1. This is an appeal by the plaintiffs and arises out of a suit for recovery of Rs. 1,692 being the rents of certain endowed property which were alleged to have been wrongfully appropriated by the defendant during a period of three years before the institution of the suit.
2. The parties to the suit are own brothers, being the sons of one Sheikh Qadir Bakhsh Plaintiffs alleged that their father had* founded two mosques in Mohalla Andha ka Pul in Talia Bagh of the city of Benares and that under a registered instrument dated 28th April, 1910, he had endowed certain property for the upkeep of these mosques and had constituted himself the first mutawalli of the endowment and directed that after his death two of his sons, Sheikh Abdul Alim and Sheikh Abdurrauf would succeed to the mutawalliship. Haji Qadir Bakhsh died on 6th December, 1912. The endowed property consisted of a number of shops which are admittedly in the possession of tenants. In 1917 the names of the plaintiffs were mutated in the Municipal records as mutawallis of the endowed property. The suit was instituted on 10th September, 1926, against Sheikh Abdul Alim, the eldest brother on the allegation that he had without any right appropriated the rents of the endowed property.
3. The defendant alleged that the mosques were not founded by Haji Qadir Bakhsh, that the properties in suit were not endowed by him and that the plaintiffs were not the mutawallis thereof. He admitted that Haji Qadir Bakhsh was the mutawalli of the said mosques but that during his life-time the defendant had relieved him of the management of the mosques and since then had remained in possession of the wakf property for a period of more than twelve years. The defendant admitted that he had been realising the rents of the disputed property but contended that he had applied the income 'on the objects of the wakf.'
4. The defendant did not deny that the property in suit barring three he uses was endowed property nor did he set up a claim adverse to the trust. It was immaterial for the purpose of the suit whether the two mosques were founded by Haji Qadir Bakhsh. The vital issues in the case were:
1. Did Qadir Bakhsh create a wakf in favour of these mosques?
2. Did he constitute himself a mutawalli during his life-time and direct the appointment of the plaintiffs as his successors to that office?
3. Are the plaintiffs entitled to recover the amount claimed or is the claim statute-barred?
5. The trial Court came to the conclusion that Haji Qadir Baksh had created an endowment in favour of the mosques by an instrument dated 28th April, 1910, that the plaintiffs were mutawallis of the said wakf and that they were entitled to the rents which had been wrongfully collected by the defendant. Upon these grounds the plaintiffs' suit was decreed. The defendant appealed. The lower Appellate Court did not try the issues of fact involved in the case and did not disagree with the findings of the trial Court. Apparently it assumed that a wakf had been created by Qadir Bakhsh and that the plaintiffs were the mutawallis de jure under the terms of the settlement.
6. The lower Appellate Court reversed the decision of the trial Court and dismissed the suit with the following finding:
The defendant has been in adverse possession of his office of mutawalliship (sic) for about 14 years and the suit was long time barred.
7. The plaintiffs impugn the correctness of this decision for a variety of reasons and it appears to us that their criticism is well founded. The plaintiffs did not sue for a declaration that they were the mutawallis of the trust property. Likewise they did not sue for possession of the office of the mutawalli. Article 120, Limitation Act, applies to suits of either description. Had the plaintiffs sought for one or the other or both of the aforesaid reliefs, it would have been open to the defendant to plead the bar of Article 120. The defendant did not plead in the written statement either the bar of Article 120 or the fact that he had been in adverse possession of the office of mutawalli for the statutory period of limitation. Reference has been made to para. 7 of the written statement and to the grounds of appeal and it is alleged that the defendant had specifically stated that ever since the death of Qadir Bakhsh, the defendant had 'held the office adversely to that of the plaintiffs.'
