1. The plaintiff obtained in the Court of first instance a decree declaring his title as Mutwalli to the lands in suit and entitling him to recover possession thereof from the defendant. That decree has been affirmed on appeal by the lower appellate Court and tin defendant has preferred this second appeal.
2. The history of the wakf to which the suit relate is important. One Khairat Ali in 123i made a wakf in respect of a third share of his properties, and gave the remaining two-thirds share to his two grandson? Dadali and Mohamedali in equal shares the grandsons partitioned the proparties between themselves, and the property now in suit fall to the share of Dadali. The latter, by a deed dated 1265, made a wakf in respect of his properties and appointed his two wives Akbarannesa and Nujamannesa as Mutwallis the two wives acted as Mutwallis till the death of one of them, viz., of Akbarannesa, when the othar viz., Nujamannasa became the sole Mutwalli. She, in 1298 and before her death, appointed one Kudrutulla, the father of the present plaintiff, as Mutwalli of the wakf estata. Kudrutulla managed the wakf till his death in 1312. The plaintiff's cas9 is that ha was appointed Mutwalli by his father and he was asking as Mutwalli since his father's death, when a dispute aro33 between him and his brother Nur Mohamad which eventually ended in a compromise by which some of the wakf properties were taken by one brother and some by the other, and they both managed the wakf estate as such. In 1320 Nur Mohamed died and thereafter the plaintiff again became the sole Mutwalli the defendant had purchased the property in suit from Nur Mohamed and the plaintiff's casa is that the sale was void as not having been made for legal necessity. The two main prayers in the plaint ware as follows:
(Ka) that it be declared that the proparties in the schedule appertain to the wakf of Khairatali and Dadali; and (Kha) that the plaintiff be awarded a decree for possession it being declare that the defendant has acquired no title by his purchase. The other prayers were for subsidiary reliefs.
3. The suit, as I have stated, has bean decreed by the Courts below in the form stated above. The findings, which cannot be disputed and in deal have not been disputed at the persent stage are that the wakf was a valid one; that the property is wakf property and that there was no legal necessity for the sale the ground upon which the validity of the decree ha3 bean challenged is that the plaintiff has not proved his title as Mutwalli, and therefore is not entitled to the decree.
4. The Court of appeal below has rested its decree upon the ground that the plaintiff was the de facto Mutwalli of the wakf properties since fehe death of Kudrutulla, that the plaintiff also acted as Mutwalli during the period that management was in the hands of Nur Mohamed, and that after Nur Mohamad's death Nur Mohamad's hairs allowed a decree to be passed in plaintiff's favour declaring his right to the Mutwalliship.
5. The learned vakil for the respondent has sought to justify the decree upon a further ground, viz., that as a Mahomadan his client can maintain a suit like the present one.
6. It will be convenient to deal with the second ground first. A very interesting discussion of the question involved in this contention will be found in Mr. Ameer Ali's Mahomsdan Law, Vol. I, Ch. 19, headed Kules of Procedure. So far as this Court is concerned it was held in effect in the case of Jan Ali v. Ram Nath Mundul [1881] 8 Cal. 32 that the mosques, etc., to which the provisions of Act 20 of 1863 apply are not any mo3ques, etc., but any masques, etc., for the support of which endowments have been made by the Government or private individuals. In that suit two of the worshippers are a certain mosque instituted a suit after having obtained the sanction of the Advocate-General under Section 539 of the Civil P.C. of 1882 against the Mutwalli of the mosque and two other persons to whom the Mutwalli had mortgaged part of the endowed property, and one of the mortgagees had sold some of the wakf property in execution of a decrea which he had obtained upon his mortgage and the property had been purchased by the other mortgagee. The plaintiffs in the suit prayed that the property purchased aright be declared wakf, that the sale in execution might be declared to be invalid, that a Mutwalli might be appointed by the Court and that the. costs of doing the acts of the wakf might be defrayed from the profits of the property belonging to the endowment.
