# SYED MOHD. SALIE LABBAI (DEAD) BY L.RS. AND ORS v. ' MOHD. HANIFS (DEAD) BY L.RS. AND ORS

- **Citation:** [1976] 3 S.C.R. 721
- **Court:** Supreme Court of India
- **Decided:** 1976-03-22
- **Case number:** Civil Appeoals Nos. 1223-1224 and 2026 of 1968
- **Bench:** P. K. Goswami, S. Murtaza Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/syed-mohd-salie-labbai-dead-by-l-rs-and-ors-v-mohd-hanifs-dead-by-l-rs-and-ors-6813
- **Pages:** 42

## Headnote

•
Mt1hommadan Law-Mosque its adjuncts and graveyard,
lvhat constitutes
•
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•
•
dedication to public-Right to officiate as Imam, when recognised.
Muslim Wakfs Act,
1954, s. 55(2), Scope of-Code of Civil Procedure
(Act 5 of 1908) s. 11-Res judicata, scope of.
The land in dispute was originally acquired by a Muslim saint, about two
hundred years ago. Some years 1ater the predecessors of the- respondents,
who formed the major section of the Muslims of the village, approached his
successor, the ancestor of the appellants and the then owner of the land, and
sought his permission for building a mosque on the land as there was no mos~
que at all in the village. The predecessors of the respondents executed an
agreement in favour of the owner. It recited that, ( 1) the predecessors of the
respondents were constructing a prayer hall on the raised platform belonging
to the ancestor of the appellants, with his permission; (2) after completion of
the mosque, the predecessors of the respondents will have no claim or right,
except the right to worship therein; (3) the only right which they would
claim would be the right to worship and to light lamps, while they will be
responsible for the maintenance of the -mosque; ( 4) the constructfon was purely
for the purpose of worship; and (5) there shall be a doorway and windows
on one side so as to serve as a separate entrance to the mosque in order to
constitute it as a separate entity.
The mosque was built by the ancestors
of the respondents; and thereafter, in course of tin1e, additional constructions
which form adjuncts to the mosque, were added. All the adjuncts were built
for the purpose of offering prayers in the mosque and by way of a
gift to
the mos(iue.
The adjacent vacant land was used as a
graveyard for the
Mi.islims of the vi11age.
Subsequently, the appellants constructed shops on a
part of the graveyard, and the respondents, who regarded the constructions
ns ~ desecration of the graveyard, filed a number of suits for the
demolition
-0f the shops. The appellants, however, claimed the properties as their private
properties, excepting the prayer hall used as a mosque, and even there, they
claimed that they had a right to manage it and lead the congregation at prayers. The result of the suits was inconclusive, and as a result of an observation in one of the suits, that the only remedy for the constant quarrels between the two sections of the Muhammadan community is a suit under
s. 92,
Civil Procedure Code, the respondents filed a suit under the section, in
a
representative capacity. after obtaining the sanction of the Advocate General.
They alleged that the 3 items of property, namely, (1) the burial ground which
consisted of two parts, (2) the Dargah over the tomb of the saint who first
acquired the property, and (3) the mosque and its adjuncts were an wakf properties of a public and charitable nature dedicated bv the predecessor of the
appellants, that they were public trusts dedicated to God, and that the appe1lants,
who were de facto managers, were guilty of acts of mismanagement and misfeasance.
The respondents prayed for the removal of the appellants and for
framing a scheme for administering- the trust vronerties.
The trial court dismissed the suit. but on appeal, the High Court, while dismissing the suit with
respect to the Darrmh on the ground that it was the private orooerty of the
appellants, decreed it with respect to the mosque <tnd its adiuncts, and the graveyard. and remanded the matter to the trial court for framing a scheme for the
administration of those two trust properties.
·
In appeal to this Court. the apnetlant.:: contende<l that. (1) ln the previous
judgment.:: between the narties the nubtic character of the properties was negativ·
ed and they operated as res judicata; (2) There was no ptiblic wakf of the
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SUPREME COURT REPORTS
[1976] 3 s.c.R.
mosque which was only a private or family mosque; that there was no declaration of dedica

## Text

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721
SYED MOHD. SALIE LABBAI (DEAD) BY L.RS. AND ORS.
A
v.
'
MOHD. HANIFS (DEAD) BY L.RS. AND ORS.
•
March 22, 1976
[P. K. GOSWAMI AND S. MURTAZA FAZAL ALI, JJ.]
•
Mt1hommadan Law-Mosque its adjuncts and graveyard,
lvhat constitutes
•
I
•
•
dedication to public-Right to officiate as Imam, when recognised.
Muslim Wakfs Act,
1954, s. 55(2), Scope of-Code of Civil Procedure
(Act 5 of 1908) s. 11-Res judicata, scope of.
