LexBIBI AISHA & ORS. versus BIHAR SUBAI SUNNI MAJLIS AVAQAF & ORS.
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,, A B c D E F G 417 BIBI AISHA & ORS. v. BIBAIR SUBAI SUNNI MAJLIS A VAQAF & ORS. July 24, 1968 [R. S. BACHAWAT AND K. S. HEGDE, JJ.] Evidence Act (1 of 1812), s. 65(a) and (!)-Whether cl. (f) controls cl. (a)-Case falling under both clauses-Whether certified copy s/wu/d be produced as secondary evidence. The !st respondent-waqf filed a suit against the appellants ·and the 3rd respondent, for setting aside a lease deed executed by the 3rd res- pondent in favour of the appe!lants, on the 2fOUnd that the properties covered by the lease deed were waqf properties dedicated by a deed of waqf of the year 1827. The existence of the deed of waqf was proved by numerous admissions by the 3rd respondent and others who vrere its mutawallis. The 3rd respondent had produced the original deed along with the return filed by him before the Waqf Board under rr. 6 and 11 made under the Bihar Waqfs Act, 1948, and stated that the properties in dispute were waqf properties. He also produced a plain copy in Persian and an English translation of the original deed of waqf. He attested the English translation and made an endorsement on the Persian copy that it corresponded to the original. The original, after comparison, was returned to him, and the copy and translation were retained in the office of Waqf Board. At the trial, the 3rd respondent did not produce the origin.al even though a notice was issued to him for its production. No copy of the deed was traceable in the registration office. The first respondent, therefore, relied upon the copy and the translation in the office of the Waqf Board. The trial Court decreed the suit and the High Court confirmed the decree. In the appeal to this Court, on the question whether the copy was admissible in evidence to show that the disputed properties were waqf properties, HELD : The case fell under s. 65(a) of the Evidence Act and so the copy was admissible, since any secondary e'idence of the existence and contents of the original document was admissible. Though tbe case may also fall under s. 65 ( f), it is not necessary to produce a certified copy of the deed as cl. (a) is not controlled by cl. (f). The copy as well as other unimpeachable evidence established that the disputed pro- perties were waqf properties. [419 D-E; 420 DJ In the matter of G. collision between the 'Ava' and the 'Brenhilda', (1879) I.L.R. 5 Cal. 568, approved. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 323 of 1965. Appeal by special leave from the judgment and decree dated H February 16, 1961 of the Patna High Court in Appeal from Original Decree No. 500 of 1955. S. C. Agarwal, K. N. K. Nair, Anil Kumar Gupta and S. P. Singh, for the appellants. 418 SUPREME COURT REPORTS [1969] ! S.C.R. Sarjoo Prasad and U.P. Singh, for respondent No. I. The Judgment of the Court was delivered by Bachawat, J. The Bihar Subai Sunni Majlis-c-Awaqaf a body corporate established under the Bihar Wakfs Act, 1947 instituted a suit for setting aside a registered mokarrari lease deed dated November 18, 1949 executed by defendant No. 4 Sheikh Gholam Bari in favour of defendants I to 3 and for restoration of posses- si<1ii of the properties covered by the document, viz., the houses and shops being holdings Nos. 27 and 28 formerly known as holdings Nos. 22 and 23 in Ward No. 8 at Mohalla Muradpore P.S. Pirbahorc in the city of Patna (Baakipur). The plaintiff's case is that the properties were dedicated by way of waqf by a l\laqfnama dated August 20, 1827 executed by Mst. Bibi Mannu Khanam Jan. 111e successive MutawaHis under this deed were Sheikh Azmatul!ah, Sheikh Ataullah, Sheikh Habibur Rahman, Bibi Zaibunnissa and Sheikh Gholam Bari. The Trial Court decreed the suit and this decree was confirmed by the High Court. Both the courts concurrently found that Mst. Bibi Mannu Khanam Jan dedicated the properties by way of waqf by a deed dated August 20, 1827. The correctness of this finding is challenged in this appeal. In Mohalla Muradpore in the city of Patna (Baakipur) there is an ancient mosque known as the mosque of Mst. Bibi Mannu Khanam Jan. It is not disputed now that Mst. Bibi Mannu Khanam Jan established this mosque. There are shops, rooms, katra and other structures to the cast, west and the south of the mosque. To the east of the mosque arc the disputed holdings Nos. 27 and 28. On September 25, 1948 Gholam Bari filed before the Waqf Bo
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