Mohammad Shah vs Fasihuddin Ansari And Ors.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 9 May 1956

Coram: Bose, J.

In this case, the Supreme Court of India heard an appeal titled Mohammad Shah versus Fasihuddin Ansari and others, decided on 9 May 1956, with the judgment authored by Justice Bose. The appeal represented the final stage of a long‑standing and hostile dispute that had existed since 1880 between a segment of the Muslim community in Jabalpur and a man named Gulabshah together with his son, who was the present defendant. The dispute concerned portions of land adjoining the Kotwali Masjid in Jabalpur. The Court noted that it was now accepted that the mosque itself and the ground on which it stood were waqf property. Historically, Gulabshah had asserted ownership over the mosque itself, but that claim had been rejected in 1881, after which he and subsequently his son acknowledged that the mosque proper was waqf property, although disagreement over the surrounding lands persisted. The suit under consideration was purported to be a representative suit filed under Order 1, Rule 8 of the Civil Procedure Code; however, the plaint and the subsequent pleadings did not clearly demonstrate such a representative nature, and the record contained no order confirming the Court’s permission for a representative filing. Nevertheless, the learned Additional District Judge of Jabalpur, in his judgment, had stated that the suit was filed in a representative capacity under the cited rule, and because the opposing party had not contested this point on appeal, the Court accepted that the parties were satisfied on that issue. The present suit had been filed on 12 August 1936, and the High Court rendered its decision on appeal on 28 September 1945, with a certificate of admission dated 9 April 1945. The appeal before the Supreme Court had taken eleven years to be listed for hearing, and overall it had been twenty years since the suit’s inception. Most of the delay following the High Court’s decision occurred in the Nagpur High Court, where the records failed to reach the Supreme Court until 12 October 1953, and even after that, three additional years elapsed before the matter was heard, a situation the Court described as highly unsatisfactory. According to the plaint, the plaintiffs contended that the mosque proper belonged to the Sunni community of Muslims in Jabalpur and that the defendant had been appointed as its mutawalli (trustee) by the District Judge of Jabalpur on 3 August 1927. The plaintiffs further asserted that the lands and other properties surrounding the mosque were integral parts of the mosque’s waqf estate, whereas the defendant claimed those surrounding lands as his personal property. Consequently, the plaintiffs sued for a declaratory judgment that the disputed properties were waqf property and not the defendant’s, and that the defendant’s role was limited to that of a mutawalli or trustee for both the mosque proper and the adjoining lands. The plaintiffs admitted that the defendant was in actual possession of the properties, but they maintained that his possession was in the capacity of a mutawalli, held for the benefit of the Sunni Muslim community, and therefore a declaratory suit was appropriate without the need to seek possession. The Court also recorded that the plaintiffs argued no issues of limitation or adverse possession arose because the possession had always been on behalf of the community through the defendant, and because the defendant, as a trustee, could not assert a title adverse to the trust.

The plaintiffs contend that the suit is a proper declaratory action and that they do not need to seek possession because the property in dispute belongs to the Muslim community. They further argue that issues of limitation or adverse possession cannot arise, first because possession has always been exercised by the community through the defendant, and second because the defendant holds the property as a trustee of a specific trust and therefore cannot acquire a title that is adverse to that trust. Neither party produced any document of title. In their plaint the plaintiffs relied exclusively on three factual averments: that the mosque proper is currently recognized as waqf property; that the surrounding lands and buildings adjoin the mosque; and that five particular acts of usage, set out in paragraph seven of the plaint, demonstrate the community’s enjoyment of the property. They also made a general claim that “these buildings and lands have always been used for the benefit of the community.” The trial court decided in favour of the defendant and dismissed the plaintiffs’ suit. On appeal the High Court reversed that decision and granted the claim, after which the defendant appealed the High Court’s decree. At the outset it is clear that the burden of proof rests on the plaintiffs. The defendant admits he is in possession, and apart from the plaintiffs’ allegation that his possession is on their behalf—a allegation the defendant denies—the plaintiffs are not in possession. Consequently, the plaintiffs must establish that the defendant’s possession is indeed on behalf of the community, and the only way to do so is to prove that the disputed properties are waqf property. In their written rejoinder the plaintiffs admitted that they are unable to state when and how the mosque and its adjacent lands and houses became waqf property, that is, property dedicated for worship by the Muslim community, and that they do not know to whom the land on which the mosque was built originally belonged. Nonetheless, they maintain a single assertion that “these properties have been used and regarded as waqf from time immemorial.” Thus the central issue for determination is whether the properties are waqf, with all other matters following logically from that determination. The earliest record of the properties comes from Exhibit D‑197, a plaint filed by the Anjuman Islamia on 23‑September‑1880 against three persons—Gulab Shah (the present defendant’s father), his uncle Chaman Shah, and his brother Pir Bakhsh—under Section 539 of the old Civil Procedure Code, equivalent to Section 92 of the present Code. For clarity, the genealogical table of the defendant’s family is set out as follows: Kallan Shah; beneath him Gharib Shah, Miskin Shah, Malang; beneath them Babbushah and Chaman Shah.

