Teja Singh, J.
1. This is a defendant's appeal from a decree of a Subordinate Judge first class, Delhi. Two declarations were claimed by the plaintiffs: (i) that the decrees in the previous two suits to which Seth Lakshmi Narain Godadia was a party were invalid, null and void because of gross negligence, fraud and collusion of the respective plaintiffs in those cases, and (ii) that the suit property, which consisted of a pushta (buttress) a drain and a godown, alleged to be the property of the Fatehpuri Mosque was wakf for the Muslims in general and was attached to and owned by the said Mosque. In order to be able to understand the facts and to appreciate the position of the plaintiffs, it is necessary to give a brief history of the Mosque, Serai Bangash, which adjoins the Mosque and belongs to Seth Lakshmi Narain Gadodia, as well as the litigation that ensued in respect of some of the property in dispute in 1935 and subsequent years.
2. The Mosque, which is one of the well-known mosques of Delhi City, takes its name after its founder, namely Malika Fatehpuri Mahal Begum, and was constructed during the reign of Emperor Shahjahan about 1650 A.D. The Serai was built daring the reign of Shah Alam by a dignitary of his Court called Sardar Faizullah Khan Bangash and was named Serai Bangash after him. It adjoins the Mosque in the western side. It appears that during the Mutiny of 1857 both the Mosque and the Serai were used by the mutineers and for this reason after the Mutiny had been quelled the British Government confiscated them.
3. In 1877, when Queen Victoria assumed the reins of the Government of India and had herself proclaimed as the Empress of India, the Government released the Mosque proper and made over its management to a Committee. There were a number of shops that were attached to the mosque. These were at first auctioned by the Government but later on they were repurchased and restored to the Mosque Committee. On 15th November 1903 the Committee was properly registered as a society. The Memorandum of the society has been properly proved and exhibited. It is Ex. D. 9 and will be found printed at page 1 of the paper book dated 16th March 1945, which for facility of reference would be described as volume III. (volume I comprises the pleadings and the evidence and volume II the documents proved by the parties. The other two paper books printed respectively on 2ith April 1945 and 14th May 1946 will be described as volumes IV and V). According to Clause (n) of the Memorandum of Association of the Mosque Committee, which was called the Managing Committee of the Patehpuri Mosque, Delhi, the objects of the society were inter alia, (1) to safeguard the interests of the Fatehpuri mosque and its dependencies and (2) to maintain the Mosque and its dependencies in decent condition. Originally the committee consisted of nine persons whose names are mentioned in para. 8 of Clause (n) of the memorandum. Of these only Haji Mohammad Ishaq, who appears at No. 8, is now alive. He figures as defendant 9 in the present case. 'The rest are dead. The society continued to function till 1948, when the Delhi Muslim Wakfs Act, 13 of 1943, came into force. It is common ground between the parties that the Act applies among others to the Patehpuri Mosque and according to Section 25 the superintendence and control thereof vests in the Sunni Majlis-e-Awkaf constituted under Section 5.
4. As regards the serai, it was auctioned under the orders of the Government on 11th March 1862 and was purchased by Mannu Lal and Baij Nath. On 4th September 1933 Narsing Das and others, the successors-in-interest of Mannu Lal and Baij Nath sold it to Seth Lakshmi Narain Gadodia, by means of the sale-deed Ex. D-71. The recital in this document is that the serai then consisted of 70 shops on the ground floor, a big courtyard and a number of rooms called balakhanas on the first floor.
5. In April 1935 Seth Godadia applied to the Municipal Committee, Delhi, for permission to rebuild the serai. The new plan was sanctioned by the committee in the month of October and Seth Gadodia started demolishing the old structure in February 1936. When the matter came to the notice of the Mosque Committee, it deputed some of its employees to report whether by demolishing his own structure Seth Godadia had not damaged some parts of the mosque and on the receipt of their report it resolved to institute a civil suit for the protection of the mosque property. The suit (No. 133 of 1936) was actually put in Court on 24th April 1936. The plaint is Ex. P. 46, printed at P. 9 of vol. II. The allegations made by the committee were that alongside the western wall of the mosque was another wall which served as a pushta (buttress) of the first wall and on the top of the buttress ran a drain into which fell the water of the western rooff of the mosque. It further alleged that Seth Gadodia had demolished the drain and the pushta to the extent of 2 feet at some places and had constructed his own wall in place of the demolished pushta and at places over the drain and had thereby caused 'gross desecration' of the mosque. Paragraph No. 7 of the plaint, which describes the reliefs claimed by the committee, ran as below:
The plaintiffs pray that a decree for injunction, i.e. mandatory order may be passed against the defendant to the effect that he should remove the entire construction raised by him on the covered drain, that he should restore the pushta which has been dismantled, to its previous condition, that he should not, in future, interfere with the discharge of rain water of the roofs of the moeque, that he should effect such repairs to the drain as might allow the said rain water to fall into the old drain without any obstruction.
The committee also applied for a temporary in-junction against the Seth and this was issued by the trial Sub-Judge, Mr. Jalal-ud-din. On 5th May 1936, when the defendant put in appearance through a counsel, it was represented to the Court that parties were proposing to come to terms. The case was consequently adjourned to the next day and on that day to the 19th May. On both occasions Hafiz Abdul Aziz, who was one of the members of the committee and was also acting as a counsel for it, was present in Court. The case was actually compromised on 25th May and an application emobdying the terms of the compromise (EX. P-47) was put in Court on 22nd May. The terms were:
1. The six waterspouts of the Fatehpuri Mosque which at present discharge rain water towards Serai Bangash, shall continue to discharge water as before. The Patehpuri Mosque shall enjoy the right of easement with respect thereto.
2. The defendants shall make arrangement for the discharge of rain water (from his property) by means of pipes or in any other way without causing any damage to the western wall of the said mosque.
3. The parties shall bear their own costs.
6. The suit was decreed in favour of the mosque committee in the terms of the compromise on 22nd May 1936. It may here be mentioned that the following were the members of the mosque committee at the time the suit was instituted and compromised. Hafiz Abdul Aziz Vakil, Haji Rashid Ahmad, Mir Paiz.ul-Hasan, Mufti Kaifayat Ullah, Haji Abdul Razaq, K.S. Mohammad Fazal-ud-Din, Haji Mohammad Ishaq, Sahibzada Aziz Ahmad, K.R. Sh. Aziz-ud-Din and Pir Shah Abdul Samad. Of these the last two either died or ceased to be members of the committee by the time the present suit was instituted. The others continued to be the members and were impleaded as defendants.
7. On 6th August 1936 Qari Hafiz'Mir Ata-ul-Rehman, Mohammad Sultan Ahmad Khan, Mohammod Yaqub and Mohammad Ran applied to the Additional District Magistrate, Delhi (Mr. R.S. Lewis) for proceedings being taken against Seth Gadodia under Sections 144 and 145, Criminal P.C. They alleged inter alia that Seth Gadodia had demolished the pushta of the mosque which existed towards the western side and he was constructing his own wall thereon and further that this action of his was likely to result in a breach of the peace. It was also mentioned in the application that the applicants had felt the necessity of starting the proceedings because the members of the managing committee of the Fatah puri Mosque were showing negligence in the matter.' On receipt of the application, and probably after taking the statements of the applicants, the Additional District Magistrate issued an ex parte injunction to Seth Gadodia calling upon him not to make any sort of construction on the site in dispute foresee week and to stop the construction which was being made. The Additional District Magistrate inspected the spot on 8th August. Seth Gadodia applied for the cancellation of the temporary injunction and the Additional District Magistrate accepted his prayer by his order dated 17th August 1936. He held inter alia that the applicants had no locus standi to start the proceedings as the were not the members of the managing committee of the mosque and that their application was an abuse of the process of Court. This was the second case.
