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Judgment
(1) This is a plaintiff's second appeal in a suit for injuction restraining the defendants from alienating or dealing with the properties which belong to
Ziarat Baba Ibrahim Sahib which have now vested in the plaintiff under the provisions of the Jamrou and Kashmir Muslim Wakafs Act (hereinafter
called the Act).
(2) The plaintiff's case was that the Government by two orders dated 22955 and 291158 2 kanals and 6 marlas respectively to the aforesaid
Ziarat. A portion of the land measuring 12 kanals and 5 marlas was acquired by the P. W. D. Housing Section which paid a compensation of Rs,
12500/ to the Ziarat. Thus, in our words, the total area of land granted to the Ziarat was 74 kanals and 6 marlas out of which the Government has
requisitioned 12 kanals and 5 marlas, leaving the remaining 62 kanals and 1 marla which is the land in dispute. The first defendant who was
originally a caretaker or a Mujawir of the Ziarat and was in possession of the property as Manager had set up his adverse title and had started
alienating and selling away the properties with a view to depriving the Ziarat of its valuable properties.
(3) The suit was resisted by the defendant No. I who admitted to be the Mujawar of the Ziarat but averred that the grant made by the Government
was not made to the Ziarat at all but was made to the defendants in their personal capacity in lieu by huge chunks of lands which were acquired by
the Government for establishing the Gandhinagar colony at Rakh Bahu Jammu. The defendants further pleaded that they had spent huge amount of
money for adding rooms to the Dargah which was their personal acquisition.
(4) Both the courts below accepted the case of the defendants and held that as the plaintiff was not in possession of the property, it could not sue
the defendants for an injunction. Having gone through the facts of the case it seems to me that the defendant L who started his career as caretaker
or Mujawir of the Ziarat lured by the prospect of laying his hands on the property which was granted to the Ziarat decided to grab the same by
shedding his fiduciary or religious character, assumed a mysterious and incongruous role of an independent owner of properties of which he
happened to be caretaker and thus clandestinely sought to set up an adverse claim to these properties which with the rise in prices became more
and more valuable. In doing so, the defendants appear to have been inspired by some irresponsible statements made by some Government officers
in regard to grants which they never cared to analyze in detail or to examine the ambit and purport of the grants, What is more surprising is that
even the two courts below, namely the D. J and the SubJudge appear to have been so enraptured by the fanciful claim put forward by the
defendants that they decided to dismiss the suit merely on the basis of the possession of the defendants without investigating into the nature and
character of it or the fiduciary capacity of the defendant 1
(5) The sheet anchor of the case of the defendants, therefore, was the inquiry held by the Financial Commr and other revenue officers which
cannot be binding on the plaintiff because this inquiry was held after the property had vested in the committee under Sec, 13 of the Act and yet the
Wakf Committee was not beard in the matter and the inquiry was held behind its back. Similarly reliance was placed on an order of the
Government dated 20866 (Dx DA 4) wherein while replying to the representation made by the defendants that a huge chunk of land which was in
their cultivating possession (not disputed land) had been taken by the State and no compensation had been paid, the Government by this order
took shelter behind the grant of the land made to the Ziarat. Thereafter it appears that the defendants did not pursue the matter any further. It is
obvious that the stand taken by the Government in Ex. DA 4 was wholly erroneous and cannot have the effect of wiping out the legal effect of
Government orders of LS55 and 1958 by which the disputed lands had been granted to the Ziarat and had vested in the same several years before
this document came into existence. It was the duty of the defendants to have perused the matter further because the orders of 1955 and 1958
were clear in their application and manifestly showed that there was no grant to the defendants at all but the grant was made only to the Ziarat as a
gesture of the Government towards development of charitable institutions. In these circumstances, therefore, this document does not advance the
case of the defendants any further and will not have the effect of defeating the claim of the plaintiff.
(6) Counsel for the defendants submitted before me that the appeal was concluded by findings of fact and this court could not reopen that question
in second appeal It was further contended that there was no valid dedication by the Govt. in favour of the Ziarat and therefore the lands
belongedto the defendants in their personal capacity. Lastly it was urged that the plaintiff who had nothing to do with the properties in question or
the Ziarat had no locus standi to bring the suit.
