user or even on the admission of the first appellant himself, but the rest of the property was personal property of plaintiffs who were entitled to succeed in their claim for an illegal encroachment of their private land, by keeping tazia of the defendants. This judgment of the High Court was further challenged before Supreme Court by Anjuman in Civil Appeal No. 2527/66 decided by judgment dt. 17-12-1970* (Ex. P-1). In that judgment their Lordships of the Supreme Court observed in the concluding part that 'in view of the relief claimed in the plaint, the only point that the Court had to decide was whether the plot on which the Tazia was placed was wakf property.' From the aforesaid discussion it is clear that the litigating parties in the earlier suit were same, but the subject matter of suit was not identical but it was restricted and limited to a small area of 5' X 7 1/2' while in the present suit it was the whole property of 'Badi-takia'. The decision of the Supreme Court was final from which it is distinctly clear that the only point that the Court had to decide was whether the piece of land on which the Tazia was placed, that is, an area of 5' X 7 1/2' as shown within red lines in the map Ex. D-22, was wakf properly or not. Thus in the earlier suit the nature and character of 'Badi-takia' as a whole was never in issue and for the same reason the Supreme Courl never decided whether the whole property of 'Badi-takia' constituted a wakf or it belonged to the predecessors of the present defendants, but the Supreme Courl confined its decision only to the extent of plot in dispute in that suit and ihc final Court did not decide anything about other properties at all. It is settled that where a judgment has been superseded by the decree and judgment of the superior and final Court in appeal, the former judgment cannot be pleaded as a bar by principles of res judicata. Under the facts and circumstances of the present case it could (not ?) be said or held that the present suit was barred by res judicata. The findings of the learned District Judge in this behalf, therefore, could not be sustained in law.
11. This brings us to the most crucial question whether the 'Badi-takia' comprising of the open compound land around mosque and the buildings, as described above, have become wakf property by long user or the same are the self acquired property of the ancestors of the defendants. We shall first look into the legal position relating to a wakf and its modes of creation. In Section 3I of the Wakf Act, 1954, wakf has been defined as under : (1) 'Wakf means the permanent dedication by a person professing Islam of any movable or immoveable property for any purpose recognised by the Muslim Law as pious, religious or charitable and includes a wakf by user.'
In Section 188 of the Principles of Mahomedan Law by Mulla (18th Edn.), it has been statedthat if land has been used from time immemorial for a religious purpose, e. g., for a mosque or a burial ground or for the maintenance of a Mosque, then the land is by user wakf although there is no evidence of an express dedication. A Division Bench of the Nagpur High Court in Jawaharbeg v. Abdul Aziz, AIR 1956 Nag 257 took the view that creation of a wakf can be established by user, but the user must be of such an unequivocal nature which can only lead to an inference of dedication of the property to the wakf. What is required to be established is the intention on the part of the owner to dedicate a particular properly to religious or charitable purposes, or, in other words, the intention of the owner to create wakf of the property and that such an intention may be established by a declaration or may be inferred from user. Almost the same view was endorsed by their Lordships of the Supreme Court in Mohd. Shah v. Fasibuddin Ansari, AIR 1956 SC 713 wherein it was observed that as a matter of law the wakf normally requires express, dedication but if the land has been used from time immemorial for religious purposes, then the land is by user wakf although there is no evidence of an express dedication. There is no doubt, that the property may become wakf by long user as the place of worship or for other religious purposes in the title of the original owner will extinguish, the property having acquired a public character, shall vest in God. In the present case the plaintiff's claim is that 'Badi-takia' comprising of mosque, open compound and buildings therein are wakf property by user as the same are being used for religious purposes since more than 200 years back. We shall, therefore, proceed to examine the evidence of respective parties on this point to see whether the creation of a wakf by long user of the property in dispute has been established or not We shall first refer to Ex. D-30, which is an application dt. 9-3-1966 made by the deceased Tegali, anscestor of the defendants, to the Chairman Wakf Board, Bhopal, complaining that the Board while registering the Jama Masjid, Chhatarpur as wakf property, has also registered his personal properties existing in 'Badi-takia' as such. In the said application Tegali stated that the said masjid along with 'takia' was built about 100 years ago from the earnings of his father Fazal Shah and that he was receiving some maintenance expenses for the masjid and 'takia' regularly from the erstwhile State of Chhatarpur and after his father's death, his successors were receiving the same. He also stated that his father managed the affairs ofand takia. who was the Mulwalli thereof, which position he occupied till his death. After his father's death, his elder brother Kutab Shah assumed the Mutwalliship and after his death. Tegali himself became Mut-walli. He also stated in the application that the office of Mutwalli remained in his family from the time maszid was constructed and that it was his hereditary right to manage the Jama Masjid as Mutwalli.