The genealogy presented shows that Ramzanshah, Abbushah, Pirbuxshah and Gulabshah, who died in 1901, were succeeded by Faqir Muhammad Shah, born in 1890, and thereafter by Guldeshah Baorashah. The plaint asserted that the mosque in dispute belonged to the Sunni community and that within its precincts there existed a takiya and other public structures. According to the plaintiffs, the three defendants resided in that takiya as fakirs and had begun to claim proprietary rights over both the mosque buildings and the surrounding compound. The plaintiffs contended that the mosque and all attached buildings were waqf and charitable endowments and therefore did not belong to any individual. Consequently, the plaint sought proper management of (1) the mosque and (2) the adjoining buildings, the removal of the defendants, and the appointment of trustees. The matter was referred to arbitration, but the arbitrators could not reach a consensus, leading the Sarpanch to render an award on 8‑3‑1881. In his award, the Sarpanch recounted the history of the mosque as given by witnesses from both sides, stating that the mosque was constructed approximately two hundred years before 1881, that is, around 1681. Prior to its construction, the land on which the mosque now stands was the takiya of one of the defendants’ collateral ancestors, Miskeen Shah Fakir, who was the great‑grand‑uncle of the present defendant according to the family tree. A Hindu patwa named Sukhlal, a disciple of the fakir, built the mosque on the takiya site out of reverence for the fakir. Since its erection, the takiya and the mosque have remained in the possession of Miskeen Shah’s family, together with the house opposite the mosque, now identified as the present imambara. The Sarpanch observed that there was no documentary proof of any dedication of the property by Sukhlal, Miskeen Shah or any other party, and therefore concluded that the property belonged to the three defendants who were heirs of Miskeen Shah. He also recorded that Miskeen Shah was interred in front of the mosque after his death. These facts concerning the mosque’s origin were substantially accepted by the section of the Muslim community that the plaintiffs claim to represent, as evidenced by a hand‑bill dated 15‑10‑1925 (Exhibit D‑149). The hand‑bill, signed by the first plaintiff together with other individuals, acknowledged that “It is an admitted fact that a long time ago one Patwa constructed a small three‑arched mosque… for Fakir Mohammad Shah’s great‑grand‑father Hazrat Sufi Miskin Shah Sahib. The tomb of the said Shah Sahib is in front of the mosque.” Accordingly, the origin of the mosque can be accepted as described. It is also recognized as a matter of law that a waqf ordinarily requires an express dedication, but where land has been used from time immemorial for a religious purpose, it may be deemed a user‑waqf even in the absence of explicit dedication. No evidence of such express dedication had been produced up to the year 1880, and none has been presented thereafter; thus the remaining issue is whether there is evidence of user‑waqf and, if so, the nature of that user.

It was noted that there was no documentary proof of any express dedication of the land on which the mosque stood up to the year 1880, and no such dedication had been produced thereafter. Consequently, the only remaining inquiry was whether there existed any evidence of usage of the land, and if so, what kind of usage was involved. The Court referred to the authority in Mulla’s Mahomedan Law, fourteenth edition, page 173, which states that although a wakf generally requires an explicit dedication, land that has been used from time immemorial for a religious purpose is deemed to be a user‑wakf even in the absence of an express dedication. To determine the nature of the usage, the Court turned to the map annexed to the defendant’s written statement, which illustrated the various phases of development of the property. According to the map, in the year 1880 when the suit concerning that year was filed, the mosque itself occupied a small plot of open land measuring twenty‑one feet by thirteen feet nine inches. To the south and east of this open parcel were several houses, and a portion of land lay towards the north. On the western side ran a drain and a road. The tomb of Miskin Shah was situated to the east of the mosque, with a well positioned between the tomb and the mosque. Another tomb lay to the south of the mosque, and further south an imambara could be seen. The map made no indication that this open land was enclosed by any fence, nor did it show that the various structures formed a single, integrated compound. The demarcations visible on the map corresponded only to the boundaries of the surrounding houses, not to the open land that contained the mosque and the other scattered structures. Although the map was prepared by the defendants, the Court emphasized that the plaintiffs had failed to produce any evidence establishing that, in 1880, these various properties were regarded as a unified unit or that they were treated as such by the community.