(7) Counsel for the appellant, however, submitted that the plaintiff was a legally constituted body under the Act and since the property attached to
the Durgah vested in a committee, they had the right to protect it from being destroyed or wasted by the caretaker of the Dargah It was also
submitted by the counsel for the appellant that as the courts below had grossly misinterpreted and mis construed the two grants which form the
documents of title, a clear issue of law arose. In my opinion the contention of the learned counsel for the appellant appears to be sound and must
prevail. It is true that the two courts below have given a finding of possession in favour of the defendants, but this finding of fact is vitiated by a
clear error of law. Both the courts below have held that the defendant was undoubtedly the Majawir or caretaker of the Ziarat, and that the Ziarat
was a well established Wakf by public user. They have however not found that the defendants bad been able to acquire title by adverse possession
against the Wakf property but have on a gross misinterpretation of the grants made by the Government to the Ziarat held that the grant was made
to the defendants.
(8) In fact this case lies within a narrow compass. Even the defendants have not urged that they acquired title by adverse possession against the
Ziarat, but they only say that the lands in question were given by the Government to them personally in lieu of the acquisition of a huge chunk of
land which was in their cultivating possession. Thus if once it is found that the grant was not made to the defendants in their personal capacity but to
the Ziarat, then the possession of the defendants must be treated to be the possession of the Ziarat and the defendants will in the eye of law be
holding the property for the benefit of the Ziarat. I am also satisfied that the order of the Government by which the grant was made to the Ziarat is
absolutely clear and unambiguous and can admit of one and only one interpretation and that is the Government intended to donate the land to the
Ziarat alone and not to the defendants in their personally capacity. In fact the defendant's names are not even mentioned in the grant at all. In this
connection the two documents of title by which the grant was made may now be referred to. One is Government Order No. 1418C of 1955 dated
22455 which runs thus :
It is ordered that 3 acres of land of Rakh Bahu of the Rakhs and Farms Deptt. surrounding the Ziarat Shareef of Baba Ibrahhim Shah Sahib be
granted to the said ZiarateShareef permanently.
By order of the Cabinet.
Sd/.
G. M. Bakshi, Prime Minister.
(9) Government Order No. 733312HD. 56C dated 291158 runs thus :
(i) The confirmation of the action taken by the Prime Minister in granting land measuring 6 acres 2 kanals and 6 marlas to Zlarat Sharif, Baba
Ibrahim Shah Sahib, at Gandhinagar Jamtnu and,
(ii) The grant of compensation amounting to Rs. J2.500/ by debit to Housing grant in favour of the said Ziarat for 125 kanals of land @ Rs. 10CO/
per kanal, taken over by the Public Works Department for development of Gandhinagar out of the area of 3 acres sanctioned vide Cabinet order
No. 1418C dated 20955,
By order of the Jammu and Kashmir Govt.
Sd/
Noor Mohd, Secretary to Government.
(10) The order of 1955 specifically stated that the lands in Rakh Bahu surrounding the Ziarat Shareef of Baba Ibrahim Shah be granted to the said
Ziarat permanently. The later order of 1958 also says the same thing. It is nowhere mentioned in any of these orders that the land was given not to
the Ziarat but to the defendant who was Mujawar of the Ziarat either in his personal capacity or in lieu of compensation for his personal lands
acquired by the Government. Since the recitals in the documents are absolutely clear and are expressed in unmistakable terms, there is no room for
adducing evidence aliunde to contradict the recitals of these two documents. Thus the evidence adduced by the defendants to show that the grant
was made not to the Ziarat but to them is clearly hit by Ss. 91 and 92 of the Evidence Act and is therefore inadmissible. Furthermore the grant was
made in 1955 and 1958, that is to say several years before and the Government has not come forward after such a long lapse of time to support
the stand of the defendants that the grant was intended for them in their personal capacity and not for the Ziarat. I fail to understand how in face of
such clear recitals in the documents the courts below have by a process of evisceration and interpolation construed the documents to mean as if it
was a grant in favour of the defendants. The courts below appear to have been influenced by the fact that when the defendants represented to the
Government that the lands in their cultivating possession had been taken over by the Government without paying compensation, some Government
officers replied that a substantial grant of land had been made to the Ziarat. This obviously was a wrong stand taken by the Government officers
and could not clothe the defendants with the right of wiping out the legal validity of the grant made years before the officers gave this reply. Indeed
the remedy of the defendants was to sue for damages or for compensation for the land unlawfully acquired by s""he Government. There was no
justification for the defendants to cast their covetous eyes on the property of the Ziarat, taking advantage of their possession over the same which
was as managers or trustees and assert a hostile title to it. The law on the subject is absolutely clear that a manager or a trustee in possession of a
religious shrine cannot be allowed to assert a hostile title unless he formally surrenders possession to the lawful authority. Before going into this
point of law at some length it may be necessary to refer to certain proved facts in the case J
(1) It is not disputed that the present Ziarat existed since a long time and became a Wakf by long public user.
