This article is authored by Isha Garg. It discusses in detail the ‘long-standing’ dispute between the parties concerning the mosque, commonly known as Kothwali Masjid. It discusses the background of the case along with the facts, issues raised, legal principles involved, precedents of other courts, and the court’s judgement. It highlights various concepts such as the doctrine of waqf by usage, peaceful possession, and the limitation of mutawali’s power, etc.
Introduction
India is a land of vibrant diversities, where multiple religions coexist. Each religion has its own beliefs and practices. Although disputes often arise between individuals of different faiths, conflicts can also occur among people of the same religion over religious matters. Sometimes, these disputes become so grave and contentious that they necessitate legal assistance from the court of law. In India, the judiciary has the authority to interpret religious laws and to make decisions that are fair and just. Without legal intervention, religious disputes may escalate to violence and social disruption in society. One such dispute arose within the Muslim community. The conflict, involving a section of the Muslim community and Gulabshah, a Muslim, started in the year 1880 regarding the ownership and management of a mosque and its adjoining lands. It continued for many years and came before the Supreme Court of India in 1952. The case of Mohamad Shah vs. Qazi Fasihuddin Ansari & Ors. (1956) is a landmark judgement, especially in the context of waqf and peaceful possession. It highlights various principles under Mohammedan law, such as waqf by user, public and private waqf, and peaceful possession. This judgement is based on the historical context and the intention of the parties to the dispute, not merely on the legal technicalities.
Details of the case
- Name of the case: Mohamad Shah vs. Qazi Fasihuddin Ansari & Ors.
- Case number: Civil Appeal No. 225 of 1952.
- Equivalent citations: AIR 1956 SC 713, 1956 SCC Online SC 81.
- Court: The Supreme Court of India.
- Bench: Hon’ble J. Vivian Bose, J. Syed Jafer Imam, and J. Chandrasekhara Aiyar.
- Author of the judgement: Vivian Bose, J.
- Parties to the case
- Appellant: Faqir Mohamad Shah.
- Respondents: Qazi Fasihuddin Ansari.
- Date of Judgement: May 9, 1956.
Background of the case
The conflict was regarding the mosque, which was known as the Kothwali Masjid in Jabalpur. It was built in 1681, around 200 years before the conflict initially arose between the parties to the dispute. In the year 1880, it was discovered that the compound in which the mosque was constructed was originally the Takiya of Faqir Miskeen Shah, who was the great-granduncle of Mohamad Shah, the present defendant. One of his disciples, Patwa Sukhlal, a Hindu, revered Faqir Shah so deeply that he constructed a mosque on the site of Takiya in his honour. Since then, the takiya, the mosque, and the house opposite the mosque (that is, the present imambara) have been in the possession of Miskeen Shah and the family of the defendant, Mohamad Shah.
Over time, the defendants made additional constructions that formed adjuncts to the mosque. Gradually, the whole property, including the original mosque, was used by worshippers for reciting prayers. Thus, it was asserted by the people of the Muslim community that the mosque and its extended portions were public property used for religious purposes. Before the institution of the present suit in 1936, a similar issue was addressed in the 1880 suit.
Facts of Mohammad Shah vs. Fasihuddin Ansari & Ors.
On August 12, 1936, the present suit was instituted by the plaintiff, Fasihuddin Ansari, representing a section of the Muslim community of Jabalpur regarding the ownership and management of the mosque and its adjoining lands.
According to the plaintiff, the masjid proper belonged to the Sunni Muslims in Jabalpur. Faqir Mohamad Shah, the defendant, was appointed as Mutawali (a caretaker of the waqf property) by the District Court of Jabalpur on August 3rd, 1927. He additionally pleaded that the land and other buildings adjacent to the mosque were part of the masjid proper. On the contrary, the defendant asserted ownership of his property.
Therefore, the plaintiff filed the suit for a declaration that the said property was a waqf property and that the defendant was only a Mutawali or trustee of the property. The claim of the plaintiff was dismissed by the trial court. On appeal before the High Court of Nagpur, the court reversed the decision of the trial court. Therefore, the defendant, aggrieved by the decision of the High Court, filed an appeal before the Supreme Court of India.
Issues involved in the case
The issue of this case revolved around the possession and ownership of masjid property, which originally belonged to the ancestors of the defendant.
The following were the issues raised in this case:
- Whether the masjid property and its adjoining lands are waqf property for public religious purposes or is it the private property of the defendant?
- Whether the principle of res judicata applies in this present case?
- Whether the present suit is barred by the limitation under the Limitation Act of 1963?
Laws and precedents involved in the case
Concept of Waqf
Waqf is a concept that is provided under Islamic law. Waqf means ‘detention’ according to its dictionary meaning, but as per legal terms, waqf means the permanent dedication of property by a Muslim for religious, pious, and charitable purposes. In waqf, the property is permanently dedicated to God. The management of waqf property is in the hands of Mutawali, a caretaker. He has no authority to transfer waqf property to any person. He is merely an administrator of the property.
