1. The plaintiffs appeal against the decree dismissing their suit for framing a scheme for a Mosque in Palacole and for the removal of the defendants from their trusteeship. At first a decree was given in favour of the plaintiffs owing to the failure of the defendants to prosecute their defence, but subsequently this order was set aside as being an ex parte decree and now the Subordinate Judge has dismissed the plaintiff's suit.
2. An objection has been taken by the appellants that the Subordinate Judge had no jurisdiction to revise his original order and that on that ground the appeal should be allowed. We have, however, heard the appeal on its merits and as we are in favour of the appellant's contention on the merits, it is unnecessary to decide the other point.
3. The earliest evidence in regard to the Mosque is the proceedings before the Inam Commissioner. We have the inam statement put in by defendants' ancestor, Ex. VI, and the inam register, Ex. A. The learned Subordinate Judge appears to have considered that the statement was, if anything, of more importance than the register and, therefore, has not considered that the recitals in the register are as important as they really are because he says that they must be explained by the entries in the inam statement. It has, however ,to be remembered that an Inam statement is only a statement made by a party to the enquiry and is merely an assertion of his alleged title before a tribunal which has to decide it. The inam register embodies the result of the finding of the Inam Commissioner based partly on the statements put in by the parties and partly on other evidence and, as appears from Ex. A in this case, the other evidence consisted of documents going back to 1812. There is practically no other document of title in this case and we must look to this inam register to see what the facts are. It is contended for the defendants that there is no mosque at all in Palacole but only a Peerla panja and that this Peerla panja has been loosely called Peerla Muzid and that is the reason why we find the word Mosque used with reference to the plaint institution. This theory has been accepted by the learned Subordinate Judge and he has held that there is no Mosque but only this Peerla panja which apparently he considers to be a private institution. If we look at Ex. A, we find, in the first place, that the inam is described as ' Devadayam ' and there is the authority of this Court in Muhammad Jafar v. Muhammad Ibrahim ILR(1900) M 243 that the word Devadayam implies a public endowment; and whether this is correct or not, there is no doubt that the use of the word Devadayam is a very strong piece of evidence in favour of holding that the suit endowment is a public endowment. There is nothing to contradict this evidence. The defendants have not even produced the inam title-deed and in 1859 they alleged that their sannad has been lost in a cyclone. We start then with the assumption that it is an inam granted for a public charity. The purpose is given as ' for the support of the Mosque.' There is no question here of the meaning of the word (Maseethu) which appears to be a Telugu form of the Hindustani Masjid, for the inam register is in English and it may fairly be taken that when the word ' Mosque ' is written the word Mosque is intended and not the word ' panja ' as is suggested for the defendants. Even in the defendants' inam statement there is no mention of panja, but in the first column he uses the word (Maseethu); he docs not even use the words which we find in later documents Peerla Masidu, although he says that the purpose for the grant was for holding ' Peerla Utsavam and other things.' This statement possibly explains the introduction of the subsequent word (Peerla Maseethu) which seems from the evidence to be contradiction in terms for it is admitted that the Peerla are never kept in a Masjid. Then we have also a report of the Tahsildar, Ex. XIII, and this is a report in reference to a claim by the defendant to a portion of the site surrounding the plaint institution. It is a report of a Muhammadan Tahsildar and he also used the word 'Mosque' to describe the owner of the site. He does mention the words ' Peerla Mollalu ' in his report, but that is clearly a quotation from the house-tax register. In view of this evidence and the fact that there is no documentary evidence at all to show that the institution was a panja, we think that it must be deemed to be a mosque as is distinctly recited in the inam register. The subsequent confusion in the language, chiefly used By Hindus, when if was called (peerla Maseethu) may be due to the fact that not only was there a Mosque but also that a Peerla Utsavam was performed in the same compound and when as is alleged by the plaintiffs the Mosque became demolished the idea of the Peerla remained more strongly in the minds of the neighbours. Otherwise, it is difficult to account for this curious term. The oral evidence cannot be said to be very satisfactory on either side, but there is one point which is in favour of the plaintiffs and that is that they have examined several Muhammadan witnesses living at Palacole who support their case that there used to be a Mosque in the suit compound, that it has been now demolished and that there is only a panja or Muzavarkhana existing. There are three Muhammadans examined on the defendants' side but none of them resides in Palacole and it is not very easy to believe their statements when they say that they know all the details about the Palacole village in which they do not seem to have spent very much time. The other witnesses are Hindus mostly of the Telegu caste, and it is suggested for the plaintiffs that they are all connected with a certain gentleman of their caste named Annamalaiswami who certainly took a considerable interest in the hearing of this case. Whether that is or is not the reason for their giving evidence it is clear from a perusal of their deposition that not very much weight can be attached to their evidence that a mosque never existed in Palacole. Relying on the oral evidence for the plaintiffs in support of their case and the inam register we come to the conclusion that the original endowment was undoubtedly made for the Mosque. That being so, the defendants have no beneficial interest in the inam unless they can prove the same and that they have entirely failed to do. The only document they have produced is a partition deed under which they divided their other property and agreed that out of the proceeds of the suit inam Rs. 50 should be set aside for the Peerla Utsavam and that the balance of the income should be divided annually amongst themselves. This is no doubt a claim to a beneficial interest, but it is not supported by any title-deed or any other evidence of any weight.
4. As the defendants have not applied the inam in the proper manner and have denied the title of the Mosque to the inam, it is impossible to allow them to continue to manage in the same way as before and it will be necessary to frame a scheme for the management of the trust. Although the endowment is undoubtedly made to the Mosque the claim put forward by the defendants' ancestor in 1859 and subsequent events show that it is quite possible that the institution also included the Peerla panja, which admittedly has been in existence for a considerable time past and is alleged by the defendants to have been in existence even prior to the inam enquiry. Therefore, in framing the scheme it will be necessary to provide also for the upkeep of this panja out of the income of the inam.
5. As regards the item of 25 cents of site near the Mosque, it was held after an enquiry in 1905 that this piece of land belonged to the defendants and not to the Mosque. There is really no evidence for the plaintiffs to show that this decision is wrong, and as the defendants have been in possession of it for over twelve years before suit, we are not prepared to disturb that possession now.
6. As regards the scheme the parties will be asked to submit a scheme and one of the conditions will be that there shall be three trustees one of whom shall be a member of the defendants' family and the other two appointed by the Subordinate judge's Court. The case will be adjourned for a week in order to have the scheme submitted for orders.
7. And this appeal again coming on for hearing this day after submission of a scheme, the Court delivered the following
8. A scheme has now been submitted which, with slight modifications, we have accepted. In allowance of the appeal there will therefore be a decree in favour of plaintiffs for the recovery of possession of the suit lands, except the 25 cents referred to, for the removal of defendants from trusteeship and for framing of a scheme as already approved.
9. Plaintiffs will get their costs in both Courts out of the estate, and defendants will bear their own costs.