S. Barman, J.

1. The plaintiffs are the appellants,--in this Second Appeal,--from a confirming decision of the learned Additional Subordinate Judge of Cuttack, whereby he affirmed a decision of the learned Munaif, Cuttack and dismissed the plaintiffs' suit for permanent injunction restraining the defendants from interfering with the management of Oriya Bazar mosque in Cuttack town, arising out of the disputed question of the Mutwalliship, in respect of the said mosque, which admittedly, is a public mosque, in the circumstances hereinafter stated.

2. The plaintiffs are members of Mahomedan community, calling themselves managing committee for management of the said mosque, stated to have been elected by the general public of Oriya Bazar in Cuttack Town, for the purpose of looking after the said mosque which is said to be the only mosque in the locality. The defendant No. 1 is the son of defendant No. 2, who died during the pendency of this litigation; thus the defendant No. 1 is the only surviving defendant, who claims to be the Mutwali in respect of the said mosque.

3. The plaintiffs' case, shortly stated, is this; The said mosque has no property, besides the site in which it stands and thus it has no income; it has to meet a lot of expenses which is met by public subscriptions; that a certain Wakf deed stated to have been executed by the original founder of the mosque was held in a prior suit,--filed as early as 1925 hereinafter fully discussed,--to be a fraudulent deed and not acted upon. One Mukram Ali, a rich local resident, is stated to have been managing the mosque at his own expenses since 1900 until 1940 when he retired from the management; that neither the defdt. 1 Md. Yusuf nor the deceased father of defendant No. 2 Mhd. Golam Gous, during his life time, could be the Mutwali nor did either of them ever act as Mutwali as alleged by the defendant; that the upkeep of the mosque is by the public by subscription, the public paying municipal taxes and electrical charges; that there is no documentary evidence of management of the mosque by either of the defendants.

4. For correct appreciation of the points involved herein it is necessary to give a short historical back-ground which gave rise to the present dispute among the rival claimants to the Mutawaliship of this public mosque.

In the middle of the last Century, there lived in Cuttack town one Roshan Mohammed who had two wives, Ekramunnissa being the second wife. They had two children, namely Mhd. Golam Gous (deceased defendant No. 2) and a daughter who was married to one Mhd. Hasim, also known as Patia Saheb. The defendant No. 1 Mhd. Yusuf is the son of the said Md. Golam Gous defendant No. 2 as aforesaid. Roshan Mohammad had properties in Cuttack town including plot No. 528 in Oriya Bazar with an area of 1.68 acres in Khata No. 157 on which the mosque in question came to be constructed as hereinafter stated.

On September 19, 1873 the said Roshan Mahammad executed a registered Hiba (gift) in favour of his second wife Ekramunissa as dower, in respect of all his properties including the suit land, on which the mosque is situate. Thereafter, Ekramunissa intended to build a mosque in the suit land and registered a Wakf deed dated August 15, 1878 purported to appoint her husband Roshan Mohammad as Mutwalli for construction of the said mosque; Roshan laid the foundation of the mosque and after his death his son-in-law Mhd. Hasim (Patia Saheb) continued the construction of the mosque but he also died before completion of the mosque. Thereafter Roshan Mohammad's son Mhd. Golam Gouse (deceased defendant No. 2) constituted himself as Mutwali and undertook to complete the mosque but he is said to have abandoned it for want of funds because all the properties comprised in the Wakf deed dated August 15, 1878 were subsequently alienated.

Thereupon the Mahomedan public of the locality approached the said Mukram Ali a rich and influential man of the locality and requested him to complete the mosque which he did and went on managing the same at his own expense. In 1925, the said Mhd. Golam Gous (deceased defendant No. 2) instituted a title suit being Title Suit No. 38 of 1925 in which one of the defendants wag the said Mukram Ali; the suit however, was ultimately dismissed on February 8, 1927 by the learned Subordinate Judge finding that the said Waqf deed dated August 15, 1878 was fraudulent and never acted upon; that the said Ekramunissa could validly alienate the land comprised in the said gift; it was, however, found in the said suit that,--apart from the, Waqf-nama which was found to be not a valid document,--the said Mhd. Golam Gous was entitled to be the Mutwali of the mosque. After the disposal of the said suit, which the said Mhd. Golam Gous lost, he filed an insolvency case in 1927 which was ultimately rejected on February 21, 1928.