7. It was held by this Court that so far as regards such portion of the prayer as fell within the provisions of Section 539 of the Code the plaintiff's were not entitled to sue as they were not "persons having a direct interest in the trust" - that being the language of the section as it stood at the time - within the meaning of the section, and that the suit should have been instituted under Section 14 of Act 20 of 1863 after sanction had been obtained under Section 18; and as regards the relief asked for in the other prayers the plaintiffs might po3sibly have obtained leave to sue under Section 30 of the Code on behalf of themselves and other persons attending the mosque, and they no; having obtained such leave the suit was not maintainable for those other prayers. It will be observed that in that case the interest which the plaintiffs alleged they had in the endowment was an interest based on their being followers of the Moslem religion, living in the vicinity of the mosque and being in the habit of attending the musjid : see the report at p. 41.
8. In the case of Lutifunnissa Bill v. Nazirun Bibi [1884] 11 Cal. 33 the plaintiff sued to recover possession as Mutwalli of certain lands alleging that they had been dedicated as wakf for certain charitable and: religious purposes. She based her right-to sue upon the fact that her deceased husband had been' Mutwaili and she prayed that the property in suit might bo declared wakf and that certain alienations made by her stepson since her husband's death might be set aside. It was held in that case that even assuming that the endowment alleged was neither a public charity within the meaning of Section 539 of the Civil P.C. nor a religious endowment to which Act 20 of 1863 applied, the plaintiff was not entitled to sue alone as it was clear upon the face of the plaint that others were interested in the subject-matter of the suit and therefore she could only sue on behalf of all who were so interested having first obtained the leave of the Court and having otherwise complied with the provisions of Section 30 of the Code. A dissentient note was struck in the case of Mohiuddin v. Sayiduddin [1893] 20 Cal. 810 in which case the plaintiff charged a Mutwalli and Sajjudanashin with various breaches of trust and for the removal of the Mutwalli and the manager appointed by the Mutwalli, and for the appointment of one of the plaintiffs as Mutwalli and for the framing of a scheme. It was a suit instituted with the consent of the Advocate-General. In that case the learned Judge3 observed thus:
Nor do we think that the present suit is bad on the ground that the provision of Section 30 of the Civil P.C., has not been complied with. Since the judgment in the case of Jan All v. Ram Nath Mundal [1881] 8 Cal. 32 there has been a material alteration effected in the seotioi and we think that the reasoning in the Allahabad cases : Zafaryab Ali y. Bakhtawar Singh [1883] 5 All. 497 and Jewahra v. Akbar Hmsain [1884] 7 All. 178, showing that the right of worship of each worshipper in a Mahomedan mosque or religious endowment is an independent right wholly irrespective of the-other worshippers is correct.
9. In a recent decision of this Court in the case of Ashraf Ali v. Mohammad Nurojjoma [1918] 23 C.W.N. 115 which was a suit instituted in accordance with the provisions of Order 1, Rule 8 of the Civil Procedure Code by two worshippers of a mosque for themselves and as representing other worshippers in the locality for a declaration that a permanent Iea3e granted by the Mutwalli was void and inoperative, it was held that such a suit was maintainable. In that case Shamsul Huda, J. (N. Chattarjea concurring) after referring to certain authorities observed thus:
It is clear from these texts that the worshippers living in the vicinity of a mosque have rights to it over and above those possessed by the Mahcmedan public and have a more direct interest in its maintenance and in the proper administration of the properties endowed for its benefit. In Mahomedan Law there is definite recognition in many matters of what is termed Huq-ul-jiram or the rights of neighbours. The competency of a Mahomedan worshipper to enforce his individual rights in respect of a mosque and the trusts relating thereto has been recognized in numerous cases and I need only refer to the decision of Keramat Hossain and Chamber, JJ., in Dasondhay v. Muhammad Abu Nasar [1911] 33 All. 660.
10. These observations, though made in a case in which the suit had been instituted under the provisions of Order 1, Rule 8 of the Civil P.C., in so far as they refer to the individual rights of a Mahomedan worshipper in a mosque appear to be in conflict with the view expressed by the learned Judges in the case of Jan Ali v. Ram Nath Mundul [1881] 8 Cal. 32. In the case of Zafaryab Ali v. Balchtaivar Singh [1883] 5 All. 497 it was held in effect that a suit to set aside a mortgage of endowed property belonging to a mosque, the decree enforcing the mortgage, and sale of the mortgaged property a Takia known by the name of Najut Ali Shah - in execution of that decree and for the demolition of buildings erected by the purchaser was maintainable by Mahomedans entitled to frequent the mosque and to use the other religious buildings connected with the endowment.