The land in dispute was originally acquired by a Muslim saint, about two
hundred years ago. Some years 1ater the predecessors of the- respondents,
who formed the major section of the Muslims of the village, approached his
successor, the ancestor of the appellants and the then owner of the land, and
sought his permission for building a mosque on the land as there was no mos~
que at all in the village. The predecessors of the respondents executed an
agreement in favour of the owner. It recited that, ( 1) the predecessors of the
respondents were constructing a prayer hall on the raised platform belonging
to the ancestor of the appellants, with his permission; (2) after completion of
the mosque, the predecessors of the respondents will have no claim or right,
except the right to worship therein; (3) the only right which they would
claim would be the right to worship and to light lamps, while they will be
responsible for the maintenance of the -mosque; ( 4) the constructfon was purely
for the purpose of worship; and (5) there shall be a doorway and windows
on one side so as to serve as a separate entrance to the mosque in order to
constitute it as a separate entity.
The mosque was built by the ancestors
of the respondents; and thereafter, in course of tin1e, additional constructions
which form adjuncts to the mosque, were added. All the adjuncts were built
for the purpose of offering prayers in the mosque and by way of a
gift to
the mos(iue.
The adjacent vacant land was used as a
graveyard for the
Mi.islims of the vi11age.
Subsequently, the appellants constructed shops on a
part of the graveyard, and the respondents, who regarded the constructions
ns ~ desecration of the graveyard, filed a number of suits for the
demolition
-0f the shops. The appellants, however, claimed the properties as their private
properties, excepting the prayer hall used as a mosque, and even there, they
claimed that they had a right to manage it and lead the congregation at prayers. The result of the suits was inconclusive, and as a result of an observation in one of the suits, that the only remedy for the constant quarrels between the two sections of the Muhammadan community is a suit under
s. 92,
Civil Procedure Code, the respondents filed a suit under the section, in
a
representative capacity. after obtaining the sanction of the Advocate General.
They alleged that the 3 items of property, namely, (1) the burial ground which
consisted of two parts, (2) the Dargah over the tomb of the saint who first
acquired the property, and (3) the mosque and its adjuncts were an wakf properties of a public and charitable nature dedicated bv the predecessor of the
appellants, that they were public trusts dedicated to God, and that the appe1lants,
who were de facto managers, were guilty of acts of mismanagement and misfeasance.
The respondents prayed for the removal of the appellants and for
framing a scheme for administering- the trust vronerties.
The trial court dismissed the suit. but on appeal, the High Court, while dismissing the suit with
respect to the Darrmh on the ground that it was the private orooerty of the
appellants, decreed it with respect to the mosque <tnd its adiuncts, and the graveyard. and remanded the matter to the trial court for framing a scheme for the
administration of those two trust properties.
·
In appeal to this Court. the apnetlant.:: contende<l that. (1) ln the previous
judgment.:: between the narties the nubtic character of the properties was negativ·
ed and they operated as res judicata; (2) There was no ptiblic wakf of the
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SUPREME COURT REPORTS
[1976] 3 s.c.R.
mosque which was only a private or family mosque; that there was no declaration of dedication for the purpose of a mosque, and that the prayers offered
in the mosque by the respondents were only by leave and licence of
the
founder; (3) the graveyard was also not a public wakf but the family graveyard of the appellants wherein corpses of other Muslims were allowed to be
buried on payment of pit fees and other charges. ( 4) e_ve~ if th.e mosque "'.as
a wakf of a public character the appellants had the hereditary right to administer and govern it and so the respondents had no right to dislodge them a?d
ask for the framing of a scheme; (5) the suit was ba:rred by s. 55(2), Muslim
Wakfs Act1 1954; and (6) section 92, Civil Procedure Code, has no application as the appellants wen~ not trustees.
Dismissing the appeal,
HELD : (I) The judgments relied upon by the appellants do not operate
as res judicata, because, the public character of the wakfs was not in issue in
those cases. [738D]
(a) Before a plea of res judicata can be given effect to, the following
conditions must be proved :-
(i) that the litigating parties are the same;
(ii) that the subject·matter of the suits is identical;
(iii) that the matter was finally decided between the parties; and
(iv) that the earlier suit was decided by a court of competent jurisdiction. [732A-733 BJ
(b) In the present case, the 2nd condition is not satisfied, because, the
public character of the mosque was never raised in any of the earlier suits,
and consequently, there was no decision or finding upon the public character
of the mosque. The only questions that were raised were the questio•s regarding the performance of certain religious ceremonies~ the question of the right
to appoint the Imam, and as to who was to manage the affairs of the mosque.
In one suit, the appellants had put forward the claim of being hereditary owners
of the mosque, but that was only in a limited sense, namely, for the purpose
of its management. In another suit, there was a finding that the respondents
were debarred from disputing the ownership of the appellants of the mosque,
and from asserting that the respondents were anything more than licensees in
respect of the mosque.
But this observation has to be understood in the light
of the pleadings which show that the suit related not to the public nature of
the mosque but only to the management thereof. [733B-C. E-F, 734D-E, 736G737A, 738D-E]
( c) In two suits there was in fact a finding against the appellants, that the
mosque was public property and not descendible to the appcliants. In one suit,
there were observations that the burial ground and other plaCes v.rere th~ exclusive. properties of the appellants; but by 'exclusive property' it was never
meant that it was the private property of the appellants, but only that the
respondents had no interest in it. Even otherwise, as the suit was not for any
declaration that the mosque was a public one the observations would only
be obiter.
