1. This appeal is directed against the decree and judgment of the learned Third Assistant Judge of the City Civil Court, Madras, in O. S. No. 1147 of 1956. The plaintiff in the suit is the State ofi Madras represented by the Director of Government Transport, Madras. The suit property is room No. 1, South Block, Body Guard Lines, Transport House, Mount Road, Madras. The premises belonged originally to the Government of India, in the Military department. They were used as residential lines by the Body-guard sepoys of the Governor of Madras. In 1900, the premises were transferred from the Military Department of the Government of India to the Provincial Government. Sometime after 1900, the Muslim troops who then occupied the Body-guard lines created a small building in the compound for offering prayers. Another small building was also put up for the residence of the Mullah who offered prayers. In or about 1904-1905, the new lines of buildings called Sepoys' quarters in three blocks, each block consisting off a number of rooms were put up by the Government of Madras to be used as quarters for the sepoys of the body-guard. Room No. 1 in South Block, the suit property, appears to have beeA occupied by Mohamed Sahib Quareshi, the defendant sometime after 1905.
2. The plaint alleged that this occupation was presumably with the connivance of the body-guards and sepoys who then occupied the quarters. In or about 1947, the necessity for the body-guards of the Governor to reside in the suit premises ceased. The body-guard lines were handed over to the StateTransport Department of the State of Madras, and they used it thereatter tor housing the Transport department and also for various purposes connected with that department The plaintiff issued notices to the defendant to vacate possession of the suit property, in 1949 and again in 1951, but the defendant refused to deliver possession. A suit was filed for recovery of possession with damages and mesne profits.
3. The defendant in his pleadings alleged thus. The suit building formed part and parcel of the Mosque; it was necessary and indispensable for the beneficial enjoyment and maintenance of the mosque; the suit premises were granted for the maintenance of the mosque; the suit should have been filed against the mosque and not against the defendant who is the Mullah. The suit was also barred by limitation. The mosque is an old institution standing for over a century. In or about 1906 the muslim public including the muslim troops converted it into a pucca masonry structure, and for a long time before that, for over 60 or 70 years there was a temporary structure used as a mosque. The mosque is a public mosque wherein the public offer worship. It is a wakf. The building in the ocupa-tion of the mullah is part and parcel of the mosque, as aforesaid, and the Mullah occupied the suit property as part of his employment. The suit property was given in grant by the Government a century ago. So long as the mosque continues, the Mullah also has necessarily to reside in the same building. The claim for damages, for use and occupation was denied.
4. The learned City Civil Judge came to the conclusion that the defendant's occupation of the suit room could not have been for 60 years or more, and that therefore, the suit was not barred by limitation. Relying upon certain decisions he held that by long user if not by dedication the mosque has become wakf property under Muhamadan law. He came to the conclusion that since the purpose for which the mosque was built has not ceased to exist, the right of the defendant to reside in the suit property as part of his employment as the mullah of the mosque continued to exist. The defendant cannot be deprived of his right of residence by the plaintiff's action in cancelling the leave and licence or termination of tenancy. The Judge referred to the fact that the plaintiff in a prior ejectment suit treated the defendant as a tenant, and in another ejectment suit treated him as a licensee; and pointed out that the plaintiff was not sure of the character of the defendant's occupation. On these findings, the suit was dismissed with costs. The plaintiff has filed the present appeal against the above decision.
5. In the memorandum of appeal filed by the State of Madras, it was urged that the finding of the lower court that the mosque constituted wakf property was erroneous; in the alternative it was urged that, in any event, it should be held that the suit room was not a part of the mosque but was separate from it. The defendant and his predecessors were in occupation of the room only by the leave and licence of the Government, as a tenant, and that therefore, the plaintiffs suit should have been decreed. The learned Counsel for the respondent in the appeal urged that in the circumstances of thecase, the inference should be drawn that the mosque was wakf property, that the Mullah's residence formed an integral part of the mosque and, termed part of the dedication, and that consequently the defendant should not be evicted so long as he functions as the Mullah of the mosque.