8. On 21st October 1936 another application under Section 145, Criminal P.C., was made to the Additional District Magistrate by a man called Sharaas-ul Hassan who was an employee of the managing committee of the mosque. It is significant to note that Hafiz Abdul Aziz Vakil mention of whom has ban made above, appeared as Shams-ul-Hassan's counsel. In this application, it was stated that adjoining the pushta of the mosque was a wall which also belonged to the mosque and Seth Gadodia had pulled down that wall a day before the application was made and it was prayed that since there was serious apprehension of breach of the peace he should be prevented from causing further damage to the wall of the mosque. The Seth appeared in Court on 22nd November and put in a petition stating all the facts about the previous litigation and praying that the prohibitory order issued by the Magistrate stopping all further construction be rescinded. Shamas-ul-Hassan's application was ultimately dismissed by Mr. F.B. Pool who had in the meanwhile taken Mr. Lewis's place. His order (C.D. 7) appears at P. 105 of vol. II. This ended the third case.
9. The fourth litigation consisted of a Civil Suit (NO. 291 of 1936) instituted by two members of the managing committee of the mosque, namely, K.S. Haji Rashid Ahmad and Hafiz Abdul Aziz, on 9th October 1936. This was a suit for issue of a perpetual injunction against the Seth that he should not prevent the committee from constructing a passage three feet wide along the western wall of the Fatehpiiri Mosque Their allegations as contained in the plaint (Ex. P-14) were that one of the conditions on which 'the previous civil suit panding in the Court of Mr. Jalal-ud-Din was compromised was, that the Seth.
would make such an arrangement regarding the rain water of the western roofs of the Fitebipari Mosque falling on the pushta of the mosque as raigbt cause no damages to the western wall of the mosque and that the mosque would perpetually enjoy the said right of easement
that the said arrangement was to be made before the advent of the rainy season; that the Seth had pot only failed to comply with this term of the agreement but had, on the other hand, made another arrangement of a temporary nature on account of which the western wall of the mosque had been damaged and the water from the drain was percolating into the mosque and that it had become necessary for the committee of the mosque to construct an alley at least three feet wide aleng the western wall of the mosque, from Kttra Barian up to Khari Baoli, for the discharge of the rain water.
10. On 26th November 1936, an application was made on behalf of the plaintiffs for a temporary injunction that the Seth be restrained from demolishing any part of the western wall of the mosque during the pendency of the suit and a temporary injunction to this effect was issued by the Court on 19th March 1937 by Mr. S.A. Nasir, the trial Sub. Judge. Against this order of the Sub Judge Seth. Gadodia appealed to the District Judge, Delhi. On 5th August 1937, the parties' counsel stated that he had no objection to the continuance of the injunction regarding the wall, which was alleged to belong to the mosque, but he should be allowed to build a second wall at a distance of four feet three inches from the said wall. The plaintiffs' counsel agreed to this. The District Judge accepted the appeal and mo lined the injunction issued by the Sub-Judge in accordance with the settlement arrived at by the parties' counsel. The Seth put in a written statement in the Court of the trial Sub Judge on 14th December. 1936, wherein he denied the existence of the pushta or of any property of the mosque beyond and adjoining the western wall of the Mosque. He admitted that the previous civil suit brought against him' by the Managing Committee of the Mosque had been compromised, but added that the terms of the compromise were those mentioned in the petition put in in that case on 22nd May 1936 and he fully abided by them. He denied that he had in any way been guilty of the breach of the terms of the compromise or that the Committee had been given any right to construct alley. The case was eventually compromised on 25th October 1937, and according to the parties' wishes was consigned to the Record Room. Following is the relevant part of the application made to the Court for giving effect to the terms of the compromise:
According to the judgment, dated 22nd May 1936j passed by the Court of Mr. Jalal-ud-Din, Sub-Judge, 1st class, Delhi, the defendant shall make an arrangement regarding rain water of the western portion of Fatehpuri Mosque. He shall have the western wall of the Fatehpuri Mosque repaired and construct his own adjoining wall 13 inches wide throughout which shall be his property. Hence this application has been filed with the prayer that in view of this compromise the case brought by the plaintiff may be consigned to the record room. The parties shall bear their own costs.
Haji Abdul Aziz, one of the plaintiffs, signed the application for himself and on behalf of plaintiff 2. After this the Seth made another application to the Municipal Committee for permission to construct the other part of the Serai than the one that adjoined the Mosque, The Committee was very unhelpful and even obstructive. The Seth had, therefore, to knock the door of the civil Courts and it was only after he had succeeded in having the matter decided in his favour that the Committee allowed him to go on with his construction work. This, however, did not prove the end of his troubles, because one Saeed Ahmed put in a complaint against him under Sections 295 and 297, Penal Code on the allegation that he had insulted the feelings of the Muslim community by demolishing the pushta of the Mosque. After a protracted trial lasting for one year and two months the Seth was acquitted on 22nd November 1939.
11. While this criminal case was still pending, another civil suit (NO. 683 of 1938) was instituted against the Seth by Qari Mir-Ata-ul-Rehman and two others on 31st August 1938. They claimed that the pushta which the Seth had demolished belonged to the Mosque and prayed that he be ordered to demolish the wall that he had constructed on the site of demolished pushta. L. Ram Gopal Gadodia, the son of Seth Likshmi Narain Gadodia and the Managing Committee of the Mosque were impleaded as co- defendants with Seth Lakshmi Narain Gadodia. On 14th December 1938, on which date the case was fixed, for hearing, the plaintiffs absented themselves. So the case was dismissed in default. This was the sixth and the last of the previous eases which Seth Gadodia had to defend in connection with the Mosque property.
11. There was, however, another case which has an important bearing on the points involved in the present case. This suit (NO. 31 of 1939) was instituted on 18th April 1939 by Mohammad Shafi Mohammad Idris, S.M. Abflulla Shamim and Flafiz Mohammad Hasan against the ten members of the Committee under Section 92, Civil P.C., for the removal of the members of the Committee, for appointment of new members in their place and for accounts etc. It was alleged that among other things the members of the Committee had been guilty of neglect and dishonesty in the management of the Mosque property, inasmuch as they had allowed some of it to be damaged, encroached upon and possessed by strangers and had failed to take proper steps to safeguard and claim it back from the persons who had encroached upon or taken possession of it. It was also alleged that the compromise that the members of the Committee had entered in the civil suit pending in the Court of Mr. S.A. Nisir was prejudicial to the interests of the Mosque. The suit was resisted by the members of the Committee on almost all the points and as many as 22 issues were raised. The most important of them for our purposes are issues Nos. 12 and 18.
12. Whether the defendants have negligently and or dishonestly allowed properties belonging to the mosque to be damaged, encroached upon and possessed by strangers and have taken no proper steps to safeguard and claim such properties?
13. (a) Whether the compromise effected in suit No. 291 of 1938 decided by Mr. S.A. Nasir on 25th October 1937, was to the detriment of the interest of the waqf and the defendants other than defendant 1 suffered defendant 1 to make this compromise?