The Court then examined the subsequent stages of the 1880 suit. The award relating to that suit was presented before the trial Judge, who, after reviewing it, concluded that the mosque had been erected by a Hindu individual for the special benefit of Miskin Shah Fakir rather than for a public charitable purpose. Relying on that conclusion, the Judge held that the suit did not fall within the ambit of Section 539 of the Civil Procedure Code and consequently dismissed it. On appeal, the learned Additional Commissioner set aside the dismissal on the ground that the basis for rejecting the suit had never been fully argued or examined, and therefore ordered the matter to be remanded for a trial of the factual issues. After the remand, the trial Judge framed the pivotal question of whether the mosque constituted an institution used for public charitable purposes. He held that, as of 1881, the evidence of usage before him required the mosque to be regarded as such a charitable institution. Nevertheless, despite that finding, the Judge accepted the original award and entered judgment in accordance with it, thereby dismissing the plaintiffs’ suit. It is pertinent to recall that the suit concerned not only the mosque itself but also the adjoining buildings which the plaintiffs claimed were attached to the mosque. The plaintiffs alleged that the three defendants were asserting ownership over both the mosque and the surrounding structures as private property. In this context, the Sarpanch observed that the defendants had caused no disturbance to worshippers who came to bathe and pray, and expressed the opinion that the land claimed by the plaintiffs did not, in fact, belong to the mosque. This observation formed part of the award that was upheld after the remand, and the appellate Court subsequently affirmed the decree of the first Court, thereby confirming the dismissal of the plaintiffs’ suit.

In the course of its examination, the Court observed that persons who came to the premises did so in order to take a bath and to say their prayers, and the Court further held that, in its opinion, the land which the plaintiffs claimed as belonging to the mosque did not actually belong to the mosque, as would be evident from Paragraph 4 of the record. Paragraph 4 set out the historical background that had already been described and expressed the view of the Sarpanch that the entire property, including the mosque itself, was not a wakf (charitable endowment) estate but rather constituted the private estate of Miskin Shah and, after his death, the estate of Miskin Shah’s heirs. That finding formed the basis of the award which was confirmed after the case was remanded for trial, and on further appeal the appellate Court affirmed the decree of the trial Court that dismissed the plaintiffs’ suit. Consequently, the appellate Court dismissed the appeal and upheld that decree. Despite that determination concerning the mosque, the Court found that Gulab Shah and his family continued to describe not only the surrounding land but also a portion of the mosque itself as their private property. The first plaintiff had, in a hand‑bill signed on behalf of the Muslim community (Exhibit D‑149), admitted that after the death of Miskin Shah, “Gulab Shah Sahib, the father of Fakir Mohammad Shah Sahib, extended the mosque after spending thousands of rupees.” The second part of the defendant’s map showed that the original masjid was lengthened from eighteen feet to twenty‑seven and two‑thirds feet, that a new hall measuring eleven and two‑thirds feet in depth was added in front of the old structure, and that a room identified as “A” together with a verandah were added to the south of the original portion. Gulab Shah and his family let this newly created room to tenants and collected rent notes. Exhibit D‑17, dated 24‑May‑1886, and Exhibit D‑18, dated 20‑November‑1892, were two such rent notes. In both documents the tenants referred to “your Kotha,” and in the second note they described it as “your Kotha adjoining the mosque.” The first note related to Gulab Shah’s uncle, Chaman Shah, whereas the second note concerned Gulab Shah himself and his two nephews, Guldeshah and Baorashah. Further evidence included a notice of demand for house tax in respect of the Imambara addressed to Gulab Shah (Exhibit D‑28, dated 2‑January‑1895) and the municipal receipt for the payment of that house tax (Exhibit D‑20, dated 5‑February‑1895). Additionally, a sale deed (Exhibit D‑199, dated 4‑December‑1894) executed by a person not party to these proceedings described the northern and eastern boundaries of the sold property as “the mosque of Gulab Shah.” The most compelling evidence among the fourteen‑year span was Exhibit D‑198, dated 3‑May‑1893, in which a third party obtained an option to catch fish and collect singhadas (water nuts) from the Municipal Committee of Jabalpur. Gulab Shah stood as security for that third party and offered as security a piece of land he called “Boom A,” which he asserted was “owned by me personally.” He identified the eastern boundary of this “house” as the “mosque of self” and described its northern boundary as “mosque.” The mosque lay to the north of room A.

