Teja Singh, J.
1. This appeal and Appeal No. 106 of 1943 arise out of a decree passed by a Subordinate Judge, first class, in a suit for possession. The facts briefly stated are as follows: One Shiv Nath Jogi bought 3 kanals 2 marlas of land from the Municipal Committee, Amritsar, on 27th January 1904. In course of time a well was sunk in the land and a number of buildings including a shiwala were also constructed thereon. On 10th September 1919 Shiv Nath sold about 1&farc14; kanals of land out of the above land that was still lying vacant to Ram Lal, Muni Lal and Gurditta Mal. The plaintiffs, who claim to be trustees and membsrs of the Sewa Samiti, Amritsar, instituted a suit on 13th July 1936 for declaration against Ram Lal, Muni Lal and Vishwa Nath son of Gurditta Mal who died by then, in respect of the land that Shiv Nath had sold to the first two defendants and the father of Vishwa Nath defendant. The suit was dismissed on 27th July 1937 on the ground that the plaintiffs not being in possession were not entitled to maintain a claim for a mere declaration. The present suit was instituted on 11th April 1939. The plaintiffs' position was that the entire land which Shiv Nath had purchased from the Municipal Committee on 27th January 1904, of which the site under the suit property was the part, was wakf, that the buildings and the well which stood in that land had been constructed by certain Hindus for the benefit of the Hindu community, that originally Bawa Shiv Nath was the trustee and the manager of the said wakf and on his death the office of the trustee and the manager devolved upon Bawi Sundari Nath, the chelk of Bawa Shiv Nath, and that on 18th March 1932 Bawi Sundari Nath relinquished all her rights in the plaintiffs' favour, with the result that the latter became the managers and trustees of the wakf property. The plaintiffs further alleged that the defendants had taken forcible possession of the suit land and their allegation that they had purchased the same from Bawa Shiv Nath was not correct, but also added that if there had been any sale on the part of Bawa Shiv Nath, the same was fictitious and without consideration and in addition was null and void against the Shivji Maharaj to whom the temple situated in the wakf land was dedicated and the Hindu community. The plaintiffs admitted that the defendants had erected certain buildings on the land in suit, but urged that the land being part of the wakf property and the sale in the defendants' favour being void, they had no right to put up any structures. In addition the plaintiffs contended that the buildings were erected by the defendants during the pendency of the suit for declaration and after the plaintiffs had obtained an injunction from the Court prohibiting the defendants from making any kind of constructions and even after the injunction order had been served upon them. On these allegations the plaintiffs prayed that they were entitled to a decree for possession of the suit land by demolition of the superstructures raised fey the defendants.
2. At first the suit was resisted by Muni Lal defendant alone. He joined issue with the plaintiffs on almost all the material points raised by them. He denied that Shiv Nath had created a wakf of the entire land that he had bought from the Municipal Committee or that any members of the Hindu community had constructed a shiwala or any other building of charitable character thereon. He also denied that either Bawa Shiv Nath or Bawi Sundari Nath had relinquished any rights in favour of the plaintiffs. In addition, the defendant denied that the plaintiffs had any locus standi to maintain she action and urged that the suit was barred by time. As regards the piece of land that was the subject-matter of the suit the defendant urged that he and his brothers had bought the same from Shiv Nath in good faith and for valuable consideration, and after having satisfied themselves that it was Shiv Nath's private property and he had the power to dispose it of. He further maintained that he and his brothers had constructed houses, etc., and had planted an ice machine on the suit land at a cost Rs. 50,000, and since they had done so bona fide, if the plaintiffs were granted a decree they should be made to pay the value of their constructions. Later on Ram Lal also joined Muni Lal in contesting the suit.
3. The trial Subordinate Judge framed the following issues: (1) Whether the plaintiffs have a loans standi to maintain this action? 2) Whether the suit is within time? (3) Is the property in dispute a wakf property dedicated to Shivji Maharaj for the benefit of the Hindu community and is that wakf a valid one? (4) If the above issue is decided in plaintiffs' favour, whether adverse possession can be claimed under the law relating to wakf property? If so, whether the defendants are holding the property in dispute adversely and since when? (5) Whether L. Muni Lal defendant has effected any improvement on the property in suit? (6) If so, of what value and whether the defendant can claim the same. (7) Whether defendants have purchased the property in suit from Bawa Shiv Nath Rai, and was he competent to make that alienation?
