JUDGMENT
G.C. Gupta, J.
1. This is defendant’s first appeal against the judgment and decree dated 15-9-1979 passed by Shri N. S. Chauhan, Additional District Judge, Narsinghpur in Civil Suit No. 4-A/71, renumbered as 3-A/77, directing the appellant to hand over the school building and the management of the Shiv Primary School, Kandeli to the respondent.
2. The respondent/plaintiff is the body corporate under the provisions of the Wakf Act, 1954, and had filed the present suit for removal of the management, transfer of management of school and possession of the building. Their case was that the said school and building is the Wakf property of the Muslim Education Union Society, Narsinghpur and is in possession of the appellant only for purposes of its proper management. According to the respondent, one Syed Ali Mardan Saheb of Narsinghpur established an Arbi and Urdu Madarsa some times in the year 1885-86 for imparting Urdu-cum-religious education. According to them, the said school was started in a hut near his own house for the benefit of Muslim community. A school committee was also formed to manage the institution with Syed Ali Mardan Saheb as its Chairman. It was further submitted that later on in or about 1895, a temporary shed of clay and local tiles was raised for purposes of rnathersa on the Nazul land obtained from the Government and the said school was transferred to its new site and came to be looked after by Falah-E-Am School Committee. Later on, in or about 1925, a new building was constructed in the school at the instance of the Muslim community. It was the respondent’s case that thereafter in the year 1940, the committee of the school offered to transfer its management to the appellant Municipal Committee and eventually the school was transferred to the appellant by agreement dated 11-1-1941 (Ex.P-1). It was further submitted that the appellant acted in violation of the said agreement and not only stopped imparting education in Urdu, but ultimately changed the name of the institution. That is how, the claim, as aforesaid, was made in the suit. The appellant defended the suit by submitting that the respondents/plaintiffs have no right to maintain the suit. They further pleaded that the school was handed over to them under agreement (Ex. P. 1) not only for mangement, but the ownership of the building was also transferred unconditionally. It was also submitted that there was no Wakf, as claimed by the respondent nor the said Wakf is continuing. As regards Urdu education, it was submitted that in the year 1947-48, no student was willing to learn Urdu and, therefore, those classes had to be closed. Inspite of several efforts made thereafter, no one came forward to learn Urdu. The appellants, however, offered to reopen Urdu classes and employ Urdu Teachers, in case sufficient number of Muslim boys and girls come forward to learn Urdu.
3. The learned trial Judge, on the basis of oral and documentary evidence on record, concluded that the respondent Board was competent to maintain the suit. It, however, held that evidence on record does not establish that Syed Ali Mardan Saheb established an Arbi and Urdu Mothersa in the year 1885, as alleged, or that the said Mothersa was managed by the Committee. The learned Judge, however, found that the Nazul plot of land was obtained for purposes of running the school in the year 1895 in the name of Fallh-E-Am School Committee and a temporary structure was raised on the said site by the said School Committee at the instance of Muslim community and thereafter, the School started running at the site and was managed by Fallah-E-Am School Committee. The learned Judge also found that later on the School Building was constructed on the basis of subscription and donation and the school shifted into this new building in the year 1926. The learned Judge further found that the School was transferred to the appellant by agreement dated 11-1-1941 who took it over as a licensee. On these facts, the learned Judge found that a Wakf by user had come into force in 1895 and consequently held that the school building was the Wakf property and decreed as aforesaid.
4. The submission of the learned counsel for the appellant is that the finding that the institution was a Wakf at any time is a perverse finding not supported by evidence on record. It is submitted that in view of findings on Issue No. 2(a) and (b) that Syed Ali Mardan Saheb had not started the school, as alleged in the plaint, it should have been held that there was no Wakf created by him, as alleged. As regards Wakf by user, it is submitted that there was neither any plea nor sufficient material to reach any such conclusion. The said finding is, therefore, criticized as contrary to the pleadings of the parties and evidence on record. It is also submitted that the agreement (Ex. P.-1) not only transferred the mangement of the School, but transferred the institution along with its property and, therefore, the appellant received the same in their ownership right and title and not as a licensee. The learned counsel for respondent, however, supported the impugned-judgment and submitted that a Wakf by user could validly be created for educational purposes. According to the learned counsel, the matter was beyond any controversy in the instant case, as it was religious education that was given in the school. Since the Wakf had come into existence in 1895, the Wakf property could not be transferred to the present appellant and hence, it; must be held that they were only the managers of the institution.
