Judgment Madan Mohan Prasad, J. 1. This second appeal arises out of a suit for a declaration that certain lands are part of a mosque and the sale thereof is void and for confirmation of possession over the same. Both the courts having concurrently found against the plaintiffs the present appeal has been filed. 2. Briefly stated, the case of the plaintiffs was that there is a mosque in Mohalla Salempur in Chapra town appertaining to holding No. 36 within ward No. 2 of the Chapra Municipality. It was constructed by one Maulvi Naziruddin, the ancestor of Maulvi Habibur Rahman, Maulvi Naziruddin had dedicated this mosque for the use of Muslims. He had, however, 4 kathas 10 1/2 dhurs of land having a well thereon and a construction of five rooms contiguous east and north of the mosque. Maulvi Azizur Rahman, the father of Maulvi Habibur Rahman, it is said, made an oral gift in respect of 7 dhurs of this holding with one room and a pucca well contiguous to the mosque on the 27th of November, 1935 in order to provide for the recurring expenses over the repair of the mosque and possession was given to the donees, the plaintiffs, on behalf of the public. Maulvi Azizur Rahman thereafter executed a sale deed on the 27th of November, 1935 in respect of the remaining 4 kathas and 3 1/2 dhurs of land with four rooms in favour of one Jhola Mali for a consideration of Rs. 1,495/- and put him in possession thereof. It is said that the oral gift of the remaining 7 dhurs of land is mentioned in the sale deed to Jhola Mali. Maulvi Habibur Rahman, however, executed a sale deed dated the 25th of May, 1949 in respect of the 7 dhurs of land in favour of the first defendant. It is said that neither the vendor was in possession nor the vendee could get po.ssession on the basis of the sale deed. The latter, however, started claiming rent from the tenant in occupation of the room in dispute and even persuaded him not to pay rent to the plaintiffs. Hence the present suit. 3. It is said that neither the vendor was in possession nor the vendee could get po.ssession on the basis of the sale deed. The latter, however, started claiming rent from the tenant in occupation of the room in dispute and even persuaded him not to pay rent to the plaintiffs. Hence the present suit. 3. The suit was contested by defendant No. 1, Maulvi Habibur Rahman not having appeared in the suit The case of the defendant was that the mosque was a private one and not a public mosque, that the lands aforesaid were in the possession of the vendor and his ancestors, that there was no oral gift ever made in respect of the lands in suit, that the plaintiffs never came in possession, that the sale deed in his favour was genuine and for consideration and that the defendant had been in possession since the purchase. 4. Both the courts below upon a Consideration: of the entire materials came to the finding (1) that the mosque is a public mosque. (2) that the plaintiffs had failed to prove their possession within the statutory period, (3) that there was no oral gift of the lands in suit and (4) that the defendants were in possession. Both the courts, therefore, dismissed the plaintiffs claim. Hence this appeal. 5. Learned counsel for the appellants has raised the following contentions. Firstly, that the courts below should have treated the case of the plain tiffs as one alleging creation of a waqf and they have erred in treating it as a case of oral gift and considering the proof of the requirements of a gift; secondly, that the document of sale con tains a declaration which would constitute a wakf and the courts below have committed an error of record; and thirdly, that the defendants had not claimed the well situate on the land in suit and the suit should have been, therefore, de creed at least in that respect. 6. With regard to the first point the statement of the plaintiffs case is as follows. It is stated in the plaint that the mosque had been built and dedicated by one Maulvi Naziruddin and was repaired from time to time by him and after his death by his widow and thereafter by Azizur Rahman. 6. With regard to the first point the statement of the plaintiffs case is as follows. It is stated in the plaint that the mosque had been built and dedicated by one Maulvi Naziruddin and was repaired from time to time by him and after his death by his widow and thereafter by Azizur Rahman. It is next said that in order to "make provision for the recurring expenses for the repair of the aforesaid mosque he dedicated as an oral gift on the same day before the execution of the sale deed the remaining 7 dhurs of land with one room and the pucca well which is contiguous to the mosque in question and which is detailed below so that the repair of the mosque be met by the rent to be fetched from the said room and the well was dedicated for the use and convenience of the prayer-offerers in the