4. The first three issues were found for the plaintiffs. As regards issue 4, the Subordinate Judge held that though wakf property could be capable of adverse possession, the defendants possession over the suit property did not become adverse till Shiv Nath's death which took place on 30th November 1931. Issue 5 was decided in the defendants' favour and on issue 6 the finding of the Subordinate Judge was that the value of the buildings constucted by the defendants on the suit land was Rs. 15,000. In so far as issue 7 is concerned, the finding of the Subordinate Judge was that the defendants had purchased the property from Bawa Shiv Nath but the sale was inoperative, inasmuch as the property was wakf and Shiv Nath, who was a mere manager, had no power to transfer it without any necessity. In the result the Subordinate Judge granted the plaintiffs a decree for possession of the suit property, including the buildings, etc., standing thereon on payment of Rs. 5,000 to the defendants. As regards the machinery, etc., lying in the buildings the Subordinate Judge held that that could be removed by the defendants. Both parties have preferred separate appeals--Appeal No. 103 of 1943 is by all the three defendants and No. 106 of 1943 is by the plaintiffs.
5. The first question to be determined in connection with the defendants' appeal is whether the plaintiffs have succeeded in establishing that the suit land was part of wakf property. As I have indicated above, the allegation of the plaintiffs is that the wakf was created by Shiv Nath. The evidence adduced by them shows that Shiv Nath had a desire to construct a Deyasthan (temple) and an Aramgah (resting place) for sadhus and others and approached the Municipal Committee, Amritsar, to sell a piece of land to him for the purpose. The Municipal Committee acceded to his wishes and agreed to make available to him a piece of vacant land outside the walled City of Amritsar, near Lohgarh Gate, for Rs. 600. Since Shiv Nath had no funds of his own and was not able to raise the money by any other means he entered into an agreement with one Nand Lal who expressed his willingness to deposit the sale price with the Municipal Committee on the condition that Shiv Nath executed in his favour an agreement whereby he bound himself to create a wakf of the land which he proposed to buy from the Municipal Committee. On 11th October 1903 Shiv Nath and Nand Lal executed the agreement, Ex. P. 28, in which besides stating the fact that Shiv Nath purchased 3 kanala 17 marlas of land from the Municipal Committee for constructing a Devasthan and an Aramgah for sadhus and others and for the benefit of the Hindus in general, he declared that he would be bound by the following conditions:
1. The land aforesaid shall ever remain wakf for charitable purposes and for the benefit of the Hindus in general and I myself and after me, my successor who bears a good moral character shall serve the Devasthan that will be built on the said land.
2 During my life-time I and after me my successors shall cot be competent to mortgage, sell, gift or make a sankalp in any way in respect of the whole or part of the land or the building standing thereon. If any such transfer is made it shall be considered as illegal.
3. If I or any of my heirs or any other person wishes to construct any building on the aforesaid land it shall be built with the permission of the Lala Sahib during his life-time and after him with that of his legal heirs and that building also shall be considered as wakf.
4 Lala Sahib aforesaid and after him his legal heirs shall always be competent to supervise and look to the proper management of the land and the building thereon. I and my successors shall not in any way interfere therewith.
6. The plaintiffs claim to have proved that though Nand Lal had agreed to deposit the whole of the sale price with the Municipal Committee he deposited only one-half i.e. Rs. 250, and the balance was paid by one Puran Mal Mehra. The sale in favour of Nand Lal was completed on 27th January 1904 when the committee executed the sale, deed in his favour. The defendants made no effort to deny the genuineness of the sale deed which, in my opinion, was properly proved, but they objected to the admissibility of Ex. P-28 on the ground that it was not registered They also contended that the execution of Ex. P 28 has not been properly established. As regards the first objection, my opinion is that there is no force in it, because if we read the document as a whole it does not purport or operate to create or declare any right, title or interest in the land whether in the present or in the future. It is necessary to point out in this connection that though the document rtcitel that Nand Lal had purchased the land from the Municipal Committee, as a matter of fact no purchase had yet taken place, and all that appears to have happened was that negotiations had been started by Nand Lal with the Municipal Committee for the purchase of the land and the Committee had agreed to sell the land to him for Rs. 500. It may also be mentioned that according to the plaintiffs' evidence it was after the execution of Ex. P. 28 that Nand Lal and Puran Mal paid Rs. 250 each to the Municipal Committee on account of the price of the land. Now if we read the operative part of the document in the light of these facts it would be clear that the agreement between the parties was that after Nand Lal had bought the land from the Municipal Committee he would make it wakf and it shall remain wakf for ever and Nand Lal or his successors will have no right or power to transfer it in any way. Accordingly whatever rights were to accrue to Nand Lal by virtue of the agreement were to come into existence after the land had been bought and since the transaction relating to the sale of the land between the Municipal Committee and Nand Lal had yet to take place, the document does not come within the ambit of Section 17, Registration Act. This view is supported by Bhan Singh and Ors. v. Thakar Das and Ors. 89 P.R. 1908. In that case an agreement had been entered into between the parties providing the manner in which certain property should be divided between them in the event of their succeeding in purchasing the same. It was held that the agreement even though it related to the property of the value of Rs. 100 or more did not require registration. A Division Bench of the Lahore High Court followed this case in Dalip Singh and Ors. v. Jagat Singh and Ors. A.I.R. 1938 Lah. 721.
