S. Barman, J.
1. The defendants are the appellants, in this second appeal, from a confirming decision of the learned First Additional Subordinate Judge of Cuttack whereby be affirmed a decision of the learned Additional Munsiff of Cuttack and decreed the plaintiffs' suit for a declaration that lots 1, 2 and 3 of the suit properties are Wakf properties and that the mortgage and the execution are collusive.
2. The facts, shortly stated, are these: The suit properties were purchased by one Kamiruddin Khan being the predecessor-in-title of the defendants appellants in execution of a mortgage decree in T. S. No. 244 of 1927. On October 10, 1929 the said Kamiruddin Khan took delivery of possession in execution of the decree. In 1953 the present suit was filed by the plaintiffs, being members of Muslim Community in their respective capacity, for a declaration that the suit property belongs to Mohamadan public and not the defendants and further that the mortgage in favour of the said Kamiruddin Khan (husband of defendant No. 1), the mortgage decree the execution proceedings are illegal, fraudulent and inoperative against the public and for possession.
The defence taken in the suit, is that none of the suit properties are Wakf properties though no doubt there is a Masjid in lot No. 1 originally meant for prayers to be offered by the mortgagor's family; hat lots 2 and 3 are not Part and parcel of the Masjid though they are adjacent vacant plots; that in the Provincial and Revision Settlements the said lots are not recorded as Masjid or Wakf property; in the current settlement lot No. 1 is shown in the name of the mortgagor mentioning a Masjid Ghar therein.
3. The trial court held that the suit property is Wakf property; that lot No. 3 is the Khela Padia where Moharum feats are shown; that the mortgage is collusive and accordingly decreed the suit in favour of the plaintiffs. The said findings were affirmed by the learned lower appellate Court in appeal. Hence this Second Appeal.
4. The point,--urged by Mr. M.S. Rao, learned counsel for the defendants appellants,--is that there is no documentary evidence of dedication. The learned counsel contended that it must be shown that there was dedication by somebody for the purpose of Wakf. The learned Counsel, by reference to authorities cited by him, relied on the undisputed position in law that what is required to be established is the intention on the part of the owner to dedicate a particular property for religious or charitable purposes or, in other words, the intention of the owner to create a wakf of the property; that, such intention may be established by declaration or may foe inferred from user; that the circumstances,--that the property had been mortgaged and that a mortgage decree was obtained and thereafter the property was sold,--are facts which, militate against the inference of dedication for religious or charitable purposes.
On this point the learned counsel relied a decision of the Nagpur High Court in Jawherbeg Umraobeg v. Abdul Aziz, AIR 1956 Nag 257 at p. 259. The point is that the dealing with the property by way of mortgage is on the basis that it was secular property and not Wakf property. This argument is repelled on behalf of the plaintiffs, submitting that on the facts of this case, the Nag-pur decision has no application here.
In the present case, the alleged mortgage which was in 1919 was found to be collusive and accordingly it is to be treated as breach of trust on the part of the person dealing with the property. In 1927 the mortgage suit was filed. Still, in 1929 in the current settlement record-of-rights--which was published on May, 18, 1929,--it was recorded as containing a Masjid; notwithstanding such entry in the record-of-rights of the current settlement, the delivery of possession was made in execution of the mortgage decree. Thus, the mortgage, was clearly a breach of trust, and therefore is not binding on the plaintiffs. With regard to the proceedings in the mortgage suit, the concurrent finding of the Courts below is that there was no delivery of possession in the execution case, because the two witnesses--the alleged attestors to the delivery of possession--denied the alleged delivery of possession. That apart, the alleged mortgage document was never produced in Court. The entry in the record-of rights made as early as 1929,--mentioning Masjid,--is conclusive of the point. This disposes the aspect of the mortgage, on which the defendants strongly relied in support of their contention that the suit properties are secular properties and not wakf properties.
5. A Wakf normally requires express dedication, but if it had been used from time immemorial for religious purpose, then the land is by user wakf although there is no evidence of express dedication. In the present case, it is evident that there is no proof of express dedication; therefore the only question is whether there is evidence of user and if so user of what. Wakf as defined in Wakf Act, means the permanent dedication by a person professing the Musalman faith of any property for any purpose recognised by the Musalman law as religious, pious or charitable; the legal meaning of Wakf, according to Abu Hanifa, is the detention of specific thing in the ownership of the Wakf or appropriator, and the devoting or appropriating of its profits' or usufruct 'in charity on the poor Or other good objects' (principles of Mahomadan Law by Mulla, 14th Edition, Article 173).
When we talk of user from time immemorial, it means that it has to be established by long user, beyond which memory of man cannot trace. The mere fact,--that a person describes himself as Motawalli 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; nor will the mere fact that in certain applications the person uses expressions like 'my mosque' or 'my Imambada' make the Imambada or the mosque his own, when to his knowledge the property was held to be Wakf. When a long] period has elapsed since the origin of the alleged wakf, user can be the only available evidence to show if the property is or is not wakf; 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. Abdul Rahim Khan v. Fakir Mohammad Shah, AIR 1946 Nag 401; Mehraj Din v. Ghulam Mohammad, AIR 1931 Lah 607; Ramzam v. Dasarath Raut AIR 1953 Pat 138.
In the present case, it is nobody's case that there is any written wakf. Therefore, the whole question is to examine the other evidence adduced herein. Indeed when a land forms part of a Masjid or graveyard set apart for Mussalman community, and that by user if not by dedication, the land is wakf; the entry in the record-of rights seems conclusive on the point; it is obvious that, if it were held that within the area of the Masjid or grave-yard land unoccupied or apparently, unoccupied by Masjid or graves was private property and at the disposal of the recorded owner, it would lead to endless disputes, and the whole purpose of the Government in setting aside land for a Masjid or as an open grave-yard for the Mahomadan community would be frustrated : Court of Wards for the property of Mokhdum Hassan Baksh v. Illahi Buksh, 40 Ind App 18 at p. 23 (PC).
6. Keeping the above, in view, as the undisputed position in law the three lots contained in the suit property in the present case, may be conveniently examined seriatim as follows:
With regard to lot No. 1, the finding of the learned lower appellate Court is that it refers to plots Nos. 2119 and 2120; plot No. 2120 has been recorded as Masjid Ghara and plot No. 2121 has been recorded as Gadia (pond) in the current settlement (Ex. B). The excavation of the pond adjacent to the Masjid Ghar is significantly indicative of the purpose of purification of the body before the Mahomadans sit for prayers in the Masjid. On this point the Mahomadan Law is that every Mahomadan is entitled to enter a mosque dedicated to God, whatever may be the sect or school to which he belongs, and to perform his devotions according to the ritual of his own sect or school, although it is not certain whether a mosque appropriated exclusively by the founder to any particular sect or school can be used by the followers of another | sect or school. In view of the entry in the record-of-rights mentioning 'Masjid Ghara',--which is conclusive,--it leads to the only inference that it is wakf property.
With regard to lot No. 2 which is embraced in the same compound, it is clearly a part and parcel of the Masjid having regard to its location adjacent to the Masjid.
Then with regard to lot No. 3 it is Khela Padia meant for exhibition of feats during Moharum which is a public festival of the Mahomadans. As is well known Moharum is an important religious function of the Mahomadans and accordingly a lot of land meant for exhibition of feast on such religious occasion is an essential part of the Masjid itself. Thus, all these lots, taken together, constitute wakf property.
7. In this view of the case, the decision ofthe learned Courts below is upheld. This appealis accordingly dismissed with costs.