According to the evidence, the structure that was referred to as the old masjid had been declared public charitable property in the litigation of 1880. The portion situated to the east, which Gulab Shah described as “Ms mosque,” consisted of extensions that he admitted to having constructed himself after expending thousands of rupees. The record therefore shows that Gulab Shah distinguished the original mosque from the newer extensions and asserted ownership over the extensions together with room A. This claim is reinforced by the fact that members of his family entered into leases for room A, which leaves no doubt that they regarded the extensions as private property. It is also noteworthy that, in every document produced up to that time, Gulab Shah is addressed personally and not in the capacity of a mutawalli, and that there is no evidence of any public user of the land apart from the original mosque as it existed in 1880. In 1896 Gulab Shah submitted an application to the Municipal Committee seeking permission to repair a chabutra (Ex. P‑14). The inspection note attached to the application indicates that the chabutra was located at the rear of the mosque. In that application he signed his name as “‑Gulab Shah, the mutawalli of the mosque,” yet he described the structure as “the chabutra of my masjid‑land,” thereby once again separating the mosque proper from the adjoining land, as he had done in Ex. D‑198 three years earlier. The Municipal Committee’s Secretary issued a notice (Ex. P‑15) in response to the application, addressing Gulab Shah in the same terms, namely “Mutawalli of the mosque,” and ordered the demolition of the chabutra. The notice concerns the portion of the property that lay immediately behind the mosque, which, although adjoining the original structure, formed a distinct rear area.

In 1898 Gulab Shah made another application, documented as Ex. P‑18, which became the subject of extensive discussion in the present Court. The document concludes with the statement, “Application by the mutwalli of the Kotwali mosque, resident of Jubbulpore. Gulab Shah.” For clarity, the Court divided the body of the application into four separate paragraphs, each dealing with a different proposed work. Paragraph A states that “the beams of the ceiling of the mosque have become worn out; the same, and also an ordinary arched chabutra, are to be constructed on the drain for passage.” Paragraph B proposes that “within the compound of the Imambara masjid the house of the Imambara is to be dismantled and rebuilt two storeys high.” Paragraph C refers to “the parchhi which is to be built within the compound of the Imambara near the tomb.” Finally, paragraph D observes that “the tiled parchhi which stands built in the compound of the Imambara masjid, north‑south in the length of the mosque, have become worn.” These distinct statements illustrate the multiple and varied construction requests that Gulab Shah sought to obtain, each pertaining to different parts of the mosque complex or its adjoining Imambara compound.

To understand the substance of the application, it is necessary to refer to the accompanying map labeled Ex P‑19. In the portion of the document marked as paragraph A, Gulab Shah mentions only the “mosque.” The map depicts this structure in black colour and labels it as the “Kotwali mosque.” This portion corresponds to the original mosque that measured eighteen feet from north to south in the year 1880. Although the length of the mosque had been increased by the time of the application, the area occupied by the original structure remained essentially unchanged.

Paragraph C of the application refers to a “parchhi” to be constructed within the “Imambara” compound. The map shows that this parchhi does not adjoin the Imambara itself but instead surrounds the eastern side of Miskin Shah’s tomb. The area shown on the map is identified merely as the Imambara compound, not as the “Imambara masjid compound,” and it is separate from both the original mosque and any of its later extensions. Paragraphs B and D discuss constructions described as being within the “Imambara masjid compound.” A review of the map reveals that the structures described in these paragraphs are attached to the extensions of the main mosque, yet they are not part of the original 1880 mosque. The chabutra mentioned in paragraph B extends along the eastern side of the mosque, situated between the old mosque and the courtyard that has since been delineated, fenced, or walled. The parchhi referred to in paragraph D extends to the south of a designated room and continues the north‑south boundary of the original mosque as it stood in 1880.

The Court observed that Gulab Shah used the terms “mosque,” “Imambara compound,” and “Imambara masjid compound” loosely and inconsistently. Given his long‑standing assertions and conduct up to the date of the document, the Court could not view these varied expressions as an abrupt abandonment of his earlier position, which had been consistently maintained before and after the making of the application. It was noted that Gulab Shah had claimed the entire property in the 1880 litigation, and a series of documents from 1880 to 1896 showed that he and his family continually used and claimed these properties as their own. The Court held that inadvertent or ambiguous wording should not be interpreted as admissions detrimental to the maker when the surrounding circumstances demonstrate a sustained contrary claim over many years. A stronger, clearer statement would have been necessary to alter the established position, and the phrase “Imambara masjid compound” was deemed far from clear. Finally, the Court recorded that Gulab Shah died in 1901 or 1902, around the time when the Municipal Committee issued him a receipt for house tax paid in respect of the Imambara for the year 1901‑02, indicating that he continued to regard the property as his own.