7. As regards the second objection, there does not appear to me to be any force in it either. The document is more than 30 years old and it was produced and acted upon in three previous cases to which reference shall be made hereafter. At the time of one of the cases Shiv Nath himself was alive and was a defendant, therein. The plaintiffs in that case definitely relied upon Ex. P-28 and Shiv Nath admitted its execution but tried to wriggle out of it on certain grounds. At present not only Shiv Nath and Nand Lal are dead, but so are the attesting witnesses. One of the plaintiffs (P.W. 20) went into the witness-box and stated that in spite of his and his colleagues' best efforts they were not; able to find out the whereabouts of the scribe. No effort was made by the defendants to challenge the accuracy of this statement. P.Ws. 6 and 12 identified the signatures of Nand Lal on the document. In view of all these facts I uphold the finding of the trial Subordinate Judge that the execution of Ex. P-28 was properly proved.
8. The question, however, is whether the document by itself is sufficient to prove the existence of wakf. On giving careful consideration to the matter I am of the opinion that the answer must be in the negative It is undoubtedly comet that at the time Shiv Nath persuaded Nand Lal to pay the Municipal Committee the price of the land which he proposed to buy, he represented to him that his intention was to create a trust of which he and after him his successors would be mere managers and the control of the trust property would be vested in Nand Lal and his successors. It is also true that at the time Shiv Nath executed EX. P-28 his intention was that after the land had been bought it would be mude wakf for charitable purposes and for the benefit of the Hindus in general as is stated in the document, but after all it was the plaintiffs' duty to go further and to show that Shiv Nath actually land really gave a practical shape to his intentions and wakf was created in fact. I have no hesitation in coming to the conclusion that in this the plaintiffs have failed. To start with it 33 significant that Nand Lal himself did not fully perform his part of the contract. Of course he paid half of the price of the land but no ex-planation is forthcoming for his failure to pay the other half, nor has it been explained why Puran Mal was brought into the piccureand was made to pay the balance. Now whatever be the reason for Nand Lal's failure to perform his part of the contract this much cannot be denied that be could not compel Shiv Nath to perform the part that he had taken upon himself, i. e. to create a wakf of the land. It is very difficult to say whether it was because of this or because of some other reason, that when the time came to complete the sale of the land Nand Lal had the sale deed executed in his own favour and not a mention in the document was made of the fact that the land had been bought for purposes of a wakf and Shiv Nath's position was that of a mere manager or trustee of the wakf. The perusal of the document Ex. P-3 makes me think that Shiv Nath was particular that there ahould be no indication in the document that anyone else had any connection with the bind or had taken any part in the sale, because it is definitely mentioned therein that the entire sale price was received from Shiv Nath and deposited by him in the treasury of the Committee. The bah entry Ex. P. 12, which the plaintiffs adduced in evidence is to the effect that the whole amount of Rs. 500 was paid to the Municipal Committee by Nand Lal and that out of this amount Puran Mal had paid Rs. 250 to Nand Lal. Now if this entry be correct, Nand Lal's anxiety to have it mentioned in the sale deed that the deposit of the price was made by him clearly indicates that he had changed his' mind and his intention was to treat the land as his private property.
9. The point stressed by the learned Counsel for the defendants was that in spite of the fact that Shiv Nath had got the sale deed executed in his own favour he allowed members of the Hindu community to sink a well in the land and to erect therein a number of buildings including a temple and he argued that Shiv Nath could not have done this unless he had set the land apart for charitable purposes. In the first place, there is no clear evidence on record to prove that the well and the buildings were raised by the members of the Hindu community. (His Lordship, after considering the documentary and oral evidence continued.)
10. The defendants appellants' learned Counsel contended that the plaintiffs have not been able to prove any positive evidence that the temple was constructed by Shiv Nath himself and suggested that it was probably raised by Bavi Sundari Nath after Shiv Nath's death. It is true that plaintiffs' evidence is silent on this point, but if we turn to the will made by Shiv Nath on 4th October 1924 (EX. D-19), which has been proved by the defendants themselves, it will be clear that the buildings existing on the land at that time included the temple which is described as a shiwala. This means that the shiwala came into existing during Shiv Nath's time. The learned Counsel for the plaintiffs argued that the mere existence of a shiwala is sufficient to show that not only the shiwala itself but the whole of the land round about it was wakf property. In support of his contention he referred us to a Bench decision of the Lahore High Court in Lachhman Das v. Arya Pritinidhi Sabha Punjab A.I.R. 1932 Lah. 603, The head note of that ruling reads as follows:
Where the question is whether certain property is wakf and has been dedicated to the thakardawara, the fact that the thakardawara was originally built out of public subscriptions is a strong piece of evidence in favour of endowment.I am constrained to say that the head-note is not properly worded and goes much beyond what the learned Judges held. The dispute in that case related to a part of the land out of a bigger plot in which stood a thakardawara. The question was whether the disputed part of the land was wakf. The District Judge inferred dedication of property from the following facts: (1) The building was used as a thakardawara in 1912 and has been used as such ever since. (2) The suit land was treated as appertaining to the thakardawara until recent years. (3) That the property passed from the guru to the chela. (4) That public fairs used to be held on the land round the temple. (5) That the land had never been used except for religious or public purposes. (6) That in the revenue papers the land was described as 'Ghair Mumkin Mandir'. The argument addressed to the learned Judges was that the above facts did not warrant an inference of dedication and that under Hindu law mere religious use of property was not sufficient evidence of dedication, because it is laid down in para. 438 of Mayne's Hindu Law that a religious foundation may be created by a founder who applies his own property for the purpose of the foundation, but keeps the property itself and the control over it absolutely in his own hands. The learned Judges of the Division Bench ob-served that the arguments had some force and if the established facts therein were sufficient to justify an inference of dedication they might prevail, but added that in addition to the facts upon which the District Judge had based his conclusion there were also other facts some of which were more cogent and must be taken into consideration in determining the question of dedication. Then they referred to a number of additional facts and concluded with the following words:
All these facts and in particular the evidence that the building was originally erected by public subscriptions, which is proof of more than mere user, are sufficient in my judgment to prove the endowment.Then in the present case there is no evidence that the shiwala was raised by public subscription, and no presumption on the point can be raised from the mere fact that at one time Shiv Nath was unable to produce Rs. 500 for buying the land.