mosque and the factum of dedication was mentioned in the aforesaid sale deed in favour of Jhola Mali. The oral gift was accepted by the plaintiffs in representative capacity on behalf of the mosque and they took possession and since then they are coming in possession". It will appear thus that the plaintiffs case was one of oral dedication of the property for the purpose of repair of the mosque, the acceptance of the gift by the plaintiffs in their representative capacity and the delivery of possession of the property itself. It is obvious thus that the plaintiffs alleged an oral gift and the fulfilment of all the essential ingredients of a gift, namely, a declaration of transfer, acceptance of the gift and transfer of possession. It appears that in the two courts below they never raised the question that the case made out by the plaintiffs amounted to the creation of a waqf. This was not a ground taken even in the memorandum of appeal in this Court. For the first time the point has been raised during the course of argument. 7. It is well known that a waqf can be created only by an unequivocal expression of dedication. There is no question of acceptance by donees in the case of a waqf. Even transfer of possession may not be necessary in order to create a waqf and the person creating a waqf, the waqif, can appoint himself the Mutwalli. 7. It is well known that a waqf can be created only by an unequivocal expression of dedication. There is no question of acceptance by donees in the case of a waqf. Even transfer of possession may not be necessary in order to create a waqf and the person creating a waqf, the waqif, can appoint himself the Mutwalli. What distinguishes a gift from a waqf is that a Hiba or a gift is a transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of the latter. A gift may be made to one person or more. It may be even made to a community of persons. A gift is not complete without delivery of possession. It is well known that under the Muslim law there can be a gift in the nature of a sadaqah which also is a gift made with the object of acquiring religious merit. Like Hiba it is also not valid unless accompanied by delivery of possession. A sadaqah is not revocable at all once completed by delivery of possession. A sadaqah however, is different from a waqf inasmuch as a sadaqah is a kind of gift to a person or persons whereas a waqf is a dedication of property to the ownership of God. The essential difference between a sadaqah and a waqf is that in the former the corpus of the property itself may be consumed whereas in the case of a waqf it is only the usufruct which can be spent It is, therefore, incumbent upon a plaintiff to make out a clear case alleging either a gift to particular persons or to a community whether in the nature of an ordinary Hiba or of sadaqah or a case of waqf, i.e. permanent dedication of the property to the ownership of God for pious and Charitable purposes, 8. Assuming that the plaintiffs had made out a case of waqf and their case in respect of acceptance of the gift and delivery of possession may be ignored, the fact remains that both the courts below have come to a concurrent finding of fact that the evidence with regard to the dedication of the property is worthless and the plaintiffs case cannot be accepted on the point The story of dedication of the property as alleged by the plaintiffs has been characterised by the lower appellate court as "a cock and bull story." Both the courts below have considered the entire evidence on the point and pointed out the infirmities with which the plaintiffs evidence suffers. In that view of the matter whether it was the case of a gift or of a waqf the concurrent findings of the courts below knocks the bottom out of the case of the plaintiffs. No good ground has been shown which would justify an interference with the concurrent findings on the question of fact. In that view of the matter there is no substance in the first contention of learned counsel. 9. Faced with this situation learned counsel has raised the second point with regard to the creation of the waqf by the document of sale and the misconstruction of the recitals therein which are said to contain an expression of dedication of the property for a pious and charitable purpose. In this connection it will be relevant to point that the recitals in the plaint do not make out the case that the dedication was made by virtue of this document. Their case is that the oral dedication had been made before the execution of the sale deed and that the sale deed corroborates the evidence of dedication made earlier. The effect, therefore, is that the sale deed recites, according to the plaintiffs case, what has happened in the past. Such a recital, in my view, cannot be said to be an unequivocal expression of the intention to dedicate the property. It merely amounts to saying that