5. A perusal of the plaint (para-2) would indicate that Syed Ali Mardan Saheb is claimed to be the originator of the Wakf. It is specifically pleaded that a Nazul plot of land was obtained on lease from the Government in the name of Fallah-E-Am School Committee and a temporary hut made on the said land. By this method, according to the respondent, “Wakf was created by user in or about 1895 with the specific purpose of imparting teaching in Urdu language and Muslim religion to the Muslim community.” These allegations are respected in paragraph 4(a) of the plaint where it is alleged that the “Madarsa, its site and building were used for a religious, charitable purposes since 1895 continuously. Law presumes the existence of Wakf by such long, continuous, use of the building and site, for the purposes of the Madarsa as stated above.” It is, therefore, clear that the respondents do not say that the trust was created in 1885 when Syed Ali Mardan Saheb allegedly opened the School. According to them, the Wakf came into existance in 1895 when the School Committee obtained a new site and constructed a new hut in 1895. These facts were, however, denied by the appellant in their written statement and it was submitted that the School in question was known as Bourne Fallah-E-Am Madarsa and not Fallah-E-Am Madarsa as alleged. According to the appellant, one Shri J. G. Bourne was the Dy. Commissioner of Narsinghpur in 1880 and helped establishing the said School and, therefore, the School was named as Bourne Fallah-E-Am Madarsa. In view of these pleadings, it will be necessary to consider whether a Wakf, as understood in law, had come into being in the year 1895, as alleged.
6. Agreement dated 11-1-1941 (Ex.P-1) is between the appellant and Managing Committee of the Bourne Fallah-E-Am School, Kandeli and, therefore, it is clear that in 1941, the institution was known as Bourne Fallah-E-Am School. Notice given by the respondents to the appellant Committee on 21-12-1968 (Ex. P. 8) also admits that the School at the time of its establishment, was known as Bourne Fallah-E-Am Madarsa. Following passage from para-2 of this notice is important in this connection: –
“This Madarsa was established in the name of Bourne Fallah-E-Am Madarsa on a land measuring 150’xl20′ on Plot No. 2 Sheet No. 18 of Nazul Khasra of Kandeli, Narsinghpur and dedicated to and made a Wakf by him for the said purpose.”
Reference to the word ‘him’ is to Syed Ali Mardan Saheb and would indicate that the respondent’s case, as set out in this notice, was that it was Syed Ali Mardan Saheb, who opened this Madarsa in the name of Bourne Fallah-E-Am Madarsa on the Nazul- land. Documents Ex P-68, Ex. P. 69, Ex.P-70 and Ex.P-71, which are of 1911 would indicate that the School was known as Madarsa Fallah-E-Am at that time and was managed by a Committee under the Chairmanship of Syed Muzafar Yazdan. Documents Ex.P-69 and Ex.P-70 would indicate that Fallah-E-Am School was treated to be a charitable and educational institution and maintained by Mohammedan community. It also used to get a grant of Rs. 250/- a year from the Government. These documents also establish that there was no income which could be utilised for running the School. The expenses of the school were met by the subcription from local Muslim community as also Government grant. The question for consideration, therefore, is whether on this, it could be held that a Wakf had been created?