The Muslim law does not prescribe any particular method of creating a waqf. Typically, the property is dedicated to waqf in the following ways:
- By will: This type of waqf is also known as testamentary waqf, which involves the dedication of property through the provisions of the will. This becomes effective after the death of the person who is creating the will, a waqif.
- By the acts of the parties: It is also known as the inter-vivos creation of waqf. Waqf is created by the voluntary act of waqif. It becomes effective during his lifetime, that is, immediately upon the declaration or creation of the deed.
- By Usage: Waqf is established through long-standing custom and usage rather than a formal deed or will. There is no express dedication of property to a waqf, but certain properties or assets used by the public for religious and charitable purposes over an extended period lead to their acceptance as waqf.
In the landmark case of Sardar Syedna Taher Saifuddin vs. The State of Bombay (1962), the Apex Court considered the past usage of properties while asserting their waqf status. The court emphasised that waqf might be established by usage if the property is used for philanthropic and religious purposes over a long period of time, coupled with acceptance by the community. A similar view was taken by the Andhra Pradesh High Court in the case of Sayyed Ali vs. A.P. Waqf Board (1998).
In a suit where a question arises as to whether a property belongs to waqf, the burden of proof lies on the person claiming it as waqf property. The burden is upon the plaintiffs to prove that the entire property is subject to waqf. This principle was acknowledged in the case of Abdul Ghafoor vs. Mohammad Kassam (1967).
Office of Mutawali
A mutawali is the manager or caretaker of the waqf property. He is not the owner of the property. Therefore, he cannot transfer the property by sale, mortgage, lease, gift, etc. except with the permission of the court. He is responsible for the management and supervision of the waqf property.
Mutawali, being a possessor of the property, is not allowed to set up a title adverse to the owner, that is, Almighty, or be permitted to make a gain out of trust for his benefit.
Normally, the concept of adverse possession allows a person to claim a title adverse to the owner if he enjoys peaceful, continuous, and open possession without the permission of the owner. However, Mutawali cannot claim adverse possession against the waqf because he stands in fiduciary capacity and is already in possession of the property as part of his duties. He has to manage property for the benefit of the beneficiaries.
Precedents referred to in the case
The court in the case of Sabir Ali Khan vs. Syed Mohd. Ahmad Ali Khan (2023) reiterated that the Waqf Act of 1995 provides that, except Mutawali, any other person can acquire the waqf property by adverse possession. The court also determined that the beneficiary of a waqf property is not a stranger to the waqf property, and in the case of adverse possession, the possession must be hostile to the real owner, who is god in the case of waqf property.
In the case of Menakuru Dasaratharami vs. D. Subba Rao (1957), it was pointed out that it is not necessary that property be dedicated to charity by any instrument. But also, it can be determined by the cogent and satisfactory evidence of the user of the property and the conduct of parties, which may show complete renunciation of private rights.
Judgement of the Supreme Court
The suit by the plaintiff resulted in a stalemate, with no definitive victory or defeat. The parties were ordered to bear their own costs. The Apex Court noted that the present appeal marks the culmination of a series of rancorous disputes that were going on between a faction of the Muslim community in Jabalpur and Gulabshah, along with his son, Faqir Mohamad Shah, a defendant, regarding the ownership and management of the original mosque and its adjoining lands. This conflict started in the year 1880.
Before making the decision in the present case, the court reviewed the details of the suit that was filed in the year 1880 in which the plaintiffs claimed that the original mosque and its adjoining lands were waqf property and further prayed that the new trustees be appointed so that property should be properly managed by the trustees of the mosque.
The Supreme Court found that in the year 1880, it was already declared that the original mosque, built in 1681, was an institution used for public charitable purposes. Therefore, the original mosque was regarded as waqf property.
Since then, Mohamad Shah, a defendant in the present case, has admitted the fact that the original mosque and the land on which it was built were waqf property. However, the dispute over the surrounding land, which was gradually added by the defendants adjoining the original mosque, continued. The defendants persistently claimed the rest of the property as their private property.
The court conducted a detailed analysis of the expansions made to the original mosque, considering the extent of their use and purpose. The additional constructions comprised Room A, a verandah, a platform (chabutra), a courtyard, a urinal and bathrooms, an imambara, shops, etc. surrounding the original mosque.
Rationale behind the judgement
Following are the findings of the court after a thorough examination of the evidence presented before it:
Regarding Room A and a verandah, the court found that initially they were separated from the original mosque, but later on in 1908, the area of the old mosque was expanded, leading to the integration of Room A into the mosque. Since then, the Muslim community has been using it for religious purposes. Therefore, dedication by the defendant was presumed by the court on the basis of waqf by usage.