The receipt issued for house tax for the year 1901‑02, recorded in document Exhibit D‑24 and headed “Receipt granted to Gulab Shah owner of house 241 etc.”, demonstrates that Gulab Shah asserted ownership of the Imambara property at that time. The record also indicates that Gulab Shah paid the tax in his personal capacity rather than as a Mutwalli, thereby reinforcing his claim that the property belonged to him individually. The Court considered that, as of that date, the factual situation could be summarised as follows. Up to the year 1880, Gulab Shah and his family maintained a claim over the entire parcel of land surrounding the mosque. In 1880, following the judgment reflected in Exhibit D‑2 after remand, they relinquished any claim to the mosque structure that existed at that time. No documentary or physical evidence was presented to show that a separate compound had been demarcated for the mosque in 1880; consequently, the only portion recognised as public property was the mosque building itself and the land on which it originally stood. The Shah family retained their claim over all remaining land. Subsequent to this relinquishment, Gulab Shah proceeded to extend the mosque complex. By 1898, the boundaries of the expanded structure were delineated on a map reproduced as Exhibit P‑19. The extensions included the addition of a space identified as “Room A” together with a verandah attached to it on the southern side of the original mosque. Additional constructions were carried out behind the mosque and on a triangular strip of land to its west, while a courtyard was added on the eastern side and the original mosque was lengthened by approximately two feet in the north‑south direction. No evidence was found to suggest that the public participated in or financed these extensions, and the Court was of the view that Gulab Shah treated the new portions—distinct from the original 1880 mosque—as part of his private property, asserting ownership over the entire expanded area.

The Court observed that there is no direct proof of public use of the newly added sections, except for the original mosque itself, and there is an even greater lack of evidence showing public use for religious purposes in the extensions. Nevertheless, the Court considered it reasonable to infer, in the absence of explicit evidence, that members of the public did make use of certain parts of the extensions—specifically the courtyard situated in front of the mosque and the area occupied by the chabutra to the east of the mosque—when they attended the original mosque. It was therefore a fair inference that such use was for the same religious purposes as that associated with the mosque proper. In contrast, “Room A” and the constructions situated to the west of the mosque were physically separated from the main sanctuary. “Room A” was let out by Gulab Shah and his family, and no evidence was presented to indicate that the public used the western rear area for any purpose. The Court therefore could not treat the leasing of these rooms for residential occupancy as evidence of public religious use. Finally, the Court noted that after the death of Gulab Shah, the defendant, who was then a minor, had his affairs administered by his guardian.

In the course of the dispute, members of the Muslim community intervened and claimed a right to manage a portion of the property that had been under the custodianship of the defendant’s guardian, Gharibullah Shah. Until the year 1907, there existed a detached urinal and a bathroom situated to the south of the mosque and to the west of the Imambara, separate from both the main mosque structure and its extensions. Certain members of the community desired that these facilities be relocated, and consequently they filed an application with the Municipal Committee seeking permission for the relocation. The application is recorded as Exhibit P‑11 and is dated 10‑9‑1907. The Municipal Committee granted the requested permission on 29‑10‑1907, as shown in Exhibit P‑12.

Shortly after this, the guardian of the defendant submitted another application on 21‑4‑1908, identified as Exhibit D‑42, requesting permission to carry out various alterations and constructions because “marzaz and Kothas etc. of my mosque … are in a dilapidated condition.” A map accompanying this application is presented in Exhibit D‑43. Among the alterations for which permission was sought was the erection of a latrine and a bathroom in the precise location that had been approved in Exhibit P‑12. The record does not disclose which party actually carried out the construction of those facilities. What is known is that subsequent notices were issued to the defendant for failure to construct the latrine in accordance with the prescribed pattern. The first notice, Exhibit D‑59, is dated 13‑8‑1910, and a second notice, Exhibit D‑61, was issued at some point in 1913. On 24‑5‑1914 the defendant received permission to repair the latrine, as documented in Exhibit D‑44. The initial notice referred to the latrine in connection with “your house.” Throughout the period from 24‑8‑1908 to 17‑11‑1935, the defendant continuously paid the conservancy tax, as demonstrated by a series of documents including Exhibits D‑107, D‑65, D‑108, D‑66, D‑70, D‑77, D‑83, D‑84, D‑86, D‑126, D‑91, D‑115, D‑96 and D‑119. The record also confirms that the defendant was again authorized to repair the latrine on 24‑5‑1914, reiterated in Exhibit D‑44.

Contrasting with this evidence, there is no record indicating that any other members of the Muslim community, apart from the defendant, ever paid the conservancy taxes or actually performed the alleged alterations. Moreover, a hand‑bill produced by the first plaintiff and other parties, identified as Exhibit D‑149, admits that during the minority of Fakir Mohammad Shah his guardian Gharibullah Shah extended one part of the mosque only about twelve years prior, and that roughly six or seven years earlier Fakir Mohammad Shah himself undertook a substantial improvement to the courtyard, including the installation of a drain and water‑pipe, by constructing the same. This document makes no mention of any contribution by the broader Muslim community, nor does it address the construction of the latrines. The oral testimony concerning the removal of the latrines is considered of little weight. The defendant, testifying as D.W. 1, acknowledges that he carried out the most recent constructions in 1923‑24 but offers no information about the earlier works. In contrast, the plaintiffs contend that the construction undertaken in 1907 or 1908 was performed by the individuals who signed the application shown in Exhibit P‑11.