12. It appears that in the year 1953 some dispute arose between the plaintiff Anjuman on one hand and late Tegali and Wahidali on the other, about the placement of tazia of Anjuman. Anjuman claimed its right to erect its tazia at a place near the mosque in the 'badi-takia' which was resisted by Tegali. Ultimately on 19-9-1953 there was a meeting in the Kotwali Chhatarpur and on the intervention of some officials and other respectable persons, the dispute was resolved by a compromise. In that meeting Tegali and Wahidali executed an agreement dt. 19-9-1953 Ex. P-1223, wherein they admitted that 'Badi-tazia' and its tazia belonged to all the seven communities, meaning thereby that it was a public property. The defendants neither asserted nor placed any material to show that the contents of the said agreement, were wrong or not admitted by Tegali and Wahid-gli. On the contrary, deceased Tegali himself admitted in his statement Ex. P-1241 dated 21-11-1960, given in the former suit that the agreement referred to above, was executed and signed by him and Wahid Ali. In our opinion, this agreement is very much material which clinches the issue regarding the nature and character of 'Badi-takia'. A perusal of his document makes it clear that Tegali and Wahidali the predecessors in interest of the defendant, had clearly admitted that 'badi-takia' and its tazia was a public property. In view of this clear admission, it was necessary for the defendants to prove that the admissions were erroneous and did not bind them. But as said earlier they failed to do so. An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. In the present case, the said admission was neither withdrawn nor proved erroneous, and, therefore, can be very well used against the defendant. Narayan v. Gopal, AIR 1960 SC 100. A Full Bench of Allahabad High Court in Ajodhya Prasad v. Bhawani Shankar. AIR 1957 All 1 also held that an admission constitutes a substantive piece of evidence in the case, and, for that reason can be relied upon for proving thetruth of the facts incorporated therein and that an admission has the effect of shifting the onus of proving to the contrary on the party against whom it is produced with the result that it casts an imperative duty on such party to explain it. In the absence of a satisfactory explanation, it is presumed to be true.
13. The Municipal Certificate Ex. P-10 dt. 1-8-1966 will go to show that no house-tax was recovered or levied on Jama masjid and Imambada in question. Ex. P-11 is an order dt. 24-8-1945, passed by the Diwan of erstwhile State of Chhatarpur, granting oil for Jama masjid for use during the month of Ramzan. Ex. P-12 is the copy of an order passed by the Civil Judge, Class II, Chhatar-pur, in Civil Suit No. 2/63, between Tegali and Mohd. Kadir & Ors., in which late Tegali had sought the relief of declaration that he was the Mutwalli of the Jama Masjid in question, which was used by the public for a long time.
14. Now adverting to the oral evidence, we find that Mohd. Kadir (PW 1), in paragraph 13 of his deposition, stated that four essential religious celebrations are held in 'Badi-takia' every year. These celebrations are two Ids, weekly Friday prayer and Muharram procession. He further slated in the same para that on Friday before Id, there assembled 4000-5000 people for prayers and on every Friday there assembled almost the same number of persons for prayers. The open compound land adjoining to and around the mosque is used by those persons for congregational prayers on Id and Fridays. Munnawar Khan (PW 7) deposed that during the State times his father was Topkhana Jamadar and after his death he became Jamadar. He also deposed that during the festival of Ids, the Muslims assembled in the Bada of Jama masjid (open compound) for congregational prayers. He further deposed that during the State times, the procession of Quazi, mounted on a horse, was taken from Jama Masjid, accompanied with a 'danka-nishan' and a cannon, which was carried by him along with few constables. He stated that on the occasion of the birth-day celebrations of the Ruler, there used to be celebrations in the Jama Masjid also with State Shamiyana, installed in the Jama Masjid open compound, where Hindus and Muslims assembled and prayed for the well being of the Ruler. Quazi Kazim Hussain (PW 9) was also examined who deposed that for some times he was Quazi and used to lead congregational Id prayers. He stated that the Muslims assembled on the day of Id in the Jama Masjid. The State provided witha horse 'danka-nishan' and cannon which were used in the procession of Quazi. The procession used to start from Jama Masjid and taken to Idgah where Id prayers were offered. He also stated that on the occasion of birth-day of the Ruler, there used to be celebrations in the Jama Masjid open compound also, where the State-shamiyanas were installed. These witnesses are corroborated in this behalf by Khairati Khan (PW 10) who was Jamadar of the godowns during the State regime and to some exlent by Noor Mohd. (PW 11) who was the Moazzin (who proclaimed Azam) in the mosque.