11. It is well settled that all that is necessary for a valid endowment is that there should be appropriation of property for specific religious or charitable purposes. No writing is necessary to create an endowment, but the existence or nonexistence of a writing is a relevant factor. In the present case the absence of a writing is important, because Shiv Nath had given a written undertaking to Nand Lal and one would expect that after the land had been purchased a formal deed evidencing the creation of wahf would be drawn up and completed. The fact that Shiv Nath intended to create an endowment cannot be regarded as sufficient. It is mentioned in Section 407A of Mulla's Hindu Law that the mere execution of a deed, though it may purport on the face of it to dedicate property to an idol is not sufficient to constitute a valid endowment; and that it is necessary to the validity of a deed of endowment that the executant should divest himself of the property, and whether he has done so or not is to be determined by his subsequent acts and conduct. So far as Shiv Nath's conduct is concerned, I have already pointed out that the plaintiffs have failed to prove that he ever declared the land or the buildings standing there, on to be wahf property or treated them as such. On the other hand, there is positive evidence that he treated the land as well-as the buildings that stood thereon as his private property and openly declared them as such. Reference in this connection may be made inter alia to the two wills made by Shiv Nath respectively on 4th October 1924 and 19th July 1928. Both these wills are registered. The former Ex. D-19 was written by a petition-writer and wag witnessed by six persons, two of them described themselves as Sadhu-Beragis, one was a Sadhu Sanyasi, one a Jogi Sadhu, one a Sanyasi and one a Brahmin. The operative part of the will reads as follows:
My property consisting of Kothas and vacant site is situate outside Lohgarh Gate near Durgiana Tank.... The said vacant site was purchased by me from the Municipal Committee, Amritsar, and the Kothas, Samadhs and Shiwala were raised thereon by me at my own expense. I am in possession of the said property and can deal with it as I like.... I, therefore, declare by means of this will that so long as I am alive I will be the owner and in possession of my entire property mentioned above and will deal with it as I like, that after my death, Sarup Nath, my faithful chela, shall become owner and possessor thereof and that he shall enjoy all the rights in the said property like myself and shall deal with it as he likes.By the second will (EX. P-4) Shiv Nath cancelled the first will and bequeathed his property to his Cheli Bawi Sundari Nath. The following is the relevant part of this will:
Sundari Nath my cheli shall be my heir and successor after my death, respecting Mandir Shiv Nath Ji, situate in Amritsar, outside Lohgarh Gate,... No other person shall have any connection or concern therewith. As long as I live I will personally remain in possession of the said temple and look to its management. After my death the said temple and the other property left at the time of my death shall devolve upon Sundari Nath Darshni, my cheli, mentioned above.It is important at this stage to refer to Ex. P-2, the deed of trust, which Bawi Sundari Nath executed on 18th March 1932 and from which the plaintiffs claim to derive their right to manage the trust property and to maintain the present action. The document begins with the following, words:
A triangular vacant plot of land, measuring 3 Kanals and 2 Marias, situate in the area of Amritsar, outside Lohgarh Gate, within the Abadi... is owned and possessed by me without the partnership of any body, by virtue of a will in my favour, registered at No. 49 etc., on 19th July 1928, executed by Bawa Shiv Nath, who purchased the same exclusively with his own money, under a sale-deed, dated 27th January 1904, etc., etc.The document proceeds:
I have given in charity the said land to Sewa Samiti, Amritsar, for the spiritual benefit of Bawa Ji and myself. I appoint L. Jairam Das (here follow the names of four other persons) as trustees, i.e. managers. I hereby authorize the said managers....The subsequent part of the document deals with 'the purpose and the scope of the trust, the powers of the trustees and lays down the rule to be followed in case some of the trustees die or become unfit to work, etc. It will be seen that this document contains unequivocal declaration of two facts of outstanding importance, (1) that the land in question was purchased by Shiv Nath exclusively with his own money and (2) that by virtue of the will made by Shiv Nath in Bawi Sundari Nath's favour the latter, became sole owner of the property bequeathed to her. The defendants' learned Counsel maintained that in the face of the contents of the document the plaintiffs who base their right on the said document and are legally the successors-in-interest of Bawi Sundari Nath, are estopped from taking up any position inconsistent with what the document states and urging that the property was wakf. In view of the fact that this plea was not raised in the Court below and it is a mixed question of law and fact, I am not prepared to allow it to be raised in appeal for the first time. I cannot, however, help observing that the statements of fact contained in Ex. p-2(1) that the price of the land bought by Shiv Nath from the Municipal Committee was paid exclusively by Jhim, and (2) that the land was the property of Bawi Sundari Nath constitute an important piece of evidence against the plaintiffs.