11. In the case of Jawahra v. Akbar Husain [1884] 7 All. 178 a Full Bench of the Allahabad High Court laid down that every Mahomedan who has a right to use a mosque for the purpose of devotion is entitled to exercise such right without hindrance and is competent to maintain a suit against anyone who interferes with its exorcise, irrespective of the provisions of Sections 30 and 539 of the Civil P.C. The plaint in that case alleged that there was an old dilapidated mosque intended for Mahomedan worship which was protected and looked after by the plaintiff and other Mahomedans of the village that the mosque and its appurtenances had been excluded from the partition of the village being wakf property, that the plaintiff wanted to repair the mosque, but the defendants made certain structures on the land appurtenant thereto, committed acts of trespass in connexion therewith and would not pay. any heed to the plaintiff's remonstrance. Upon these allegations the plaintiff prayed for a declaration of his right to repair the mosque by removal of the defendants' interference and the demolition of the compound and removal of the mill, the thatches and the straw stored in the mosque. Pethoram, C.J., in his judgment observed that a mosque is not the subject of human ownership but all the members of the Mahomedan community are entitled to use it for the purposes of devotion whenever it was open, that the right which they had in this respect is not a joint right but a right which belongs to many people, and Section 30 did not apply to such a case but would apply to a case in which many persons are jointly interested in obtaining relief. He held that the suit by the plaintiff was maintainable as it was clear that the individual right of the plaintiff was violated. Mahmud, J., in the same case remarked:
That section (meaning Section 30) applies only to cases where no individual right is interfered with but here we have the case of a mosque in a small village and one of the worshippers in that mosque is obstructed in his use of it for the purposes of devotion. He had a private right and it was violated.
12. The learned Judge dissented from the remarks made in the case of Jan Ali v. Ram Nath Mundul [1881] 8 Cal. 32 holding that it is an undoubted principle of Mahomedan Law that the persons who have the mo3t direct interest in a mosque are the worshippers who are entitled and accustomed to use it. In the case of Wajib Ali Shah v. Dianat-ul-lah Beg [1885] 8 All. 31 a Mahomedan had brought a suit against a person in possession of certain property for a declaration that the property was wakf, but did not allege himself to be interested in the property further or otherwise than as being a Mahomedan and he was not a Mahomedan resident of the district in which the wakf was situate. It was a suit under Section 42 of the Specific Relief Act. The reasons tfpon which the suit was held not maintainable were that the plaintiff had no legal character which was denied by anyone, as he only asserted his character as a Mahomedan which was not questioned by any body, and he did not for himself assert right as to any property, and by no act of the defendant had his right to any property been denied. In the case of Muhammad Alam v. Ahbar Hussain [1910] 32 All. 631 a suit for declaration was brought by seven Mahomedan residents of the city of Kananj for a declaration that an idgah and the lands adjoining it, which were situate in a village in Pargana Kanauj was wakf property, and it was held on a review of the earlier decisions of the Court and relying upon Mr. Ameer Ali's work on Mahomedan Law Vol. 1, Ch. 19, that as Mahomedans who had a right to use the idgah they were entitled to sue.