In this case, the Court observed that the application relating to the property was identified as Exhibit P‑11. The Court, however, stated that this particular exhibit did not carry significant weight because the defendant, through his deposition recorded as D W 1, acknowledged that the urinals and the bathroom shown in the second stage of construction were intended for the use of individuals who attended the mosque for prayer. From this admission, the Court concluded that worshippers at the mosque had indeed used the urinal and bathroom facilities and that those facilities had been erected expressly for that purpose. Turning to the remainder of the property, the Court found no doubt that the defendant continued to assert ownership over the Imambara, the kothas and the shops situated in the surrounding area. The evidence showed that the defendant had prepared a series of rent notes, issued various notices and executed a lease deed, all of which demonstrated his claim to these properties as his own. The rent notes and related documents spanned a period from May 1910 to June 1935 and were produced as Exhibits D‑178, 161, 162, 179, 177, 189, 163, 186, 188, 191, 196, 193 and 40. The Court noted that, apart from some vague and unreliable oral statements, there was no evidence indicating that any members of the Muslim community had used these kothas or shops. Consequently, the Court held that it could not be plausibly argued that the use of those premises was for religious purposes. For the plaintiffs to succeed, they would need to demonstrate that those properties formed part of the original waqf – that is, that they belonged to the mosque estate either originally or as an addition thereto. The Court emphasized that, as far as its jurisdiction was concerned, the plaintiffs’ only basis for title was the long‑standing public use of the property for religious purposes. The only such use the plaintiffs had been able to prove was the use of the old mosque as it existed in 1880, together with certain extensions made to it. Accordingly, the Court decided that its attention must now be directed to those extensions, but before doing so it would first consider the status of the two tombs – one belonging to Miskin Shah and the other to Dara Shah – and the Imambara.

Regarding the Imambara, the Court explained that the structure was already standing during the time of Gulab Shah, and it was evident from the record that Gulab Shah treated the Imambara as his personal property. Early maps of the area further confirmed that, at the outset, there was no surrounding compound or any demarcated zone enclosing the Imambara or any of the other structures; they simply existed as isolated buildings on an open tract of land that was bordered on three sides by the bungalows of other owners. Even at the time the suit was filed, the first witness for the plaintiffs, Abdul Salam, admitted that “the Imambara is separate from the mosque.” The Court also noted that subsequent documentary evidence showed that after Gulab Shah’s death, his guardian – and later the defendant himself – continued to claim and occupy the Imambara as their own property. The documents revealed that the defendant’s side had paid the property taxes, undertaken repairs, and even added a second storey to the original one‑storeyed building. However, the Court found no documentation or reliable evidence indicating that the Imambara was used by the public for religious purposes. The only material presented in an attempt to establish such public use consisted of statements made by certain witnesses, which the Court found insufficient to support a claim of public religious use of the Imambara.

The Court noted that the only testimony concerning the preparation of tazias at the Imambara was offered by witnesses in this case, and that such testimony was admitted as establishing that tazias were indeed prepared there. The defendant asserted that he paid for the preparation of the tazias, and the Court observed that nothing was placed before it to contradict that claim. The plaintiffs, however, failed to produce any witness who could state that the defendant ever contributed money toward the tazias or that he collected funds for that purpose. Muhammad Khan, identified as plaintiff’s witness five, admitted that the defendant prepared the tazias but said he did not know the source of the money used for them. Abdus Samad, plaintiff’s witness thirteen, admitted that the defendant bore all costs of the preparation, while Haji Alabux, plaintiff’s witness fifteen, affirmed that the Jamaat contributed nothing to the expense. He further stated that the cost was met from offerings, a description the Court found vague because such offerings might have been made directly to the defendant for personal benefit. The Court also considered the only other evidence of public use, namely that a school had once been situated at the Imambara. Qazi Fasihuddin, plaintiff’s witness twenty‑one, testified that the school operated for “one, one‑and‑a‑half or two years”; Abdul Ghaffar, plaintiff’s witness four, said it functioned for “two or two‑and‑a‑half years”; and Sheikh Kalloo, plaintiff’s witness three, limited the period to “two or four or six months”. The Court held that none of these periods amounted to a long‑continued public use. Documentary evidence further showed that the extensions to the Imambara were carried out by the defendant, and even plaintiff witnesses conceded that the defendant paid for those extensions. The documents also revealed that the defendant let out the upper portion of the Imambara and collected rent, as indicated by plaintiff witnesses four and fifteen. Plaintiff’s witness fifteen further admitted that the Jamaat had never received any of that rent for the preceding forty or forty‑five years. Some evidence was introduced to suggest that the defendant used beams from the roof of the old mosque in constructing the Imambara when an arched roof was installed over the old mosque. The Court found that evidence to be vague and emphasized that no objection was raised at the time. Moreover, the roof of the old mosque was replaced with an arched roof because the original beams were worn out, as shown in exhibit P‑18, making it probable that the removed beams could have been repurposed for the Imambara. The Court then framed the principal issue as whether the Imambara had become an accretion to the old mosque or to any of its later extensions. The sole evidence supporting such a view was an inspection note dated 30‑10‑1938, prepared by the trial judge, which observed that “the masjid and the adjoining places appear to be inter‑connected with each other.” The Court accepted that the numerous extensions in the area had brought the structures into close proximity, causing them to adjoin one another. However, this observation was outweighed by the testimony of plaintiff’s witness one, who categorically affirmed that the Imambara was separate from the mosque. Accordingly, the Court concluded that public use of the Imambara had not been satisfactorily proved, nor had it been established that the Imambara formed an adjunct to the mosque.

