Once the founder dedicates a particular property for the purpose of a public mosque, no Muslim can be denied the right to offer prayers therein on the ground that the mosque fell into disuse long back.

Excerpt:
it is a fundamental principle of the Mohammedan Law of Wakf that when a mosque is built and consecrated by public worship, it ceases to be the property of the builder and vests in God. A mosque once so consecrated cannot in any case revert to the founder and every Mohammedan has the legal right to enter it, and perform devotions according to his own tenets so long as the form of worship is in accord with the recognized rules of Mohammedan Ecclesiastical Law. A mosque from its very nature is dedicated for worship and is open to all Muslims local and others. Once the mosque was constructed it stood dedicated to God and the owner is divested of his right title and interest in the property.
The very concept of a private mosque is unknown to Muslim Law. Once the founder dedicates a particular property for the purpose of a public mosque, no Muslim can be denied the right to offer prayers therein on the ground that the mosque fell into disuse long back. And from the mere fact that in Ex.A-1 the village plan a mosque is shown to have existed in the year 1938, this disputed piece of land has become a wakf by user although there is no evidence of an express dedication and any attempt on the part of the respondents to prevent the appellants from coming over to the property and saying their prayers cannot be permitted.
Madras High Court
N.R. Abdul Azeez And Ors. vs E. Sundaresa Chettiar And Anr. on 10 January, 1992
Equivalent citations: (1992) 1 MLJ 535
Author: Thangamani

JUDGMENT Thangamani, J.

1. There is a dilapidated mosque like structure in S. No. 187 of Sheik Manyam in Vanagaram village, Saidapet, Chinglepet District. This building with the land appurtenant thereto measuring about 17,000 sq.ft. south of cart track, north of poramboke land, east of part of S. No. 187 and west of tank is the subject matter of the second appeal. The entire S. No. 187 before sub division comprised of an extent of 51 acres 17 cents. Ex.B-3 the Extract from the Registrar of Inams in the Village of Vanakaram discloses that this extent was originally granted to one Kayarunnissa as a personal Inam. Subsequently one Haji Mohammed Abdul Khadi Basha Sahib became the owner of this property. Under Ex.B-4 dated 23.9.1898 he settled this land in favour of his minor son Mohammed Habibulla Basha Sahib. The donee sold away the property to one Anniah Naidu under Ex.B-5 the registered sale deed dated 15.3.1917. Subsequently Anniah Naidu became insolvent and this property was sold by the Official Assignee of the High Court in favour of one Jaganathan under Ex.B-6 the deed of conveyance dated 1.5.1919. Jaganathan also became insolvent and Elumalai Chettiar father of the respondent herein purchased this property from Official Assignee under Ex.B-7 the deed dated 31.10.1935. After the demise of Elumalai Chettiar there was partition in the family under Ex.B-8 dated 9.3.1960. There is no dispute that in this partition the defendant-respondent was allotted S. No. 187/ 1 measuring 24 acres and 63 cents while an extent of 26 acres and 17 cents in S. No. 187/3 came to the share of his brother. During the Sub Division the remaining extent which is a channel was marked as S. No. 187/2.

2. The appellants claiming that the decrepit structure is an ancient mosque of more than 200 years old wherein the Muslims of that locality were offering worship, that in one part of the said mosque they bury their dead for the past 200 years and more and that all of a sudden the defendant-respondent has prevented them from saying their prayers in that place instituted O.S. No. 674 of 1971 on the file of the District Munsif of Poohamallee on behalf of themselves and Muslim worshippers for an injunction restraining the defendant/respondent from preventing their offering worship.

3. The respondent/defendant resisted the action contending that the appellants who are not the residents of Vanagaram Village have no locus standi to maintain the suit. No Muslim ever offered worship in the disputed building. There is no mosque as such in any part of S. No. 187. Though there is a dilapidated structure therein, only after obtaining an ex parte order of interim injunction, for the first time plaintiffs and their men made a pretention of offering worship in that place. The graves adjoining the building are not those of Muslims. The respondent and bis predecessors in title are in continuous and exclusive possession of the entire property and they have perfected title by adverse possession. After settlement proceedings under Ex.B-9 a ryotwari patta has been issued to the respondent and his brother on 12.3.1970 for the entire land. The respondent alone has been using the disputed building for stocking agricultural implements and paddy. The private property of this respondent cannot be converted into a mosque merely because it may have the appearance of a mosque.

