Punjab Wakf Board etc. vs The Gram Panchayat of Village etc.

Chet Ram Thakur, J.—This second appeal by the Plaintiff has arisen out of a suit for declaration to the effect that the Pirsthan or Dargah property known as Pirnigahia as detailed out in the head note of the plaint is a place of worship and a Dargah dedicated for pious and religious purposes recognised by the Muslim law and fell within the definition of wakf as given in the Wakf Act, 1995, (hereinafter called the Act) and on the enforcement of the Act the property had vested in the Plaintiff which was a Wakf Board. That the mutation of the property sanctioned in favour of the Defendant Gram Panchayat was wrong and illegal and that the Defendants on the basis of this illegal mutation were interfering with the management and the receipt of offerings of the aforesaid place of worship. The Plaintiff further prayed for permanent injunction restraining the Defendants from interfering with the administration and management and receiving of offerings of the aforesaid wakf property.

The Defendants had opposed the suit giving rise to several issues. The only point that is relevant for the purposes of this appeal is whether the suit property known as Pirsthan is a wakf property? The trial Court had held on this point that the property did not fall under the definition of wakf as given in Section 3(l) of the Act. Further, that the Plaintiff had failed to prove that the suit property was a wakf property and that it had vested in the Punjab Wakf Board, On appeal, the learned Additional District Judge also came to the same conclusion.

I have heard the learned Counsel for the parties. I have also been referred to the evidence by the learned Counsel for the Appellant. The property consists of present Khasra Nos. 3765 and 3766, the previous Khasra Nos. of which were 2037 and 2038 respectively, and the property, is situate in Mauza Basoli, Tehsil Una. The property according to the Jamabandi of the year, 1960-61 shows the Khasra No. 3765 measuring 2 kanals 14 marlas as Ghair Mumkin Pirsthan, and the second Khasra No. 3766 measuring one biswa is shown as Ghair Mumkin Pirsthan and under the column of cultivation is recorded as "Paristashgah Ahle Hanud Ba Ahle Islam". According to the Jamabandi of the year, 1913-14, Khasra No. 3765 is recorded as Ghair Mumkin Deri and the other Khasra No. measuring five marlas is recorded as Ghair Mumkin Jaya-Pir. From the latest Jamabandi it would, however, appear that the property is a place of worship of both Muslims and Hindus and that means that it cannot be termed as a wakf u/s 3(l) of the Act. Wakf means a permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Mulsim law as pious, religious or charitable and includes--(i) a wakf for user; (if) mashrut-ul-khidmat; and (iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable; and wakf means any person making such dedication. Therefore, from this definition it is quite manifest that the dedication must be made by a person professing Islam for any purpose recognised by the Muslim Law as pious, religious or charitable. Now as to who would be the beneficiary under the wakf we have to look to the definition of beneficiary as given u/s 3(a) of the Act. Beneficiary, according to this, means a person or object for whose benefit a wakf is created and includes religious, pious and charitable objects and any other objects of public utility established for the benefit of the Muslim community. Therefore, reading the definition of wakf in conjunction with the definition of beneficiary it would be amply clear that the wakf is only for the benefit of the Muslim community. According to Kassimiah Chanties Rajgiti v. Madras State Wakf Board AIR 1964 Mad 18:

Under the Muhammadan Law, to constitute a valid wakf whether religious or charitable, except in the case of donations to neighbours, the beneficiaries should be Muslims. The rigour of the rule has, however, been relaxed in the case of public utilities. Public utilities have been recognised by Muslim Law as charitable, notwithstanding the fact that some of those who take the benefit thereunder might be non-Muslims or rich people. There can, therefore, be a valid wakf for the establishment of a public utility, e.g. an educational institution for providing instructions to non-Muslims. It is not necessary that the benefits should be confined to the poor alone so far as such charities are concerned.