13. In Dasondhay v. Muhammad Abu Nasar [1911] 33 All. 660, which was followed in this Court in the case of Ashraf Ali v. Mohammad Nurojjoma [1918] 23 C.W.N. 115, to which I have already referred, two Mahamedans in whose hands lay the superintendence of certain wakf properties had sued for a declaration that a plot of land appertained to the wakf and for recovery of possession thereof on setting aside its alienation by those who were in charge thereof. It was held in the case that the plaintiffs were entitled to maintain the suit for a declaration that the alienation was void as the land was wakf, but not for a declaration for recovery of possession. In a later decision of the same Court in the case of Ram Chandra v. All Muhammad [1913] 35 All. 197 the principle was re-affirmed that every Mahomedan who has a right to use a mosque for purposes of devotion is entitled to exercise such right without interference and is competent to maintain a suit against anyone who interferes with its exercise, but if he brings a suit in his personal capacity and not on behalf of the whole Mahomedan community that decision will be binding only as between the plaintiff and the defendant and cannot be taken advantage of by, and be binding on, the Mahomedan community in general. This was a case in which the mosque where worship was performed was attempted to be taken possession of by some Hindus in execution of a decree on a mortgage. In the case of Muhammad Fahimul Huq v. Jagat Ballav Ghosh A.I.R. 1923 Patna 475, it was held that every Mussalman who derives any benefit from a wakf is entitled to maintain an action against the Mutwalli to establish his right thereto or against a trespasser to recover any portion of the wakf property which has been misappropriated without joining any other person who may participate in the benefit, and that the plaintiff who in that case was a member of the family of a charitable wakf, being a beneficiary under the wakf, could sue for recovery of possession of property wrongfully alienated and for the incidental: declaration that the property being wakf property could not be alienated and that where consequential relief was available to him he was not entitled to a mere declaration.
14. A similar contention appears to have been put forward in the case of a Hindu temple in a suit under Section 92 of the Civil P.C., in the case of T.R. Ramachandra Aiyyar v. Parameswaran Unni [1919] 42 Mad. 360 the contention being to the effect that every Hindu has an interest within the meaning of the section, in every Hindu temple throughout the length and breadth of India, but it wa3 held by a majority of the learned Judges that the definition of 'interest' in Section 15 of the Religious Endowment Act (20 of 1863) cannot be used as guide in interpreting the word as used in section 92 of the code and that 'interest' under section 92 of the code denotes an interest which is substantial and not sentimental or remote and it must be a present and substantial and not a remote and fictitious or purely illusory interest. In that case of the two plaintiffs who instituted the suit with the consent of the Advocate-General in the District Court of North Malabar in respect of a Hindu temple situated in Tellichery in that district, one of them being a Hindu residing in Madras and the other in Tellichery, it was found that the former had gone to worship in the temple on one or two occasions in the past and might go there to worship in future if business took him to Tellichery; it was held that he had no interest within the meaning of Section 92 to maintain the suit.
15. In the present case no such considerations arise as would arise under Section 92 of the Code of Civil Procedure or under Sections 14 and 18 of the Religious Endowments Act, and the simple question which arises upon this contention of the respondent is whether a person interested in a public mosque simply as a person who has a right to worship therein, can institute a suit of this nature in his individual capacity.
16. In such cases the true rule, in my opinion, is to determine in each particular case as to whether the plaintiff has or has not a cause of action which would entitle him to the relief which he claims. The question as to whether the suit will be maintainable at the instance of a particular plaintiff depends not upon any inherent right which one may have to worship in a mosque or a temple upon the fact of his living in the vicinity or his being a mere resident of the district. I should venture to think that every Mahomedan has a right apart from his right as a member of the community to worship in. a public mosque and every Hindu has a right to worship in a temple, but on that does not depend his right to maintain any and every suit in connexion with a religious endowment. It is not a question of any inherent right at all. If there is an individual right in the plaintiff which has been violated, or if some injury to that right is threatened, the suit will lie. In each case this question will have to be determined upon the allegations made; and the nature of the relief that the plaintiff will be awarded will be consonant with the infringement that has been caused or the injury that has been threatened. The plaint in the present case does not disclose any such infringement or injury, actual or threatened, nor is there to be found any complaint therein on the ground of the plaintiff's right as a worshipper in the mosque-assuming that he does worship in the mosque though he ordinarily resides in Calcutta-having been or is likely to be interfered with. He claims the relief in his character as Mutwalli of the wakf properties and not in his character as a Mahomedan who uses the mosque or participates in the benefits of the endowment. In my opinion the plaintiff in the present case is not entitled to maintain the suit as framed except in his character as Mutwalli in respect of the wakf. In any event it is quite clear that the decree which has been passed in the suit, namely a decree declaring his right as Mutwalli to the land in suit and entitling him to recover possession thereof is not a decree which he could obtain on the footing of his being a Mahomedan only.