[734G, 735F-G. 738B-CJ
(d) In a criminal revision case before the High Court. the resnondents
adn1itted that they would not interfere with the rights of ;:he appellii.nts and
the respc:in~ents were acquitte~ thereupon.
A perusal of the order shows that
the admission was not unqualified but only amounted to this that the respondents would not take the law into their hands, but would take recourse to
legal remedies.
Even if it is construed as an admission, it was in a criminal
case made in terrorem and loses much of its significance. Furtlier. since the
respondents filed the suit under s. 92, they had not_ acted against the admission
but have availed themselves of a remedy which was open to them under the
Jaw. [738G-739B]
(e) The earlier judgments between the parties show tliat ft was never disputed even by the appellants that the mosque was a pu5lic mOSque where prayers were offered by the Mahomedan public. [737 A]
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SYED MOHD. SALIE LABBAI V. MOHD. HANIFS
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(2) Since the public character of the mosque was neve! raised in any suit,
the judgments relied upon by the appellants. do not estabhsh t_hat t~e mosque
and its adjuncts were not wakfs of a public nature. A consideration of the
facts, circumstances and the evidence in the p~esent cas~. show~ that .the
mosque and its adjuncts constituted wakf proper~1es a~ a single. unit an? ~ad.
been used as such for a long time so as to culminate into a vahd and b1nd1ng
public wakf. [7380-E, 746B, 760B]
(a) To create a valid dedication of a public mosque, under the Hanafi school
:O:
of Mahomedan law, the following conditions must be satisfied :- [746B-C]
.
(i) that the founder must declare his intention to dedica~e a _property for
the purpose of a mosque.
No. particular form of declaration ts n~cessary.
The declaration can be presumed from the conduct of the founder either express or implied.
It may be oral or in writing. [750-B, 755A-B]
(ii} that the founder must divest himself 1:ompletely from the ownership c·
of the pro-perty, the divestment can be inferred from the fact that he had
delivered possession to the Mutawalli or an Imam of the mosque.
Even if
there is no actual delivery of possession, the mere fact that members of tlie
Mahomedan public are permitted to offer prayers with azan and ikamat, shows
that the wakf is complete and irrevocable.
It is not necessury for the dedicator of a public mosque that a Muttawali or a Pesh Imam should be appointed.
That could be done later by the members of Muslim Community; and (iii) the
founder must make some sort of a separate entrance to the mosque which
may be used by the public to enter the mosque. [747A, 750B-0]
D-
-\
As regards the adjuncts the law is that where a mosque is built or cfedicated
•
for the public, if any additions or alterations, either structural or otilerwise,
are made which are incidental to the offering of prayers or for other religious
purposes, these constructions would be deemed to be accretions to the inosque
and the mosque and such adjuncts will form one single unit so as to be a part
of the mosque. [7500-E]
Jewan Doss Sahoo v. Shah Kubeer-ood-Deen, 2 M.I.A. 390; Adam Sheik
v. Isha ,';hcik, LC.W.N. 76; Saiyad Maher Husein v. Jaji Alimohonied 36 B.L.R.
526; Akbarally v. Maf1on1edally; I.L.R. 57 Born. 551; Miru v. Ramgopa[," A.I.R.
1935 All. 891; Abdul Rahin1 Khan v. Fakir Mohan1n1ad Shah, A.I.R. 1946 Nag.
401; Masjid Shahid Gani Mosque v. Shro1nani Gurdwara Prabandhak Committee,
An1rih·ar; L.R. 67 I.A. 25J; Musaheb Khan v. l?aj Kumar Bakshi, A.LR. 1938
Oudh 238; Maula Baksh v. Amiruddin; I.L.R. I Lah. 317; Mohammad Shah Shah
v. Fazihuddin Ansari, A.l.R. 1956 S.C. 713 referred to.
(b) So1 far as the mosque and its adjuncts in the present case are concerned
they consist of, (i) the main prayer hall, (ii) a covered platform, whef-e, accord~
ing to the respondents, prayers were offered by the members of the Mahomedan
public when the space in the main mosque was not sufficient to accon1modate a
big crowd, and (iii) a small chamber in the nature of a store room adjacent to
the mosque, a thatched shed, a pond into which ""·ater is pumped by a pump set
which had been inst..tlled by the Mahomedans of the village, a latrine to the south
of the burial ground, and a minaret fitted with a loud speaker. On special auspicious occasions, the entire Muslim community flocks to the mo~que for the purpose
of prayers, because, offering prayers on such days is, according to Islamic tenets,
extremely auspicious & highly efficacious. Before a Mussalman offers his prayers
he has to do wazoo or wash his hands and feet in the prescribed manner and for
this purpose arrangements are made in every mosque. Accordingly a tank or
hauz, where water is pumped for the wazoo was provided. As a large number of
Muslims assembled on special occasions, the entire space-inclu<jing the mosque,
the raised platform and a corridor-was used for the purpose of offering prayers.
