Patna High Court
Mst. Mundaria And Ors. vs Rai Shyam Sundar Prasad And Ors. on 24 September, 1962
Equivalent citations: AIR1963PAT98
JUDGMENT Ramratna Singh, J.
1. This appeal by some of the defendants is directed against the judgment and decree of an Additional Subordinate Judge of Patna affirming the judgment and the decree of a Munsif of Patna.
2. The suit out of which the appeal arises was instituted by the respondents first party for declaraticn of their title to a piece of parti land bearing municipal survey plot No. 1496 and holding No. 127/123 in circle No. 108 of ward No 21 of Patna Municipal Corporation, the area of the plot being roughly 1. Katha. There is an Imambara on a portion of this plot; and on the eastern and the wetsern boundaries of the plot are the admitted lands of the plaintiff-respondents. The' owners of this holding as recorded in the municipal assessment register of 1901-1902 were Rai Kishun Prasad, Rai Kashi Prasad and Rai Ram Chandra Prasad. The holding was described as an Imambara; and it was exempt from any municipal tax. The recorded owners were sons of Baijnath Prasad who had another son, named Jai Mangal Prasad, who died issueless. Both Baij Nath and Jar Mangal died before 1901. Subsequently, the other recorded owners also died; and the plaintiffs and defendant No. 10 (Madan Mohan Prasad) are their only heirs. Madan Mohan Prasad was impleaded as a defendant, because he did not join as a plaintiff. In the municipal survey khesra, which was prepared in the year 1932-33 under the Bihar and Orissa Municipal Survey Act, this plot was recorded as a public Imambara with Mirza Wazir Hussain (defendant No. 1) as mutawalli in the column meant for the person receiving rent from the actual occupier. This defendant died during the pendency of the suit; and his widow, sons and daughters, who were substituted in his place, are now the appellants. In 1942-43, the plot in question was again recorded in the municipal assessment register as an Imambara in a ruined condition belonging to the heirs cf the owners in 1901-1902.
3. The case of the plaintiffs-respondents was tnat Rai Kashi Prasad had set up a private Imambara some time before 1901 over a portion of the disputed plot and he himself became a Khalifa and used to keep a Tazia at his own cost on the Imambara during the Muharram festival in 1932, taking advantage of the property of the heirs of the recorded owners, Mirza Wazir Hussain got his name mutated dishonestly in the municipal survey khesra; but in spite of this fact, these heirs continued to be in possession of the plot. In 1950, there was a dispute between Mirza Wazir Hussain and one Jamuna Pariain, a pro forma defendant, who admittedly has no interest in the disputed plot. In a proceeding under Section 144, Criminal Procedure Code, both Wazir Hussain and Jamuna Pariain were restrained from going near this plot. Some time after the disposal of this proceeding under Section 144, Wazir Hussain began to construct a wall by the side ot the boundary a mud wall on plot No. 1495 belonging to Jamuna Pariain. This resulted ultimately in a proceeding under Section 145 between them and it was decided in favour of Wazir Hussain on the 16th February 1953. According to the plaintiffs-respondents, this decision cast a cloud upon their title and hence, this suit. Besides declaration of title, the plaintiffs also prayad for recovery of possession in case the court found that they had been dispossessed.
4. Mirza Wazir Hussain, and after his death, his heirs, contested the suit and asserted that the disputed plot was Imambara since time immemorial and Wazir Hussain was the mutawalli since 40 years before the institution of the suit. It is also alleged that the suit land was always used for keeping Tazias and Seepers during the Muharram festival and was partly a graveyard. Hence, a claim by prescription, long user and adverse possession was made. The alleged possession ot the plain-tiffs or their ancestors was also disputed.
5. The learned Munsif found that the Imambara had been constructed by Rai Kashi Prasad on his own land for his personal use and that the plaintiffs had subsisting title to the suit land and they were in possession thereof. The first appellate Court affirmed the findings of the trial court. It held that the plaintiffs had title to the disputed land and the contesting defendants had no right to it except that they were mere licensees and the license was liable to be revoked at will. It also rejected the plea of adverse possession and the ciaim based on prescription or custom. Hence, this appeal by the contesting defendants, that is, the heirs of Mirza Wazir Hussain.