(2) That the first defendant was the Sajadanashin or caretaker of the Ziarat.
(3) That the land belonged to the Govt. originally.
(4) That the Government granted the land in dispute to the Ziarat and not to the defendants.
(5) That the defendant was admittedly in possession of the Ziarat as also the properties appurtenant thereto.
(11) In these circumstances it is clear that even if the defendants were in possession of the lands, their possession would have to be referable to a
lawful title and cannot be treated to be adverse to the Ziarat. In other words the possession of the defendants would be for the benefit of the
Ziarat. The courts below appear to have approached this case from an absolutely wrong legal point of view. Having found that the first defendant
was caretaker of the Ziarat and in charge of the properties and that he was holding position as Mujiwar or Sajjidanashin, the ypresumed that his
possession was in a personal capacity and adverse to the Ziarat. Here the courts below have committed a serious error of law. In Mohd Shah Vs.
Fasihuddin Ansari, AIR 1956 SC 713, 715 their Lordships of the Supreme Court observed as follows :
Now it is evident at the outset that the burden lies on the plaintiffs. The defendant is admittedly in possession and except for the fact that the
plaintiffs claim that he is in possession on their behalf (a fact which the defendant denies) the plaintiffs are out of possession. Hence they must prove
that the defendant is in possession on their behalf. The only way in which the plaintiffs can do that is by showing that the properties in suit are wakf
property
(12) These observations clearly show that the only way in which the plaintiffs can prove that the possession of the defendant was as a trustee or a
manager of the shrine is to prove the existence of the wakf. In the instant case the fact that the Ziarat in question existed since a long time is not in
dispute, nor is it in dispute that the defendant was its Majawar. In these circumstances the presumption would be that the defendant? were in
possession for the beneficial interest of the Ziarat and not in their personal capacity. To the same effect is a decision of the Privy Council in Hafiz
Mohd. Vs. Swarup Chand, AIR 1948 PC 76, 80 wherein their Lordships observed as follows :
It is not disputed that in law a title by adverse possession can be established against Wakf property, but it is clear that a trustee for a charity
entering into possession of property belonging to the charity cannot, while remaining a trustee, change the character of his possession and assert
that he is in possession as a beneficial owner.
(13) This decision clearly lays down that it is not open to a trustee to change the character of his possession while remaining a trustee. In the instant
case it was not open to the defendant to convert the nature of his juridical possession as trustee into adverse possession unless he surrendered
possession to the lawful authority or reentered possession as trespasser.
(14) In SSIS Jew Vs. Sushila Bala, AIR 1954 SC 69, 73 the following observations were made by their Lordships while endorsing an earlier
judgment of the Calcutta High Court delivered by the eminent jurist, Rankin C. J. :
If a she bait by acting contrary to the terms of his appointment or in breach of his duty as such she bait could claim adverse possession of the
dedicated property against the idol it would be putting a premium on dishonesty and breach of duty on his part that no property which is dedicated
to an idol would ever be safe. The she bait for the time being is the only person competent to safeguard the interest of the idol, his possession of
the dedicated property is the possession of the idol whose she bait he is, and no dealing of his with the property decided to the idol could afford
the basis of a claim by him for adverse possession of the property against the idol. No she bait can, so long as he continues to be the she bait, ever
claim adverse possession against the idol.
(L5) In that case it was pointed out that the possession of the She bait would be deemed to be the possession of the idol because the idol has to
be in possession of the properties only in the ideal sense and through its manager. In the instance case it is manifest that as the defendant was the
Mujawir or caretaker of the Ziarat any property that was acquired by the Ziarat from the Government by virtue ot the two grants referred to above
would be in his possession and the Ziarat would be in possession of the properties only through him. Thus the principles laid down by the Supreme
Court in the aforesaid case clearly apply to the present case. In fact Rankin C J in S. Ray Vs. I. B. Thakurani, AIR 1933 Cal. 295, 304 had
observed as follows :
''I am quite unable to hold that it does, because such a change of intention can only be brought home to the idol by means of the she bait's
knowledge and the idol can only react to it by the she bait. Adverse possession) in such circumstances is a notion almost void of content.
