Maulvi Hakim Mohd. Abul Fateh vs The Delhi Wakf Board
1995 Latest Caselaw 541 Del

JUDGMENT

C.M. Nayar, J.

(1) The present appeal arises out of the judgment dated 24th November, 1976 of Additional District Judge, Delhi. The learned Judge disposed of the appeal by affirming the findings of Sub Judge, First Class, Delhi, in Suit No. 79 / 66 which was dismissed on November 30, 1972.

(2) The appellant filed a suit for declaration under Section 6 of the Wakf Act to the effect that the mosque in dispute was private mosque, that it was not public Wakf but was Wakful Aulad and that as such the notification issued by the respondent/defendant, Delhi Wakf Board debarring the said property to be Wakf was of no consequence. it was alleged in the plaint that mosque bearing No. 387(new), 239(old), 220 (oldest), Hauz Qazi, Delhi was private mosque situated in the residential house of the appellant and was Wakful Aulad. The respondent contested the suit alleging that the property was a mosque and it has been notified correctly as Wakf property. The following issues were framed on the pleadings of the parties:

(I)Whether a valid notice to the defendant was served ? If not, what is the effect? (ii) Whether the suit is not maintainable for declaration ? (iii) Whether the mosque in dispute is a private property of the plaintiff ? (iv) Whether the suit has been properly valued for the purposes of Court fees ? (v) Relief.

(3) The Trial Judge disposed of issue No. 3 by holding that the property was not established to be Wakful Aulad. lt will not be necessary to refer to the other issues as the suit was dismissed on the basis of finding on issue No. 3. Issues I and 4 were not pressed. The appellant felt aggrieved by the judgment of the Trial Court and filed an appeal in the Court of Additional District Judge. The.learned Appellate Judge recorded finding on the basis of the admitted fact that the appellant had not placed on the record any Wakf Nama. The relevant finding in this regard is contained in paragraph 6 of the judgment which reads as follows: The learned Counsel for the appellant has rightly conceded that the appellant has not placed on the record any Wakf Nama. It needy hardly be mentioned that there must be a grant to create a Wakf. It is also not disputed that in order to prove that the Wakf in question is Wakful Aulad, the appellant was required to place on the record documentary evidence to prove that any such Wakf has been created. However, it is argued that as the appellant has placed on the record deed Ex. Pi, it must be assumed to be sufficient in itself to show that a Wakful Aulad had been created. Before I proceed further, I may mention that the reading of Ex. Pi goes to show that by this Maulvi Hakim Mohd. Gaffar had appointed his two sons, Maulvi Hakim Mohd. Abdul Fateh and Hakim Mohd. Abdul Fareh as the Mutwali and Naib Mulwali respectively. In this document, there is a reference to another deed of 7.6.1957. It is mentioned in Ex: P.I that Wakf was created by the said deed of 7.6.57. Needless to repeat again that no document with respect to the grant has been placed on the record and even that document of 7.6.57 has not seen the light of the day. In short thus, the appellant has kept back the main document which could throw light on the creation of any grant. At the most Ex. Pi can be treated as secondary evidence with respect to the purpose of the grant and in the absence of primary evidence which could easily be produced, this document (Ex.P1) cannot be treated to be of much assistance."

(4) A perusal of the above paragraph would indicate that the learned Judge took note of the fact that there was a reference to another deed dated 7th June, 1957 in Ex. Pi which was relied upon by the appellant to reiterate that theWakful Aulad had been created. The appeal was filed in this Court and the appellant also moved an application under Order 41 Rule 27 (CM 455/77) to reiterate that the First Appellate Court has drawn adverse inference by non-production of the deed dated 14th February, 1957, as registered on 7th June, 1957. The photocopy of the original document, as registered on 7th June, 1957, and as referred to in the judgment of the First Appellate Court has been filed along with this application and it is argued that the said document clearly establishes that Wakf in question is Wakuul Aulad and the mosque in dispute is a private mosque and it cannot be held as public Wakf. This document is produced in this Court for the first time though it is a registered document. It is contended that an appeal can be allowed on the basis of the rights conferred on the appellant by the document which now is before this Court.

(5) There has been no appearance on behalf of respondents though the matter has been on board for 18th July and 19th July, 1995. The question of admissibility of the document as referred to above has to be determined by the Trial Court in accordance with law. Therefore, the matter is remanded to the Trial Court to determine the admissibility, authencity, effect and validity of the document which has been now filed before this Court. The judgment of the Trial Court as well as of the First Appellate Court are accordingly set aside. The Trial Court shall now consider the effect of the document and give findings on issue No. 3 after giving opportunity to both the parties. The respondents shall be at liberty to lead evidence in rebuttal. The parties are directed to appear before the District Judge on 5th September, 1995 for further proceedings in the matter. The record of the case shall be transmitted to the same Court by Special Messenger. Rsa 63/77 & Cm 455/77 stand disposed of in the above terms. There will be no order as to costs.