6. This appeal is really concluded by findings of fact; but the learned advocate for the appellants pointed out a legal flaw in the judgment of the learned Subordinate Judge. While discussing the plea of the defendants that the disputed land was an Imambara with Mirza Wazir Hussain as mutawalli, the learned Subordinate Judge relied on a statement of Mulla's Mahomedan Law to the effect that only a person professing the Musalman faith could make a wakf for any purpose recognised by the Muslim law as religious, pious and charitable. The learned subordinate judge was of course in error in this respect; but this error does not affect his decision. The definition of wakf in Mulla's book, referred to by the learned Subordinate Judge, has been taken from the Musalman . Wakf Validating Act, 1913. According to this definition, ot course the word 'wakf' means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable (see Section 173 of the fifteenth edition of Mulla's Mahomedan law). But, after a few lines of the definition, the learned author has himself stated that, as observed by the Judicial Committee in Ma Ml v. Kallander Animal, AIR 1927 PC 22, this definition was meant only for the purposes of the Act, and not necessarily exhaustive. Ameer Ali has said at p. 200 of Volume 1 of his book on Mahommedan Law (Fourth Edition) :
"Any person of whatever creed may create a wakf, but the law requires that the object for which the dedication is made should be lawful according to the creed of the dedicator as well as the Islamic doctrines. Divine approbation being the essential element in the constitution of a wakf, if the object for which a dedication is made is sinful, either according to the laws of Islam or to the creed of the dedicator, it would not be valid";
Ghosn on his book on law of Endowments (Hindu and Mahomedan) (second edition) has under the heading "Wakf by a Non-Moslem" referred to this statement of law by Mr. Ameer Ali. He has also referred to an observation of Mr. Baillie in his digest of Mahomedan Law which reads thus :
"It is a further condition that there be a nearness, i.e., some relation between the appropriator and the objects of the appropriation . . . . . . it a Zimmi (non-believer) should appropriate his mansion for a temple, a church or a house of fire it would be void, and in like manner if it were for repairing them or the supply of oil for their lamps".
No authority contrary to what is stated in Ameer All's book was pointed out to us; and it seems to be well settled that a Non-Muslim may also create a wakf for any purpose which is religious under the Mahomedan law. But the object of the wakf must be lawful according to the religious creed of the maker of the wakf as well. So, the question is whether the creation by Rai Kashi Prasad, assuming that such a wakf was created by him, was lawful according to the Hindu law which he admittedly followed. In Saraswathi Ammal v. Rajagopal Ammal, 1954 B. L. J. R. 191 : (AIR 1953 SC 491), the Supreme Court while discussing the benefit or otherwise of the perpetual dedication of property for worship of idols amongst the Hindus, considered whether 'samadhi' was a religious purpose under the Hindu Law. The observations of the Court in that connection are correctly reproduced in the placitum, which reads thus :
"What is a religious purpose under the Hindu Law must be determined according to Hindu notions. It cannot also be disputed that under the Hindu Law religious or charitable purposes are not confined to purposes which are productive of actua! or assumed public benefit The acquisition of religious merit is also an important criterion. What conduces to religious merit in Hindu Law is primarily a matter of Shastraic injunction. To the extent, therefore, that any purpose is claimed to be a valid one for perpetual dedication on the ground of religious merit though lacking in public benefit, it must be shown to have a Shastraic basis so far as Hindus are concerned. We doubt, since then other religious practices and beliefs may have grown up and obtained recognition from certain classes, as constituting purposes conducive to religious merit. If such beliefs are to be accepted by Courts as being sufficient for valid perpetual dedication of property therefor without the element of actual or presumed public benefit, it must at least be shown that they have obtained wide recognition and constitute the religious practice of a substantial and large class of persons. But it cannot be maintained that the belief in this behalf of one or more individuals is sufficient to enable them to make a valid settlement permanently tying up property. The heads of religious purposes determined by belief in acquisition of religious merit cannot be allowed to be widely enlarged consistently with public policy and needs of modern society".