It is said that in the meantime, from 1900 to 1940, Mukram Ali was in charge of the mosque; that he completed and beautified the mosque entirely at his own expenses, electrified the same and was paying municipal taxes till 1940. In 1940 the- said Mukram AH, in view of his old age and illness, desired the public to take over the management of the mosque and accordingly executed a Barad Patra (deed of direction) dated January 10, 1940 (Ext. 5) in favour of four persons (three of whom are among the plaintiffs herein) of the locality; one Sk. Haji Ali Mohammad is said to have met the expenses of the mosque till 1943.

In 1944 Mukram Ali died. Thereafter, the people of the locality elected the plaintiffs as members of the managing committee and the said committee raised subscriptions and procured donations from the public and went on managing, the mosque. In 1953 there was some difference between the members of the committee; thereupon the defendant No. 1 Mhd. Yusuf was approached to keep the actual cash in his custody to be paid out as required; the defendant Mhd. Yusuf won over Moulana Barkatulla the Secretary of the Committee who gave Mhd. Yusuf the account books and other papers regarding the mosque. The plaintiffs' case is that the defendant No. 1 then began to interfere with the management of the mosque and attempted to break open the moveables. Thereupon, after some Criminal cases had been instituted, the present suit was filed by the plaintiffs for permanent injunction against the defendants for restraining them from interfering with the management of the mosque as aforesaid. These, in substance, are the relevant facts on which the plaintiffs' alleged claim is based.

5. In defence, taken in the suit, the defendants completely deny the plaintiffs' case,--namely--that the plaintiffs have no locus standi; that the mosque was constructed and completed by Roshan Mohammad who was Mutwalli and thereafter his son Mhd. Golam Gous (deceased defendant No. 2) became Mutwalli; that even before the death of Mhd. Golam Gous, his son Mhd. Yusuf, defendant No. 1 became de facto Mutwalli; that the mosque was in management of the defendants in succession; that neither Mukram Ali nor Sk. Haji Ali Mohammad or any members of the public managed the mosque at any time; that defendant Mhd. Yusuf used to take the assistance of some local people, during his own absence, to manage the mosque, and for that purpose he had nominated two or three persons; that the plaintiffs are not validly constituted managing committee as claimed; that defendant Mohammad Yusuf rightly dismissed the members of the so called managing committee; and lastly that the defendant Mhd. Yusuf, being the Mutwalli, cannot be restrained by injunction as claimed by the plaintiffs.

6. The concurrent Ending of the courts below is that the plaintiffs have no locus standi; that the defendant is the Mutwalli of the mosque; that even if the mosque was being managed by Mukram Ali and the plaintiffs by raising public subscriptions, it was done in consonance with defendant's authority as Mutwalli of the mosque and accordingly dismissed the plaintiffs' suit.

7. The main points,--for consideration in this appeal,--are firstly, whether the plaintiffs have any locus standi to sue, and secondly whether the defendant has any right to act as the Mutwalli of the mosque. It was urged,--on behalf of the plaintiffs appellants that there is no documentary evidence of alleged permission given by the defendant Mhd. Yusuf to the public to do certain acts in respect of the mosque; that it was Mukram Ali,--though he did not belong to the family of Roshan Mohammad, the original owner of the mosque,--who completed the mosque; that there is no evidence that either Roshan Mahammad or Mhd. Golam Gous or Mhd. Yusuf did any act of management and there is nothing to show that they had anything to do with the mosque; that during the period between 1900 and 1943 no one of Roshan Mohammad's family was connected with the mosque, it was Mukram Ali who did everything.

8. In support of the plaintiffs' case, they relied on Ext. R, a certified copy of judgment in the said T. S. No. 38 of 1925, where the Waqf deed dated August 15, 1878 executed by Ekramunissa was declared to be invalid and never acted upon; the plaintiffs' point is that, Ekramunissa's Wakf deed of 1878 having been thus declared invalid by Court, Mukram Ali,--who undertook the completion of the mosque and managed it out of subscription funds and donations given by the public since 1900,.--became the Mutwalli of the mosque and managed the same until 1940, when he executed the Barad Patra Ext. 5 in favour of four persons for management of the mosque. Undoubtedly although the ancient Waqf of Ekramunissa was declared invalid, still long user by the public is evidence that it was a public mosque; where for a considerable number of years, the public have been offering prayers in a mosque, it must be presumed that the mosque was duly dedicated nd had become Waqf by user. There is no dispute as to this position in law nor it is disputed by the defendant that it is a public mosque. The dispute however is over the management of the mosque, that is to say, as to who is the Mutwalli.