(b) Whether this compromise was made by defendant 1 in good faith?
13. The trial Sub-Judge (Mr. Ijaz Ahmad) holding that though there had been no dishonesty on the part of the members of the Committee, there had been mismanagement of the Mosque and great lack of suporvision over the accounts, passed a preliminary decree removing the members from the Management and directing that a scheme of the management of the uiaqf be framed and new trustees be appointed in place of the old ones. Both the plaintiffs and the defendants preferred appeals to the District Judge who disagreed with the finding of the lower Court as regards issue No. 12, but agreed with it on other points and dismissed the appeals on 26th November 1941. Against the decree of the District Judge the parties preferred cross-appeals to the High Court, Lahore. These appeals ware still pending when the suit out of which the present appeal has arisen was instituted, but they have since been decided by Beckett, J. whose judgment dated 12fch December 19U will be found in Volume IV.
14. The present suit was instituted on 26th October 1940 in the Court of the Senior Subordinate Judge. The plaintiffs are Sh. Mohammad Shafi Buri and Sh Mohammad Idris Bari who claimed the locus standi to bring the action because.
they were prominent members of the Muslim public, were old inhabitant of the city of Delhi, had all along been offering prayers in the Mosque and were interested in and concerned with the Mosque and the rights thereof.
There were altogether 12 defendants in the case, the first and the most prominent of whom was Seth Lakshmi Narain Gadodia. Then came the Committee of the Mosque as defendant 2. Defendants 3 to 9 and 12 were the members of the Committee who were still alive and defendants 10 and 11 are K.B.S.M. Abdullah and Shamas-u-Ulma Maulvi Abdul Behman who became the members of the Committee in place of Sh, Aziz-ud-Din and Pir Shah Abdul Samad. As has been mentioned above, the suit related to the pushta, the drain and the godown, which the plaintiffs maintained belonged to the Mosque but had been demolished and encroached upon by Seth Gadodia. Paragraph 2 of the plaint deals with the exact position of the pushta and the drain and the plaintiffs' allegations were that the pushta was at the back and adjoined the western wall of the Mosque; that it was 3 feet and 9 inches in width; that it ran alongside the whole of the western wall; that to the west of the pushta was the drain; that both the pushta and the drain belonged to the Mosque and that the godown was towards the south-west corner of the Mosque. A plan put in along with the plaint (Ex, P. 2) denoted the respective positions of the pushta, the drain and the go-down. To put it in clear words it was like this. First of all was the western wall of the Mosque. Next came the pushta, then the drain and last of all was the wall of the Serai. As regards Seth Gadodia's conduct the plaintiffs alleged that he had wrongfully taken possession of the land under the pushta and the drain, which were once the property of the Mosque and had made it a part of the Serai. In so far as the other defendants are concerned, the plaintiffs maintained that they had committed gross negligence in allowing Seth Lakshmi Narain Gadodia to take possession of the Mosque property and bad colluded with him in allowing decrees to be passed in his favour in the two civil suits, one pending in the Court of Mr. Jalal-ud-Din and the other in that of Mr. Section A. Nasir. They further maintained that because of the gross negligence, collusion and fraud of the members of the Committee the decrees passed in the above-mentioned two civil suits had no binding force and were liable to be declared null and void.
14. The suit was resisted by defendant 1 on almost all the points. He denied the existence of the pushta or of a separate drain or that the plaintiffs had any proprietary right therein. He also denied haying encroached upon any part of the land belonging to the Mosque or that the decrees passed in his favour in the previous cases were the result of the collusion between him and the members of the Committee. In the alternative he pleaded that even if it be found that there was a pushta or a drain that originally belonged to the Mosque, he had become owner of the land underneath them by virtue of; his own adverse possession and that of his predecessors-in-interest extending over more than 12 years. In addition he objected to the plaintiffs' locus standi to maintain the action as welt as to the form and frame of the suit, and maintained that the plaintiffs were debarred from raising the question of the ownership of the pushta and the drain because of the decrees passed by Mr. Jalal-ud-Din and Mr. S.A. Nasir, and that of negligence, fraud and collusion of the members of the Committee in respect of those cases by virtue of the decision in the case under Section 92, Civil P.C., which operated as res judicata. The other defendants also put in written statements challenging the plaintiffs allegations in so far as they related to them and also denying that defendant No. 1 had taken possession of or had been allowed by them to encroach upon any part of the Mosque property. The following issues were raised:
1. Whether the plaint is sufficiently and properly stamped?
2. Have the plaintiffs no locus standi to sue?
3. Whether the suit as framed does not lie?
4. Whether the particulars of fraud, collusion and gross negligence as stated in the plaint are insufficient? If so, what is its effect on the case?
5. Whether the suit is bad for misjoinder and nonjoinder of partiea[?
6. Whether the suit is barred by provisions of Section 6-of Societies' Registration Act?
7. Is the suit within time?
8. Whether there was any pushta, nala and a go' down belonging to the Fatehpuri mosque?
9. Whether the decrees referred to in paras 5 and 8 of the plaint were obtained by fraud, collusion and gross negligence? If so, what is its effect on the present case?
10. Whether the suit is barred by Section 11, Civil P.C. and the principles of res judicata?
11. Whether the plaintiffs are estopped from main? taining the present suit?
12. Has defendant 1 become the owner of the properties in suit by virtue of adverse possession?
13. To what relief, if any, is the plaintiff entitled?
14. Whether any of the parties is entitled to compensatory costs under Section 35(a), Civil P.C.
16. Issues Nos. 1 to 6, which related to technical points, were found for the plaintiffs and we are not concerned with them in appeal. Issues from 9 to 12 were found against the contesting defendant. As regards issue No. 8, the lower Court decided that the plaintiffs had failed to prove their allegations regarding the drain and the godown, but it had been established that there was a pushta and the same belonged to the Mosque. In the result the plaintiffs were granted a declaratory decree, as was prayed for by them, in respect of the previous two decrees-passed respectively by Mr. Jalal-ud-Din on 22nd May 1936 and Mr. S.A. Nasir on 25th October 1937 and also in respect of the pushta adjacent to the western wall of the mosque and it was ordered that the defendants should pay the plaintiffs' costs.
17. Seth Lakshmi Narain Gadodia is now the appellant before us. The plaintiffs have put in cross-objections. When the appeal and the cross-objections came up before us for hearing on 5th April 1948 there was no one to represent defendants 2 to 12 who had also been impleaded as respondents. Consequently, we ordered ex parte proceedings against them. Mr. Shamsher Bahadur, advocate, who had put in cross-objections on behalf of the plaintiffs-respondents represented to us that he had been, instructed by his clients not to put in appearance and prayed that he be allowed to withdraw from the case. In view of what he stated we had no other option but to accept his prayer and so we ordered that ex parte proceedings be taken against the plaintiffs-respondents also. On the same day, Mr. Har Dyal Hardy made an application on behalf of Sunni Majlis-e-Awkaf, constituted under Section 5, Delhi Muslim Wakfs Act, 1943, that the Majlis be added as a respondent and be allowed to take part in defending the appeal. Learned Counsel for the appellant did not contest the right of the Sunni Majlis-e-Awkaf to be brought on record. He, however, urged that it had no locus standi to oppose the appeal on merits. By our order of 6th April we allowed the Sunni Majlis-e-Awkaf to be added as a respondent but reserved our decision on the question raised by the appellant's counsel regarding its right of resisting the appeal on merits. Later on, after hearing further arguments and taking into consideration Section 37 of the Act we allowed Counsel for the Majlis to argue the whole case before us.