(16) These observations have been fully endorsed by the Supreme Court in Jew's case (Supra).
In Mohd Afzal Vs. Din Mohd, AIR 1947 Lahore 117, 145 the aforesaid principles were reiterated and Ram Lai J. dealing with the entire case law
on the subject observed as follows :
A trustee cannot by his declaration that he has committed or is about to commit breach of trust, prejudice the rights of the beneficiaries and claim
that as from the date of his declaration he began to hold adversely to the trust............ In order to make time so run he would, in my opinion, have
to surrender the property to the proper custodian or matwalli and then enter upon it as a trespasser. It is only in these circumstances that either he
or those claiming under him could justifiably say that their title had become adverse.
(17) It may be pertinent to note here that in the instant case there is neither any pleading nor any proof to the effect that the defendants had
surrendered their possession to the plaintiff committee and then reentered possession of the property in suit as pure and simple trespassers. It also
cannot be disputed that the Ziarat being a juristic person is capable of holding or acquiring property either by purchase, gift or prescription. I am
fortified by a decision of the Calcutta High Court in Ananda Chandra Vs Broja Lal, AIR 1933 Cal. 142, 145 wherein Mookeree J. observed as
follows :
''If the first alternative be adopted, as thi? temple has been in existence for over 12 yrars. the idols to whom it is dedicated have acquired an
indefeasible title to the site by adverse possession.''
(18) I have mentioned this point advisedly because one of the arguments of the counsel for the respondents was that as there was no dedication by
the Government, the lands could not be held to constitute a wakf, within the meaning of the Act. This argument is based on a serious
misconception. In the first place there was no question of dedication because the Ziarat had come into existence as a public wakf by long user and
therefore it was a juristic person which could acquire any property by way of gift. The Government order merely gifted the land in dispute to the
Ziarat. I might also dispose of the other contention at this stage which was advanced by the learned counsel for the defendants. It was submitted
that the two grants were illegal and did not convey any title on the Ziarat. It was submitted that as the grants were not registered and were not
made in accordance with the provisions of Art. 122 of the State Constitution, they were invalid. In the first place this point cannot be raised by the
defendants because the matter was between the donor (Government) and the donee (Ziarat) As regards the objection regarding the grant being hit
by S. 122 of the State Constitution, the same appears to be wholly untenable in law As regards the order of 1955 this order was passed long
before the coming into force of the State Constitution (the State Constitution came into force on 2611957) and therefore the question of the order
being in conflict with S 122 does not arise The Prime Minister of the State was fully competent to pass the order in the name or on behalf of the
council of Ministers as the order itself shows. As regards the order of 1958 it was authenticated by the Secretary to the Govt. who was under the
Rules of business authorized to issue orders in the name of the Government or the Governor. According to the provisions of the State Constitution
Government and Governor are equal and interchangeable terms. In these circumstances the order of 1958 is in consonance with the provisions of
S. 122 and is therefore legally valid. Secondly the question of the validity of the grant could have been raised only by the parties to the same
namely the grantor (Government) and the grantee (Ziarat). A third party had no locus standi to question the validity of the transaction between
these two persons. For these reasons the contention raised by the counsel on this score is overruled. As regards the objection as to want of
registration it would appear that although a registered instrument is necessary under S. 138 of the T P Act, yet the provision is subject to special
law, namely, the Registration Act, which makes an exception in the case of sales or grants of immovable property by the Government, S. 17(2)(vii)
of the Registration Act runs as follows '
The following documents shall be registered namely : Nothing in clauses (b) and (c) of subS. (1) applies to
X X X X
(vii) any grant of immovable property by Government, or.
(19) This position has further been reinforced by S 11 of the Land Grants Act of 1960 which runs thus :
Nothing contained in the Transfer of Property Act, Svt. 1977, shall apply or be deemed v ever to have applied to any grant or other transfer of
land or any interest therein hereinto fore made or hereafter to be made by or on behalf of the Government to or in favour of any person
whomsoever ; but every such grant and transfer shall be construed and take effect as if the said Act had not been passed ''
(20) This section has been made expressly retrospective and will affect even transactions entered into by the Government before coming into force,
of this Act. Thus in view of the provisions of this Act, the validity of the grants cannot be assailed on the ground that they were not made by a
registered instrument In these circumstances even if the grants were not registered they conveyed a valid title to the Ziarat.