The plaintiffs also, strongly relied on Ex. 5 the Barad Patra (deed of direction) dated January 10, 1940 executed by Mukram Ali, in favour of four members of the public, which according to the plaintiffs' case, gave them the locus standi and absolute right of management and superintendence over the Mosque; in other words, their point is that Ext. 5 created a trust in favour of the members of the public, represented by the managing committee who are the plaintiffs in the suit. The plaintiffs also relied on the Subscription books of 1943 and 1944 being Exts. 6, 7 and 8 purporting to show that the members of the public had been raising subscription for the purpose of meeting the expenses of the mosque, and that there is no evidence of any objection having been raised by either of the defendants to either Mukram Ali acting as Mutwali, or after him, to the members of the public managing the mosque. This argument, however, overlooks the basic position that there is nothing to show how Mukramali himself became Mutwalli, so that he might have right to execute the Barad Patra (deed of direction) Ext. 5 in favour of four members of the public for the management of the mosque.

9. This leads me to the consideration of the legal implications of the part played by Mukaram Ali in the completion and management of the mosque, and of the part, played by the members of the public after Mukram Ali. As appears from the plaintiffs' case, pleaded in the plaint, no legal character is given to Mukram Ali nor is there any evidence to show that ha constituted himself the Mutwalli. On the other Band, the finding of the Court in T. S. No. 38 of 1925 (Ext. R) Wag that,--apart from the Waqf-nama which was found to be invalid,--Mohammad Golam Gous was entitled to be the Mutwalli of the mosque; Mukram Ali was a party in that suit. Although there is no question of res judicata but the finding,--that Mohammad Golam Gous was entitled to be the Mutwalli,--has great value in the present context.

There is no force in the plaintiffs' contention that Mohammad Gous,--by reason of his inability to manage the mosque for want of money by reason of which he applied, for insolvency in 1927 --left the management of the mosque to Mukram Ali who from his own pocket met the entire expenditure of the mosque and made the improvements; indeed, this argument is not supported by any oral or documentary evidence. In fact, the evidence shows the contrary. Ext. 3 record of right of 1931 shows that Mohammad Golam Gous was recorded as Mutwali of the mosque; if indeed Mohammad Golam Gous had handed over the management of the mosque to Mukram Ali because of his insolvent position in 1927 as alleged, then Mukram Ali's name would have appeared in the record of rights of 1932, and having regard to presumption of correctness of the record-of-rights, it must be accepted that Mohammad Golam Gous continued to be Mutwali in 1932; there is no evidence,--that during the period from 1931 until 1940, when Mukram Ali executed the said Barad Patra (deed of direction),--Mhd. Golam Gous had at any time handed over the management of the mosque to Mukram Ali; furthermore Mukram Ali's Account books cannot be said to have definitely related to this particular mosque of Oriya Bazar because there are several other mosques in the town, with any of which the said account books could relate.

From another aspect also, the plaintiffs' case, as pleaded, is untenable under Mahomadan Law because the alleged transfers of management of the mosque,--once by Mhd. Golam Gous to Mukram Ali, and thereafter again by Mukram Ali to the members of the public by Ext. 5 Barad Patra,--are illegal. Under Mohomadan Law the Mutawalli for the time being may appoint a successor on his death-bed, he cannot, however, do so while he is in health, as distinguished from death illness (Mulla's Principles of Mahomadan Law Article 205). In the present case, there is no evidence that either Mhd. Golam Gous or Mukram Ali was in death-bed or death illness while making the transfers; the Barad Patra Ext 5, therefore, could not confer on the plaintiffs any legal title or character. So, the plaintiffs had no locus standi to sue the defendants for restraining them from managing the mosque.