18. The first and the foremost question which I wish to deal with is what is the effect upon the present suit of the decrees passed in the previous three civil suits, namely, No. 133 of 1936, decided by Mr. Jalal-ud-Din, No. 291 of 1936, decided by Mr. S.A. Nasir and No. 31 of 1939, decided by Mr. Ijaz Ahmad. The fourth suit (NO. 583 of 1938), instituted by Qari Mir Ata-ul-Rehman and two others having been dismissed in default, must be entirely ignored. It was argued by Sir Tek Chand, learned Counsel for the appellant, that the decrees in the first two suits Nos. 133 and 291 of 1936, operated as res judicata and debarred the plaintiffs from agitating in this case the questions relating to the title of the mosque in the pushta and the drain. The trial Sub-Judge has dealt with this matter under the heading 'res judicata' and he has held that since the plaintiffs challenged the proceedings of the two suits on the ground of fraud and collusion, Section 44, Evidence Act, applied and if fraud and collusion were established the decrees in which the suits culminated would be inoperative. This is what he said on the point:
The first two suits ended in compromises which are being challenged in the present suit as fraudulent and collusive and may cease to exist on proof of the same. Therefore, on account of Section 44, Evidence Act the plaintiffs are entitled to avoid the effect of Section 11, Civil P.C. as far as judgments in these two suits are concerned: Venkataseshayya v. Kotiswara Rao A.I.R. (24) 1937 P.C. 1.
Putting the words of the Sub-Judge in a somewhat different form, his opinion appears to be that in case fraud and collusion were not proved, the decrees in the above-mentioned two suits would have the force of res judicata. This view, in so far as it relates to the first suit, is correct and is supported by ample authority. It is true that the present plaintiffs were not a party to that suit, but this would not make any difference, because the suit was brought by the managing committee of the mosque in the capacity of trustees and every person who is interested in the mosque would be bound by the decision of the case by virtue of Expln. 6 to Section n. Reference in this connection may be made to Piare Lal v. Shergir A.I.R. (25) 1938 Lah. 499 and Masjid Shahid Ganj v. Shiromani Gurdwara Parbandhak Committee Amritsar A.I.R. (25) 1938 Lah. 369. In Talluri Venkata Seshayya and Ors. v. Thadikonda Kotiswara Rao and Ors. A.I.R. (24) 1937 P.C. 1, cited by the Court below, a representative suit had been brought by some persons on behalf of public interest for declaring certain temples public temples and for setting aside the alienation of the endowed property by the manager thereof. A similar suit had been brought some years before the above-mentioned suit by two persons and it was dismissed on the ground that the temples were private temples and the property endowed to the temples being private property, the alienation thereof was valid. Their Lord, ships of the Privy Council observed that under Section 11, Expln. 6, Civil P.C., the plaintiffs in the second suit were deemed to be claiming under the plaintiffs in the first suit. The fact that the case was not decided on merits but resulted in a consent decree is also immaterial. At one time the view held was that a consent decree could not operate as res judicata because when the parties come to terms it cannot be said that the issues arising in the case are heard and finally decided within the meaning of Section 11. But this is no longer good law and it is now conceded on all hands that a consent decree hag to all intents and purposes the same effect as res judicata, and it raises an estoppel as much as a decree passed in invitum. This question was considered at some length by the Bombay High Court in Bhai Shanker Nanabhoy v. Morarji Keshavji 36 Bom. 283. See also, Mt. Said Khanam v. Said Muhammad A.I.R. (17) 1930 Lah. 487 From what I have said above about the allegations made by the mosque committee in its plaint in the first case (No. 133 of 1936), it will be clear that it definitely alleged the existence of the pushta and the drain and contended that the pushta as well as the drain belonged to the mosque, The consent decree did not say anything about the pushta and the drain and was confined to the right of the mosque to discharge water of their western roofs through the six spent. This means that the claim made on behalf of the mosque in respect of the pushta of the mosque was negatived and so long as the decree stands, it is not open to the mosque or other persons interested in the mosque to assert that right in any future litigation. As regards the second suit (No. 291 of 1936) the plaintiffs merely claimed the right to construct a passage towards the west of the mosque and did not raise any question relating to the ownership of the pushta, or the drain. So it cannot be said that the ownership of the pushta and the drain was a matter directly and substantially in issue in that case. My opinion, therefore, is that the decree passed in that case has no effect whatsoever upon the question of title raised by the plaintiffs in the present case.
19. Coming now to the third suit (No. 31 of 1939). I have observed above that one of the points taken by the plaintiffs was that the mosque committee had committed negligence and had been guilty of dishonesty and fraud, etc, in connection with the defence of the previous two civil suits, namely, No. 133 of 1936 and 291 of 1936. Issue No. 12 in the case merely referred to negligence and dishonesty and made no mention of fraud and collusion. But in order to find out what the real matter was directly and substantially in issue, we must read issue No. 12 in the light of the pleadings and if we do that, there cannot be any doubt that what the plaintiffs urged and what they wanted to establish was that the committee had colluded with Seth Gadodia in order to have a consent decree passed in his favour and had committed a fraud not only on the members of the Muslim community who were entitled to use the mosque and were interested in its welfare and property, but also on the Court. A perusal of the judgment of the trial Court and of the District Judge makes it abundantly clear that both sides were fully conscious of the points involved in the case and while the plaintiffs strove to establish negligence as well as fraud and collusion, the defendants, i.e., the members of the committee, did their best to controvert the plaintiffs' allegations and to establish that they had all along acted honestly, without any fraud or collusion. The trial Sub-Judge, while deciding issue No. 12, held that no dishonesty had been proved against the defendants and that they had been merely negligent. From this I conclude that he should be taken to have held that fraud and collusion had not been established either. The learned District Judge found against the plaintiffs even on the question of negligence. In the present case, the view of the Court below was that since the judgment of the District Judge was still under appeal to the High Court, neither his findings nor those of the original Court could operate as res judicata. But now the things have changed and the appeal having been finally decided by Beckett, J., the decision in the case cannot but have the force of res judicata. Beckett J., held in appeal that as regards negligence and dishonesty, they were questions of fact and he had no right to interfere with the findings of the District Judge thereon. Mr. liar Dyal Hardy argued that the decision of Beckett J. was erroneous and he was not right in refusing to go into the matter and giving his considered verdict on the points raised by the plaintiff's against the members of the committee. I have no hesitation in repelling this contention, because we are not sitting in judgment upon the decision of Beckett J. and it is not our business to pronounce any opinion upon its correctness. All that we have to see is whether the previous case has now been finally decided and once we find that this is so, we must give effect to it as regards the plea of res judicata.
20. The next question is whether the plaintiffs were able to prove that the decree in suit No. 133 of 1936, or the proceedings that resulted in the decree, were void and inoperative for the reason that the members of the committee had been guilty of negligence, fraud and collusion.
21. It is not denied that Section 44, Evidence Act, is the only provision of law under which a judgment or an order or a decree which is sought to be proved with a view to establish the plea of res judicata can be avoided. The words of section are:
Any party to a suit or other proceedings may show that any judgment, order or decree which is relevant under Sections 40, 41 and 42 and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.