At the time of the hearing of the appeal, the learned Government Pleader did not press the contention in regard to the mosque being dedicated as wakf property. The question that remains for consideration in this appeal is, whether, in the circumstances of the case, the residence of the Mullah could be considered to be one dedicated as wakf under Muhammadan law, or whether as contended by the plaintiff, the defendant was in permissive occupation of the premises and is liable to be evicted on the plaintiffs cancelling that permission by the successive notices issued to the defendant. There is no document which provides evidence either as to the grant of the property as wakf, or to the grant of permission to the defendant for occupation, the appropriate inference has to be drawn only from the evidence and the surrounding circumstances. The documentary evidence filed on the plaintiff's side shows that by successive orders of the various authorities under the Government, the. premises known, as the body-guard lines in the Mount Road, were transferred from the military department of the Government of India to the State Government of Madras, is the first instance for the use of the body-guard of the Governor of Madras, and thereafter for the use of the Transport department of the State Government.
The evidence of the defendant as D. W. 1, is material for the purpose of this case. On his own admission, he had been functioning as a Mouzin of the mosque in the body-guard lines, since his 20th year, that is nearly from 50 years ago. Before him, his junior paternal uncle was holding the office, and prior to the paternal uncle, his paternal grandfather was holding that office. Before him, his uncle resided in the suit property. Abdul Razack Sahib, the president of the mosque committee gave him the authority to occupy the suit building, for doing the work connected with the mosque. There was originally, a kacha building for the mosque built with mud and thatch, and the present construction was put up in 1904. Both the military officers and the public contributed for the construction. Prior to 1905, the sepoy lines consisted of a few rooms near the present Simpson and Co, and the defendant was also residing behind the present Simpson and Co. The Government rebuilt the present sepoy lines in 1905. At that time there were muslim sepoys in the body-guard lines; they recommended to the Commanding Officer, to give him a room. It was under these circumstances, that the defendant came to occupy the present room. Other rooms in the lines were occupied by the muslim sepoys.
There is nothing in writing to show that the Government gave him a grant or sanad for the suit property. If rented out the room will fetch a rent of Rs. 8 to 10. His attention was drawn to his earlier reply notices Exs. A. 5 and A. 6 wherein he admitted that he was willing to vacate the suil property if he was given alternative accommodation. It may also be pointed out that the presidentof the mosque committee to whom the plaintiff gave notice, sent a reply Ex. A. 27 on 24-8-1951, stating that the mouzim was appointed by the mosque committee, that he had been allowed to residein the lines near the mosque for the purpose of discharging the duties for the many years in the past,and that therefore there could be no question of revoking the leave or licence, by the Transport Commisisoner of the Government, as no leave or licence could be granted to the Mouzim of the mosque. It is, however, note-worthy that less than a month later, the same president of the mosque committee, in his notice Ex. A. 26 and Ex. A. 26(a) to the plaintiff, stated that the services of the defendant had been terminated, for the reason that he had been breeding goats and cattle in the place, that since his services were terminated he should not be permitted to occupy the premises any longer and that the Government could take necessary steps to remove him from the locality.
6. Though the defendant has stated in his pleadings that the mosque had stood in the present place for more than a century, the available evidence mentions 1904 as the year, when the mosque in its present form and in the present place wasput up by the muslim sepoys of the body-guard probably with some help from the public. The site was Government property. At or about the same time, the present sepoy lines were built. The evidence of the defendant would show that the muslim sepoys recommended to the commanding officer to give him a room. It could be presumed that the origin of the defendant's occupation of the suit room, was this recommendation by the Muslim sepoys in 1905, and the commanding officer acting on that recommendation gave him permission to occupy the room.
