JUDGMENT
Iqbal Ahmad, J.
1. This is a plaintiffs’ appeal and arises out of a suit Brought by them for a declaration that a certain house situate in the City of Budaun was an Imambara and that the muafi land specified at the foot of the plaint was waqf property, and that neither the house nor the muafi was saleable in execution of a decree for sale obtained by Defendant No. 1 against Defendant No. 2 on the 8th of February 1923. The plaintiffs describe themselves as members of the Muhammedan public in the city of Budaun and alleged that the house and the muafi in dispute being waqf property, Defendant No. 2 had no right to mortgage the same, and as such the property in dispute was not saleable in execution of the decree obtained by Defendant No. 1. The defence to the suit was that the property in dispute was not waqf property but was the personal property of Intizam Ali.
2. The defence found favour with the trial Court, and it accordingly dismissed the plaintiffs’ suit, and the learned District Judge on appeal by the plaintiffs has affirmed the decision of the trial Court.
3. The decrees of the Courts below have been as sailed before me on the ground that the fact of the property being waqf was conclusively proved by the documentary evidence, and the Courts below misdirected themselves in not treating that documentary evidence as conclusive and in holding, on the basis of the documents and judgments relied on by the defendants-respondents, that the property in dispute was not waqf property. It is urged that it was not at all necessary for the plaintiffs to prove an actual dedication at a particular time of the property in dispute, and that according to Muhammadan Law mere user is sufficient to stamp a particular property with the character of waqf property. In support of these contentions reliance has been placed by the learned Counsel for the appellants on the case of Salig Ram v. Amjad Khan [1906] 3 A.L.J. 546 and on the case of Court of Wards v. Ilahi Bakhsh [1913] 40 Cal. 297.
4. The question that the Courts below had to decide in this case was whether or not the property in dispute was waqf property. This was essentially a question of fact. In coming to a decision on this point the evidence adduced by both the parties had to be considered. The lower appellate Court had given due weight to the documentary evidence produced by the plaintiffs-appellants and has, as a matter of fact, before proceeding to consider the documentary evidence relied on by the defendants-respondents observed that
So far then the documentary evidence lends very great colour to the contentions of the plaintiffs.
5. But after considering the documentary evidence adduced by the defendants the lower Appellate Court came to the conclusion that the documentary evidence of the defendants was entitled to greater weight, and pointed to the conclusion that the property was not waqf. After taking all the facts into consideration the learned District Judge had summarised his conclusion in the following words:
I am of opinion that no waqf was ever created or that any attempt has been made to give any waqf effect.
6. This appears to be a finding of fact based on legal evidence and as such, cannot be challenged in second appeal.
7. It is argued by Mr. Aziz that in view of the decision in the Court of Wards v. Ilahi Bakhsh [1913] 40 Cal. 297, referred to above, the lower appellate Court should have treated the entries favouring the waqf in the revenue papers relied on by the plaintiffs as conclusive, and in this connexion he naturally draws my attention to the fact that Section 44 of the Land Revenue Act (Act 3 of 1901) is practically identical with Section 44 of the Punjab Land Revenue Act which formed the subject-matter of consideration by their Lordships of the Privy Council in the case of the Court of Wards v. Ilahi Bakhsh [1913] 40 Cal. 297, By 8. 44 of the Land Revenue Act (Act 3 of 1901) the Courts are enjoined to presume the entries made in an annual register prepared under Sub-section (3) of Section 33 to be true until the contrary is proved. In the present case no such register has been produced in which the property in dispute is entered as waqf property, and even if there was any such entry in any such register, the accuracy of such an entry could be challenged by other evidence, as has been done in the present case by the defendants. The entry in an annual register is presumed to be true but the presumption is always a rebuttable presumption.
8. The learned Counsel for the respondents does not quarrel with the proposition of law upon which stress has been laid by Mr. Aziz, viz., that a waqf may be presumed by user, but on the findings of the lower appellate Court a waqf by user has not been proved. Indeed the findings is that
there is no evidence of any kind to show that they have ever spent any money at all on religious purposes.
9. It may be that after making representations to the Government that they intended to spend or did actually spend the income of the muafi for the maintenance of the Imambara, the predecessors-in-title of the Defendant No. 2 succeeded in securing the remission of revenue from the Government and the Government may have actually remitted the revenue as it appears to have done for the expenses of the Imambara, but that by itself, in the absence of a clear proof of the fact that the revenue so remitted was actually spent for the purpose for which it was remitted by the Government, cannot in law be effectual to make the property a waqf property.
10. For the reasons given above, in my judgment, the decisions of the Courts below are perfectly correct and I dismiss the appeal with costs including in this Court fees on the higher scale.
11. If this decision of mine becomes final, a copy of this judgment is to be sent to the Collector of the district with a view to his taking such action as he thinks desirable for the purpose of assessing revenue on the muafi in dispute.
