Supreme Court: The present appeal arises out of a suit filed by respondent against appellants as representing the Mohammedan Community in the Court of Munsif Haveli, Azamgarh for possession of plots situated in the town of Maunath Bhanjan of the said district. The Division Bench of M.C. Mahajan and N.H. Bhagwati*, JJ., concluded that there was no reason to interfere in the present appeal as there was no dedication or grant to the public of the portion of the plot, for the purpose of the mosque and thus, no rights could be acquired merely by the existence of the building for a period of 8-9 years.
Background
It was alleged that the plots appertained to a Math called Nanak Shahi Math of which respondent was the Mahant, and that one of the plots was a grove and another was a banjar plot which respondent took on a permanent lease. It was further alleged that respondent’s predecessor, Bhagwan Shah had permitted Meharban Manihar to build a house on a portion of a plot in which Meharban Manihar, and after his death his son, used to offer prayers, due to which the house came to be known as a mosque, and the said building fell down in the floods of 1911 after which the site remained parti up to 1938, after which appellants built a mosque thereon.
Thus, respondent prayed for a decree for possession over the plots with the direction that appellants be ordered to remove the new construction from the said plot and to restore the site to its original condition and alternatively prayed for an injunction restraining appellants from interfering with respondent’s rights of blowing of conches, ringing of bells, performing of arties in temple and from using his own temple and kuti as such.
Appellants contended that the land in suit was a Takia known as Takia Mahmood Shah appertaining to old Qdame Rasul and an old graveyard, that the mosque standing on a portion of the same had been constructed on the foundations of an old mosque, the existence of which was accepted by respondent’s predecessor Bhagwan Shah in 1911 and that the entire area was a waqf property with which the zamindar or respondent were not concerned.
The trial court dismissed respondent’s suit for possession over the plots but allowed respondent’s prayers for injunction. Both appellants and respondent preferred appeals before the Civil Judge of Azamgarh (‘the Civil Judge’) who modified the trial court’s decree by allowing respondent’s appeal regarding possession over the plots. The Civil Judge held that appellants had no right to build the mosque on the site of the old mosque which fell down in 1911.
Appellants preferred a second appeal to the Allahabad High Court (‘High Court’), which dismissed the second appeal confirming the decree which was passed by the Civil Judge in respondent’s favour. Appellants applied to the High Court for leave to appeal to His Majesty-in-Council and the High Court gave the requisite certificate observing that the question involved in the application was one of great importance and the contention of the parties raised a substantial question of law of general importance and therefore the present case was a fit one for leave to appeal to His Majesty-in-Council.
Analysis, Law, and Decision
The Supreme Court noted that appellants contended that a part of the plot on which the mosque was constructed was a waqf property and respondent was not entitled to possession of the same. The appellant’s objection to the decree as it was confirmed by the High Court was that appellants should not have been ordered to remove the new construction from the portion of the plot, to restore the site to its original condition and hand over possession of the same to respondent. The Supreme Court also noted that appellants contended that the mosque had existed long prior to 1911 when it was destroyed by the floods, that Meharban Manihar, Appellant 1’s grandfather had constructed the mosque and that it had been used as a public mosque ever since and that therefore the portion of the plot on which the mosque was constructed had become a waqf property.
The Supreme Court observed that the Civil Judge and the High Court concluded that no such mosque was in existence either at the time of the settlement of 1872 or the settlement of 1903, and that the building known as the mosque was constructed after 1903 and stood for about 10-11 years before it fell down in the floods of 1911. The Supreme Court further noted that there were concurrent findings of the fact that neither Bhagwan Shah, respondent’s predecessor nor Zamindar Rani Dhandei Kuar had ever made a dedication or grant to the public of that portion of the plot for the purpose of the mosque.
The Supreme Court opined that a certificate for leave to appeal should have been granted by the High Court even though the question involved in the application for such leave might have been one of great importance. The Supreme Court thus concluded that there was no reason to interfere in this appeal as there was no dedication or grant to the public of the portion of the plot, for the purpose of the mosque and the building known as the mosque was only constructed after 1903 and stood on the site for a period of not more than 8-9 years until it was destroyed by the floods in 1911.
The Supreme Court held that no rights could be acquired merely by the existence of this building for that period and as it was rightly observed by the High Court, Zamindar Rani Dhandei Kuar could have at any time within 12 years of the construction of the mosque filed a suit for its demolition. The Supreme Court thus dismissed the appeal, with each party to bear and pay their own costs.
[Khalil Manihar v. Baldeo Shah, (1953) 1 SCC 431, decided on 13-3-1953]
Note: Religious and Charitable Endowments
Religious endowments are established to promote religious activities, maintain temples, and support priests or religious leaders. These endowments are typically managed by Shebaits or Mahants, who are responsible for performing religious rituals and ceremonies. Charitable endowments are made to support charitable activities and assist the less fortunate. According to Section 3(r) of the Waqf Act, 1995, ‘waqf’ means permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognized by Muslim law as pious, religious, or charitable. A ‘waqf’ may be made in writing, or the dedication may be oral. There must, however, be appropriate words to show an intention to dedicate the property.
*Judgment authored by: Justice N.H. Bhagwati
Advocates who appeared in this case :
For the Appellants: Nur-ud-Din Ahmad, Advocate
For the Respondent: K.N. Aggarwal, Advocate