The store room was used for keeping the mats which were meant to be used at
the time of offering prayers and the loud speake·r for reciting Azan and for delivery of Khutbas or religious sermons. Thus, 1he constructions were used for
religious purposes incidental to the offering of prayers and have become accretions to the mosque so as to constitute one single entity. [7540-H, 758G-:-759CI
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SUPREME COURT REPORTS
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( c) In the case of a mosque, the fol,lnder's permission or the bare act of allow ..
ing the members of the l\.fahomedan public to offer prayers amol,J.nts to a comp~te
delivery of possession. The agreement in favour of the ancestor of the appellants
clearly shows the intention of_ the founder and on a proper interpretation of its
terms amounts to a permanent and irrevocable dedication to God constitL_!_ting a
valid 'public wakf. The owner of the land had given· his tacit consent to all the
terms of the agreement and in the eye of the law, he being a party to the agree~
ment he allowed" the mosque to be· constructed not for the private members of
his f~rnily but for the worship of God by the entire Mahomedan public. The
document thus unmistakably evidences the clear intention of the founder to consecrate the mosque for public worship and amounts to a declaration of a public
wakf. By providing a separate entrance, the owner agreed to separate the mosque
from the rest of the property namely the Dargah and the compound; and by allow:-
ing the entire Mahomedan Community of the village to worship in the mosque
and to perform other ceremonies, the owner of the land gave delivery of posses·
sion to the n1osqt1e.
[756B-F]
(d) The owner, being a saint himself, unequivocally and categorically dives·
ted himself of the entire interest in the mosque and made it a public wakf. A
place may be dedicated as a mosque or masjid without there being any building.
But, since the building in the nature of a mosque was built, a clear case of ded.i·
cation has been made out. Once the mosque was constructed it stood dedicated
to God and all the right, title and interest of the owner got completely extinguish·
ed about a century and a half ago and since then, the mosque had been used con·
,;t,1ntly for the purpose of offering prayers. [756F-H]
( e) Once there was a complete dedication to the mosque as a place of pub·
lie worship any reservation or condition imposed by the O"Wner would be deemed
if:o be void and would have to be ignored. Therefore, it could not be contended
by the appellants that under thi' agreement, the respondents had stipulated not to
claim any right or interest in thel IiiO${,fUe, find herice, cannot claim the mosque
as wakf property. Reading the statements in the agreement as a whole what the
resrondents' ancestors meant was· that the mosque would undoubtedly be a public
wakf meant for the purpose of public worship and that they would not interfere
with its rnanagement.
But that did not mean that if the appellants, who are the
founder's descendants, indulged in mismanagement of the mosque, the respondents, as members of the Mahomedan Community~ could not take suitable action
under law against them. [7 57 A-DJ
•
(f) Furlher, 1-1nder the 1.fuslim law once the dedication was compl~te. the
property passed from the owner to God and it never returns to the owner and
therefore, the question of the mosque being private can never arise. The very
concept of a private mosque is wholly foreign to the dedication of a mosque for
a public purpose under 1\..Iuslim Law. Under that system of law. once the founder dedicates a particular property for the purpose of a public mosque, no l'vluslim
can be denied the right to offer prayers in the mosque to whatever section or
creed he nuly belong, and that is why the law is so strict that the moment even
a single person is allowed to offer his prayers in a mosque it becomes dedicated
to the public. Also, any adjuncts to a mosque, which are also used for religious
purposes, become as much a part of the mosque as the mosque itself. [734EF: 735C-D: 736A-B: 746HJ
(g) There i~ not an iota of evillence lo prove the case of the appellants that
the adjuncts were their private property. Where any construction is made for the
purpose of the mosque or for its benefit or by way of gift to the mosque, that
also becomes a public wakf. The question of Who made the construction is wholly irrelevant, because, all constructions made by any person, used for religious
purposes incidental to offering of prayers in the mosque, would be deemed to be
accretions to the mosque itself.
Even the appellants'
witnesses admitted the
nature and character of the various adjuncts to the mosque. [757H: 758F; 759BD]
(h) The argument that there was
no formal dedication is unsound.
The
document recites that the property being built on the land of the founder was a
public mosque to be used for-the public purpose of offering prayers. Even otherwise,- the act of permitting the Mahomedans of the village to 1:-uild a n1osoue,
itself amounts to a compJee dedication or a declaration that the mosque
is a
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SYED MOHD. SALIE LABBAI V. MOHD. HANIFS
72 5
public property. Ftlrther, by giving delivery of possession of the site for the purpose of building a mosque and by allowing prayers to be offered in the mosque,
the founder made a complete public wakf in the shape of a mosque. [759D-F]
11\
Zafer Hussain v. Mohd. Ghias-ud-din, A.I.R. 1937 Lah. 552; lv'awab Zain
•
Yar Jung v. Tile Director of Endowments [1963] 1 S.C.R. 469 and Ja1valzarbeg
v. Abdul Aziz A.LR. 1956 Nag. 257 distinguished.