If this criterion is applied in the present case, the setting up of an Imambara cannot be considered a religious purpose under the Hindu Law; and, therefore, Rai Kashi Prasad and his brothers, being Hindus, could not have lawfully made any wakf in respect -of an Imambara to be used during the Muharram festival. The learned advocate for the appellants relied on a decision in Venkatasubbarayudu v. Silar Sahib, AIR 1930 Mad 582; but that is of no help at all in the present case. In that case, the plaintiff's father was a mutawalli of a mosque tor the lighting in which the suit wakf was endowed. A question arose whether the endowment made by a Hindu Zamindar could be a valid wakf. The question of validity was raised for the first time by the appellants in the High Court and the learned Judges thought that it would not be correct to allow the objection put up at that stage. One of the learned Judges said that the endowment had been made publicly by the zamindar and recognised by Government in the inam proceedings, and "I should hesitate to declare it invalid merely on a presumption that there could be no exception of any kind to the rule of Mahomedan Law that no wakf can be endowed by a non-Muhammadan".
The other Hon'ble Judge observed :
"As suggested by the lower appellate court it is quite possible that the grant was made by the ruling sovereign of the locality at the time. It is admitted that the Inam Commissioner treated this as Inam, which would prima facie indicate that it was, probably, not grant made by an ordinary private individual since in such cases the Government is not likely to desist from imposing the actual assessment on the land."
It is obvious, therefore, that this decision is not applicable to the present case. Even assuming for the sake of argument that it is lawful for a Hindu to make an endowment for an Imambara, the courts below have given several good grounds in support of their findings as I shall show later.
7. Further, it seems to be well settled that an Imambara could not ordinarily be the object of a public wakf even under the Mohamedan Law. In Muhammad Yusuf v. Muhammad Shafi, AIR 1934 All 1013, Niamatut-Sah and Collister, JJ., quoted with approval the observation of the Calcutta High Court in Delrus Banoo Begum v. Kazee Abdoor Ruhman, 23 Suth WR 453, which reads thus:
"An Imambara moreover is not a public place of worship as is a mosque or temple, but an apartment in a private house set apart, no doubt, for the performance of certain Muharram ceremonies but no more open to the general public than a private oratory in England would be; as a matter of fact, strangers are ordinarily excluded from these celebrations".
On the basis of this decision as well as the decision in Kuar Sen v. Mamman, 1LR 17 All 87, Mulla has said in Section 223 of his book :
"An Imambara is an apartment in a private house or a building set apart like a private chapel for religious purposes. It is intended for the use of the owner and members of his family, though the public may be admitted with the permission of the owner. Such a wakf is a private wakf and not a public wakf nor a trust for the purposes of Section 92 of the Code of Civil Procedure, but it may be proved that a particular Imambara is a public wakf".
This edition of Mulla's book, it may be noted, has been edited by Sir Syed Sultan Ahmed, K. C. S. I., D. L., Barrister-at-law, in 1961.
