Guman Mal Lodha, J.
1. This is a defendants' civil second appeal against the judgment of Additional District Judge, Sawai Madhopur upholding the judgment and decree of Additional Munsif and Judicial Magistrate, Sawai Madhopur.
2. The plaintiff respondents instituted a suit against defendant-appellants and respondents No. 4 to 15 with the allegations that a Haveli situate at Sawai Madhopur was purchased by the plaintiffs from Mst. Fatima Begum widow of Mirza Liyakat Ali Beg, Jagirdar on 18th September, 1958 for Rs. 5000/- by a registered sale deed and since then the plaintiffs are in possession. But defendants No. 2 to 12 with the assistance of other Muslims wanted to take forcible possession over two Kothas and Ikdare in the Haveli shown by Nos. 1 to 4 in the site plan, upon which the plaintiffs instituted a suit for permanent injunction against them but during the pendency of that suit these defendants on 14-7-1959 took forcible possession over the said premises. The plaintiffs and their tenants are in possession over of the Haveli. The plaintiffs withdrew the previous suit with liberty to file a fresh suit and thereafter they instituted the present suit. They alleged that these rooms are owned by the plaintiffs and the defendants or the other Mohammedans of Sawai Madhopur have no connection with the same. The plaintiffs, therefore, instituted the suit for possession and for mesne profits at rate of Rs. 10/- per month, amounting to Rs. 100/- upto the date of the institution of the suit. The suit was filed against the defendants in representative capacity as representing the Muslims of Sawai Madhopur. The suit was originally filed with Shri Syed Abid Ali, President of Anjuman Islamia, Sawai Madhopur as defendant No. 1 and also against the other defendants. Later on, on the death of Syed Abid Ali, Syed Farooq Hussain was substituted being the succeeding President, Anjuman Islamia Sawai Madhopur. Two written statements were filed, one by Syed Abid Ali and the other on behalf of the other defendants. The defence took was that Mirza Liyakat Ali Beg was the Jagirdar of Thikana Sherpur, whose ancestor was Mirza Imam Bux, who was a Tazimi Sardar of former Jaipur State and on that account the places in Sawai Madhopur were called by the name of Mirza Ji ka Mohalla, Mirza Ji Ka Bagh, Mirza Ji Ki Masjid and Mirza Ji Ki Haveli. But Mirza Imam Bux or his heirs Mirza Liyakat Ali Beg or his wife had no connection with that Haveli. This Haveli was Wakf property for the last 100 years and in the disputed property Tazias etc. used to be prepared and kept and Majlis used to be held. The property was thus Wakf property and was known as Imam Bada. From old times Tazia used to be prepared kept and taken out of this property and was thus used as wakf property from very old times. It was never in the personal use of Mirza Liyakat Ali Beg or his wife. Even in the 1932 record there is a mention of Tazia of Mirza Mohalla.
3. The learned trial court framed the following three issues:
(1) Whether the disputed property wes purchased by the plaintiffs from Mst. Fatima Begum w/o Mirza Liyakat Ali Beg on 18-9-58, and the said Fatima Begum had the right to sell it ?
(2) Whether the defendants No. 1 to 12 took possession over the disputed property on 14-7-59 on behalf of the Muslims of Sawai Madhopur.
4. The plaintiffs examined 16 witnesses while the defendants examined 15 witnesses. Both the parties also produced documentary evidence. The learned trial court decreed the plaintiff's suit, On appeal the learned Addl. District Judge upheld the judgment and decree of the trial court.
5. Mr. Tikku appearing for the defendant-appellants has submitted that the judgment of both the courts are vitiated because no issue was framed on the relevant question whether the property in dispute was Wakf property nor there was any specific pleadings to the effect in the application or rejoinder of the plaintiff. Mr. Tikku's contention is that unless there is specific pleading on the point and an issue framed, the parties could not have been accepted to lead evidence and this has resulted in failure of justice.
6. The learned counsel for the respondents on the contrary was pointed out that the defendants lead evidence to show that the property in dispute was public wakf and having miserably failed in this attempt now this feeble attempt is being made in this court to raise a bogey of failure of justice.
7. The learned counsel for the respondents pointed out that a bare perusal of the judgment of the first appellate court would show that both the courts were alive to the relevant issue because issues Nos. 1 and 2 makes it clear. It was argued that unless the defendants are liable to prove that it was a public wakf property they cannot succeed. In this connection issues No. 4 and 5 were also pointed out.
8. The learned counsel for the respondents further submitted that in order to declare the property as wakf property there must be clear evidence of dedication and the ground of user is not sufficient nor it can become a substitute for dedication.