It will be seen that the section makes no mention of negligence. Consequently no decree can be avoided on the ground of negligence, even if negligence be of a very serious character. In suits relating to public trusts, the Madras High Court once took the view that the position of a trustee was analogous to that of a guardian of a minor and since a decree against a minor could be set aside on proof of gross negligence of his guardian in the conduct of the case, the same principles would apply to suits by or against the trustees. This view has however been pronounced to be unsound by their Lordships of the Privy Council in Talluri Venkata Sexhayya and Ors. v. Thadokonda Kotiswara Rao and Ors. A.I.R. (24) 1937 P.C. 1. Their Lordships observed that the principle relating to negligent conduct of a former litigation by a guardian in the name of a minor is not applicable to the case of parties litigating on behalf of a public interest. The protection of minors against negligent actions of their guardians is a special one and the principle cannot be extended to cases of gross negligence by parties litigating on behalf of public interest. While dealing with the question whether negligence of any kind could be treated as fraud or collusion, this is what Lord Thankerton who delivered the judgment of their Lordships remarked:
The provisions of Section 11, Civil P.C., are mandatory, and the minor litigant, who claims under one of the parties to the former suit can only avoid its provisions by taking advantage of Section 44, Evidence Act, which defines with precision the grounds of such avoidance as found or collusion. It is not for the Court to treat negligence, or gross negligence as fraud or collusion, unless fraud or collusion is the proper inference from the facts.
22. It appears that the attention of the Subordinate Judge was drawn to this ruling of the Privy Council and he even conceded that 'gross negligence in itself is no ground for setting aside a decree', but he added a rider to this proposition by saying, 'unless of course it leads to the conclusion of fraud or collusion.' I am unable to say what be really meant by these words and I cannot understand how a conclusion of fraud or collusion can be inferred from gross negligence. Negligence is a negative act and consists of the omission to do something which a reasonable man guided by those considerations which or dinarily regulate the conduct of human affairs would do. Fraud and collusion, on the other hand, are positive acts committed with the object of deceiving or injuring some one. In Webster's New International Dictionary the legal meaning of the term 'fraud' is given in the following words:
An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to biru, or to surrender a legal right; a false representation of a matter of fact (whether by words or conduct) by false or misleading allegations, or by concealment of that which should have been disclosed which deceives and is intend^ to deceive another so that he shall act upon it to his legal injury.
23. Collusion is defined in the same dictitionary as
an agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law.
According to Wharton's Law Lexicon, collusion in judicial proceedings is a secret agreement between two or more persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purposes. It follows from all this that when a person commits a fraud, or is guilty of collusion, he does so deliberately and with the intention of bringing about certain resuits, but in the case of negligence intention is absolutely wanting. It, therefore, appears to me that the plea of negligence is contradictory to that of fraud and collusion. I would even go further and hold that the plea of negligence on the part of the members of the committee is not relevant to the question of res judicata. Moreover, there is no evidence on record to prove that the members of the committee were as a matter of fact negligent in the discharge of their duties in so far as they related to the conduct of the suits in question.
24. This leaves us with collusion and fraud and each of them, when proved, could be a good ground for setting aside a decree. In the words of Wharton, collusion in relation to a judicial proceeding can be of two kinds, (i) when the facts put forward as the foundation of the sentence of the Court do not exist; and (ii) when they exist, but have been corruptly preconcerted for the express purpose of obtaining the sentence. No particulars of collusion were given in the plaint and it was not made clear in what manner the mem hers of the committee had colluded with the appellant whether they had instituted a sham suit with no intention of fighting it and with the object of having a valueless decree passed in favour of the mosque, or whether having brought a genuine suit they ultimately conspired with him to defeat the rights of the mosque by having the decree limited to the discharge of water through the spouts. There is not a title of evidence on record to prove a conspiracy between the members of the committee and the appellant, or that they were influenced by him in any way. The Subordinate Judge no doubt found the issue relating to the fraud and collusion in the plaintiffs' favour, but even his judgment does not show what the nature of the collusion was and how it was brought about. He came to the conclusion that the members of the committee had committed fraud and after having held this he inferred that there must have been collusion between them and the appellant.
25. These are the relevant words of his judgment:
Alter a very careful consideration of the circumstances that surrounded the two decrees and in the light of the judicial pronouncements in the matter, I am firmly of opinion that the consent on which they were based and consequently the decrees themselves were the outcome of fraud practised upon the mosque, the beneficiaries of its waqf and the Court. The said fraud could not have taken place unless it was preceded by collusion between the parties to the compromise.
26. Before I turn to the evidence which the plaintiffs examined to establish fraud, I consider it desirable to refer to the particulars of fraud as given in the plaint. In para. 6 it was mentioned that in the course of the proceedings relating to the first suit the true facts were kept concealed and it was practically shown that the puslita and the drain did not exist. Paragraph 7 was to the effect that the compromise decree passed in the first suit was kept concealed from the public, but in spite of this some persons came to know of it in 1938. Paragraph 8 related to the second suit i.e. No. 291 of 1936, and it was mentioned therein that though the committee instituted the suit 'for fear of the Mussalmans and getting apprehensive lest there should be a clash in case of a disclosure' they dishonestly, fraudulently and collusively relinquished whatever minor rights they had secured under the decree in the first suit and they practically showed that the mosque had no right to the property in dispute and further that the committee had concealed the truth. Paragraph 10 contained the following allegations:
(a) In spite of clear proof and the proprietary possession of the mosque, Seth Gadodia was allowed to demolish the property in dispute and raise a new construction on the site thereof.
(b) The mosque had been of old in proprietary possession of the property in dispute. The entire record, account books, minute books, etc., of the said mosque are full of proof relating to its ownership and possession of the property in dispute. In spite of this all the proprietary and possessory rights, aforesaid, were relinquished by the committee intentionally and without authority.
(c) The committee deliberately allowed Seth Gadodia to destroy the proof regarding mosque's possession and ownership of the property in dispute.
27. Putting all these things together, I think that the main allegations of the plaintiffs on the strength of which they intended to prove fraud may be summed up as below: (1) That the members of the committee deliberately delayed starting proceedings against the appellant. (2) That they intentionally suppressed important documentary evidence which unmistakably proved that the pushta and the drain belonged to the mosque; (3) That they gave up the claim of the mosque of the pushta and the drain and had the compromise decree passed relating to the discharge of water from the spouts.
28. The Court below in its judgment has conceded that there was no direct proof either of fraud or of collusion, but has added that there were a number of circumstances from which fraud could be inferred. I agree that fraud, like any other fact, can be proved by circumstantial evidence and if the circumstances are such as from which no other inference except that of fraud can be deduced, it would not be right to throw out the plea merely because no direct proof of it was furnished. There are, however, a few fundamental principles that the Courts have laid down while dealing with the question of setting aside a decree on the ground of fraud to which I must refer before proceeding further.