7. A Wakf, according to Muslim Law, means detention of a sepcific property in the ownership of the Wakif and devating or appropriating its profits or usufruct in charity on the poor or other good objects. A Wakf extinguishes the right of the Wakif in the property and transfers its ownership to God. The fundamental concept of a Muslim Wakf remains the same under the Wakfs Act, 1954, which defines a Wakf as a permanent dedication by a person professing Musalman faith of any property for any purpose recognised by the Musalman Law as religious, pious or charitable. Under the circumstances, a Wakf is always of some property, which may be movable or immovable which must belong to the Wakif or dedicator at the time of dedication. The dedicator dedicates his property for religious, pious or charitable purposes. It may be conceded that religious education would be included in these three words and may, therefore, become a valid object of Wakf. The cases are not wanting where evidence of, dedication is not available and, therefore, law recognises that if land has been used from time immemorial for a religious purpose, i.e., for a mosque or a burial ground or for the maintenance of a mosque, then the land is by user a Wakf, although there is no evidence of an expressed dedication. This view finds support from Hazhar Husain and Ors. v. Rao Bahadur Adiya Saran Singh, AIR 1948 PC 42, Mohammad Shah v. Fasiuddin Ansari and Ors., AIR 1956 SC 713 and Ahmad G.H. Ariff v. The Commissioner of Wealth Tax, Calcutta, AIR 1971 SC 1691. The law relating to Wakf by an immemorial/user is clearly stated in Mulla’s Principles of Mohammedan Law – section 188 and would indicate that it is the using of the land for purposes recognized by Mohammedan Law for creation of Wakf, that gives rise to an inference that the land is Wakf. The learned Trial Judge has held that though there is no evidence of dedication, a Wakf has been created by user. It is, however, not possible to agree with him and his conclusion because in the instant case, there had been no land on which Wakf could have been created. The land belongs to the Government and is held on lease-hold rights. It may be that the lease is for thirty years and renewable, but the ownership because of the lease condition remains with the Government. User of lease-hold plot for purposes of School cannot give rise to an inference of Wakf by user. The intention of the Government is clearly stated in the lease-deed itself and would, by itself, be sufficient to hold that there was no dedication of the land for any purpose. Even if it was to be accepted that Government could have created a Muslim Wakf by dedicating land of its ownership for the purpose, the said inference cannot be drawn, in view of the terms of the lease (Ex.P-71). Indeed, in a case where a document handing over the land and conditions attached to such handing over is available on record, it will not be permissible to read something out of it and intention of the party will have to be gathered from the document itslef. Then the plaint alleges dedication by Muslim community and not by the Government. The Muslim community never owned the land and, therefore, the land could not form the Wakf property. It may, therefore, be examined, if there was any other property which could be treated to have been dedicated for purposes of the School? The dedication of the property must be for religious purposes. The submissions of the respondents appear to be that soon after the Nazul site was obtained, a kachcha hut was established for housing the school. This is said to have been done in the year 1895. There is no evidence as to when this school was established at the new site. Application (Ex.P-68) would indicate that patta of the Nazul land was granted in April, 1894 for a period of sixteen years ending in April, 1910. Clearly, therefore, the date of grant of patta cannot be the date of establishment of the school at its new site. That also appears to be the reason why the respondent’s claim that the school was shifted in its new site in 1895. This would, therefore, indicate that the respondent’s claim that after grant of patta in April, 1894, steps were taken to construct a hut on the said land. There is, however, no evidence to indicate existence of any such hut at that site. The learned trial judge has not cared to ascertain these dates by going through documents on record and has held, apparently illegally, that the lease of the plot was taken in the year 1895. The application (Ex. P. 68) does not mention that any building or hut had been constructed on the said land. Considering the facts that the land was a Nazul land, it may be assumed that the record of building, houses, etc. existing on the land would be available. There is no reason why no effort was made to establish this fact. Subsequent reports (Ex.P-72) relating to the year 1941 would indicate that at that time the building was standing on the plot. The documentary evidence, would therefore, indicate that it cannot be said with any amount of certainty that a building or hut was erected on the site, as alleged. The learned trial Judge has dealt with this part of the controversy in paragraphs 20 to 23 and has ultimately held that in the year 1895 the School was started in a kachcha building on Nazul plot taken on lease and that the said building was constructed from contributions raised by members of community. This conclusion of the learned trial Judge does not seem to be based on any evidence on record. He has found the evidence of Md. Yakub Khan (PW. 11) unreliable. (Para-20) Under the circumstances, his findings, if at all, must find support in the oral testimony of Wazir Khan (PW. 8) and Abdul Latif (PW. 9). Wazir Khan (PW.8) has deposed about the present building which became ready for occupation in 1926 and said nothing about the hut alleged to have been constructed in 1895. Abdul Latif (PW. 9) claims to have come out of that School in 