8. In view of the aforesaid principle of law, the appellants have to show that the Imambara in question was meant for the public. Both the courts below have, however, found that the Imambara on the disputed land belonged to Rai Kashi Prasad and his family and that, though the Muslim public used to go during the Muharram festival and participate in the akhara there, they did so as mere licensees and they did not acquire any right in the said Imambara. The learned advocate for the appellants have failed to show anything on the record from which any inference may be drawn that this finding is unreasonable cr unwarranted. It is true that in the municipal survey khesra of 1942-43 the holding was recorded as a public Imambara with Mirza Hussain as mutawalli; but the earliest municipal assessment register of 1901-1902 as well as the latest record, namely, the assessment register of 1942-43 the holding is described as a Imambara belonging to the ancestors of the plaintiffs and the plaintiffs respectively. As has been pointed out by the learned Munsif, the entry in the municipal khesra carries a presumption of correctness only in a suit to which the commissioners of a municipality are parties; and this view of the learned Munsif was not challenged either in the first appellate court or in this court. Hence, this entry is not binding on the plaintiffs-respondents. The courts below have discussed the oral evidence as well as the documentary evidence and found that Rai Kashi Prasad and his brothers cr their heirs were always in possession of the disputes holding and that the Imambara was not a public one nor was Wazir Hussain the mutawalli as recorded in the municipal survey khesra. They have also referred to the evidence that Rai Kashi Prasad was a very rich man in 1901-1902 but he was gradually reduced to extreme poverty when his properties were sold away and the structure gradually fell down until in 1942-43 the Imambara was in a ruined condition. If the members of the public, Hindu or Mohomedan, had any real interest in the Imambara, it could not have been ruined so much that during the pendency of the suit only a chabutra (platform) measuring only 7 feet 6 inches from east to west both on the southern and the northern sides and 7 feet 8 inches from north to south, both on the eastern and western sides, existed. It is also remarkable that according to P. W. 2, when the roof of the Imambara fell down, the timber of the roofs were kept by the Rai Sahib. If Mirza Wazir Hussain was the mutuawalli of the Imambara, the materials of the fallen roof would not have been taken by the Rai Sahib,
9. Admittedly, there is no document creating the alleged wakf: and, except the entry in the municipal survey khesra, there is nothing to show that the disputed land was a public Imambara; and this entry in the khesra is proved to be incorrect by the entries in the municipal assessment register made in the year 1901-1902 and 1942-43 and the circumstantial evidence mentioned by the courts below. There is no reason, therefore, to find any fault wth the finding of the courts below that the suit land and the Imambara or the Chabutra constructed thereon belonged to the plaintiffs and defendant No. 10 and their ancestors and they were in possession of the same even on the date of the institution of the suit.
10. Still remains the question, whether by custom and user the suit land was partly a public Imanibara and partly a grave-yard as alleged by the appellants. There is no document in which it is mentioned that the suit land was ever a grave-yard; and there is no reliable evidence to show if any-body was buried there. The court below had, therefore, rightly rejected this part of the defence; and this finding was not challenged in the present appeal. Hence, the decision of a single Judge of the Chief Court of Oudh in Chhutkao v. Gambhir Mal, ILR 6 Luck 452 : (AIR 1931 Oudh 45), that, where a plot of land is described as a takia and has been used for many years as a place for burial by Muhammadans, a presumption arises that there is a wakf by user, does not apply to the present case.
11. The question now is whether the suit land is a public Imambara by long user. The court below has found that tazias and Seepers used to be kept on the suit and during the Muharram festival. This was started in the the time of Rai Kashi Prasad some time before 1901, as that gentleman was a rich person and he had interest in tazias and akharas during Muhammadan festivals. He himself used to take part therein and allowed the Muslims of the locality to keep tazias on the suit land from where tazias used to be taken out in the usual procession. The Court below also found that, in spite of the fact that Rai Kashi Prasad died long ago and his family practically disintegrated, the Musalmans of the locality had been still keeping tazias and seepers on the suit land without any objection. But there is no evidence to prove that the Muslim members of the public had used the suit land as an Imambara in their own right for such a long time as would amount to a dedication of the land. It is well settled that for the purpose of making out a case of customary right or a right by prescription, there must be satisfactory evidence to show that the enjoyment of the right was not by leave of the owner of the land and that the right had' been openly enjoyed for such a length of time as would suggest that the usage had become a customary right. As has been found by the courts below, the appellants have failed to prove any dedication by long user or the acquisition of any customary right by the user of the said land by the members of the Muslim public as an Imambara. The earliest document to indicate such right is the municipal survey khesra of 1932-33; and even assuming that the suit land was a puolic Imambara since then, the appellants have failed to prove that they or the other members of the Muslim public of the locality had acquired any customary right or any title to the land by prescription, particularly in view of the fact that within ten years of the preparation of the municipal survey khesra the holding was recorded in the Municipal assessment register as belonging to plaintiff No. 1, defendant No. 10 and other members of their family.
12. In conclusion, I am of the opinion, that the findings of the courts below are correct; and the appeal must be dismissed with costs to the contesting respondents.
Kanhaiya Singh, J.
13. I agree.