{3) (a) lJnder Mahomedan law graveyards may be of two kinds, namely,
B'..
family or private graveyards and public graveyards. The rules for determining
whether a graveyard is a public or private one are. [742E]
· (i) that even though there may be no direct evidence of dedication to the
public, it may be presumed to be a publlc graveyard by immemorial user, that is,
where corpses of the members of the Mahomadan community have been buried in
a particular graveyard for a large number of years V..'ithout any objection from
the owner.
The fact that the owner permits such burials will ·not make any
difference at all; [744B-C]
C
(ii) that if the graveyard is a private or family graveyard, then, it should
contain only the graves of the founder, of the members of his family or of his
descendants and of no others. Once even in a family graveyard members of the
public are allowed to bury their dead, the private graveyard sfieds its character
and becomes a public graveyard; [744C-D]
(iii) that in order to prove that a graveyard is public by dedication it n1ust
be shown by multiplying instances of the character, nature and extent of the
Di
burials from time to time. In other words, there should be evidence to show that
a large number of members of the Mahomedan community. had buried their corpses fron1 time to time in the graveyard. Once this is proved, the Court will
presume that the graveyard is a public one; and once it is held to be a public
graveyard it vests in the public and constitutes a wakf and it cannot be divested
by non user; and [744A, El
(iv) that \Vhere a burial ground is mentioned as a public graveyard either
in revenue or historical papers, that would be conclusive proof to show the public
E.
character of the graveyard. [744F]
I
Ballabh Das v. Nur Mohammad, A.I.R. 1936 P.C. 83,
Imam Baksh
v.
Mander Narsingh Puri, A.I.R. 1938 Lah. 246, Sheorai Chan1ar v. Mudeer Khan,
(1934) A.I..!. 809, Qadir Baksh v. Saddullah, A.I.R. 1938 Oudh 77, and Mohammad Kassam v. Abdul Gafoor, A.I.R. 1964 M.P. 227 referred to.
(b) The position regarding the graveya:rd, _in the present case, is that even
some of the judgments relied upon by tbe appellants have affirmed its public
character. Further, the judgments relied upon by the respondents show that the
Eproperty had been dedicated as a public burial ground. These judgments operate
as res-judicata against the appella~ts so far as the graveyard -is Concerned. All
the attempts by the appellants to get a declaration from the courts that tbo graveyard was a private one failed and all the courts have consistently held that bothparts of the burial ground were a public graveyard where corpses of the Mahomadan community of the village were buried. The appellants, however, being
the descendants of the founder, had established a right by usage to charge pit
fees and other charges.
But the mere fact that the appellants used to realise
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pit fees or other incidental charges would not detract from the nature of the
dedication. The appellants themselves had filed an application before the Muni~
cipal CDuncil for registering the burial ground as a graveyard, showing that the
appellants themselves treated the burial ground as a public graveyard and had
it so registered with the Municipal Council. [7380; 739C---D; 742B--C; 744F745Bl
( c) Even assuming that the judgments do not operate as res judicata, there
is overwhelming oral and documentary evidence to prove that it is a public graveR
yard.
[745F-G]
( d) There is no legal evidence to prove that the western part, adjacent to
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the Dargah, should be held to be a private burial ground belonging to the family
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SUPREME COURT REPORTS
[1976] 3 S.C.R.
of the appellants. Both parts constitute one single burial ground and there is nothing to show that in burying the dead any distinction had been made between the
two parts. [745H]
( 4) There is overwhelming evidence on record to show that the appellants
werQ guilty of grave mismanagement, and therfore a clear case for formulating
a scheme under s. 92, C.P.C., has been made out by the respondents. Even the
trial court found acts of mismanagement but explained away the acts of misfeasance on the ground that the respondents undertook not to interfere with the
management or ask for accounts and held the appellants' negligence v,:as not actionable.
But in view of the finding that the mosque and its adjuncts and the
burial ground are public wakfs, the question of negligence assumes a new complexion.
Apart from acts of mismanagement, the graveyard was not properly
managed or nlaintained, the boundary wall was broken allowing cattle to enter
and desecrate the graveyard, even the mosque was in a state of disrepair, and
the appellants had constructed shops on a part of the graveyard and in spite of
several decrees directing their demolition, the appellants had disobeyed the orders
of the Courts. [761G-762B]
(5) Section 55(2) of the Wakfs Act provides that the sμit for the reliefs in
s. 55 (1) shall not be instituted without the consent of the Board. But no Board
had been constituted at the time the suit was filed. Therefore, the pro' isions of
s. 55 (2) are not at all attracted and were not capable of being acted upon. Hence,
the non~compliance with its requirements would not bar the maintainability of
the suit. [760El
(6) Section 92, C.P.C., is clearly applicable to the case.