Consequently it is obvious that a Paristashgah, i.e. the place of worship, which has been dedicated must be only to the or benefit for the purpose of Muslim community. The Hindus as a matter of fact are the idolaters according to the Muslim religion. There is an extract from Ameer Ali''s treatise on Mohammadan law, as given in para 14 of this judgment where it has been said that "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 doctrine. Divine approbation being the essential element in the constitution of a wakf if the object to which a dedication is made is sinful, cither according to the laws of Islam or to the creed of the dedicator it would not be valid. Consequently, a Muslim cannot make a dedication in favour of an idol, a non-Muslim place of worship or any other object which is held as unlawful or sinful in his law, nor can a non-Muslim validly make a dedication for a Muslim place of worship. In Baillie''s Digest of Mohammadan Law, Volume I, it is stated at page 560 that appropriation by a Muslim or a zimc for a temple or a church or for the poor of the enemy is not valid". Similarly in Nawab Zain Yar Jung and Others Vs. The Director of Endowments and Another, it had been held by their Lordships that:

Under the Wakf Act, the purpose for which a wakf can be created must be one which is recognised by Muslim law as pious, religious or charitable, and the objects of public utility which may constitute beneficiaries under the wakf must be objects for the benefit of the Muslim community. There can be no doubt that the wakfs with which the Act deals are trusts which are treated as wakfs under the definition of Section 3(l) and as such, a trust which does not satisfy the tests prescribed by the said definition would be outside the Act.

The learned Counsel for the Appellant has argued that this authority has got no application inasmuch as it deals with a case before the amendment of the Act of 1954. But I am afraid if the submission made by him has got any force because a perusal of this authority shows that it deals with the definition of the wakf as given in the Central Act XXIX of 1954 which is the present Act. Therefore, on the basis of these authorities it is quite apparent that a trust in order to be a wakf as defined under the Act must be for the benefit of the Muslim community. But in the instant case the jamabandi for the year, 1960-61 indicates that it is a Paristashgah of both Ahle Hanud (followers of Hinduism) and Ahle Islam (followers of Islam) and as such it does not fall within the definition of wakf as held by their Lordships of the Supreme Court in Nawab Zain Yar Jung and others'' case (supra).

The learned Counsel for the Appellant has relied on Hussain Shah v. Gul Muhammad AIR 1925 Lah 420. In this case two brothers Nizam Din and Kamal Din on 6th January, 1894 made a gift of 23 kanals 3 marlas out of the suit land to Takia Kamal Din. Pir Shah, a disciple of Kamal Din is entered as cultivator of this land in the mutation entry. Imam Din died in July, 1903. Nizam Din died in June, 1910 and Kamal died in January, 1912, leaving behind no son. Nizam Din''s only son Gul Muhammad had been adopted by one Imam Din, the brother of Nizam Din and Kamal Din. One Hussain Bakhsh or Hussain Shah, a disciple of Kamal Din, became the Sajjada Nashin of Takia Kamal Din after his death. Gul Muhammad the adopted son of Imam Din brought a suit for declaration on the allegation that he was an heir to the property left by the three brothers and that the land in suit did not belong to the Takia under the Muhammadan law. It was in these circumstances that their Lordships held that the place of abode of a faqir is called a Takia before he attains sufficient public importance and that when a faqir attains sufficient public importance and a large number of disciples begin to get round him and lodgment is provided for such disciples, then the place is called a khankah; and then if the faqir on his demise is buried in the khankah it becomes a dargah; and further that the Takia is itself an institution recognised by law and a grant of endowment to the same will be as valid as a wakf as to a khankah, a dargah or a mosque. Here in the present case there is no proof as to who donated the property but as it stands entered in the latest jamaban-di for the year, 1960-61, to which presumption of correctness attaches, the place has been held as a place of worship both by Hindus and Muslims. Therefore, it is not a takia nor it is a wakf as defined u/s 3(l) of the Act. Hence this authority has got no application to the facts of the present case.