The Court considered whether any proof existed that the Imambara formed an adjunct of the mosque. After that issue, the Court turned its attention to two tombs, one belonging to Miskin Shah and the other to Dara Shah, both of whom were members of the defendant’s family. Evidence showed that the public occasionally used the tombs, but apart from their proximity to the mosque there was no indication that the tombs were integral to the mosque structure. Consequently, the Court held that the plaintiffs had failed to establish any right over the tombs. This determination also resolved the dispute concerning the structures and rooms situated to the east of Miskin Shah’s tomb. Those structures had been constructed by the defendant, who had been collecting rent from the shops and rooms located there. Some evidence indicated that gahwaras were sometimes placed in the parchhi on the premises; however, that limited use was insufficient to demonstrate that the owner had divested himself of any interest in the property, dedicated it to a divine purpose, or intended to treat it as an accretion to property already dedicated to religious use.

The discussion then proceeded to the shops, rooms, and other edifices occupying the triangular strip of land behind the old mosque and to its west. These buildings had also been erected by the defendant, who claimed ownership and derived rental income from them. Although these structures were physically separate from the mosque in that they did not provide an internal passage into the prayer hall, the Court found a substantial body of evidence that it could not reject. The evidence demonstrated, first, that the beams of the new buildings rested on the mosque wall and were inserted into it; second, that the rear wall of the mosque constituted the back wall of these rooms; third, that the minarets of the mosque had been trimmed to enlarge the dimensions of the rooms; and fourth, that certain pushtas that once occupied the space of the minarets had been removed to increase the area available for the rooms. From these facts, the Court concluded that the land on which the pushtas and the altered minarets stood had originally been part of the mosque estate. Because the defendant built upon this portion of the mosque estate without demarcating it from the remaining mosque property, the Court was obliged to treat the new constructions as accretions to the mosque estate. While it is conceivable that a stranger to the trust could have encroached upon the trust estate and later acquired title by adverse possession, a Mutwalli cannot assume such a position. Both Gulab Shah and the present defendant identified themselves as Mutwallis of the mosque; therefore, when they chose to build on a segment of the mosque property in a manner that integrated the mosque portion with the newly added area to form a single composite room, the Court was bound to regard those additions as accretions to the mosque estate.

The Court held that the construction made by the trustees must be treated as an addition to the trust estate, and that the trustees were consequently barred from adopting any contrary position. The principle applied was that a trustee may not create a title that is adverse to the trust, nor may the trustee obtain a personal benefit from the trust property. The same principle was applied to Room A. Originally Room A had been a separate and distinct structure from the mosque, even though it had been built by a Mutwalli. In 1908 the internal walls separating Room A from the mosque were removed and the mosque was extended so that the former room became an integral part of the mosque building. By becoming part of the mosque, the room was deemed an accretion to the mosque estate. Because the Muslim public had used the space continuously for religious worship together with the main mosque, the Court presumed that the defendant’s claim of private ownership was overridden and that dedication to the trust was to be inferred despite the defendant’s contrary assertions. The defendant had asserted ownership as late as 1921 and again in 1927. In 1921 he instituted a suit against a third party who claimed to be the Mutwalli in possession of the mosque key, and in 1927 he was named as a defendant in a suit filed under Section 92 of the Civil Procedure Code, where he again advanced the same claim. The Court found that the defendant’s statements in 1921 and 1927 could not outweigh his earlier conduct in 1908 with respect to Room A. The Court then examined the portion of land identified as A‑1 on the plaint map, which was a yard. No evidence was presented showing that the public used this area for religious purposes. The only observation was that worshippers passed across the yard to reach the mosque, and the map (Exhibit D‑43) showed that no other entrance existed. Some oral testimony indicated that prayers were occasionally offered there during a funeral, but the same evidence showed that the prayers could also be performed on the road, and this occasional use was deemed insufficient to establish dedication. The same analysis was applied to the area marked A‑6. The defendant had leased this parcel to the Government under a lease dated 25‑6‑1935 (Exhibit D‑40), claiming to be the owner and admitting that he collected the rent. No clear evidence demonstrated a long‑standing and uninterrupted public religious use of this land. Certain witnesses mentioned that worshippers sometimes spilled over onto the parcel and that prayers were occasionally conducted there over bodies during funerals, but the Court concluded that such sporadic use did not satisfy the requirement of dedication. After a thorough review of the evidence, the Court reached several conclusions. First, the mosque as it existed in 1880 was established as waqf property, but there was no proof that any land beyond the building and its immediate site had been part of the waqf at that time. (Further conclusions follow in the subsequent portion of the judgment.)