Section 92 applies only when there is anyi alleged breach of any express or
constructive trust created for a public charitable, or religious, purpose. It also
applies where the directions of the Court are necessary for the administration
of such public trust. In the instant case the appellants have been looking after
the properties as de-facto managers, either as Pesh Imams or otherwise, ~nd have
been enjoying the usufruct thereof. Therefore, they are trustees de son tort and
the mere fact that they put forward their own title to the properties ~'ould not
make them trespassers.
[760G-H]
Mahonied Shirazi v. Province of Bengal, J.L.R. [1942] 1 Cal. 21 L Ra1ndas
Bhagat v. Krishna Prasad, A.I.R. 1940 Pat. 425 approved.
But the scheme to be_ framed will be confined to the mosque and its adjuncts
and to the burial ground and not to the Dargah, which has been held to be private property of the appellants. [762B-C]
The evidence also shows that the appellants were acting as Imams, although
not for a continuous period. There is no clear evidence of ailY usage or custom
by which the right to act as Imain is hereditary. The question of the right to
officiate in a public mosque, has to be decided according to the principles of
Muslim Law and usage. Once a mosque is held to be a public mosque Muslim
Law does not favour the right of a person to officiate as Imam to be hereditary
in the absence of a custom or usage to the contrary. An Imam must paMess
certain essential virtues before he can claim to lead the congregations at prayers.
The property having been dedicated to God, it is not open to the founder or his
descendants to interfere with the performance of public prayers. But, since the
appellants w·ere the descend_ants of the founder and under the agreemeiit the respondents undertook not to claim any right in the mosque, although it would not
act as an estoppel, the court may, at the time of framiilg the scheme, consider the
desirability of associating some of the appellants with the framing of the scheme
or even appoint one of them, if suitable, on terms, to look after the properties
subject to the primary consideration of the welfare· of the wakf properties. In
case none of the appellants is suitable, the Court_ ma.y withhold the right from
the appellants and act as it deems fit in the interests: of the ,WOkf properties.
[736C; 737B-C; 762C-F]
CIVIL APPELLATE JURISDICTION: Civil Appeoals Nos. 1223-1224
and 2026 of 1968.
From the Judgment and Decree dated 28-10-66 of the Madras
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SYED MOHD. SALIE LABBAI v. MOHD. HANIFS (Fazal Ali, J.) 727
T. S. Krishnamurthy yer, K. Jayaram and R. Chandrasekar for Appellants in C.A. Nos. 1223-1224/68 and for Respondents in C.A.
2026/68. A. K. Sen, A. V. Rangam and A. Subhashini for Respon-
'
dents ia CAs. 1223-1224/68 and for Appellants in C.A. 2026/68.
The Judgment of the Court was delivered by
FAzAL Au, J.-These appeals, by certificate granted by the High
Court, arise out of a common judgment and will be dealt with by
one judgment.
The appeals have had a chequered career resulting
from a highly contested litigation spreading over a century and a
half. A review of the historical background of the case reveals a
rather sad story and an nnfortunate saga of a perpetual strife and
struggle, disputes and differences between the two sections of the
Muslim community of village Vijayapuram (situated in Tiruvarur
District in the State of Madras) setting up diverse rights and rival
claims over the property which was essentially a religious property
originating from a fountain of purity flowing from the life and teachings of a celebrated saint who was the original founder of the property.
Property essentialiy directed to God appears to have been used for mundane purposes which evoked loud protests from another section of
the Mahomedan community who wanted to protect the public character
of the trust property and this has led to several suits in various courts .
The most unfortunate part of the drama long in process is that the
Courts before whom the disputes came up for decision handed down
judgments which were not strictly in accorance with the shariat and the
essential tenets of the Mahommadan Law which encouraged the partie'
to plunge themselves into a long drawn and unnecessary litigation,
nntil the High Court of Madras in one ol' the litigations had to point
out that the only remedy to put an end to the disputes was to invoke
the provisions of s. 92 of the Code of Civil Procedure and this is what
appears to have been done in the action out of which these appeals
arise.
With this pragmatic preface we now proceed to consider the facts
of the case which are by no means short and simple, but present highly
complicated and complex features.
It appears that some time towards
the beginning of the 18th Century Syed Sultan Makhdoom Sahib a
Sufi saint was residing at Vijayapnram who by his pious and saintly
life attracted disciples not only belonging to he Mahomedan community
but also some non-Muslims of that villag,e.
The saint was held in
great respect and reverence by the Hindus and Muslims alike which is
evidenced by the fact of a sale deed Ext. B-1 dated May 12, 1730 which
forms the starting point of the existence of the properties in suit which
have been the subject-matter of such a Jong drawn litigation. Exhibit
B-1 shows that a part of the site where the properties in dispute are
situated and which was a punja land was sold to the saint Syed Sultan
Magdoom Sahib by Thirmalai Kolandai Pillai who was a resident of
village Vijayapuram.
The sale deed conferred absolute rights on the
saint with powers to alienate by way of gift, exchange and sale etc. The
sale deed also mentioned that there were no encumbrances in respect
of the land, and if any were found, the vendor wonld discharge the
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728
SUPREME COURT REPORTS
[1976] 3 S.C.R.
same.