The learned Counsel for the Respondents has further relied on Haji Ali Muhammad and Ors. v. Anjuman-i-Hamia, Punjab, Lahore and Ors. AIR 1931 Lah 379 to show that takias and khankahs properly so called are religious foundations among the Mahomedans and the property attached to them is Wakf and, therefore, tied up in the ownership of God and further that Takia is itself an institution recognised by law and a grant or endowment to the same is as valid as wakf as to a khankah, a dargah or a mosque. The present is not a case either of a Takia or a khankah. Even if it may be said that it is a Pirgah and has been dedicated to worship yet by virtue of the fact that the worshippers are both Muslims and non-Muslims, therefore, this Pirsthan even if it may be a tomb cannot amount to a wakf as defined under the Act and, therefore, this authority has got no relevance for the present purposes. Further reliance is placed on Mehraj Din v. Ghulam Muhammad and Ors. AIR 1931 Lah 607. In this authority it was held that when a long period has elapsed since the origin of the alleged wakf, user can be the only available evidence to show if the property is or is not wakf. Where there is no evidence to show how and when the alleged wakf was created, the wakf may be established by evidence of user. This authority also does not assist the Appellant. In the first place there is no pleading about user and secondly from the evidence on the record it is abundantly borne out that the place is worshipped both by the Muslims and non-Muslims and the offerings are also made by the Hindus at the time of marriages. It is also manifest from the statement of Lal Din (PW 3) that the doors of the Muslim religious places face towards West whereas the doors of the disputed place face the East. He also admitted the existence of the Gharyal which was rung by all persons entering this place. Further on he stated that on Dewali eve this place was lightened with earthen lamps. P.W. 6 has deposed that both Muslims and Hindus attend Mela (fair) held on this place and Hindus also worship the Pirsthan. Therefore, in these circumstances the evidence of user is against the property being a wakf, Which is dedicated exclusively to the Muslim community, as the beneficiaries as defined u/s 3(a).

Reliance is also placed on Abdul Aziz Valad Haji Subhan Vs. Mahomed Ibrahim Ghatkari, to show who is a Mujawar and what are his duties etc. A Mujawar is one who does the work of sweeping and cleaning the shrine, reading the fatiha, offering prayers and incense, and looking after the general management of the shrine. Further, in this authority it has been held that Mujawar is entitled to spend the income of the property of the shrine for the purposes of the shrine but cannot appropriate the income as his private property and consequently no question of adverse possession arises. This case also has got no bearing on the facts of the present case. Therefore, from the aforesaid discussion it would be apparent that it is not a Muslim shrine so as to be covered by the term wakf as defined in the Act.

The learned Counsel in his endeavour to press his point that the property is a wakf invited my attention to Wajib-ul-araz copies of which are Exhibit P. 3 and P. 4. The former appears to have been prepared in Sambat 1926 and the latter was prepared in 1913-14 AD. Wajib-ul-araz says that there was no other source of miscellaneous income in the village excepting the income from the Pirnigaha and that a Mela (fair) is held there on every Thursday where offerings were made by the public. These entries have also provided the mode of disbursement of that income. It further says that the income was not only shared by the Muslims but by the non-Muslims too. However, it has been provided therein that the Mujawar had the right of the nature of occupancy which were heritable. There is, however, a reference in both these copies of the Wajib-ul-araz that there was no entry made in the haq-iqrar-nama at the time of the settlement with regard to the rights of Brahmins of Bal and they had filed a suit which had been dismissed. That is true lhat there is a reference in both the documents to that effect but the fact remains that Nathu, Ram Dayal and Lal Man Khatris also shared the income according to these entries in the Wajib-ul-araz at the time of settlement in 1926. Therefore, it is wrong to say that the history depicts that it was a dedication by a Muslim. There is no doubt that even a Hindu can donate property for pious or religious purposes but that would not make it a gift unless it is made in accordance with Muslim law and for the benefit of the Muslim community. Therefore, these documents also, in my opinion, are not of any assistance to the Appellant to show that the property is Wakf. Both the courts below have come to a concurrent finding of fact that the property is not Wakf. It is no doubt a shrine known as Pirsthan but the worshippers are both Muslims and non-Muslims. The offerings are also made and appropriated by both the communities. There is also a Gharyal (gong or bell) which is not found in the mosques but is a necessary item in the temples worshipped by Hindus. Therefore, in the the totality of the circumstances no other conclusion is possible except that it is a shrine, the worshippers of which are both Hindus and Muslims. There is no evidence about the dedication of this property by any Muslim, exclusively for the benefit of the Muslim community. The Wajib-ul-araj do not give the history as to who decdicated the property and for whose benefit. The user, as is evident from the evidence on the record, is both [by Muslims and Hindus and, therefore, the property does not fall within the definition of the Wakf.

Consequently, I have no option but to agree with the findings of the courts below and, I, therefore, affirm the judgments of the courts below and dismiss this appeal with costs.