8. Paragraph 7 of the written statement is not free from vagueness and obscurity but it cannot, without straining the language, be construed to mean that the defendant had been in adverse possession of the office of the mutawalli. The only relevant paragraphs in the grounds of appeal are paras. 4, 5 and 7. These do not raise the plea of adverse possession to the office. The same remark would apply to the defendant's application dated 25th July, 1927. Particular stress has been laid upon Abdul Alim's deposition and upon his petition dated 6th August, 1926, in which has been admitted that the defendant has remained in possession of the wakf property ever since the death of Qadir Bakhsh. This does not amount to an admission that the defendant has been in adverse possession of the office of mutawalli. The defendant is after all the own brother of the plaintiffs. No private or pecuniary interest was involved in the administration of the property. There may have been negligence in not asserting their rights; but the plaintiffs were not completely remiss about their responsibilities. They got their names mutated in the Municipal records in 1917 and they had been uniformly paying the rates and taxes relating to the wakf property. We are clearly of opinion that the lower Appellate Court was not justified in finding 'that the defendant had been in adverse possession of the office of mutawalliship from 1912 up till now.'
9. The finding is at variance with the pleadings which have been completely misunderstood and rests upon a misreading of the evidence.
10. A suit for possession of the office of mutawalli is an action of a personal character and is not 'a suit for possession of any property. In personal actions, the Law of Limitation bars the remedy but not the right. Where the action for possession of the office is statute-barred, right to the particular wakf property is not necessarily extinguished under Section 28, Limitation Act, which is limited to suits for 'possession of property.' Bat a person in adverse possession of property claiming to he ld it as mutawalli does not prescribe for more than a mutawalli's right in such property and may acquire to that extent, the status of a mutawalli. The right to office and the right to possession of property are distinct jural concepts. The distinction has been kept in view in the explanation to Section 9, Civil Procedure Code. The scheme of the Limitation Act tends to show that the framers of the Act were not obvious of this distinction. In Rajah of Venkatagiri v. Isakapatti Subiah 26 M. 410 it was held1 that where a suit was barred in so far as it was for a declaration of rights to the lands, that bar affected only the remedy or relief by way of declaration and did not extinguish the right and title of the true owner of the property (pp. 416 and417 Pages of 26 M.--[Ed.].
11. In the generality of cases, the claim to the office of mutawalli and to the property appurtenant thereto go together and are inseparable. This would principally depend upon the terms of the foundation or settlement. It is possible that the claim, to the office and to the property appurtenant thereto may be barred by limitation. It is equally possible that the claim to the office of Mutawalli may not be time barred but limitation may hare run against the mutawalli as regards his right to the administration and possession of the property. In so far as the mutawallis suit to recover possession of the wakf property is barred his right to it will be extinguished.
12. If the plaintiffs are the mutawallis, they have a right to he ld the properties relating to the wakf and this right naturally extends to the appropriation of rents due from the tenants. If the plaintiffs are not the mutawallis, their suit must fail. There is some authority for the proposition that the defendant may, by lapse of time, by denial of title and by ouster, acquire a title to the mutawalliship: Debendranath v. Sefatulla : AIR1927Cal130 . The point does not arise in this case and we make no pronouncement on it. The defendant intended to plead in para. 7 of the written statement that his title to the wakf property had matured against the plaintiffs by lapse of time and continuous possession. He does not assert. a title against the endowment inasmuch as he admits that the property is held in wakf and that he has been spending the income on 'the objects of the wakf.' But he sets up his title to the possession of the property in opposition to the plaintiffs. The written statement has not been artistically drawn up and it is possible that the vagueness and obscurity of the language of para. 7 misled the lower Appellate Court in its appreciation of the pleadings.
13. We are clearly of opinion that the lower Appellate Court erred in reversing the trial Court decree upon a point which was not available to the defendant on the pleadings. The finding, moreover, rests upon a misappreciation of the evidence. The grounds upon which the appeal was filed have not been tried. We, therefore, allow the appeal, reverse the decree of the lower Appellate. Court and remand the case under Order XLI, Rule 23, Civil Procedure Code, with direction to re-admit the appeal under its original number and to dispose of it according to law. Costs here and heretofore shall abide the event. Costs in this Court will include fees on the higher scale.