4. The trial court found that the structure in dispute was not used by the Muslims as a place of worship before the institution of the suit. The plaintiffs were not in possession of this property before the suit came to be filed. The adjoining site is not a public graveyard of the Muslims. Accordingly it dismissed the suit with cost. The appeal preferred by the plaintiffs in A.S. No. 51 of 1982 before the Subordinate Judge of Chingleput also met with the same fate. Having lost in both the courts below the plaintiffs have come forward with this second appeal.

5. The only substantial question of law that arises for determination now is:

Whether the disputed structure in S. No. 187 is a public mosque and if so whether the appellants-plaintiffs and other Muslims are to be protected from interference by the defendant in offering worship therein?

6. Ex.C-1 the Commissioner’s report and Ex. C-2 the Commissioner’s plan disclose that the disputed structure is at a distance of 5 to 6 furlongs away from Arcot Road, Kodambakkam. The building part of it is marked as A, B, C, D and measures 30 feet North-South and 19 feet 6 inches East West. The construction is of bricks and the structure is dilapidated and not properly maintained. The building facing east comprises of three arches. There is a small arch in the western wall with some projection. On all sides of the building there is a barbed wire fencing marked as E, F, 0, H. While a channel runs on the south of the property, on the northern side there is a cart track of 10 feet width. There are some old tombs in front of the building and on the south eastern corner. There is also a well on the eastern side of the building. The cultivable land on the western side is at a distance of 54 feet from the wire fencing. The place occupied by the building and the surrounding area are all in a raised level than the cultivable land. The disputed place appears to be separate and distinct suitable for some particular purpose. From those physical features and the photographs Exs.A-2 to A-ll the possibility of the building having been erected initially to serve as a mosque could not be ruled out.

7. Ex.A-1 is the village plans prepared in the year 1938 which indicates that there was a mosque originally in S. No. 187. Ex.A-12 plan has come into existence subsequent to the dispute. In fact even the lower appellate court has also concluded that there was a mosque in the suit property long time back. However it has negatived the appellants claim for injunction on the ground that they have failed to establish that it was a public mosque. The non-mention of the disputed mosque as a wakf property in Ex.B-1 the gazette publication dated 17.12.1958 containing the list of wakfs existingat that time in Chingleput District, the absence of reference to any mosque in Ex.B-2 the Settlement Register Extract, Ex.B-3 Inam Register Extract, Ex.B-4 Inam Title Deed weighed with the lower appellate Court in arriving at the decision that it was not a public mosque. Besides the lower appellate court relied on the fact that during settlement proceedings which culminated in the issuance of patta as per Ex.B-9 neither the appellants nor anybody representing the Muslim community applied for patta. The absence of evidence regarding the dedication of the building for the purpose of mosque by the original founder was also taken into consideration by the learned Sub ordinate Judge. Further the lower appellate Court has pointed out that the evidence of P.Ws. 1 to 4 do not establish that the suit property was ever used as a public mosque and the Muslims in the surrounding village buried their dead there. There is also no evidence that either the appellants or any other Muslims of the locality said their prayers in the disputed building prior to the institution of the suit. The lower appellate Court also held that as the appellants are not living in the suit village they have no locus standi to maintain this action.

8. The learned Counsel for the appellant argued that the existence of a mosque and graveyard at some point of time in the past in the disputed,, property is not in dispute. The appellants herein now claim right only to offer worship in the mosque. and bury their dead. They do not claim any title to the land in dispute. Simply because they have ceased to offer prayer, the property does not lose its character as a mosque. Once a mosque it is always a mosque. Further according to Muslim Law there is no such thing as a private mosque. Once a mosque is constructed and dedicated to the public it becomes the property of God.

9. On the other hand, it is the argument of the respondent that there is no evidence that Muslims of that village used to say their prayers in that disputed property when the suit came to be filed. There is no material on the side of the appellants to establish that from time immemorial this property was used as a mosque. Mere existence of a dilapidated structure which might have been used as a mosque earlier will not give the appellants any right of worship therein if that mosque was not in existence on the date of suit. Since the place has ceased to be a mosque and nobody was offering prayers at the time of institution of the suit, the appellants cannot be given any right to go there and offer their prayers.