15. Abdul Gani (DW 1), a clerk of Wakf Board on the basis of Ex. D-9, Ex. D-10 and Ex. D-11, stated that the defendant No. 5 Kayum Ali (DW 5) is the Mutwalli of Jama Masjid. These documents clearly indicate that Wakf Board had appointed the defendant No. 5 Kayum Ali as Mutwalli of Jama Majid, Kayum Ali (The defendant No. 5) was examined as D. W. 5. In para 13 of his deposition he stated that on behalf of Maharaja of Chhalarpur some grant was given for the mosque on religious grounds. In paragraph 20 he admitted that his anscestor Tegali was the Mutwalli of the mosque and after his death, his daughter Amiran Bi became Mutwalli and thereafter he himself became Mutwalli of the mosque and continues to be so to the present date. In para 24 he admitted that during the State regime the procession of Quazi was taken from Imam-chowk to Idgah. In the procession the Quazi was taken mounted on a horse. In para 39 he also admitted that the tazia of Anjuman was erected in Mohalla Beniganj and thereafter the tazia was placed on the Imam-chowk in the 'Badi-takia' from where it was taken in a procession.
16. In Sam Maule Shah v. Ghane Shah, AIR 1938 PC 202 it was observed that a 'takia' is a place where a fakir or dervesh resides, before his pious life and teachings attract public notice and before disciples gather round him, and a place is constructed for their lodgement. A 'takia' is recognized by law as a religious institution, and a grant or endowment to it is a valid wakf or public trust for a religious purpose. In Abdul Rahim Khan v. Fakir Mohd. Shah, AIR 1946 Nag 401, it was observed that where in a suit for a declaration that a property is wakf, the ancient history regarding the dedication of the property as wakf is not available, the decision can be based on such evidence as can be gathered from how the public regarded the property, its environment and the conduct of parties. It has been further held that where a mosque and other properties are within one compound with one gate and are so interconnected as to form part of one property and it is admitted that the mosque is wakf, the Court is entitled to raise a presumption that the other properties also are wakf and that the mere fact that a person is described in the record of rights as owner or describes himself as Mutawalti of a private mosque or Imambada will not make that property his own if there is evidence on record to prove that the property was wakf by user. Again in Mohommad Shah v. Fasihuddin Ansari, AIR 1956 SC 713 it has been observed that where to the original mosque, which is proved to be a wakf property, an area is added by the mutawallis by way of construction of rooms and this area is used by the public for religious purposes along with the old mosque then if the area has been made into a separately demarcated compact unit for a single purpose, namely collective and individual worship in the mosque, it must be regarded as one unit and be treated as such and the whole becomes accordingly wakf by user. The High Court of Orissa in Khati v. Mirza Hossain, AIR 1962 Orissa 95, took almost the similar view by holding as under (at p. 96) :--
'A wakf normally requires express dedication, but where there is no evidence to show how and when the alleged wakf was created, the wakf may be established by evidence of user; if land had been used from time immemorial for religious purpose, such as a Masjid, the land is constituted wakf, though there is no evidence of express dedication; the title of the original owner is extinguished and the ownership of the property vests in God and accordingly the public character of the institution may be presumed.
Land used from time immemorial for the purpose of Masjid and for its courtyard which formed part and parcel of Masjid and for celebration of Muharram festival constitutes a wakf by user.'