12. The only other point that remains to be dealt with in this connection is the value of the decisions in the previous three cases. The cases are (1) No. 280 of 1921, Lala Shib Saran Das and Ors. v. Bawa Shiv Nath and Ors. suit for declaration, instituted on 12th August 1921 and decided by Bawa Kanshi Ram, Subordinate Judge 1st class on 10th August 1922 (Ex. p-26); (2) No. 525 of 1933, Jairam Das and Ors. v. Bawa Bam Nath suit for possession, instituted on 2nd December 1932 and decided by Khan Abdus Samad Khan, Subordinate Judge, Amritsar on 3rd May 1934 (Ex. P-19); and (3) No. 156 of 1937, Jairam and Ors. v. Mohan Lal, suit for declaration and injunction, instituted on 15th July 1936 and decided by Sardar Shiv Charan Singh on 8th June 1937; in the first case the plaintiffs' allegation was that the entire land that Bawa Shiv Nath had purchased from the Municipal Committee was wakf property and since he had sold a part of that land to defendants 2 to 7 it should be declared that the land was wakf and the sale in favour of defendants 2 to 7 was void. Only two issues were raised: (1) Whether the property was Dharamarth? (2) What relief the plaintiffs were entitled to? The first issue was found in the plaintiffs' favour and the plaintiffs were granted a decree that the land as well as the buildings standing therein were Dharamarth property. The defendant in the second case was Ram Nath who had taken the suit property from Shiv Nath on lease. The plaintiffs contended that Shiv Nath having died and the property being wakf they were entitled to eject the defendant. Ram Nath admitted that the property was wakf but resisted the suit on the ground that being the chela of Shiv Nath he could not be evicted by the plaintiffs. The issues in the case were: (1) Whether the plaintiffs were validly appointed trustees and managers of the temple and they could sue in their own names? (2) Whether the defendant could bold the property? Both these issues were decided in the plaintiffs' favour and a decree for possession was passed against the defendant. The house which was the subject-matter of the third suit was alleged to have been gifted by Shiv Nath to Mohan Lal defendant. The plaintiffs sued for declaration that the property being wakf the gift was void. The defendant denied the wakf nature of the property and also raised a number of other pleas. The Court held that the property was wakf and ordered the defendant to be ejected.
13. The present defendants were no parties to these suits and it is admitted that the properties to which these suits related, though parts of the land which Shiv Nath bought from the Municipal Committee, were distinct from the land which is in dispute in the present ease. In the Court below the plaintiffs went to the length even of denying the factum of the sale in the defendants' favour but the deed of sale (EX. D-8) dated 13th November 1919, which has been registered and has been properly proved by the witnesses, puts the matter beyond the pale of controversy. The allegation that the transaction was fictitious and without consideration is also without force. For these reasons the judgments in these three cases do not bind the present defendants. The trial Subordinate Judge has held that they are relevant under Section 13, Evidence Act. I think this finding of his is correct, but it means that the judgments are mere evidence of transactions in which the wakf nature of the property was recognised but no more. It was urged by the plaintiffs' counsel that since the judgments are relevant the Court can use in this case the entire evidence produced and the findings arrived at in the previous cases. I have no hesitation in repelling the argument as wholly devoid of force, and refer in this connection to the Privy Council decision in Gobinda Narayan Singh and Ors. v. Sham Lal Singh and Ors. . The question in that case related to the partibility of an estate and one of the parties relied upon a judgment in a previous case. The following observations were made by their Lordships:
The only way in which the respondents attempt to establish the partition is by reference to the proceedings in a suit instituted in 1793.... The Achra branch was not concerned in this litigation, but it was said that, as evidence of the Pandora estate being particle, the instance of Achra was vouched, and that the Court in that suit came to the conclusion that the Achra. villages had come to Thakurs' branch by partition, as is now alleged. It also appears that one Chand Mohan Singh, a grandson of Thakur Sib Singh, was called as witness in these proceedings to prove the partition. His deposition, in a mutilated state, has been brought on the record in the present case, and it is contended for the respondents that this judgment and deposition establish the partition as now in issue. Their Lordships are unable to accept this contention. They think that the judgment in question is only admissible under the provisions of Sections 13 and 43, Evidence Act, as establishing a particular transaction in which the partibility of the Pandara estate was asserted and recognised viz., the partition resulting from the 1793 suit. The reasons upon which the judgment is founded are no part of the transaction and cannot be so regarded, nor can any finding of fact there come to, other than the transaction itself, be relevant in the present case.This cafe was followed by a Bench of the Lahore High Court in Inayat Ullah Khan and Anr. v. Kanshi Ram and Anr. A.I.R. 1937 Lah. 437. I am not prepared to hold that the judgments relevant as they are as evidence of transactions are altogether valueless, but there being no other evidence in proof of the wakf I