29. It was held in Shidden v. Patrick (1854) 1 Mac 535 that a prior judgment cannot be upset on a mere general allegation of fraud or collusion; it must be shown how, when, where and in what way the fraud was committed. In Fateh v. Ward (1867) 3 Ch. A. 203 Sir John Bolt L.J. observed that the fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case and obtaining that decree by that contrivance. To the same effect were the observations made by a Division Bench of the Calcutta High Court in Mahomed Hashim Ali v. Iffat Ara Hamidi Begum A.I.R. (29) 1942 Cal. 180. It was held in Bishen Singh v. Wasawa Singh A.I.R. (13) 1926 Lah. 177 that in order to obtain a reversal of the judgment given in a former case it is not sufficient for the plaintiffs to prove constructive fraud, but they must prove actual positive fraud. In Hans Baj Gupta and others v. Deradoon Mussoorie Electric Tramway Company Ltd. reported as A.I.R. (27) 1940 P.C. 98, it was held by their Lordships of the Privy Council that the party alleging fraud is bound to establish it by cogent evidence and suspicion cannot be accepted as proof. The other Privy Council case to which reference may be made is A.L.N. Narayanan Chettyar and Anr. v. Official Assignee High Court Rangoon and Anr. A.I.R. (28) 1941 P.C. 93, wherein it was observed by Lord Atkin that
fraud like any other charge of a criminal offence, whether made in civil or criminal proceedings, must be established beyond reasonable doubt. A finding as to fraud cannot be based on suspicion and conjecture.
30. Let us now turn to the evidence. In order to prove that the committee deliberately delayed the institution of suit or taking of any proceedings against the appellant, the plaintiffs relied upon some of the resolutions passed by the committee itself. The first (Ex. P-5) is dated 24th March 1936 by which it was resolved that the karkuns in consultation with two of the members of the committee should submit a report regarding the pushta of the mosque. The second resolution (Ex. P-25) is dated 20th April 1936. The words of the resolution are:
Robkar of Khan Sahib Maulvi Fazal-ud-Din regarding repairs to the wall and buttress and management of the buttress, which the owner of the serai wanted to demolish and regarding which there is a talk amongst the Muslim public, having been put up before the committee for consideration, it was resolved that the same be laid before the committee in the next meeting and that Haflz Abdul Aziz and Khan Sahib Mohammad Fazal-ud-Din should submit report after inspection of the spot.
[31. The report of Hafiz Abdul Aziz and Khan Sahib Mohammad Fazal-ud-Din came up before the committee in its meeting of 23rd April when it was decided to institute a suit and get an injunction issued. The plaintiffs' case was that the committee came to know on 24th March 1936 that the appellant had started demolishing his building and was damaging the pushta of the mosque, but in spite of this it did not take any action against him by way of a suit, etc., till for more than a month, during which the appellant removed the pushta and thereby destroyed a very valuable piece of evidence which could have helped the committee in establishing the title of the mosque to the pushta. Now taking into consideration the status and the position of the members of the committee, some of whom were respectable citizens of Delhi and occupied responsible positions in life, I do not think that any inference of mala fide can be drawn against them simply because they refused torush to Court and appointed a committee consisting of two of their own members to inspect the place and take a stock of the whole position. It is significant that almost immediately after the members of the committee had in their hands the report and they had reason to believe that some of the property of the mosque had been trespassed upon, they resolved to institute a suit and the suit was actually instituted on the following day. As regards the contention that the pushta was intact on 24th March 1936, when the demolition operations started by the appellant appear to have come to the notice of the committee for the first time and it was demolished during the period that elapsed between the meetings of the committee, it appears to me to be without force, because, as I shall show hereafter, if the pushta existed at all, part of it had been demolished and another part of it had been encroached upon and appropriated by the then owner of the serai before 1895.
32. As regards the alleged suppression of evidence, the plaintiffs depended upon seven resolutions passed by the mosque committee on different dates between 22nd March 1896 and 14th April 1907 (EXS. P. D./2 to P. D./6, P. 3 and P. 4), their position being that these resolutions proved the existence of the pushta as well as its ownership and that the committee intentionally refrained from producing them in Court. Whether these resolutions had any probative value and whether they were sufficient to establish the existence of and title to the pushta will be discussed hereafter. For the present I will assume that they were of great value as evidence. But in order that' it be held that the members of the committee were guilty of intentionally withholding them from the Court we must be satisfied that they were aware of them and of this the plaintiffs were not able to adduce any satisfactory proof. It must be remembered that it was in the year 1936 that the appellant started demolishing the old construction of the serai and it was then that the committee thought, or were made to think, that the property of the mosque had been damaged or encroached upon. The latest of the resolutions mentioned above was of 14th April 1907, the earliest being of 22nd March 1896. There is absolutely nothing on record to indicate that the members, of the committee, as it existed in 1936, had any knowledge of those resolutions. They were no doubt contained in the old proceedings books of the committee, but there was nothing which could have made the members of the committee ransack those books. Haji Rashid Ahmad, one of the members of the Committee, came into the witness-box and he positively stated that the committee was unware of the resolutions and I see no ground for disbelieving him. I wish to repeat here what I have said before that all the members of the committee were respectable, persons holding responsible positions in life, and it is not believable that they should have tried to defraud the Muslim community or to deceive the Court in a matter in which the person interested on the other side was a Hindu. There is abundant evidence that as soon as the appellant made preparations to rebuild the serai, for some reasons or the other he was made the target of Muslim agitation and certain interested persons, including the members of the local Muslim League, took up cudgels against the members of the committee and they were openly accused of neglecting the rights and interests of the mosque in the property attached thereto. A reference to the manifesto issued by the Election Board of the Muslim League of the Delhi Province (P. 49) would show that the first item of the programme of the Board was.
to make efforts to get that part of the Gadodia Building demolished which (according to the Board), had been constructed on the pushta of the Fatehpuri Mosque.
In the face of all, this is it conceivable that the members of the committee could have taken the courage of joining hands with the appellant in fraudulently sacrificing the interests of the mosque? It was alleged in the plaint that the members of the committee kept the Muslim community in dark legarding the outcome of the suits instituted by them and kept the result of the suits concealed. I have no doubt that this allegation was false. Apart from the detailed statement of Haji Rashid Ahmad, defendant, I may refer in this connection to the notices issued by the committee from time to time whereby they exposed the tactics of the members of the Provincial Muslim League and other agitators who had been running down the committee for their failure to protect the mosque property and invited them either to help them by supplying information or to take charge of the litigation, if they so desired, assuring them at the same time that if they did so the committee instead of opposing them will be prepared to give help to them. The following passage occurs in Ex. D 4/1:
If any Muslim rightly wants to place any information before the committee and invite its attention towards a point worth consideration, then the committee would be thankful to him and gladly prepared to consider the same. After legal advices has been obtained, remedy of every kind can be sought in a Court, if necessary.
The penultimate paragraph, of Ex. D 4/2 reads as below:
If the Muslim League wants to render service to the mosque and believes that the pushta was of the Fatehpuri Mosque and has been encroached upon, it may gladly take legal steps to secure it. The committee will not offer opposition but will render every possible help.
Among the persons who were participating in the agitation was included one Maulana Zafar Ali Khan, the editor of a well-know Muslim paper published from Lahore and once a member of the Central Legislative Assembly. It appears that he wanted certain information from the committee. The secretary of the committee wrote to him on 10th March 1938 (Ex. D. 69 is a copy of the letter) informing him that the committee was going to hold a meeting on Saturday 12th March 1938 and that he and his colleagues were welcome to come to the meeting and have the desired information. Surely this cannot be the conduct of persons who were bent upon riding rough-shod over the feelings of the community to which they belonged and the rights of the mosque of which they were the trustees.