a dedication had been made earlier. The question whether such a dedication was at all made will have to be decided with reference to the relevant date when it was so made. A subsequent statement scannot be related back to the earlier date or time at which the dedication is alleged to have been made. The question whether such a dedication was at all made will have to be decided with reference to the relevant date when it was so made. A subsequent statement scannot be related back to the earlier date or time at which the dedication is alleged to have been made. In this view I am supported by a decision in the case of Banubi Kom Umarsaheb V/s. Narsingrao Ranojirao Mane. (1907) ILR 31 Bom 250. In that case there was a statement in a will that the testator had at a former time given away or set apart property to charity. The learned Judges held that such a statement in a will of some gift in the past cannot be referred back to that date and such a narrative cannot in any view be adequate substitute for the oral declaration of dedication to God which the Mohammedan law appears imperatively to require synchronously with the act of dedication itself. They said further that there is a plain distinction between giving in charity and declaring that one has given in charity and for the purpose of fixing the origin of the waqf, if there was a waqf at all, the mere statement in a will that at some past date the testator had set apart such and such property for charitable objects is of comparatively slight value. Their Lordships also said that where there has been no actual delivery, reasonably clear declaration is ac- cessary to create a waqf. I find myself in respectful agreement with the aforesaid observations. In the case of Sk. Muhammad Ibrahim V/s. Bibi Mariam. ILR 8 Pat 484 = (AIR 1929 Pat 410) the case made out by the plaintiff was that a property had been dedicated by a verbal waqf and subsequently it had been confirmed by executing a waqfnama. The story of verbal waqf was disbelieved. The execution of the waqfnama was also disbelieved. There was, however, the answer of an executant to a question regarding the execution of the document which was said to constitute an oral declaration of the intention to create a waqf. The learned Judges held that oral evidence could not be given regarding the terms of the disposition of the property when the deed of waqf itself was there. There was, however, the answer of an executant to a question regarding the execution of the document which was said to constitute an oral declaration of the intention to create a waqf. The learned Judges held that oral evidence could not be given regarding the terms of the disposition of the property when the deed of waqf itself was there. The learned Judges relying on several decisions including the one reported in (1907) ILR 31 Bom 250 (Supra) held that a reasonably clear declaration is necessary to create a valid waqf in a case where there has been no actual delivery of possession and that a mere intention to set apart the property for a charitable purpose is not sufficient to create a waqf. In this view of the matter the case of the plaintiffs being that the waqf had been created earlier, the recital made subsequently in the sale deed can be taken alone merely as an evidence of corroboration and is of slight value. In the instant case, however, the very fact of the declaration of the intention and the act of dedication having been disbelieved, the recital is of no value whatsoever. In coming to the aforesaid conclusion the recitals in the sale deed have been considered by both the Courts below and the finding of fact has been arrived at thereafter. 9A. In this connection it may be mentioned that the recital in the deed falsifies the case that a dedication had been made earlier. There is no mention therein that such an intention had been declared earlier or that the dedication had been made earlier. In fact it will appear from the recital in the sale deed that the lands in suit had continued to be excluded from the mosque and were in possession of the executant of the sale deed. This would falsify the story of dedication having been made earlier and possession having been transferred. The plaintiffs case, therefore, does not receive support from the recital in the sale deed. 10. Coming now to the question as to whether the deed of sale contains recitals which would show the creation of a waqf the first point which needs to be mentioned is that this was a document of sale of other lands in favour of third party. The executant was not at all making any disposition in respect of the property in suit. The executant was not at all making any disposition in respect of the property in suit. The recital upon which reliance has been placed by the appellants is contained in the description of the property sold. The description gives as to what is the