SYED MOHD. SALIE LABBAI (DEAD) BY L.RS. AND ORS. versus MOHD. HANIFS (DEAD) BY L.RS. AND ORS.

Citation: [1976] 3 S.C.R. 721 · Decided: 22-03-1976 · Supreme Court of India · Bench: P.K. GOSWAMI · Disposal: Dismissed
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Judgment (excerpt)

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721 
SYED MOHD. SALIE LABBAI (DEAD) BY L.RS. AND ORS. 
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v. 
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MOHD. HANIFS (DEAD) BY L.RS. AND ORS. 
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March 22, 1976 
[P. K. GOSWAMI AND S. MURTAZA FAZAL ALI, JJ.] 
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Mt1hommadan Law-Mosque its adjuncts and graveyard, 
lvhat constitutes 
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dedication to public-Right to officiate as Imam, when recognised. 
Muslim Wakfs Act, 
1954, s. 55(2), Scope of-Code of Civil Procedure 
(Act 5 of 1908) s. 11-Res judicata, scope of. 
The land in dispute was originally acquired by a Muslim saint, about two 
hundred years ago. Some years 1ater the predecessors of the- respondents, 
who formed the major section of the Muslims of the village, approached his 
successor, the ancestor of the appellants and the then owner of the land, and 
sought his permission for building a mosque on the land as there was no mos~ 
que at all in the village. The predecessors of the respondents executed an 
agreement in favour of the owner. It recited that, ( 1) the predecessors of the 
respondents were constructing a prayer hall on the raised platform belonging 
to the ancestor of the appellants, with his permission; (2) after completion of 
the mosque, the predecessors of the respondents will have no claim or right, 
except the right to worship therein; (3) the only right which they would 
claim would be the right to worship and to light lamps, while they will be 
responsible for the maintenance of the -mosque; ( 4) the constructfon was purely 
for the purpose of worship; and (5) there shall be a doorway and windows 
on one side so as to serve as a separate entrance to the mosque in order to 
constitute it as a separate entity. 
The mosque was built by the ancestors 
of the respondents; and thereafter, in course of tin1e, additional constructions 
which form adjuncts to the mosque, were added. All the adjuncts were built 
for the purpose of offering prayers in the mosque and by way of a 
gift to 
the mos(iue. 
The adjacent vacant land was used as a 
graveyard for the 
Mi.islims of the vi11age. 
Subsequently, the appellants constructed shops on a 
part of the graveyard, and the respondents, who regarded the constructions 
ns ~ desecration of the graveyard, filed a number of suits for the 
demolition 
-0f the shops. The appellants, however, claimed the properties as their private 
properties, excepting the prayer hall used as a mosque, and even there, they 
claimed that they had a right to manage it and lead the congregation at pray-
ers. The result of the suits was inconclusive, and as a result of an observa-
tion in one of the suits, that the only remedy for the constant quarrels bet-
ween the two sections of the Muhammadan community is a suit under 
s. 92, 
Civil Procedure Code, the respondents filed a suit under the section, in 
a 
representative capacity. after obtaining the sanction of the Advocate General. 
They alleged that the 3 items of property, namely, (1) the burial ground which 
consisted of two parts, (2) the Dargah over the tomb of the saint who first 
acquired the property, and (3) the mosque and its adjuncts were an wakf pro-
perties of a public and charitable nature dedicated bv the predecessor of the 
appellants, that they were public trusts dedicated to God, and that the appe1lants, 
who were de facto managers, were guilty of acts of mismanagement and mis-
feasance. 
The respondents prayed for the removal of the appellants and for 
framing a scheme for administering- the trust vronerties. 
The trial court dis-
missed the suit. but on appeal, the High Court, while dismissing the suit with 
respect to the Darrmh on the ground that it was the private orooerty of the 
appellants, decreed it with respect to the mosque <tnd its adiuncts, and the grave-
yard. and remanded the matter to the trial court for framing a scheme for the 
administration of those two trust properties. 
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In appeal to this Court. the apnetlant.:: contende<l that. (1) ln the previous 
judgment.:: between the narties the nubtic character of the properties was negativ· 
ed and they operated as res judicata; (2) There was no ptiblic wakf of the 
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722 
SUPREME COURT REPORTS 
[1976] 3 s.c.R. 
mosque which was only a private or family mosque; that there was no decla-
ration 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; (3) the graveyard was also not a public wakf but the family grave-
yard of the appell
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