10. It was also strongly urged on behalf of the plaintiffs, that Mukram Ali,--by his pious acts, in completing the construction of the mosque and beautifying it, as appears from the photographs of plaques, which are in evidence in the suit,--had become the Mutwally, and it is also said that Mukram Ali acted at the request of the members of the locality, so that the mosque acquired the character of a public mosque, of which he became the Mutwalli, in which capacity he continued until 1940, when by Ext. 5, Barad Patra, he appointed four members of the public to undertake the management On this point, the Maho-madan law is that the Ahl-i-mahalla i.e., the people of the quarter may lawfully enlarge or reconstruct a mosque and supply it with better articles at their own expense, but not at the expense of the mosque unless the Kazi's permission is obtained to that effect: should the Ahl-i-mahalla wish to improve the mosque, with or without the consent of the Kazi, the heirs of the wakf will not have any right to object unless it is patently contrary to the wishes of the wakf; in this context, it is also the Mohamadan Law that ahl-ul-mahaila (people of the locality where the mosque is situated) can pull down a mosque and reconstruct it in better style, or improve it in any other way, and supply superior articles; but this they can only do with their own money, but not with the money of the waqf, unless the sanction of the kazi is obtained beforehand; this is stated in the Khuesa (Mahomadan Law of Syed Ameer Ali, Volume 1, 4th Edition 297, 408).

In the present case, Mukram Ali, having completed the construction of the mosque, and madeimprovements in the mosque, could not therebydisentitle Mhd. Golam Gous or Mohammad Yusuffrom their Mutwalliship. Mukram Ali's act ofpiety,--out of his funds Or funds raised by publicsubscription or donations,--could not make himself Mutwalli; indeed Mahomandan Law permitssuch acts of piety to be done by anybody whichthe Mutwalli cannot refuse. On the question,--whether the defendant No. 2 Mohammad Golam,Gous was the Mutwalli and after him his sonthe defendant No. 1 Mohammad Yusuf became theMutwalli; the trial Court, by reference to the documentary evidence fully discussed in his judgment, which I need not repeat, came to the conclusion that the defendant Mhd. Yusuf is andbefore him his father Mhd. Golam Gous was theMutwalli of the mosque. Indeed the documentsshow that the defendant Mhd. Yusuf was approached by the members of the managing committeefor removal of the Moazan (one who calls for prayer). Thus the participation of the public in themanagement of the mosque by subscription anddonations (Exts. 6, 7 and 8) is not inconsistent withthe Mutwalliship of the defendant or his father inrespect of the mosque which admittedly is a public mosque : the pious acts done by the public donot necessarily mean that the authority of thedefendant or his father as Mutwalli of the mosquewas denied: on the contrary, there is ample documentary evidence to prove that the mosque wasbeing managed or looked, after with concurrenceof the defendant No. 1 arid his father defendantNo. 2 both as Mutwalli.

11. The plaintiff further relied on an alleged apparent inconsistency in the defendant's case namely, that Exts. J-1 to J-5 show the defendant Mohammad , Yusuf's order of dismissal of the managing committee to have been signed by some of the plaintiffs themselves on July 13, 1953, whereas Exts. 3 to 8/c (subscription books) show that the subscriptions, said to have been raised by the managing committee, related to a period upto January 5, 1954 that is to say, about six months after the defendant's order of dismissal of the managing committee: the plaintiffs' comment is that, if indeed the managing committee was dismissed by the defendant in July 1953, then how could these subscriptions books relate to the period six months after the dismissal. It, however appears that there was no cross-examination on the point by reference to Exts. 8 to 8/c. Indeed, on general principles, it would appear to be sound that if a witness is under cross-examination on oath, he should be given the opportunity, if documents are to be used against him, to tender his explanation and to clear up the particular point of ambiguity or dispute : that is a general salutary and intelligible rule. In the present case no question was put to the defendant Mohammad Yusuf, while giving evidence as D. W. 1, who could have explained the position by reference to the documents. Thus, the plaintiff's contention on this point is untenable.

12. Lastly, the plaintiffs relied generally on the legal position,--about which there is no dispute,--that the Mahommadan Law does not favour the right to act as Mutwalli becoming heritable; in other words, appointment is the rule and inheritance is the exception that, therefore, if heredity fails then the defendants herein have no basis for their alleged claim to Mutwalliship of the mosque; that in the present case, no such custom,--that the Mutwalliship was heritable,--has been pleaded in defence. This point is, however, outside the scope of this suit. In the present case, the defence stand is that Mohammad Golam Gous, and after his death, his son defendant Mohammad Yusuf were both acting as Mutwallis : the question of the defendant's title by virtue of heredity or otherwise was not raised either in the pleadings or at the trial. In any event, assuming that the defendants have no title as alleged, even so, the plaintiffs cannot succeed in this suit, by simply relying on the alleged weakness of the defendants' title.

In this view of the case, the decision of theCourts below dismissing the plaintiffs' suit is upheld. This appeal is, accordingly, dismissed withcosts.