17. To turn now to the ground upon which the learned Judge has held the suit as maintainable. The learned Judge has given the plaintiff a decree on the footing not of his being a validly appointed Mutwalli but on the ground that he is the de facto Mutwalli. So far as this matter is concerned, in the first place, a very high ground has been taken on behalf of the respondent. It has been contended that if a man professes to act as Mutwalli he is entitled to institute a suit for recovering possession of wakf properties from one who may have wrongfully acquired possession of it. In support of this proposition reliance has been placed upon the decision in the case of Piran v. Abdool Karim [1891] 19 Cal. 203 and Kazi Hassan v. Sagun Balkrishna [1899] 24 Bom. 170. In the first of these cases it was held that the plaintiff in the case who was in charge of the Dargah and was discharging the duties connected with the institution had been elected to the office of Sajjadanashin by a large number of Mahomedans residing in the locality and that appointment was held to have been a valid one and so the plaintiff had title to maintain the suit. In the second case it was found that the plaintiffs were not merely beneficiaries but members of the family of the Mutwallis on whom the office of Mutwalli would fall by descent, if indeed it had not already fallen on them, as alleged in the plaint by abandonment and resignation of the Mutwallis who were charged with having illegally made the alienations. These cases there-1 fore are no authority for the proposition in the form in which it has been put before us.
18. It was next urged on behalf of the respondent that the plaintiff was entitled to maintain the action having acquired a right by prescription to his office as Mutwalli having acted adversely to all possible claimants for over the statutory period. The office of Mutwalli not being a hereditary one, a suit to oust the plaintiff from his office as Mutwalli is regulated by Article 120 of the schedule to the Limitation Act, and if no suit has been brought to oust the plaintiff by reason of his having held the office for over six years he would acquire an indefeasible right to hold the office of Mutwalli and would acquire a complete title for the purposes of litigation or anything connected with the endowment, Jaya Nath Das v. Birbhadra Das [1892] 19 Cal. 776; Kidambi Ragavachariar v. Tirumali Asari Nallur Ragavachariar [1902] 26 Mad. 113; Khajeh Salimullah v. Abdul Khair Mustafa [1909] 37 Cal. 263; Kassim Hassan v. Hazra Begum [1920] 32 C.L.J. 151. That the right of the plaintiff to hold the properties of the wakf is a right appurtenant to his office as the Mutwalli cannot be disputed : Gnanasambandha Pandara Sannadhi v. Velu Pandara [1899] 23 Mad. 271.
19. The question therefore is whether the plaintiff has held the office of Mutwalli adversely to the rest of the world, that is to say, to all possible claimants in respect of the wakf and for the statutory period of six years. There is no express finding of the learned Subordinate Judge on this question. He has, no doubt, in agreement with the trial Court, found that although the management of the properties was in the hands of Nur Mohammed the plaintiff was de facto Mutwalli, but this finding does not go far enough. Moreover, the legal effect and bearing of the matters upon which he has relied for this finding expressed in so general terms, do not appear to us to have been correctly appreciated, e.g., the declaration of the plaintiff's right in a suit between him and the heirs of Nur Mohammed on consent by the said heirs not being a judgment in rem has been erroneously regarded as evidence as against the defendants, the declaration contained in the Nadabi Ekrar (Ex. A.) as to the rights of the plaintiffs, if any, in the properties which were given to Nur Mohammed does not appear to have been duly considered and the facts bearing upon the doeument executed by the plaintiff in favour of Eshaque in 1314 do not appear to have been sufficiently investigated. On the whole we are of opinion that the appeal has not been properly dealt with by the learned Subordinate Judge, and we accordingly set aside the decree passed by him and direct that the whole appeal be reheard except as to the question of the validity of the wakf, the question wise there the property in suit is wakf property or not and the question of legal necessity, the findings on these matters being taken as in plaintiff's favour. After proper findings are arrived at on all the other questions which arise in the case, the appeal will be disposed of by the lower appellate Court. Costs of this Court will abide the result.
20. In view of the fact that this case, as well as the case out of which appeal No. 2152 of 1923 has arisen, both relate to the same wakf and in the latter case also a similar order of remand has been passed, we direct that both the cases, if possible, should be dealt with by one and the same Court but separately and each upon its own merits.
Suhrawardy, J.
21. I agree.