The area on which the pushtas and minarets were erected formed an integral part of the mosque, as they were constructed within the premises of the mosque. There were no demarcations separating them from the original mosque. The defendant, being a trustee, could not encroach on the estate of the trust. As a result, it was also considered an accretion to the estate of trust property.
As far as Imambara was concerned, it was admitted by the plaintiff’s witnesses that it did not form part of the original mosque. Moreover, the court did not find any evidence of public usage for religious purposes.
The tombs of Miskin Shah and his other family member, Dara Shah, were near the mosque, but the court did not find that they were an inseparable part of the mosque. Therefore, it was indicated by the evidence that the defendants did not intend to dedicate these places to God or make them an accretion to waqf property.
In the case of the yard, the court determined that this part of the property was used by the worshippers to obtain access to the mosque. But no evidence was found of public use for religious purposes.
The Court also noted that though urinals and bathrooms were constructed by the defendants, it was witnessed that they were used by the worshippers who came to attend prayers in the mosque.
The judgement has been issue-wise discussed below: In case of the first issue, the court reached the following conclusions:
- Only the old mosque as it stood in the year 1880 and the site on which it was constructed proved to be waqf property.
- Room A, shops, chabutras, urinals, bathrooms, and water pipes were declared as waqf property.
- The plaintiff’s claim regarding the remaining extensions made by the defendants was dismissed.
- However, the court also declared that the worshippers at the mosque had a right to way as an easement right over the yard that was used by them to obtain ingress to the mosque.
Concerning the doctrine of res judicata, the court found that the present case was not barred because the earlier decision of 1880 categorically addressed the status of the old mosque as waqf property. Consequently, in the present suit, the court assumed that the rest was not waqf at that date. Furthermore, additions were made after 1880 litigation, which form part and parcel of the old mosque. Therefore, the court rejected the contention of the defendant that it was barred under Explanation V to Section 11 of the Civil Procedure Code of 1908.
On the point of limitation, the court decided that the no question of limitation applied to the parts of property which were recognised as waqf. Because, according to Section 10 of the Limitation Act of 1963, any property comprising religious and charitable endowments is deemed to be property vested in trust, suits related to trust properties are not barred by limitation. Hence, the court decided the third issue was negative and allowed the appeal.
Critical analysis of the case
In the case of Mohd. Shah vs. Fasihuddin Ansari (1956), the Supreme Court of India reiterated the principle of waqf by user. According to Muslim law, waqf can be created through the express dedication of property by its owner. But sometimes, the property is considered as waqf property even in the absence of a specific endowment. This is the case of waqf by user, which means property is being used for religious or charitable purposes over an extended period.
Secondly, the court emphasised the concept of peaceful possession, where actual, continuous, and peaceful possession can negate the claim of the opposite party. In this case, the court also reaffirmed that the beneficiary of property can claim the title by adverse possession, except Mutawali.
The court in this case noted the delay by lower courts, which was unexplained and unsatisfactory. The appeal took almost 11 years to come before the Apex Court and 20 years since the institution of the suit. It might have profound effects on the community and religious beliefs, impacting both spiritual and practical aspects of religious lives. Delays can postpone the resolution of important religious disputes, which affects the timely and peaceful settlement of conflicts. Until the court reaches a decision, the rights of all the parties involved in the conflicts get frozen, which can exacerbate tensions between religious groups.
Conclusion
The landmark judgement of the Supreme Court of India in Mohammad Shah vs. Fasihuddin Ansari (1956) establishes crucial precedents in the interpretation and application of waqf under Muslim law. The case, which had been ongoing since 1880, revolved around the dispute over the ownership and control of the mosque known as Kothwali Masjid in Jabalpur. In its judgement, the court acknowledged the doctrine of waqf by usage, which holds the dedication of property to waqf without express dedication, as long as it is used for religious purposes. This is a notable shift from the earlier strict interpretation of waqf laws.
Remarkably, the judgement also highlighted the obligation for the courts to carefully ponder the historical facts and intentions of the parties involved in the dispute rather than solely relying on laws and legal procedures. The court also observed that unintentional expressions of unclear and ambiguous meaning cannot be manipulated into admissions against the interest of the party when surrounding circumstances indicate that the party has been persistently asserting the contrary over a long period of time.
The extensive timeline of the case, spanning over 75 years from the initial 1880 suit to the Supreme Court’s ruling, highlights the complexity and delicate nature of waqf related disputes in India. This judgement gave much-needed clarity and guidance for managing such disputes by underscoring the significance of harmonising legal principles with historical contexts.
References
- https://blog.ipleaders.in/concept-waqf-muslim-law/
- https://blog.ipleaders.in/overview-on-the-concept-of-waqf/
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