do not think I can find for the plaintiffs on this point merely on the strength of these judgments. The main reason why I have come to this conclusion is that out of the three cases real dispute regarding the creation of wakf existed only in one case and in the other two cases the existence of wakf was admitted. In the former case two points were stressed by the Subordinate Judge. One, that the price of the land had been paid into the Municipal Committee by Nand Lal and Puran Chand, and the second that in the revenue papers the land stood in the name of Shiv Nath, and according to para 89 of the Customary Law by Rattigan all property acquired by individual members of religious fraternity belongs, as a general rule, to the religious institutions to which they are attached. The first, as I have already pointed out, is contra dieted by the contents of the sale deed that Shiv Nath obtained from the Municipal Committee, the will dated 4th October 1924 and the trust deed which Bawi Sundari Nath effected in the plaintiffs' favour. It may also be pointed out that in the Subordinate Judgo's opinion Nand Lal and Puran Chand dedicated the land to charitable purposes, but the plaintiffs' position in the present case is that Shiv Nath created the wakf. This fact by itself reduces the evidentiary value of the judgment to almost nullity. About the second point, either the Subordinate Judge was under a confusion or the position taken up by the plaintiffs in that case was entirely different from that in the present case. Here the plaintiffs' case is that Shiv Nath created the wakf after he had bought the land and they never urged that he did so as a member of a religious fraternity or that the fraternity were attached to a religious institution.
14. For all these reasons I am of the opinion that the plaintiffs have not been able to establish the existence of wakf. In any case there is no proof that the plot of land that the defendants had bought from Shiv Nath in 1919 was wakf property. The plan exhibited in the case show that the defendants' plot lay to the extreme west of the rest of the land, and the well, the temple and the other buildings, which according to the plaintiffs were attached to the temple were at a considerable distance from it. There is ample evidence that in between the temple and those buildings on the one hand and the defendants' plot on the other existed huts, etc, and the plot was separated from those huts by a sort of a barricade. From this there can be no doubt that in whatever way the rest of the land, which in. eluded the plots to which the previous litigation related, might have been used, the plot now in dispute was never treated or regarded as wakf. My opinion, therefore, is that the first part of issue 3 should have been decided against the plaintiffs. The defendants' learned Counsel addressed very lengthy arguments to us on the second part of the issue also and urged that even if there was wakf of the suit property it was void because the purpose of the wakf was vague and indefinite. Since my finding is that even the existence of the wakf has not been established I do not consider it necessary to go into the validity of it, nor do I consider it necessary to say anything regarding the trust created by Bawi Sundari Nath on 18th March 1932 by means of Ex. p. 2, because it related only to the property which had devolved upon her on Shiv Nath's death and could not cover the suit land that Shiv Nath had sold during his lifetime and of which the defendants had been in possession as owners since 1919.
15. I now come to the first issue, i.e., whether the plaintiffs have a locus standi to maintain the action. The finding of the trial Subordinate Judge on this point is that the plain, tiffs are validly appointed managers of the wakf. In addition he has held that even if their appointment was defective they were entitled to sue for the possession of the property because they were de facto managers. After having found against the plaintiffs on the factum of wakf, all that I need say as regards the first finding of the trial Court is that the question of the plaintiffs being de jure managers of the wakf does not arise. There is, however, one additional fact that may be mentioned, i.e., the plaintiffs' appointment was not made by Shiv Nath, the alleged creator of the trust, but by his cheli Bawi Sundari Nath, and Bawi Sundari Nath had no authority under the law to appoint a manager. Let us assume for one moment that the property was wakf and that Shiv Nath was its manager. Let us also assume that after Shiv Nath's death Bawi Sundari Nath became the manager. The question is, could she transfer her right to manage the wakf property to the plaintiffs? For the answer we may turn to Section 420 of Mulla's Hindu Law which reads:
A sale by a shebait or mohunt of his right to manage debutter property is void, even though the transfer may be coupled with an obligation to manage the property in conformity with the trust attached thereto.The plaintiffs' learned Counsel contended that there was no evidence to show that the plaintiffs paid any consideration to Bawi Sundari Nath for executing Ex. P. 2 and consequently the transfer could not be regarded as sale and it is not hit by the principle propounded by Mulla. This, however, does not solve the plaintiffs' difficulty, because even if, we regard the transfer as gift it is void even then. The plaintiffs were strangers to the trust and in Sub-section (2) of Section 420, Mulla, after referring to the view of the Bombay High Court, says that a gift of the right of management made to a stranger is not valid unless it is sanctioned by custom. No custom is even alleged.