10. However we find that the law on the subject is different. Athar Husain and Khalid Rashid in their “Wakf Laws and Administration in India” 1973 Edition state at page 111 that a person can set apart an apartment for his own prayers but if he allows others to say their prayers in it, it assumes a public character. The test whether a building is a mosque lies in the fact that once it was set apart as a mosque. It, is enough to make it “wakf’, provided public prayers are even once said with the permission of the settlor, Tyabji in his ‘Muslim Law’- Fourth Edition, 1968 mentions at page 610 that when a person purports to build a masjid within his house, or boundaries, and permits the public to enter there and say their prayers, then it becomes a masjid according to the opinion of all, provided that he gives the public a right of way. Mulla also mentions in his “Principles of Mohammedan Law, 1990, Nineteenth Edition at page 155, that if land has been used from time immemorial for a religious purpose for example a mosque or a burial ground then the land is by user wakf although there is no evidence of an express dedication. If a building has been set apart as a mosque it is enough to make it wakf if public prayers are said there with the permission of the owner. Both a mosque and a saint’s tomb become wakf by user. If a mosque has stood for a long time and worship has been performed in it, the Court will infer that it does not stand by leave and licence of the owner of-the site but that the land is dedicated property and no longer belongs to the original owner. Once the mosque was constructed, it stood dedicated to God and all the right, title and interest of the owner got completely extinguished. Once there was a complete dedication of the mosque, as a place of public worship, any reservation or condition imposed by the owner would be deemed to be void and would have to be ignored.

11. In Miru v. Ram Gopal 1935 All. L.J. 1269, it has beenheld thatwhere the court finds thata mosque has stood on a piece of land for a long time and worship has been performed in it by the public, though the structure is katcha, it is open to the court to infer that the site has become a consecrated and dedicated property.

12. In Mohammed Shah v. Fasihuddin Ansari , it has been laid down that a wakf normally requires express dedication but if land has been used from time immemorial for a religious purpose then the land is by user wakf although there is no evidence of an express dedication.

13. The decision of the Division Bench of the Allahabad High Court in Ram Chandra v. Alimuhammad I.L.R. 35 All. 197, is to the effect that every Mohammedan who has a right to use a mosque for purposes of devotion is entitled to exercise such right without hindrance and is competent to maintain a suit against anyone who interferes with its exercise.

14. In Maher Husein v. Alimahomed A.I.R. 1934 Bom. 257, it was held that to create a wakf there must be a declaration of dedication which should be made contemporaneously with the act of dedication. The Wakf must divest himself of the ownership of the property. But special rules apply where mosques are dedicated as wakf. Where a building has been set apart as a mosque it is enough to make it wakf if public prayers are once said there with the permission of the owner. Though a declaration of dedication and completion by some act giving practical effect to it are essential, it is always not necessary that there should be any direct evidence of these things. Dedication may be inferred from long user that property was wakf property. Where for a considerable number of years the public have been offering prayers in a mosque close by a tomb of a Mohammedan saint, and an annual uras attended by persons belonging to momin sect of Mohammedans has been regularly held it must be presumed that the mosque and the tomb have been duly dedicated and have become wakf by user and that the presumption might fairly be extended to other buildings and land enclosed within a compound wall which might be regarded as appurtenant to the tomb.

15. In Jawhra v. Akbar Husain I.L.R. 7 All 178 (F.B.), an old dilapidated mosque intended for Mohammedan worship was protected and looked after by the plaintiff and other Mohammedans of the village. The defendants had enclosed a part of the land and converted the mosque into a place for storing straw. The plaintiff had protested with the defendants and asked them to remove the things. When they failed to do so plaintiff instituted the suit for declaration of his right to repair the old dilapidated mosque and sought injunction for the removal of the defendants interference. The defendants pleaded that the building which was the subject matter of the suit was not a mosque, but an “atta or fortress made for the purpose of shelter from robbers in former days”. No doubt the question referred to the Full Bench consisting of Five Judges of Allahabad High Court was regarding the locus standi possessed by Mohammedans to institute the suit in view of the provisions of Sections 30 and 539 of the C.P.C. of 1863. However the observations of the Full Bench made in the course of the Judgment are important for our present purpose. The Full Bench has stated that according to Mohammedan custom, the property in a mosque and in the land connected with it is vested in no one. It is not the subject of human ownership, but all the members of the Mohammedan community are entitled to use it for purposes of devotion whenever the mosque is open. Everyone who has such a right is entitled to exercise it without hindrance, and has a right of action against anyone who interferes with its exercise. The rule of the Mohammedan Law on the subject is that when anyone has resolved to devote his property to religions purposes, as soon as his mind is made up and his intention declared by some specific act, such as delivery an endowment is immediately constituted. His act deprives him of all ownership in the property and to use the technical language of Mohammedan lawyers, vests it in God in such a manner as subjects it to the rules of divine property whence the appropriator’s right in it is extinguished, and it becomes a property of God by the advantage of it resulting to His creatures. A mosque is an endowment of this kind, and the Mohammedan community, or any member of it has a right to enter the mosque and to pray there.