property vended and for that purpose there is a reference to the property which is excluded from sale. In that description it is said as follows:- - "Mawazi 4 k. 3 1/2 dhur Munsumla 4 k. 10 1/4 dhur Eraji ke Mokari Bandobasti wake Mohalla Salempur Min Mahlat Kasbe Chapra Perg. Manjhi Elake Thana Wo Registry wo Dak Khana wo Munsifi Chapra Zila Saran Ander Patti Babu Hira Lal Sah wogairah Malikan Circle 13 Ward No. 2 holding 30 jiske Andar 5 kothari wo Ek Kuan Wake Hai Usme se Baistasnai Ek Kua wo Ek Kothari Dahinwari Mai Erazi Motalik Kothari wo Kua Mustasnai Masjid Nazir Waziruddin Saheb ke Hai wo Motalik Masjid Majkur ke rahega. Wo basmul 4 kothari mai Eraji Uftada Janib Purab Har Chahar Kothari Mazurin Jo Bai Kiya Jata Hai ......" All that it says thus is that the room with the land and the well excluding the mosque belong to Nazir Waziruddin Saheb and the same shall appertain to the aforesaid mosque. To say that the land shall appertain to the mosque does not clearly bring out that the land is transferred to the ownership of the mosque and thus of God, it is said therein that the land belongs to Nazir Waziruddin Saheb, It does not sav that after the execution of the sale deed it shall belong to the mosque. There is nothing to show whether there is a dedication of the property permanently. There is nothing to show either as to what was the purpose for which the property would appertain to the mosque. There is nothing to show whether the income of the property was to be utilised for the mosque or if the corpus itself could be transferred. In other words, the recital cannot be deemed to be a clear intention to dedicate the property permanently to the ownership of God. It will thus not amount to a declaration which would create a waqf. At best it could be said to express the intention to set apart the property for a particular purpose, the purpose also being vague. In other words, the recital cannot be deemed to be a clear intention to dedicate the property permanently to the ownership of God. It will thus not amount to a declaration which would create a waqf. At best it could be said to express the intention to set apart the property for a particular purpose, the purpose also being vague. Even if if were such an expression of intention to set apart the property for a charitable purpose, it could not by itself amount to creation of a waqf. 11 In this connection it may be mentioned that the user of the property has to be looked into for the purpose of finding out whether there was an act of dedication made earlier. In the present case the plaintiffs alleged that before the aforesaid deed the property had come into their possession on behalf of the mosque and was afterwards used as a property dedicated to God. The evidence on this point has been disbelieved by both the Courts below and the defendants have been found to be in possession of the lands in suit. The recitals in the document of sale thus in the circumstances of the present case do not show a clear expression of the intention to dedicate nor has the act of dedication and user of the property been proved in this case. The argument on the second point also is thus of no avail. 12. Learned counsel for the respondents in this connection contended that the document of sale being not inter parte or a deed of waqf or a deed creating title its misconstruction is not a question of law and the appellants cannot, therefore, assail the concurrent finding of fact against them. Reliance has been placed on the decisions of the Supreme Court in the cases of Sir Chunilal V/s. Mehta and Sons Ltd.. AIR 1962 SC 1314 ; Nedunuri Kameswaramma V/s. Sampati Subba Rao, AIR 1963 SC 884 and Tata Iron & Steel Co. Ltd V/s. Arun Chandra Bose. AIR 1967 Pat 246 . The contention is well founded and the appellants cannot be allowed to raise the point in this appeal. Apart from that, however, I have already found that even if they be allowed to raise it, it does not help the appellants. 13. Ltd V/s. Arun Chandra Bose. AIR 1967 Pat 246 . The contention is well founded and the appellants cannot be allowed to raise the point in this appeal. Apart from that, however, I have already found that even if they be allowed to raise it, it does not help the appellants. 13. Coming now to the third point raised by learned counsel regarding the well in question, it appears that the defendants did not claim any title thereto. That does not, however, enable the plaintiffs to get a decree in that respect for the simple reason that their entire case based upon a dedication of the property, be it in the form of an oral gift or of a waqf, has failed. They have failed to prove the title to the property as also their possession thereof. The suit cannot therefore, be decreed even in respect of the well to which no claim had been laid by the defendants. 14. In the result, the appeal fails and is dismissed with costs.