16. Before entering into the merits of the plaintiffs' claim that they are de facto managers of wakf it appears to be desirable to say a few words regarding the legal position, which was strenuously debated upon before us. The defendants' counsel contended that a de facto manager is no more than a trespasser, and he cannot sue for the possession of the trust property. His contention is no doubt supported by a few authorities. In Vedakannu Nadar and Ors. v. Nanguneri Taluk Singhikulam Annadana Chatram and Ors. A.I.R. 1938 Mad. 982, it was held by a Division Bench of the Madras High Court that there was no warrant for the conclusion that a de facto trustee, as such, has any locus standi to maintain an action on behalf of the trust. Abdur Rahman, J. observed, that after all, the position of de facto trustee is that of an intermeddler or a wrong doer (unless on the facts of each case a presumption can be raised in favour of being a trustee de jure) and he cannot confer any rights on himself by committing a wrong, although, as their Lordships observed in Matadin v. Ahmad Ali 34 All. 213, he may assume liability on account of this conduct. Venkatasubba Rao J. observed that a trustee de facto is really no other than what is known to law as a trustee de son tort and his position does not improve by describing him to be a trustee de facto. 'As a trustee de son tort,' said the learned Judge, 'he cannot be held to confer a right on himself to maintain these suits even if they are taken to have been instituted for the benefit of the charities.' This case was followed by a learned Judge of the same High Court in Atmaram Bad's Charity Estate represented by its Trustees v. Packiri Mohammad Rowther A.I.R. 1944 Mad. 171, wherein it was held that a de facto trustee was a trustee de son tort and was in no better position than a trespasser and so was not entitled to possession of the property alienated. Learned Counsel for the plaintiffs on the other hand relied upon certain observations of Lord Russell of Killowen in Mahanth Ram Charan Das v. Naurangi Lal , which, according to him, lay down the law that a de facto manager of a trust can maintain a suit for dispossession of a trespasser. The facts of that case were that Kampat Daa, who was the mahanth of the math executed a permanent lease of the land belonging to the math in favour of Naurangi Lal. After some time he executed a sale deed of the land subject to and with the benefit of the lease to Mt. Sampat Quer, After mahant Rampat Das's death one Sant Das took possession of the math claiming to be mahanth, but some-time later he surrendered all his rights to the plaintiff.' Lord Russell of Killowen while dealing with the facts of the case remarked as follows:
The plaintiff claimed that Kampat Das had died without leaving behind any disciple, and that in those circumstances he, as Mahanth of the Ramdih Baga Math, was entitled to take possession of the Paliganj Math (which was subordinate to a branch of the Ramdih Baga Math) and all properties appertaining to it. Their Lordships, however, are not now concerned with any question of title, because both the Courts below have found that the plaintiff is the person in actual possession of the Paliganj Math and as such entitled to maintain a suit to recover property not for his own benefit but for the benefit of the Math.17. In Mahadeo Prasad Singh and Ors. v. Karia Bharti the suit related to a village which according to the plaintiff appertained to a math. The plaintiff also alleged that he had been installed as mahant of the math upon the death of the previous mahant, and that the previous mahant had sold the village to the appellants without necessity.
18. The defendants raised two points before the Judicial Committee; first, that the plaintiff was not entitled to maintain the suit; and second, that the claim was barred by limitation. Their Lordships found against the appellants an both the points and as regards the first point this is what they said after referring to the facts:
In these circumstances their Lordships agree with the High Court that Karia was entitled to recover for the benefit of the math the property which belonged to the math and is now wrongly held by the appellants. They are in no better position than trespassers. As observed by this Board in Mahanth Ram Charan Das v. Naurangi Lal a person in actual possession of the math is entitled to maintain a suit to recover property appertaining to it, not for his own benefit, but for the benefit of the math.In Sri Radha Krishnaji and Ors. v. Rameshwar Prashad Singh and Ors. : AIR1934Pat584 , it was held that where a person is in peaceful possession of the properties of an idol, and manages them, he is de facto guardian; and though he has not been appointed manager in accordance with the terms of the endowment, he is competent to file a suit against a lessee for possession when he claims the property as belonging to the idol. In the face of these authorities and particularly the dictum of their Lordships of the Privy Council in Mahadeo Prasad Singh's case , I must hold with all the respect that the view of the Madras High Court cannot be regarded as sound and the correct position is that a de facto manager of a trust can sue for possession of the trust property provided the suit is not for his personal benefit but for the benefit of the trust.