There is no evidence that any rent was collected from the defendant for his occupation, at any subsequent period. It can be inferred that this permission to occupy the room was granted for the period, when he performed services as mouzim of the mosque intended for the muslim sepoys of the body-guard. It is also in evidence that sometimelater when Hindu sepoys were drafted into the body-guard, a temple was built for their worship, somewhere in the same compound; there was a Poojari attached to the temple who was also given right of residence, but after the body-guard lines were taken oVer by the Transport department, this Hindu poojari left the locality. This was admitted by both the sides, during the hearing of the appeal, before us. The question for consideration is, whether in the above circumstances the suit room could be treated as part and parcel of the mosque, and whether if the mosque is considered as wakf property, the room occupied by the defendant should also be considered as wakf property. Since the Government have not challenged in these proceedings the position of the mosque as wakf property, the argument should be pursued on the footing that the mosque is wakf property.
In regard to the mosque, there is no proof ofactual dedication. The evidence of the defendantis that it was built by Muslim sepoys with the helpof the public and it was being used as such forabout 40 years. The decision in Miru v. Ramgopal, : AIR1935All891 states:
'Where the court finds that a mosque or a temple has stood for a long time and worship has been performed in it by the public, it is open to the court to infer that the building does not stand there merely by the leave and licence of the owner of the site, but that the land itself is a dedicated property and the site is a consecrated land, and is no longer the private property of the original owner'.
In the same case the Allahabad High Court considered the question whether non-muslim owners could endow a wakf. It held that there was nothing legally objectionable in non-muslim owners making a grant of land to muslims, & in that way enable muslims to build a mosque on such land. However in Madras, there is a decision of a Bench of this court in Venkatasubbarayadu v. Silar Sahib, 58 MLJ 524 : AIR 1930 Mad 582 which dealt with a property endowed by a Hindu zamindar. The court observed that in view of the long established practice, for persons in the position of zamindars, mittadars etc. to make endowments to provide for Muhammadan institutions, it was not proper to declare such endowments invalid on the ground that non-muham-madans could not endow a wakf under pure Mubam-madan law.
7. The question for consideration in the instance case is not so much whether the mosque is wakf property, as whether the suit property, room No. 1 in the Barracks lines which had been occupied by the Mouzim of the mosque from 1905 is a wakf property. It has been pointed out by Mulla in his 'Principles of Muhammadan law', 15th Edn. at page 166, after adopting the observations in Mohd. Shah v. Fasiuddin, (S) : AIR1956SC713 ,
'Where to the original mosque, which is proved to be a wakf property, an area is added by the mutavallis by way of construction of rooms and this area is used by the public for religious purposes along with the old mosque, then it must be regarded as one unit and treated as such. The whole becomes, accordingly, wakf by user'.
In the instant case, there is nothing to hold that the suit room forms one unit with the mosque. It is admittedly at some distance away from the mosque, and is not part of the mosque construction. It was used as the place of residence of the mouzim, given to him by way of permission, so that he could reside conveniently near the mosque. If that will, make the place of residence wakf property, it will surely be an extraordinary result, if a poojari occupies a house near a temple belonging to a private person, and if that person out of pious motives grants him permission to occupy free of rent, it will be preposterous to hold that the residential building after some time became part of the temple. That is the exact situation that has arisen in this case, where the mouzim claims a place occupied by him as residence, with the permission or the commanding officer, as part of the mosque and therefore, a wakf.
We are of the opinion that the principle of the decision under the Muhammadan law which lay down that a property like a mosque or a grave yard can become wakf by long user, cannot be extended to the property in dispute in the present case, i.e., the room in the sepoy lines which by the leave and licence of a third party had been oc-cupied by the Mullah or mouzim solely for the purpose of his residence. In this view, we are of the opinion that the decision of the trial court cannot be supported. The plaintiff is, therefore, entitled to recover possession of the property from the defendant.
8. The appeal is allowed and the suit decreedfor possession as prayed for. As regards mesneprofits, P. W. 1, the Assistant Engineer gave evidence that the property would fetch Rs. 20 as rentper month, but he has not supported his statementtoy giving any corroborative details. The defendant has admitted that the rent would be aboutRs. 8 to 10. We are inclined to accept the defendant'sstatement, and fix the quantum of damages, for useand occupation, at Rs. 8 per month for a pleriod ofthree years before suit. The appellant will be entitled to his costs throughout.Appeal allowed.