1919. At that time, according to him a kachcha house more properly described as ‘Tapra’ was in existence. This witness has not faired well in cross-examination and has not been able to produce any evidence of his education. In para-14 of his statement, he was not able to say as to who had’ constructed the kachcha house. Clearly, therefore, evidence of this witness is also not sufficient to support the conclusion that the kachcha hut was constructed from the contribution of Muslim community. Under the circumstances, except for evidence of Md. Yakub Khan (PW. 11) that the members of the School Committee had taken donations from Muslims and had constructed ‘Tapra’, there is nothing on record to support the said conclusion. Absence of any such claim in application (Ex.P-68) makes this evidence doubtful. This witness is after all a person who is trying to gain control of the property and hence his evidence cannot be accepted without any support or corroboration. The fact that even in the year 1910, a Government grant of Rs. 250/- per year was made available to the School may give rise to a reasonable assumption that the hut might have been constructed with the said money. The subsequent using of the name of Shri Bourne may indicate patronage of officers. In such a situation, it cannot be said that only Muslim Community Members provided money or dedicated their property for school purposes. The evidence, according to this Court, falls short of its legal requirements and, therefore, it cannot be held that a Wakf had come into existence in the year 1895, as alleged.
8. Before finally concluding the aforesaid, it may be examined if the School was connected with religious education? Such a question is important in order to bring a Wakf into existence, as according to law noted above, a Wakf can be created for religious charitable or pious/purposes. Submission of the learned counsel for the respondent appears to be that the School was intended to provide religious education, i.e., reading of Quran and for that purpose Arabic was taught to the children. This also appears to be their allegation in para-2 of the plaint. There is, however, no documentary evidence on record to sustain the plea of teaching of Arabic. Agreement (Ex.P-1) would indicate that the School at the time of its transfer to the appellant Municipality was known as Urdu School. A Urdu School is not necessarily a School for teaching religion. This document does not indicate that Arabic was also taught in the said School. Some of the old documents on record particularly, Ex.P-15-A also do not throw any light. On the contrary document Ex.P-20-A would indicate that Pesh Imam was required to be given time at least one hour in the School to which the Head Master of the School did not agree as, according to him, the education was regulated by the time-table. Letters (Exs.P-21 and P-22) would indicate that religious education was only a minor part of the education. From the oral evidence on record, it would appear that the School was a recognized Primary School. Abdul Latif (PW. 9) himself had taken the primary education. Cross-examination of this witness would indicate that the School had non-Muslim students as well and was a recognised school. ADIS used to take examination and give certificates. This witness had admitted that only Muslim children used to receive religious education. Clearly, therefore, the school was not a religious institution, but was a public school where secular education used to be imparted to all, though in Urdu medium. That appears to be the reason why the Government gave grant of Rs. 250/- per year to the School. This fact is further clarified by Abdul Jabbar (PW. 10), who had admitted these facts in his cross-examination. Under the circumstances, the only conclusion that can be drawn is that the school in the beginning was not an institution for imparting religious teaching, but was as institution of secular teaching, though the teaching used to be imparted in Urdu language. Simply because the medium of institution was Urdu, it cannot be accepted that the institution was religious institution. The fact that persons of all community donated money to construct the new building would also justify this conclusion. Document (Ex.P-29) gives the list of those persons, who had donated substantially for construction of the school. It also indicates that the Government had started giving Rs. 550/- per month as grant and Municipality also contributed a sum of Rs. 375/- p.m. The accounts of the building construction and the memorandum (Ex.D-8) would also justify the conclusion that the present building was not constructed by the funds contributed by Muslim community alone, but was constructed through the efforts of all citizens belonging to all relegions. Ex.P-24-A, which contains details of the money spent in construction of the present buillding would indicate that more money was donated by Hindus than by Muslims. At page 5 of the said account, one Omkar Nath Padri’s name also appears as one of the donors indicating that even the Christain community was also involved. Those were the days of communal harmony and every one thought of the cause and contributed to it not on religious consideration, but beucase of its merits. Howsomuch this Court may like those days to return, the same does not seem to be happening. Be that as it may, there is no document indicating that the institution was established by Muslims for imparting religious education. Oral evidence also does not support the said conclusion. Subsequent events justify the conclusion that the institution was intended to provide secular education, though through Urdu medium. This conclusion would explain why the Committee, while handing over the School to the appellant Municipal Council insisted that the education in Urdu should continue. In view of this finding, it will have to be held that a Wakf by user could not come into existence, as alleged.
