1. The suit out of which this second appeal arises was brought by the plaintiff for a declaration that the mosque in dispute was built by the plaintiff and other members of the Ahl-i-Hadis sect and that the plaintiff is the mutwalli and manager of the said mosque. Then come two prayers in connection with the Imam with which we are not called upon to deal for reasons which we shall presently state: and it was then prayed that a declaration be made that the defendants are in no way entitled to interfere with any of the above mentioned things, and the plaintiff after the ejection of the defendants may be awarded possession over the said mosque so that he may perform all the acts mentioned above without interference on the part of the defendants and may say prayers therein. There was then the prayer for temporary injunction and costs and any other relief to which the plaintiff might be entitled.
2. Now a person who comes into Court and claims declarations of this nature which give him practically exclusive proprietary right over a Muhammadan mosque must prove his case up to the hilt. The learned Munsif in the first Court has found that, so far from proving his case up to the hilt, all his allegations are rooted and grounded in falsehood, that the grant which he puts forward in writing is not a genuine document, and that at the most he has exercised the rights of management which do not constitute him a mutwalli or absolute trustee of the property. The Subordinate Judge has practically agreed with all the findings of the Munsif except with regard to the nature of his management. Dealing with the Munsif's finding that the plaintiff was the manager and not the mutwalli, he says: 'There is, however, evidence to show that the plaintiff was appointed by the people to defray the expenses, to appoint Imams, to feed musafirs and to collect subscriptions. The evidence on this point is certainly not as sufficient as might have been expected, but considering the fact that the majority of the Muhammadans of the locality are Hanifis and the fact that none of the Hanifis claim mutwalliship of the mosque, I should think that the evidence on this point is probable and, under the circumstances, sufficient,' and then he goes on to say: A manager or superintendent who defrays expenses of the mosque, appoints Imam, feeds musafirs and collects subscriptions is the mutwalli of the mosque.'
3. It is here that we must join issue with the learned Subordinate Judge. He has not relied upon the principles laid down in the Muhammadan Law. He has stated as an ipso dixit what in his opinion is sufficient to constitute a mutwalli. But the Muhammadan Law is perfectly clear that the power of appointment of mutwalli lies in the first place with the wakif, on the death of the wakif it lies with his, executors and on the failure of executors the appointment rests solely with the Kazi or District Judge under our present system. It is true Mr. Ameer Ali in his work on Muhammadan Law, does mention that it the devotees or the congregation of the mosque appoint a mutwalli, it is valid But the authority for this, proposition is not stated, and the learned Counsel who argued the case for the respondent did not cite any authority on this particular point. But taking it for granted that the congregation if they appoint a mutwalli, make a valid appointment, we are met with this circumstance that on the plaintiff's own case the congregation never appointed him. He says that the grant of land was made to him and to other members of the Sunni Ahl-i-Hadis sect, which, on the findings of fact of the lower Court, forms a very small minority of the Muhammadans of Jamalpur, the large majority being Hanifis. He was, therefore appointed, if appointed at all, by a small sect of Muhammadans known as Ahl-i-Hadis. Now, in the same passage Mr. Ameer Ali says, where a limited body have appointed, that is, where the wakif is in favour of an ascertainable body of people limited in number, the beneficiaries may elect a manager and not a mutwalli. But in this case the plaintiff seeks for relief under Section 42 of the Specific Relief Act, and it was clearly laid down by the Privy Council, in the case of Maina v. Brij Mohan 12 A. 587; 17 I.A. 187 that, in a suit under the Specific Relief Act, Section 42, brought for a decree declaratory of the plaintiffs' title to be mutwallis and managers of property from ancient demise connected with religious observances, the suit had been rightly dismissed in the first Court, notwithstanding that the Court of first appeal, which in this instance was the High Court, had, as in this case, decreed the appeal and given the plaintiff a decree, acting upon a genuine sanad of the Padsah of Delhi; so that the case before the Privy Council is a much stronger case than the one before us, and the plaintiff had much better evidence in support of his contention. Yet the Privy Council says, even if the evidence had shown that the plaintiffs had some rights in respect of the property in question, they had nevertheless so far failed in giving definite proof of their claims that they were not entitled to the decree claimed, and it is settled law that in a case under Section 42 of the Specific Relief Act, the Courts will not give the declaration where the plaintiff's right is not definitely established.
4. It cannot be said that the right the plaintiff claims in his plaint has been in any way established. The question of whether a mutwalli is in all cases allowed arbitrarily to remove the Imam and appoint others, therefore, does not arise and we need not discuss it; nor does any question arise as to the exact method of the appointment of a mutwalli when there is a failure on the part of the wakif, of his executor and of the Kazi to appoint one. The most that need be said is that the appointment of a mutwalli is not essential to the validity of an appropriation, and for that we have the authority of Doe on the Demise of Jaun Beebee v. Abdollah Barber Foulton's Reports 345 and we can only say that the findings of the Subordinate Judge do not reverse the findings of the Munsif, that in this case there was no delivery to any mutwalli and no appointment of mutwalli proved; and on the authority of the Privy Council which we have just cited, the plaintiff's suit for declaration, therefore, fails and the appeal must be allowed and the plaintiff's suit dismissed with costs in all Courts.
5. I agree that the appeal must be allowed and the suit dismissed with costs but desire to avoid any expression of opinion upon the points of Muhammadan Law involved.
6. The plaintiff's case was that he had obtained a plot of land from the zemindar with permission to build a mosque upon it, that the present mosque had been erected and improved at the expense and under the management of a local body of the Ahl-i-Hadis sect, of which he was a member. He claimed to be mutwalli upon these grounds and upon the ground that he had appointed the Imams and that the repairs and the furniture of the said mosque had been made at his expense and under his supervision. His cause of action was stated to be that the defendants who are of the Hanifi sect had entered the mosque and disturbed the worship and had put forward an ignorant person as Imam. The findings were that the plaintiff had entirely failed to prove that the grant of land had been made to him, that the document put forward by him to prove this was not genuine, that at the time the mosque was built, there were no professed members of the Ahl-i-Hadis sect in the locality, that at that time the congregation was entirely Hanafi, that the person put forward by the Hanafis as Imam was the rightful Imam who had originally been appointed by the plaintiff. It is evident that upon these findings, the whole of the plaintiff's case including his cause of action failed, and I am of opinion that the learned Subordinate Judge did not exercise a proper discretion in granting the plaintiff a declaration upon a ground which was not part of and which was not in fact consistent with the plaintiff's case.