The saint died and about sixty years later another sale deed
was executed by Malai Kolanda Pillai in favour of Kaidbar Sahib who
appears to be a descendant of the saint and an ancestor of the Labbais
who are the defendants in the present suit.
This sale deed also appears to be in respect of the land which forms part of the disputed properties.
The sale deed was executed on May 22. 1797.
This sale
deed (Ext. B-2) gives an indication that it consisted of" lands and
gardens and could be used a grave-yard also.
Thus the properties
in dispute are situated on the lands sold to the ancestors of the Labbais
by the two sale deeds referred to above.
It may be pertinent to note
here that in the second sale deed Rowther Syed Uddin who is ancestor
of one of the plaintiffs was a witness.
In course of time the saint and
the descendants were buried on the lands in dispute and a Dargah was
set up which was managed by the descendants of the saint.
Several
years later, the Mahomedans of the village realised the necessity of
having a mosque as no mosque existed in the village and inspired by
this laudable objective, the Rowthers approached Masthan Ali Khader
Sahib for permission to build a mosque on a part of the land in dispute.
The permission having been granted, an agreement was excuted in
favour of Masthan Ali Khader Sahib which is Ext. B. 4 and forms the
sheet-anchor of the dedication said to have been made by Masthan Ali
Khader Sahib for the purpose of a mosque.
Thereafter in course of
time certain additional constructiolls in the shape of a platform, few
rooms, a water tank, which form adjuncts to the mosque, were added
obviously without any objection from the Labbais.
The vacant land
appears to have been used as a grave~yard where members of the
Muslim community buried their dead as a matter of right on payment
of certain fees or charges to the defendants or their 'ancestors. Subsequently the defendants constructed a few shops on a part of the graveyard which alienated the sympathies of the Muslims particularly the
Rowther community who regarded the construction of the shops as
desecration of the grave-yard and accordingly a number of suits were
filed for demolition of the shops.
The defendants, however, claimed
the entire properties as their private P.roperties excepting the prayer hall
which was admittedly. used as a mosque.
There also the defendants
claimed that they had a right to manage the same and to lead the congregation at prayers.
The present suit has been filed by the Rowtlaers
who were the other section of the Muslim community and whose ancestors are alleged to have built the mosque and other constructions
with the previous perrnission of the ancestors of the defendants. This
suit was brought in a representative capacity under 0.1 r. 8 Code of
Civil Procedure after obtaining the sanction of the Advocate General
under s. 92 of the Code of Civil Procedure.
According to the allegations made by the plaintiffs, there were three types of properties which
were wakf properties of a public and charitable nature dedicated by
the ancestors of the defendants.
These properties consisted of :
(1) a huge vacant piece of land consisting of two parts which
is popnlarly known as budal-ground.
On the western
part of the
gurial-ground
some
shops
had
been
constructed by the defendants and all attempts made by
the
plaintiffs
or
their
ancestors
to
get
the
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SYED MOHD. ·SALIE LABBAI v. MOHD. HANIFS (Fazal Ali, J.) . 729
the plaintiffs or their
ancestors to get the
shops
demolished had so far failed;
A
(2) towards the western portion of the grave-yard there
is a tomb of the saint Syed Snltan Makhdoom Sahib
over which a Dargah has been built;
(3) a prayer hall adjacent to the Dargah which is known
B
as the mosque or Palliv<asal. There is also a covered
platform, a pond and a thatched shed which appear
to be adjuncts to the mosque.
According to the plaintiffs all the three properties were public trusts
dedicated to God and the defendants could not claim any right of
ownership over them.
The plaintiffs alleged that thess properties
were tledicated for public worship and were used for offering prayers
since a very long time and had become wakfs by immemorial user. It
was further alleged that property No. (I) was a public grave-yard and
the defendants wrongly claimed it to be their private grave-yard by
refusing permission to the plaintiffs to bury their dead.
It was also
alleged that the defendants had been mismanaging the wakf properties
. as a result of which the mosque had fallen in to a state of disrepair and
the gtave-yard was being converted into shops and other places so
as to lose its origin.
Lastly the plaintiffs also contended that the
Dargah was also a public property dedicated to God and the defendants
had no individual or personal interest in the Dargah.
The plaintiffs,
therefore, filed the present suit for removing the defendants who were
de facto managers and had been guilty of acts of mismanagement and
misfeasance and for framing a scheme to administer the trust properties. The suit was coatested by defendants I, 2, 4 and 6 who contended, inter alia, that the entire property was acquired by their ancestor
Syed Sult•an Makhdoom Sahib who died four years after the purchase
and was buried on a part of the land along with the members of Ins
family.
The defendants admitted that members of the Rowther community were allowed to offer their prayers in a raised platform in front
of the Dargah ov€r which a prayer hall was built by them.
The
defendants, however, claimed that as the Rowthers were allowed to offer
the prayers by leave and licence of the founder, the prayer hall was not
a public mosque but a private property of the defendants.
Even if
the mosque was a public property the adjuncts thereto were the personal property of the defendants and were not used for any religious
purpose.