(21) In Vidya Varuti Vs. Baiuswami, AIR 1922 P. C. 123, 126 their Lordships made the following observations:
Under the Hindu Law, the image of a deity of the Hindu pantheon is, as has been aptly called a 'juristic entity' vested with the capacity of receiving
gifts and holding property, Religious institutions known under different names are regarded as possessing the same 'juristic' capacity and gifts are
made to them co nomice........
The manager of the wakf is the Mutwall, the governor, superintendent, or curator. In Jewan Das Sahu's case the Judicial Committee call him
'procurator,. It related to a Khankha, a Mohammaden institution analogous in many respects to a Mutt where Hindu religious instruction is
dispensed. The head of these Khankhas, which exist in large numbers in India, is called a Sajjadanashin.
(22) But neither the Sajjadanashin nor the Mutwalli has any right in the property belonging to the wakf : the property is not vested in him and he is
not a 'trustee' in the technical sense,
The observations of their Lordships of the Privy Council therefore make the position of the defendant absolutely clear in law. The defendant being
the Mutwall of the Dargah could not be held to be an owner of the property and his possession was purely in a fiduciary capacity and was to enure
for the benefit of the Ziarat,
(23) To the same effect is another decision of the Privy Council in Rustum Vs. Maulvi Mushtaq, AIR 1921 P. C. 105, 107 wherein their Lordships
observed as follows :
A Receiver and Manager by virtue of his appointment has no estate in the property he is called upon to control ; he possesses powers over it but
not an interest in it.
X X X X
They are trustees in the general sense that every man is a trustee to whom is entrusted the duty of managing and controlling property that belongs
to another.
(24) It is also well settled that a person who it interested in the management of a religious trust or an endowment is a constructive trustee and
cannot be allowed to acquire or set up adverse possession. I am supported in my view by a decision of the Calcutta High Court in Anath Nath Vs.
Ishwar Kali Mata, AIR 1919 Calcutta 538.
(25) To the same effect is the decision of a Division Bench of the Madras High Court in Venkatanarasimha Vs. Gangamma, AIR 1954 Madras
258 wherein it has been observed :
Turning to the point in as much as the Archakas were in enjoyment of the lands in a fiduciary capacity as trustee, they could not acquire title by
adverse possession against the deity. It is well settled that a trustee cannot by setting up his own title to the trust property acquire by adverse
possession a title to the property.
X X X X X X
The principle above stated namely, that a trustee cannot acquire title by adverse possession of the trust property, applies equally to 'quasi* of
constructive trustees, the managers of religious endowments and in fact to all persons who stand in a fiduciary relation to others.'1
X X X X
''There can be no question of adverse possession between the temple and the Archakas. The possession of the Archakas of the temple property is
in a fiduciary capacity and they cannot prescribe against the temple. In such a case a trustee cannot by his declaration that he has committed or
about to commit breach of trust prejudice the rights of the beneficiaries and claim that as from the date of his declaration he began to hold
adversely to the trust. In order to make time run he would have to surrender the property to the proper custodian or mutwalli and then enter upon
it as a trespasser It is only in such circumstances that either he or those claiming under him can justifiably say that their title had become adverse.''
(26 Thus on a careful analysis of the case law on the subject the following propositions emerge :
(1) A she bait, Mutwalli or a Mujawir of a religious shrine cannot be allowed to set up adverse title to the property which he is holding in a
fiduciary capacity.
(2) That the possession of the aforesaid person being in a fiduciary capacity must be referable to a lawful title and will enure for the benefit of the
religious shrine.
(3) That where the aforesaid persons try to set up a hostile title or adverse possession they must first surrender their possession to the lawful
authority, in the instant case to the Aukaf Committee and then reenter possession to the knowledge of the committee holding their land in their
individual capacity.
(4) That mere possession without anything more of the aforesaid person would be deemed to be possession on behalf of the shrine because a
shrine not capable of being in physical possession of the property has to enjoy its right to property by being in possession through its managers.
(5) That the shrine being a juristic person is capable of acquiring property either by purchase, gift or even adverse possession.
(6) That a trustee cannot by a mere declaration of a breach of the trust hold adversely to the beneficiary.