In this case the Court observed that the property had been enlarged at various times and that the entire enlarged area was now shown on the plaintiffs’ map as a separate, clearly demarcated portion identified as ABCD. The Court found that this portion, together with the additions and accretions, formed a single composite entity. Because the public used this area for religious activities in the same manner as the old mosque, and because the area had been arranged as a distinct, compact unit intended solely for collective and individual worship, the Court treated it as one unified piece of land. Accordingly, the whole of that demarcated area was deemed to be wakf property. The Court further held that the additions had been made by Gulab Shah and the present defendant, each of whom claimed to be a mutawalli, or manager, of the mosque. In addition, the Court stated that the area also comprised the shops and the chabutra shown on the western side of the mosque on a triangular parcel of land in the plaint map. The urinal, water pipe and bathroom that had been constructed for the worshippers were considered to be ancillary facilities belonging to the wakf estate. Conversely, the remaining portion of the property that was the subject of the suit was not shown to be part of the wakf or an accretion to the wakf estate; it was identified as a separate, severable tract distinct from the ABCD portion and from the western shops. Finally, the Court concluded that the worshippers of the mosque possessed a right of way, in the form of an easement, over the plot labelled A‑1. This easement permitted them to enter and exit the mosque and also to access the urinals, water tap and bathroom.

The Court then turned to the arguments raised by the defendant concerning res judicata and limitation. Regarding res judicata, the defendant contended that the Muslim community had sued Gulab Shah in 1880 for the entire present property and that the suit had been dismissed in total, invoking the explanation to Section eleven of the Civil Procedure Code. The Court noted that it need not examine this issue in detail because it was already admitted, and had been found in the 1880 litigation, that the old mosque was wakf property. The Court inferred that the remaining land was not wakf at that time, a conclusion that aligned with the present review of the evidence. However, the Court observed that many events had occurred since the 1880 case, including subsequent additions and accretions to the original estate, and that these later developments now formed part of the original wakf. On the limitation issue, the defendant argued that Article one hundred twenty of the Limitation Act applied, asserting that the cause of action arose in 1880 and at later dates, thereby exceeding the six‑year period prescribed by that article. The Court rejected this contention and held that Section ten of the Limitation Act was the appropriate provision. The proviso to that section, the Court explained, deemed any property constituted in a Muhammadan religious or charitable endowment to be held in trust for a specific purpose, with the manager of such property deemed to be its trustee. Consequently, the Court found that no limitation problem could arise with respect to those portions of the property that, according to its findings, now formed part of the wakf estate.

In this case, the Court noted that the statutory provision states that a property devoted to a specific purpose and the person who manages that property shall be treated as the trustee of the property. Accordingly, the Court concluded that no question of limitation could arise in relation to those portions of the land that, based on the Court’s findings, now form part of the wakf estate. As a result, the Court held that the appeal succeeded in part and therefore the decree issued by the High Court required modification. The Court expressly declared that the area identified as ABCD on the plaint map, together with the shops and the chabutra situated on the triangular parcel located behind and to the west of the mosque, are to be regarded as wakf property. In addition, the urinal, the water pipe and the bathroom facilities shown on the plaint map were also declared to be part of the wakf estate. The balance of the plaintiff’s claim was dismissed, except for a declaration that the worshippers of the mosque possess a right of way, in the nature of an easement, over the portion of land marked A‑1. This easement enables the worshippers to enter and exit the mosque, its precincts, and the associated urinal, water tap and bathroom facilities depicted on the plaint map. Finally, because each party achieved a degree of success and a degree of failure, the Court ordered that each side bear its own costs of the litigation.