9. The next and the important question is as to what was handed over to the Municipal Council by agreement (Ex.P-1)? In view of written contents of the agreement, one need not consider oral evidence. In order to appreciate the arrangement made by this agreement, some events taking place immediately before it may be noticed, Ex.P-58-A is the resolution dated 23-3-1939, which records that the Municipal grant to the School Committee was insufficient for running the School and, therefore, the Municipal Committee was requested to take over the School and arrange Urdu education in a befitting manner. In pursuance to this, the correspondence between the Committee and the appellant Municipal Council had taken place, a part of which is available on record. ExP-86 is the letter from Syed Mazaffar Yazdan, the Manager of the School informing the desire of the Committee regarding transfer of School. The resolution of Municipal Council dated 29-2-1940 is Ex,P-91 and indicates that the Municipal Committee had agreed to take the School not unconditionally, but on certain specified terms. Some of the important terms mentioned in this document are that not only the School, but the building, furniture, etc., should also be transferred to the committee. It was in this context that agreement (Ex.P-1) was signed. Ex.P-1 authorises the appellant Municipal Committee to appoint a new school committee meaning thereby that the Management Committee, which signed the agreement had dissolved itself. This would be a very important factor and would demolish the case of the respondents/plaintiffs. If school was separate from the Wakf, the School Committee would have continued as a Wakf Committee. Then this School was transferred unconditionally to be run in accordance with the conditions of the grant-in-aid and the orders of the Government and the Congress. Can it be said that the ownership of the building was not transferred? This Court is not able to appreciate the fine distinction sought to be made by the respondent. In this behalf, their case appears to be that only the School, as an institution, was handed over to the Municipal Council for running it and not the Wakf or its property. If this was so, there should have been something available after this agreement to hold that the respondent continued their right over the building. The evidence is totally wanting. On the contrary, it would appear that the entire cost of building, maintenance and the cost of the school was borne by the Municipal Council.
10. Transfer of lease of the land to Municipal Council is yet another factor, which militates against retention of ownership of the building. From the documents on record, it would appear that the appellant Municipal Committee had applied for transfer of the lease and the final orders were communicated not only to the President of the School, but also the Municipal Council. The fact that the School Committee surrendered its lease, as would be clear from document (Ex.P-81), would clearly indicate the desire to transfer not only the management but every thing that the school was or had. Under the circumstances, this Court is not able to accept the submission that document (Ex.P-1) did not transfer ownership of the land and building to the appellant Municipal Council.
11. In this connection, the submission of the learned counsel for the respondent is that a Wakf having come into existence in the eye of law, agreement (Ex.P-1) could not be treated to be an agreement transferring ownership, as under the law of Wakf, Wakf property cannot be transferred to the ownership of any one else. There is a clear fallacy in the submission. The respondent has assumed existence of a Wakf, even without any evidence in that behalf and on that assumption are trying to infer that document (Ex.P-1) does not transfer ownership of the property.. The correct logical approach would have been to take the document as it is and try to infer existence of Wakf, if possible. If this method was adopted, the only conclusion that could have been reached was that there was no Wakf of any type.
12. In view of the discussion aforesaid, it is held that the Shiv Primary School is not the Wakf property, but is of the ownership of the appellant. This by itself is sufficient to dismiss the suit of the respondent with costs. Appeal consequently succeeds and is allowed. The impugned judgment and decree are set aside and the suit filed by the respondent dismissed with costs throughout. Counsel’s fee, as per schedule.