17. It is admitted by the defendants that the Jama Masjid with 'hujra' tank and water-tap as a part of mosque, are wakf property and that at present the defendant No. 5 Kayum Ali is himself the Mutwalli thereof and prior to him their predecessors in interest have been holding the office of Mutwalli. But they have denied that rest of the property in dispute within 'badi-takia' is a wakf property and claimed the same to be their own private property. So far as the Jama Masjid and its adjuncts are concerned, the sketch-map, Ex. P-2 gives a dear description and location of each part of the entire propertyin suit within 'badi-takia' as also the evidence adduced by the parties. The learned District Judge, who tried the suit, also made an inspection of 'badi-takia' and prepared his spot-inspection note dated 27-4-1978, which also gives out the full details of the property in question with its measurement. The sketch-map, Ex. P-2, and the inspection-note are not disputed by any of the parties. A glance on the sketch-map, Ex. P-2, and a reading of the inspection-note will go to show that the 'Jama Masjid' abuts on the western side of the public road having its main entrance on the eastern side. There are two other entrances also on the northern-southern side from the courtyard opening in the open compound, which exist adjoining and contiguous to the mosque all around, except in the east. In the front and on the south-east corner adjoining the courtyard wall of the mosque, there ' is a water tank with two urinals and a pipe-line with tap for use of Muslims, going for offering prayers. On the south-west corner of the mosque, there is a small room called 'Hujra' of the mosque and adjoining to it, there is a well. The door of its 'hujra' opens in the open compound. According to sketch-plan (Ex. P-2) and Inspection-note, on the eastern side the compound wall proceeds towards south from the water-tank covering 19.30 meters. In the compound-wall which proceeds to the South, there is a gate beyond the water-tank and the urinals. The southern compound-wall then turns to the west running east-west covering a distance of 31 meters, but there-after there is no compound wall. On the Western side, there is a continuous line of private houses and the back of those houses serves as demarcation line of this compound on the western side. The total north-south-width of this backyard on the western side is 22.70 meters. In the open compound there is a staircase on the northern side of the main part of the mosque to reach at the roof of the mosque. On the northern side and within the compound are situated the kacha residential house of the defendants, a room having no roof, another room described as 'Panchayat-Ka-Kamra' with a 'chabutra' in the front, a room described as 'Musafir-khana'. There is a small gate by the side of 'Panchayat-Ka-Kamra' opening towards north leading to the public lane. On the northern side and at a distance of 2.50 meters from the mosque, there exists 'Imambada* which measures 6 X 7.90 meters, its front being towards west. At a distance of 7.40 meters in front of this Imambada, there is a 'Chabutra' said to be 'Imamchowk'.
18. As seen above, it is settled law that in a case where a long period has elapsed since the origin of an alleged wakf, user can be the only available evidence to show whether the property is wakf or not. Where the ancient history in respect of the nature and character of a particular property is not available, a decision will have to be based on such evidence as may be gathered from its use and environment as also how the public regarded the properly and the conduct of the parties in relation thereto. As regards! the mosque with its 'hujra', water tank and urinals, it is almost an admitted fact that they are wakf property as was found in the former suit also. The question remains whether the entire property of 'Badi-Takia' also constitutes a public wakf. We have gone through the oral as well as documentary evidence as also the relevant law on the subject. The evidence on record goes to show that the compound land is situated adjunctively to the mosque and it exists just adjoining and contiguous around the mosque. The adjoining compound land is linked and well connected with the mosque by two entrances one in the north and the other in the south of the mosque-courtyard which open in the compound land itself. The Imambada and Imam-chowk are also situated within the said compound. It has been unequivocally established by evidence that this compound land has always and continuously been used for public and religious purposes such as for offering Id and weekly Friday prayers, processions in Id and Muharram and birthday celebrations of the Ex-Rulers of the State since long past. The Imam-Bada and Imam-chowk were also similarly used by Moham-madan community for religious purposes since a very long past and the same were dealt with as public property and regarded as wakf from time immemorial by the community at large. Even Kayum Ali, the defendnt No. 5 (D. W. 5) and his predecessor-in-interest late Tegali and Wahidali clearly admitted the nature and character of the compound land, Imambada and Imamchowk, which are adjuncts of the mosque. It is different that the defendant Kayum Ali (DW 5) stated that the Id and Friday prayers were offered with their permission and also tried to minimize the number of persons who assembled during Id and Friday prayers. But that statement appears to be wrong and of no consequence as the continuous act of permitting Mohammedans to offer prayers in the compound and to perform other religious activities itself amounts to a complete dedication or at least a declaration that the compound land was a public property. The agreement Exhibit P-1223 executed by Tegali and Wahidali clearly shows their admission that the 'badi-takia' and its tazia were public property. Taking entire stock of the evidence on record regarding the use and situation of the property, its environment and conduct of the parties in relation thereto, we are of the opinion that an inference can legitimately be drawn that Jama Masjid and the compound within which the Imambada and Imamchowk are situated, arc adjuncts to the mosque except a small piece of land on the southern side of the mosque, measuring 6' x 6' and shown within red lines in Ext. D-22. We have therefore, no hesitation to hold that the plaintiff has successfully established that the mosque with its 'hujra' water tank and urinals etc. and the open land within the compound along with Imambada and Imamchowk existing therein, are adjuncts of the mosque which' are used by the Muslim community as part of the mosque and are wakf by user. But as regard the residential houses, with whatever names they are described, such as 'Musafirkhana' and 'Pan-chayat-Ka-Kamra' etc., there is no convincing and conclusive evidence to suggest that they were or are used for public purposes. In our opinion, these residential nouses have not been established as wakf by user.