19. The question now is whether the plaintiffs are the de facto managers of the trust. In the plaint they described themselves as trustees and members of the Sewa Samiti, Amritsar, their position being that Bawi Sundari Nath had made them trustees. But in the statement that Gian Chand, plaintiff 5, made as P.W. 20, he gave away the whole show. He deposed that Bawi Sundari Nath gave the entire property to Sewa Samiti by means of Ex. p. 2 and that the Sewa Samiti had been managing the said properties since March 1932. As regards the plaintiffs' status he averred that they were managing the property as trustees of the Sewa Samiti. Later on, Gian Chand stated that Bawi Sundari Nath was still working as pujaran of the shivala. The evidence that the plaintiffs examined in support of their contention that they were managing the property also goes to show that they acted not in their own right as the denominated trustees but as the agents of the Sewa Samiti, Amritsar. The preamble of Ex. P-14, the rent deed executed by one Sarju in respect of a vacant plot of land, which, according to the plaintiffs, forms part of the trust property is to the effect that the plot belonged to Amritsar Sewa Samiti and he had taken it on rent from the said Sewa Samiti through Lala Shiv Lal, who was one of the trustees of the Samti. To the same effect were the preambles of the other rent deeds such as Ex. P-7, dated 2nd December 1935, Ex. P-9, dated 15th August 1937 and Ex. P-16, dated Slat July 1938. Sent deed Exs. P-8 and P-10 are dated respectively 22nd April 1937 and 12th February 1938. They also contain the recital that the kothris to which they related were owned by the Sewa Jsamiti, In both of these transactions, the General Secretary of the Samti represented that body. From this it is clear that it is the Sewa Samti that is actually managing the property and not the plaintiffs and accordingly the Sewa Samti alone can bring a suit as de facto manager. It is not denied that at the time the suit was instituted, persons other than the plaintiffs were also members of the Sewa Samti. It is alleged that the Sewa Samiti is a registered body, but this cannot affect the case because, registration took place during the pendency of the suit and the plaintiffs have instituted the suit not on behalf of or in the name of the Sewa Samiti, but in their own names which they had no right to do. Accordingly, I set aside the decision of the Court. below on issue 1 and decide the issue against the plaintiffs.
20. The last question raised by the defendants' counsel was that of limitation. He contended that the suit was governed by Article 144, Limitation Act, and since Shiv Nath sold the land to his clients on 10th September 1919 alleging that it was his private property and the defendants have been in possession as owners since that day, the suit is clearly barred by time. The plaintiffs' counsel maintained that the article applicable was 134-B and not Article 144, which is a residuary article.
21. Article 134B applies to a suit by the manager of a Hindu, Muhammadan OB Buddhist religious or charitable endowment to recover possession of movable property comprised in the endowment which has been sold by a previous manager for a valuable consideration and limitation period is twelve years from the death, resignation or removal of the transferor. According to the defendants' counsel, this article is out of question because (1) there was no endowment and (2) even if there was endowment Shiv Nath transferred the suit land to the defendants not purporting to act as manager but as private owner. I do not think there is any. substance in the second point and if I were convinced that the property was wakf and Shiv Nath was the manager, the fact that while selling it Shiv Nath described it as his private property would not take the case out of the purview of Article 184B. The relevant words are, transfer by a previous manager and to hold that if the manager while making the transfer denies that the property is wakf the article cannot apply, would be to read in the article words like, 'manager as such,' which do not exist there. The defendants' counsel cited before us a number of cases, but all of them relate to the time before Article 134B was made a part of the Limitation Act by the Amending Act of 1929. This view of mine is supported by a Bench decision of the Lahore High Court in Abdul Qadir Shah v. Siraj-Ud-Din and Ors. A.I.R. 1937 Lah. 9 and by a Full Bench decision of the Madras High Court in Venkateshwara Sarma, styled Gnanasivacharia Swamigal Matadhipithi and Guru of Perur Mel Mutt v. S.N. Venkatesa Ayyar and Ors. A.I.R. 1941 Mad. 449. The real trouble in this case is that neither the suit land was wakf nor the plaintiffs could maintain the suit.
22. In the result I would accept the defendants' appeal, set aside the decree and the judgment of the trial Court and dismiss the plaintiffs' suit.
23. As regards the plaintiffs' appeal they merely raised the question of compensation which the lower Court allowed to the defendants for the buildings erected by thorn on the suit land. The defendants' appeal having been allowed and the plaintiffs' suit having been dismissed there is no question of the defendants' being paid any compensation. Accordingly, the plaintiffs' appeal fails ipso facto and must stand dismissed. In view of the peculiar circumstances of the case and the difficult nature of some of the questions involved I would direct that the parties shall bear their own costs in both the appeals and throughout.