JUDGMENT 1. - This Civil Second Appeal under Section 100 read with Order 41 Rule 1 of the Code of Civil Procedure, 1908 has been filed on behalf of the defendant-appellant against the judgment & decree dated 24/11/1984 passed by the Court of learned Additional District Judge, Kishangarhbas, District Alwar dismissing Civil Regular First Appeal No.92/1979 filed by the defendant-appellant and upheld the judgment & decree dated 20/08/1979 passed by the Court of learned Munsif & Judicial Magistrate, Kishangarhbas, District Alwar by which, it has decreed the suit in favour of the plaintiff-respondent. 2. The facts giving rise to the filing of this civil second appeal in brief are that plaintiff-respondent filed a suit for possession, injunction, demolition and for mesne profit on the ground that in town Kotkasim, there is a Jama Masjid and on Southern side of the said Jama Masjid, there is a chowk of Jama Masjid measuring 45x28 yards, which is the property of the Jama Masjid. On 13/11/1968, the defendant-appellant opened three doors towards this chowk and also constructed a chabutra. As property is of Wakf, it has been alleged that defendant be restrained from opening the doors in the chowk and chabutra should also be get demolished and it has also been further pleaded that the shops have been let out and hence, the plaintiff is entitled for mesne profit. 3. The contention of the defendant-appellant before the court below was that the chowk is a public property vested in the Gram Panchayat hence, defendant-appellant has also right to pass through the chowk. Property has never been declared as Wakf property under the provisions of Section 5 of the Wakf Act. There are other shops also in the chowk. It is in use for the public at large. Hence, the orders of the courts below be set-aside. 4. The appeal has been admitted by this Court on 14/12/1984 framing three substantial questions of law, as follows:- "(1) Whether the land in dispute on which the chabutra has been constructed and shops open, is a Wakf property when no such entry has been made as required under Section 5 of the Wakf Act, 1954 have been placed on record? (2) Whether the Chowk in dispute is a thoroughfare and is meant for opening shops when the shops are already existing on the three side of this Chowk? (2) Whether the Chowk in dispute is a thoroughfare and is meant for opening shops when the shops are already existing on the three side of this Chowk? (3) Whether in the facts and circumstances of the case the decree passed by the courts below is justified?" 5. Heard learned counsel for the parties, perused the impugned-judgments as well as original record of the case. 6. During the course of appeal, the appellant has moved an application under Order 41 Rule 27 CPC and submitted before the court the notification under Section 5 of the Wakf Act declaring the property as Wakf property and other documents also. As the substantial question of law No.1 has been made in this appeal as regard to notification u/S.5 of the Wakf Act, the notification dated 23/09/1965 u/S.5 of the Act is necessary for the just decision of the case and application filed under Order 41 Rule 27 CPC deserves to be accepted to the extent of above document. 7. As regards to substantial question of law No.1, the contention of the counsel for the defendant-appellant is that the chowk was never a Wakf property as it has not been entered in the notification dated 23/09/1965. At Sr.No.55 of the said notification dated 23/09/1965, Masjid has been entered as Wakf property and along with Jama Masjid, a Well, 10 shops and 1 room have also been entered as Wakf property but there is no mention of chowk as Wakf property and it has not been incorporated in the notification and Section 5 is clear on the point that properties, which are entered in the list would be treated as the Wakf property. The contention of the learned counsel for the plaintiff-respondent is that Wakfnama is an undisputed document. It is more than 30 years old hence, it should be relied upon. Ex.1 document is more than 30 years old but the plaintiff-respondent has not submitted any evidence to show that Ex.1 Wakfnama relates to the chowk in dispute. Further reliance has also been placed on Ex.2 & Ex.3. Ex.3 is in relation to erection of a 'bhatti' over the chabutra. Ex.2 is in relation to eviction of shop. Ex.1 document is more than 30 years old but the plaintiff-respondent has not submitted any evidence to show that Ex.1 Wakfnama relates to the chowk in dispute. Further reliance has also been placed on Ex.2 & Ex.3. Ex.3 is in relation to erection of a 'bhatti' over the chabutra. Ex.2 is in relation to eviction of shop. Both have no relevance as regards to the ownership of the open land and when a complete scheme has been incorporated under the Wakf Act that a survey should be undertaken and the list of Wakf would be published under Section 5, if any property is not entered in the list, it can be concluded that it is not the Wakf property. Apart from it, here the contention of the appellant is well founded as at Sr.No.55 of the notification, the Jama Masjid has been entered as a Wakf property but disputed chowk has not been entered, which clearly speaks that the disputed chowk is not a Wakf property and both the courts below have erred in holding that chowk is a Wakf property and Issue No.1 has been decided wrongly by both the courts below, the findings are perverse and Issue No.1 is decided in favour of the appellant. 8. Substantial questions of law No.2 and 3 have been framed as regards to user of the chowk. The contention of the plaintiff-respondent was that it is property of Masjid but the evidence of plaintiff himself reveals that from this chowk, there are many thoroughfares. Masjid has no opening towards this chowk. All the three sides of the chowk, there are shops and general public is using the chowk as public way from last more than 50 years. Even the defendant-appellant is also using the same way. Other witnesses of the plaintiff have also admitted the same fact. Hence, it can safely be concluded that the disputed chowk is a thoroughfare. Shops are also existing there. Hence, in view of the fact, both the courts below have erred in passing the decree of mandatory injunction against the defendant-appellant. 9. During the course of arguments, it has been submitted by the counsel for the appellant that chabutra has been demolished by the Gram Panchayat and fact has not been disputed by counsel for the respondent. Hence, in view of the fact, both the courts below have erred in passing the decree of mandatory injunction against the defendant-appellant. 9. During the course of arguments, it has been submitted by the counsel for the appellant that chabutra has been demolished by the Gram Panchayat and fact has not been disputed by counsel for the respondent. Further contention of the appellant is that the Gram Panchayat has maintained the chowk, which shows that it is the property of the Gram Panchayat and never entered as property of Masjid. Ex.4 site plan is a very significant document for considering the controversy, which shows that on the three sides, there are shops having opening in the chowk and defendant has also opened the doors on fourth side and Ex.4 also clearly speaks that opening of doors in the chowk by the appellant not in any way restraining the thoroughfare of general public and chabutra shown in red ink in Exh.4 has already been demolished by the Gram Panchayat. 10. In view of above when the chowk is not the property of Wakf, it is the property of the Gram Panchayat, a thoroughfare, Gram Panchayat has not been made party, the decree passed by the courts below as regard to closing of the doors and allowing mesne profit to the plaintiff-respondent is liable to be set-aside. The Substantial Questions of Law No.2 and 3 stand decided in favour of the defendant-appellant.In the result, this second appeal succeeds and is allowed. Consequently, the impugned judgments & decree dated 24/11/1984 and 20/08/1979 are set-aside. Records be sent back to the courts below forthwith. Petition Allowed. *******