19. The learned counsel for the defendants-respondents vehemently urged that the defendants have successfully established their title about the property in 'Badi-takia' by the documents Exts. D-14, D-15 and D-16. The learned Dist. Judge carefully examined the tenor of these documents and in para 74 of his judgment, held that the said documents only indicated that the defendants' predecessors have been managing the property, for which some grant was paid by the State. But these documents are not title-deeds. We have examined these documents and find no reason to differ with the conclusions recorded by the learned District Judge. By these documents the State had simply made certain muafi grant for the management of the property.
20. This brings us to the last question relating to the suit being barred by limitation. The learned trial Judge held that late Tegali claimed ownership over all the property of 'Badi-takia' in 1952-53 except Jama Masjid. Tegali remained in possession till his lifetime, and after his death the defendants are in possession of the property of 'Badi-takia'. The suit was filed in the year 1974 and, therefore, the learned trial Court held that the suit for declaration was barredby time under Article 120 of the Limitation Act because in the opinion of the learned trial Judge, the defendants were not in possession as trustees or in fiduciary capacity. This finding, in our opinion, is wholly misconceived, incorrect and contrary to the admitted facts.
21. The defendants have emphatically pleaded in para 12 of their written statement that Kayum Ali, the defendant No. 5, is the Mutwalli of Jama Masjid. Chhatarpur. This fact has been further admitted by Kayum Ali in para 20 as D W. 5 that during the lifetime Tegali was Mutwalli of the mosque and after his death his daughter Amiran Bi became Mutwalli and after the death of Amiran Bi, he himself became the Mutwalli of the mosque and continued to be so to this date. Thus it is almost an admitted fact that the defendant No. 5 Kayum Ali is the Mutwalli of the mosque in question and he is in possession on be-half of the community, but he is setting up his own title and putting the title of the community in jeopardy by claiming title adversed to that of the community In the circumstances of the present case the provisions of Section 10 of the Limitation Act are squarely attracted, which provide that no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns for the purpose, of following in his or their hands such property or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time. In the present case, admittedly, the defendant No. 5 is holding the mosque and its adjuncts in the capacity of a trustee or Mutwalli thereof, and, therefore, applying the principles of Section 10 of the Limitation Act, the suit could not be said to be barred by limitation. In Mohd. Shah v. Fasih Uddin Ansari, AIR 1956 SC 713, it has been held that in a suit for declaration that the property in possession of the Mutwalli is wakf property, no question of limitation can arise in respect of those parts of the properly in dispute which, according to the findings are comprised in the wakf estate. In view of the aforesaid facts and circumstances, in our opinion, the suit is not barred by limitation.
22. In the result the appeal partly succeeds and is hereby allowed. The impugned judgment and decree are set aside and the plaintiff's suit is partly decreed. It is declared that the mosque and the land around ths mosque, within the compound along with the Imambada and Imam-chowk as shown in the Map Ext. P-2 are the adjuncts of the mosque and part of the wakf property. The dismissal of suit for rest of the plaintiff's claim, is affirmed. Having regard to the equal success and failure of the parties in this appeal, each party shall bear its own costs throughout.