(27) It is not necessary for me to refer to the documents relied upon by the court below in support of their finding that the defendant was in
possession of the property because I take that finding to be correct and even so, it is the nature and character of the possession of the defendant
that has to be determined in this case. The fact that defendant 1 was a Mujawir and that his Dastarbandi took place has been admitted even by the
Defendants witness namely Fateh Mohd and Abdul Hamid. According to these witnesses the Dastarbandi of the defendant as Sajjadanashin took
place on 291263. It may be mentioned that the defendant succeeded as Sajjadanashin after the death of Lai Din and before that Lai Din's father
was the Sajjadanashin of the Ziarat. Thus the defendant was the Sajjadanashin of the Ziarat for two generations and was therefore holding the land
during the entire period as Sajjadanashin of the Ziarat and his possession will therefore ensure for the benefit of the Ziarat. Thus the possession of
the defendant has to be viewed in the fiduciary capacity he was holding and in the light of the established fact that the grant of the property in
dispute was not made to the defendant but to the Ziarat the finding of possession given by the courts below must be taken to mean that the
defendant was in possession only on behalf of the Ziarat as a Mujawir or a Manager.
(28) I would now dispose of the contention advanced by the counsel for the respondents that since the grants were invaild, the possession of the
defendants must be considered to be only in their own right and that the Ziarat would not be entitled to the property. This argument has to be
stated only to be rejected. It is well settled that the possession of a Mutwalli or a manager under an invalid wakf deed is that of the beneficiary and
not adverse to that of the founder or his heir. In this connection Thorn C. J. of the Allahabad High Court in Sher Ali Vs. Amir Ali, AIR 1940 All.
365, 367 observed as follows :
In 21 All. 329 a Bench of this court held that a Mutwalli who had been in possession of the property under a wakf deed which was held to be
invalid did not prescribe a title adverse to that of the heirs of the Wakf.
(29) The courts below have placed reliance on a number of revenue entries of the Revenue Officers and other circumstances, but these
circumstances merely show that the defendant was in possession of the property and it is not proved that the defendant was owner of the
properties in his own right.
(30) It was lastly contended by Mr. Garg appearing for the respondents that the plaintiff had no locus standi to bring the present suit because the
Ziarat had not vested in it. In order to understand this contention it may be necessary to analyze certain provisions of the Act. S. 5 (b) of the Act
provides thus :
'Committee' means a committee established under S. 7 of this Act.
S. 5 (d) of the Act defines Wakaf as follows :
Wakaf"" means the permanent dedication of any property movable or immovable for any purpose recognized by Muslim Law or usage as
religious, pious or charitable and includes.
(i) a Wakaf by user such as Masjid, Idgah, Dargah, Kbankah, Maqbara, Graveyard, Grave, Takia, Rauza, Yatim Khana, Madrasa, Sarai,
Shafakhana and Mausoleum ........... .. .
(31) A perusal of this definition would clearly show that a Wakf not only means permanent dedication of any property but also includes a Wakaf
by user such as a Dargah or a Khankah. It is not disputed that in the instant case the Ziarat or Rauza was a Dargah within the meaning of S. 5 (d)
of the Act. Thus the Ziarat in question falls squarely within the ambit of a Wakf as defined by S. 5 (d) of the Act.
S. 13 of the Act runs thus :
Subject to any rules that may be made under this Act, the general superintendence of all Wakafs in the area shall vest in the committee established
for the area and it shall be the duty of the committee to exercise its powers under this Act as to ensure that the wakafs under its superintendence
are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which wakafs
were created or intended.''
(32) A perusal of this section shows that the general superintendence of all wakafs in the area vests in the committee and it is the duty of the
committee to see that the wakafs are properly admitted. It is not disputed in this case that the plaintiff was a Wakaf committee as contemplated by
the Act and that the suit has been brought through the Chairman of the Committee appointed by the Government. In these circumstances the entire
superintendence or management of the Ziarat vests in the committee and it had therefore the undoubted legal right to protect the wakaf from
frivolous claims put forward by persons who wanted to grab the property for themselves. In these circumstances the contention raised by the
learned counsel for the respondents fails and must be over ruled.
(33) On a careful consideration, therefore, of the circumstances and the law discussed above, I am of the opinion that the findings of the courts
below are vitiated by serious errors of law both on the question of possession as also on the interpretation of the documents of title, namely, the
grants made in favour of the Ziarat. I would, therefore, allow this appeal, set aside the judgments & decrees of the courts below and decree the
plaintiff's suit for injunction as prayed for. This judgment however would not preclude the defendants from bringing a suit for possession on the
basis of title if they can establish independent title or title by adverse possession on the principles mentioned in this judgment. The appellant shall be
entitled to costs throughout.