Similarly-with respect to the grave-yard it was alleged that
this was a private grave-yard and the defendants were entitled to charge
pit fees and other charges from those Muslims who wanted to burv
their dead.
They further contended that the shops had been buifr
by the ancestors of the defendants in order to increase the revenue of
the Dargah and for the proper administration thereof.
Lastly the
defendants pleaded that the present suit by the plaintiffs was clearly
barred by, res judicata in view of the previous judgments of the Courts
pronouncing upon the rights of the parties against the plaintiffs.
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SUPREME COURT REPORTS
[1976} 3 S.C.R.
These were the facts pleaded by the parties in original suits Nos.
9 of 1956 and 71 of 1957 heard by the Court of Sub-Judge Mayuram.
It appears that one suit being 0.S. No. 9 of 1956 was filed in the Court
of the Sub-Judge Mayuram, whereas suit No. 71 of 1957 was originally
filed in the Court of the District Munsiff, Tiruvarur as O.S. No.
16
of 1957 but the same was transferred by the District Munsiff to the
Pistrict Munsif's Court at Nagapattinam and was later transferred to
the Sub-Judge, Mayuram to be tried along with O.S. No. 9 of 1956.
The Trial Court consolidated the two suits and decided them by one
common. judgment. It might also be mentioned that the present action
was preceded by proceedings under s. 145 of the Code of Criminal
Procedure wherein the possession of the properties irt dispute was
fouad to be' with the defendants.. In Suit No. 9 of 1956 which was
filed in the Court of Sub-Judge, Mayuram, the Court framed the follow.
ing issues :
"l. Are the Pallivasal, Durgah, the burial grounds, prayer
· hall etc. set out in Schedule 'A' public trusts or are
they private trusts belonging to the Labbais ?
2. Is the suit for framing a scheme not competent ?
2(a). If not, is it necessary or desirable to frame a
scheme and if so to what trusts ?
3. Is this suit barred by the decision in O.S. No. 304
of 1898; District Munsif's Court, Tiruvarur, and O.S.
No. 8 of 1937, Sub Court, Tiruvarur ?
4. Is this suit barred under Section 55 of the Muslim
Wakf Act of 1954 ?
5. Is the Imamship and Muthavalli hereditary in
the
family of Labbais and the defendants ?
6. Is the 2nd defendant a Imam and Muthavalli ?
7. To what reliefs, if any, are the parties entitled ?"
In suit No. 71 of 1957 where substantially the same pleas were raised,
the following issues were struck by the Court :
"1. Whether suit, as framed, prayed for declaration that
the order in M.C. 9 of 1955 and Cr. R.P. Nos. 784/55
are void, is sustainable in law?
2. Whether the suit properties are properties of public
trust as claimed by the plaintiffs?
3. Whether the Rowther community of Vijayapuram are
entitled to be in management and possession of the
suit properties as Claimed in the plaint ?
4. Whether the pleas, covered by Issues 2 and 3 above
are not barred by Res Judicata hy the finnin~< ;n the
suits and appeals in O.S. No. 167 of 1893, O.S. ,No.
304 of 1898 and O.S. No. 8 of 1937 referred to in the
written statement ?
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SYED MOHD. SALJE LABBAI v. MOHD. HANIFS (Fazal Ali, !.) 731
"5. Whether it is open to the plaintiffs to plead that they
are in possession and management in spite of orders
in M.C. No. 9 of 1955 and Cr. R.P. No. 784 of
1955 and C.C. No. 120 of 1955, Sub Division Magistrate, Nagapattinam?
6. Whether the suit for declaration is maintainable ?
7. Whether the suit is not properly valued for the purposes of court fees and jurisdiction ?
8. To what relief are the plaintiffs entitled ?"
The Trial Court dismissed the plaintiffs' suits deciding the imain issues
against the plaintiffs.
Thereafter the plaintiffs of both the suits filed
appeals before the High Court of Madras 'and the High Court reversed
the decision of the Trial Court in many respects and accepted
the
plaintiffs' case with respect to the mosque, its adjuncts and the graveyard but found that so far as the Dargah was concerned it was the private property of the defendants and the plaintiffs had no ,cause of
action with respect to the same.
The High Court accordingly decreed
the plaintiffs' suits with respect to the mosqne, its adjuncts and the
grave-yard and remanded the case to the Trial Court for framing a
scheme for administration of the trust properties.
The suit regarding
the Dargah was, however, dismissed.
Both the plaintiffs and the
defendants have filed appeals by certificate to this Court.
Appeal
No. 2026 of 1968 is by the plaintiffs regarding the adverse decision
given by the High Court in respect of the Dargah, while appeal No.
1223 of 1968 which is the main appeal is by the defendants 1, 2, 4
& 6 against whom the High Court decreed the suits with respect to
the mosque, its adjuncts and the grave-yard. Civil Appeal No. 1224
of 1968 has been filed against the decision of the Madras High Court
which arises out of original suit No. 71 of 1957.
We have heard the learned counsel for the parties.
Mr.