9. Both the learned counsel tried to show the relevant evidence in this connection. Whereas Mr. Tikku pointed out that from the. evidence it is proved that Tazia used to be prepared in this properly and the access to this property for seeing Tazia. Mr. S.M. Ali, learned counsel for the respondents pointed out that the plaintiffs have proved that this was the personal property and Tazia used to be prepared on the personal expenditure incurred by Mirza Saheb and the property was never dedicated.
10. I have given a thoughtful consideration to the rival contentions of the learned counsel for the parties.
11. It is now established law that so far an amendment of issue on particular point is concerned, mere academic debate on this point is not permissible unless it is shown that there was not aliveness of parties on that point while leading evidence and there has been a serious prejudice resulting in failure of justice.
12. On a comprehensive and thorough consideration of the issue and evidence, I find that issues No. 1, 2, 3 and 4 having read as a whole makes it clear that the following points are covered by the parties during evidence:
(1) Whether Tazias were prepared, kept and taken out from the property in dispute;
(2) Whether the Tazias were prepared out of the expenses incurred by Mirza Saheb and whether there was any contribution from Muslims in general;
(3) Whether Tazias were prepared out of the public fund or by the Wakf and whether the property in which Tazias were prepared and kept was wakf property or not
(4) Whether there was dedication as Wakf property;
(5) Whether it became wakf by immemorial use.
13. The above points are very well spelled out. in the evidence which have been recorded though specific issues were not framed, both the parties have tried to lead evidence to show that the expenses were borne by them. Whereas the plaintiffs tried to show that the expenses were borne by Mirza Saheb and his family and the defendants have tried to show that the Muslims in general used to bear the expenses of preparation and taking out the Tazias. The plaintiff succeeded and the defendants failed in their attempt. Similarly on the other points the plaintiffs and the defendants both tried to lead evidence and there are findings of both the courts that inspite of attempt there is no proof of dedication of this property as wakf property. It has also been held that merely because Muslims in general were allowed to have access to see the Tazias, neither immemorial user of the property as wakf property nor its dedication can be presumed. I am, therefore, convinced that the plea of Mr. Tikku that there has been a failure of justice on account of absence of issue cannot be sustained. It should not be forgotten that earlier to this there was a judgment of the Wakf Board holding that it was not a wakf property and the parties were very much alive to it and defendants tried to lead evidence to undo the effect of that judgment by proving that it was a public wakf property. Both the courts have not believed the evidence led by the defendants to show that it was a public wakf property, and this court cannot interfere in second appeal against this appreciation of evidence.
14. Mr. Tikku relied upon the judgment of Syed Mohd. Salie Labbai v. Mohd. Hanifa : 3SCR721 wherein rules in order to determine whether a grave yard is a public or a private one have been stated. He emphasised that even if there is no direct evidence of dedication, it can be presumed on the basis of various circumstances. There cannot be any doubt that immemorial user by community as a whole in the given case result in presumption of dedication. For example even in the present case if it would have been proved by the defendants that the Muslims in general used to contribute to the construction & preparation of the Tazias and for taking out procession and they used to maintain the immovable property where the Tazias were being prepared, it would have furnished bedrock for the presumption of dedication. Both the lower courts have held that such a proof is wanting and that is so even on the application of the principles laid down in the above judgment the defendants cannot succeed.
15. Mr. Manzoor AH referred to the judgment of this Court in Faiz Mohammed v. Kanhaiyalal ILR 1964(14) Raj 1044, wherein this Court has held that there must be unmistakable proof available that the owner made a clear declaration of dedication of the property definitely and permanently to God. Even an owner's unexpressed intention to dedicate property cannot have the effect of a formal declaration and the user must be of such a nature that it can only lead to an inference of dedication of the property to the wakf.
16. Mr. Manzoor AH further referred to the judgment of Allahabad High Court in Shah Ali Hammad v. Mohammed Nazir Ali AIR 1959 All 3297, wherein it was held that the court-yard was known as Imambara, Majlises were held on it at the time of Moharrum and Chehlum, Tazias used to be kept in it in front of the dalan and a number of graves were to be found in different portions of the property, but even this was not sufficient to prove dedication.
17. Accepting finding of facts of both the lower courts in the present case, it is proved that Mirza Sahib and his family used to bear the expenses of the Tazias which used to be constructed in the part of this property and the defendants have miserably failed to prove that there was a public contribution or payment of the labour for taking out Tazias were borne out by them, there is no escape but to confirm the resultant finding of both the lower courts that the defendants have failed to prove that it was a wakf property.
18. Since it was personal property, the sale of the property was valid and the defendants, could not have encroached upon this property and taken possession of it. The decree for possession granted by the lower courts therefore needs no interference.
19. Consequently the appeal fails and is dismissed without any order as to costs.