33. With regard to the compromise arrived at between the members of the committee and the appellant in the first case all that is necessary to observe is that no inference of positive fraud can be raised therefrom. The committee had no evidence to prove that there was any pushta or that the same belonged to the mosque. If therefore persisted in the suit, it would certainly have lost it and would have made itself and probably the mosque liable for the appellant's costs. Instead of following that course, it had the wisdom to persuade the appellant not only to give up his costs but to admit the right of the mosque to discharge water of the spouts and to compromise the case with him on these terms. The Sub-Judge has observed that the members of the committee did not appear to him to have acted in good faith. I am unable to appreciate his view, but I also wish to emphasise on the authority of the rulings cited above that mere want of good faith cannot establish fraud. It only means that there was something suspicious in the conduct of the committee, but suspicion is not the same thing as positive proof. Accordingly I find that apart from the fact that the plaintiffs were debarred from agitating the question of fraud and collusion in this case by virtue of the decision in Section 92 Case, No. 583 of 1938, no fraud has been established even on evidence.
34. The next question is whether the plaintiffs. have proved in the present case that the appellant demolished or encroached upon the pushta of the mosque and made it a part of his own property. It need not be mentioned that in view of the questions of fraud and collusion having been found against the plaintiffs, this matter is res judicata, but since the Court below has given a finding thereon, I consider it desirable to-deal with this aspect of the case also.
35. I cannot help observing at this stage that the Subordinate Judge's approach to the case was wholly wrong and unjust. The onus to prove that there was a pushta and that the same belonged to the mosque was upon the plaintiffs. The Subordinate Judge dealt with the matter as if the burden lay upon the appellant and found it against him because he thought that the evidence produced by him was not reliable. He forgot that the plaintiffs could succeed only on the strength of their evidence and if that evidence was not trustworthy, or not sufficient for a finding in their favour, the fact that the evidence adduced by the appellant was weak or even perjured was immaterial.
36. As regards the plaintiffs' oral evidence, not much need be said. The only witness whose statement was worth consideration was Mr. Lewis, Additional District Magistrate, Delhi, who inspected the spot on 8th August 1936. He deposed that the punhta was four feet in width. Evidently he had no personal knowledge and was misled by the width of the foundations that had been dug out before he went to the spot. The other witnesses deposed to the existence of the pushta, the drain and the godown. According to them the drain ran alongside the whole of the pushta. The Subordinate Judge disbelieved them with regard to the godown and the drain and this fact by itself condemns their whole testimony. Undoubtedly they were partisan witnesses and had no regard whatsover for truth. The documentary evidence consists of two sets of the resolutions of the mosque committee, (i) from 22nd March 1896 to 14th April 1907 and (ii) from 24th March 1936 to 26th May 1936. The last two resolutions of the second set relate to the present suit and no importance can be attached to them. The remaining three resolutions (P. 5 of 24th March 1936, P. 25 of 20th April 1936(and P. 26 of 23rd April 1986) do not possess any probative value either. No doubt mention of the existence of the pushta is made in all of them, but in spite of that they are no more than the statements of the committee and since the interests of the committee and the plaintiffs are common, they amount to admissions and cannot therefore be proved. It was urged that Section 8, Evidence Act, was applicable, inasmuch as the statements contained in the resolutions were accompanied by the committee's conduct of holding the meeting. I do not consider it necessary to go into this matter in detail, because even if the resolutions were admissible in evidence, I would not be prepared to regard them of any value, because they were passed after the dispute had arisen and during the time when a section of the Muslim community were agitating about it. The first set of resolutions stand on a different footing. As mentioned in an earlier part of this judgment, they consist of Exs. P D/2 to P D/6 and P 3 and P 4. The appellant's learned Counsel argued (i) that they were not relevant being admissions of the committee, (ii) that they had not been properly proved, and (iii) that they were not genuine. I am not convinced of the strength of this contention. Exhibit P D/2 was passed in the presence of four members all of whom are now dead. The relevant words of the resolution are:
As regards the drain, which the owner of Soral Bangash built at the back of the mosque, Khan Bahadur Mohammad Ikaram Ullah said in the previous meeting that he would have a talk with the owner of the serai and communicate its result. But he has not so far given any reply. Hemo he should be requested, to communicate the settlement made with the owner of serai and to have a talk with him if he had not so far any talk with him.
I fail to see which part of it can be described as a statement or even an opinion of the committee. It referred to certain information given by K.B. Mohammad Ikram Ullah, but that bad no connection either with the existence of the pushta or the title thereto. Exhibit P D/3 is almost to the same effect as the previous resolution. It said that since K.B. Mohammad Ikram Ullah had not been able to arrive at any settlement with the owner of the serai, he should be asked to look into the matter. Exhibit P D/4 related to a purdah wall that the committee' wanted to construct on the roof of the mosque and while dealing with the matter the committee resolved that
arrangements should first be made regarding the drain constructed by the owner of the Serai Bengasi in the pushta of the mosque which caused great damage to the mosque.
and further that with respect to both the wall; and the drain two of the members of the committee be deputed to make proper proposals. The words to which the learned Counsel for the appellant objected were 'the drain constructed by the owner of the serai' and he contended that they amounted to a statement by the committee of the mosque that the pushta belonged to the mosque and the owner of the serai had constructed the drain in that pushta. This is no doubt correct, but the statement accompanied and explained the conduct of the committee which consisted of its holding the meeting and deputing some of its members to make proper! proposals and consequently it could be proved under Expln. I to Section 8, Evidence Act. Exhibit P. D/5 says nothing either about the pushta or the drain. The translation of it which appears at P. 42 of Vol. II of the paper book is wrong. The words of the resolution are:
The matter regarding the repairs to the back of the wall be postponed for the preset and it should be laid before the committee in the meeting when Haji Mohammad Ishaq is present.
The Urdu word is 'pusht' (back) and not pushta (buttress). I can see no objection to the admissibility of this resolution, though I agree that it has no value. Exhibit P. D/6 ran as below:
On the motion of Haji Mohammad 16haq regarding the pushta of the mosque it was resolved that the said matter should be laid before the committee in its next meeting inasmuch as there were not sufficient members in the meeting to consider this matter.
This too did not contain any statement and I do not understand how it is not admissible. Exhibit. P-3 was a resolution regarding alteration to be made in the pushta of the mosque and sanctioning Rs. 800 as cost. Exhibit P-4 was similar to Ex. P-3 with this difference that it sanctioned a sum of Rs. 42-6-6 in addition to Rs 800 sanctioned before for alterations in the pushta. Neither of them contained, or amounted to any kind of statement and I am of the opinion that they were both relevant, inasmuch as they were intended to prove that the committee had been spending money in the alteration of the pushta. As regards the proof of these resolutions, it is noteworthy that the first five of them were adduced in evidence by the appellant himself and it was he who got them produced. So it does not lie in his mouth now to say that their formal proof was wanting. Moreover, in case of Exs. P. D/2, P. D./3 and P. D/5, all the members who were present in the respective meetings in which they were passed are now dead and since they are properly entered in the proceedings book they should be held as formally proved. So far as P. D/4 and P. D/6 are concerned, out of the four members present when they were passed one is still alive and it has been proved that the proceedings relating to them bear the signatures of the living member. The same is the case with Exs. P-3 and p-4.