16. In Syed Mohd. Salie Labbai v. Mohd. Hanifs , the land in dispute was originally acquired by a Muslim saint about two hundred years ago. Some years later the predecessors of the respondents built a mosque therein with the permission of the ancestor of the appellants and the then owner of the land. The adjacent vacant land was used as a graveyard for the Muslims of the village. There was a scheme suit in respect of this property wherein it was contended that there was no public wakf of the mosque which was only a private or family mosque, that there was no declaration of dedication for the purpose of a mosque and that the prayers offered in the mosque by the respondents were only by leave and licence of the founder. The graveyard was also not a public wakf but the family graveyard of the appellants wherein corpses of other Muslims were allowed to be buried on payment of pit fees. Held that in the case of a mosque, the founder’s permission or the bare act of allowing the members of the Mohammedan public to offer prayers amounts to a complete delivery of possession. The owner of the land has given his tacit consent when he allowed the mosque to be constructed not for the private members of his family but for the worship of God by the entire Mohammedan public. By providing a separate entrance, the owner agreed to separate the mosque from the rest of the property by allowing the entire Mohammedan Community of the village to worship in the mosque and to perform other ceremonies. The owner of the land gave delivery of possession to the mosque. A place may be dedicated as a mosque or masjid without there being any building. But since the building in the nature of a mosque was built a clear case of dedication has been made out. Once the mosque was constructed it stood dedicated to God and all the right, title and interest of the owner got completely extinguished. Once there was a complete dedication to the mosque as a place of public worship any reservation imposed by the owner would be deemed to be void. Under the Muslim law once the dedication was complete, the property passed from the owner to God and it never returns to the owner and therefore the question of the mosque being private can never arise. The very concept of a private mosque is wholly foreign to the dedication of a mosque for a public purpose under Muslim law. Under that system of law once the founder dedicates a particular property for the purpose of a public mosque, no Muslim, can be denied the right to offer prayers in the mosque. The law is so strict that the moment even a single person is allowed to offer his prayers in a mosque it becomes dedicated to the public. Also, any adjuncts to a mosque, which are also used for religious purposes, become as much a part of the mosque as the mosque itself. The argument that there was no formal dedication is unsound. The act of permitting the Mohammedans of the village to build a mosque itself amounts to a complete dedication or a declaration that the mosque is a public property.

17. So it is a fundamental principle of the Mohammedan Law of Wakf that when a mosque is built and consecrated by public worship, it ceases to be the property of the builder and vests in God. A mosque once so consecrated cannot in any case revert to the founder and every Mohammedan has the legal right to enter it, and perform devotions according to his own tenets so long as the form of worship is in accord with the recognized rules of Mohammedan Ecclesiastical Law. A mosque from its very nature is dedicated for worship and is open to all Muslims local and others. Once the mosque was constructed it stood dedicated to God and the owner is divested of his right title and interest in the property. The very concept of a private mosque is unknown to Muslim Law. Once the founder dedicates a particular property for the purpose of a public mosque, no Muslim can be denied the right to offer prayers therein on the ground that the mosque fell into disuse long back. And from the mere fact that in Ex.A-1 the village plan a mosque is shown to have existed in the year 1938, this disputed piece of land has become a wakf by user although there is no evidence of an express dedication and any attempt on the part of the respondents to prevent the appellants from coming over to the property and saying their prayers cannot be permitted.

18. In the result, the appeal is allowed and the judgments and decrees of the Courts below are set aside and the decree for injunction restraining the respondents from interfering with the appellants right of worship in the mosque described in the plaint schedule is granted as prayed for. And in the circumstances the parties are directed to bear their own costs throughout.

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