37. We have now to see whether these resolutions proved anything in the plaintiffs' favour. The plaintiffs' position was, and this is the view that the Sub-Judge has taken, that they prove two things; (1) that there was a pushta or a buttress towards the western wall of the mosque and (2) that the mosque committee on one occasion at least spent money in making alterations in it. The learned Counsel for the Majlis-e-Awkaf added to it another argument, that is, that the pushta could only have been constructed by the person who built the mosque with the object of protecting the wall and the land under the pushta must have belonged to the mosque. I do not find much force in these arguments. First of all there is nothing to show that what the committee described in some of its resolutions as pushta was really constructed as a pushta. It may be that because it consisted of a low wall and was contiguous to the western wall of the mosque which was fairly high, the committee came to regard it as a sort of buttress. As regards the alterations made by the committee in the buttress, we do not know what the nature of the alterations was. Exhibit P.D-2 would go to show that the then owner of the serai had constructed a drain in the buttress. There is evidence to show that in course of time, on account of the drain not being kept in proper repairs, the water percolated into the mosque. It is also in evidence that some of the spouts of the mosque discharged water into the drain. On consideration of all these facts, my opinion is that the pushta could not have belonged to the mosque; otherwise, the owner of the serai would not have been allowed to build a drain in it. The learned Subordinate Judge has observed that if the pushta did not belong to the mosque why would the committee incur expenses in keeping it in repairs. But he evidently forgot that since the water from the spouts of the western roofs of the mosque discharged into the drain which was constructed in the pushta, it was the duty of the mosque committee 60 keep it in proper repairs. Reference in this connexion is invited to SB. 24 and 25, Easements Act. Without doubt the mosque had an easement in respect of the discharge of water from the spouts of the roofs into the drain and it was therefore the dominant tenement. If the drain and the wall in which it had been constructed belonged to the owner of the serai, as I think it did, he was under no duty to maintain and keep it in repairs. It was in the interest of the mosque to adopt all those means which preserved for it the full enjoyment of its easement. The following passage occurs at p. 520 of the Law Relating to Easements in British India by Peacock:
As a general rule it lies on the dominant owner to carry out all repairs and to do all acts on the servient tenement necessary for the use and preservation of his easement and to bear the expense of so doing.
This is in accordance with the English Law. Twisden, J. observed in Pomfret v. Ricroft:
Where I grant a way over my land, I shall not be bound to repair it'. Lord Mansfield said in Taylor v. White head: 'By common law, he who has the use of a thing ought to repair it.' So the fact that the committee of the mosque incurred expenses in connexion with the pushta cannot raise any inference that it did so because it was or considered itself to be the owner of the pushta.
38. I now turn to the evidence that the appellant produced in rebuttal. [After discussing the oral and the documentary evidence produced by the appellant his Lordship proceeded.] As regards the appellant's statement, it is correct that he is an interested party and it can be said that he would naturally deny the plaintiffs' allegations, but his averment that there never existed any pushta between his wall and the wall of the mosque, nor was there any separate drain intervening between the two walls is supported by documentary evidence of unmistakable character and it will be wrong to disbelieve him.
39. I, therefore, hold that the plaintiffs were not able to prove that there existed any pushta of the mosque and that the same was demolished or encroached upon by the appellant.
40. The last question that falls for determination relates to the plea of adverse possession put forward by the appellant. For the purposes of this plea we must assume that there was a pushta adjoining the western wall of the mosque and that the same belonged to the mosque. In spite of the allegation contained in the plaint that the drain and the pushta existed side by side, that is to say, the drain ran on the surface of the ground it has been conceded before us that the conditions on the spot are quite different. The wall, which according to the plaintiffs is the pushta wall, is at places only as high as the kothris of 'the serai. At other places, where balahhanas have been built on the kothris it rises up to the roofs of the balahhanas. The drain which has been constructed in the wall runs along the level of the roofs of the kothris. I have already shown that into this drain falls the water from the spouts of the western roofs of the mosque. In addition water from the roofs of the balakhanas of the serai also falls into it. The fact that there exists in the wall niches opening towards the serai and the rafters of the roofs of the kothris and balakhanas of the serai rest on it indicates that at the present moment the wall is the property of the owner of the serai for all practical purposes, subject of course to the right of easement of the mosque in respect of the spouts. The appellant's learned Counsel contends that these conditions have been in existence at least since 1895 before which the drain was constructed and in support of his contention he relies upon Ex. P. D/2, the resolution passed by the committee on 22nd March 1896. By referring to the words of the resolution which have been reproduced in another part of this judgment it will be found that the drain was then in existence. Presumably, it must have been constructed before the committee passed the resolution. The plan, Ex. D-81, taken together with the mortgage-deed of 10th March 1928 (Ex. D 7) establishes that the kothris as well as the balakhanas were constructed in or before the year 1928. In view of the position of the drain, I am inclined to think that it must have been built before the balakhanas, that is, some time before 1928. If the wall was originally only as high as the roofs of the kothris or even lower, the superstructure on it must also have been raised about that time. Mr. Hardy argued that the mere raising of the height of the wall, or constructing a drain therein, cannot constitute adverse possession and he relies in support of his proposition upon Arunachalla Chettiar v. Municipal Council of Mayavaram A.I.R (7) 1920 Mad. 193 and Gaya Prosad v. Bakya Manidasi A.I.R. (16) Cal. 297. The former case has also been followed by the learned Subordinate Judge. I am, however, unable to see what bearing it has upon the facts of the present case. There the dispute related to a drain which vested in the municipal committee. The plaintiffs contended that since they had been repairing the drain for over 12 years, they had become the owners thereof by virtue of adverse possession. The learned Judges while repelling the plaintiffs' contention observed that unless the enjoyment by the municipal committee of a drain as a drain is prevented openly as of right, there can be no adverse possession against the municipality. In the present case, the appellant's predecessors-in-interest by raising the height of the pushta by constructing therein a drain in which they discharged the water of their own roofs and by opening niches for their own enjoyment and by resting the rafters of their roofs appropriated it entirely to themselves and thereby prevented the mosque from exercising the rights of ownership in the wall, if it had any. In the Calcutta case it was held that for claiming adverse possession the entry upon land, in order to be an assertion of hostile title, must be an entry as an owner and since in the present case the owners of the serai have been in possession of the pushta and have been using it as exclusively their own the ruling instead of going against the appellant helps him. Mr. Hardy also relied upon Mt, Allah Bakhi v. Shah Mahomed Abdul Rahim A.I.R. (21) 1934 P.C. 77, wherein them Lordships of the Privy Council observed that possession in order to be effective as adverse possession must be adequate in continuity, publicity and in extent to show that it is possession adverse to the competitors. In my opinion all these conditions are satisfied in the present case. The finding of the Court below that the mosque has remained in possession of the pushta and was never dispossessed of it till its demolition by the appellant is contrary to facts. If the pushta ever belonged to the mosque and it was in its possession, that possession came to an end before 1895 and since then the possession has been first with the predecessors-in-interest of the appellant and after that with the appellant. That the wall belonged to the mosque and was a part of wakf property is altogether immaterial, because it is now settled law that Limitation Act applies to wakf property as much as to private property. This is what their Lordships of the Privy Council observed in Mosque known as Masjid Shahid Ganj and Ors. v. Shiromani Gurdwara Parbandhak Committee A.I.R. (27) 1940 P.C. 116:
The rules of limitation which apply to a suit are the rules in force at the date of institution of the suit limitation being a matter of procedure. The Limitation Act of 1908 applies to immovables made wakf notwithstanding that the ownership in such property is said, in accordance with the doctrine of the two disciples, to be in God.
Accordingly I hold that the appellant's plea of adverse possession must prevail.
41. In the result I would allow the appeal, set aside the decree of the Court below and dismiss the plaintiffs' suit. I would also hold that the plaintiffs must pay the appellant's costs throughout.