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T. Abdullah, Muthavalli of and as Representing the New Street, Mosque Vs. N. Abdul Samad Saheb and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Property
CourtChennai High Court
Decided On
Reported in(1970)2MLJ510
AppellantT. Abdullah, Muthavalli of and as Representing the New Street, Mosque
RespondentN. Abdul Samad Saheb and ors.
Cases ReferredSarongadeva v. Ramaswami
Excerpt:
- - it is accordingly claimed that the new street mosque never having been in possession of the properties for well over half a century, it is no longer entitled to lay claim to any portion of these properties. the demand notices by the municipality, the receipts for the payment of the licence fees and the house-tax and the like had been issued only to the old street mosque ;their was no document to establish that the plaintiff mosque was ever in possession of any of the suit items. the mode of enjoyment established by these tax receipts and the like from 1942 onwards at any rate was positive proof of the exclusion of the new street mosque from any share in the enjoyment. from all these and other like features, the learned subordinate judge held that the whatever title might have.....k. srinivasan, j.1. the plaintiff-appellant is the new street mosque and the principal defendant-respondent is the old street mosque in vaniyambadi town. abdullah claiming to be the mutavalli of the new street mosque sued for partition and separate, possession of 4/6th share in items 1 to 3 and for recovery of the entirety of item 4 of the plaint schedule and for profits, past and future. the plaintiff's case was that till about 1913, there was a common mutavalli of the two mosques, who was maintaining common or joint accounts and that after him, a similar state of things continued. it was said however that the plaintiff mosque was not properly looked after, so that in 1932, all the jamaths of vaniyambadi decided that a sum of rs. 50 should be paid by the old street mosque to the new.....
Judgment:

K. Srinivasan, J.

1. The plaintiff-appellant is the new street Mosque and the principal defendant-respondent is the old Street Mosque in Vaniyambadi town. Abdullah claiming to be the mutavalli of the new street Mosque sued for partition and separate, possession of 4/6th share in items 1 to 3 and for recovery of the entirety of item 4 of the plaint schedule and for profits, past and future. The plaintiff's case was that till about 1913, there was a common mutavalli of the two mosques, who was maintaining common or joint accounts and that after him, a similar state of things continued. It was said however that the plaintiff mosque was not properly looked after, so that in 1932, all the Jamaths of Vaniyambadi decided that a sum of Rs. 50 should be paid by the old street mosque to the new street mosque from out of the rent collections of the properties. This arrangement was however discontinued after some time so that when the plaintiff Abdullah was appointed as the Mutavalli for the new street mosque in 1955, he obtained the permission of the State Wakf Board to institute a suit for recovery of possession of the properties. The defendant old street mosque claimed, on the other hand, that one Naina Mohamed Kasim Sahib endowed certain properties as long back as in 1877 and 17 trustees were appointed to look after the properties on behalf of the old street mosque. Of them 14 died by about 1913. There was a scheme suit--O.S. No. 2 of 1928--in which a decree was passed and in that suit, the new street mosque was represented by the 14th defendant, its then mutavalli. All these suit properties were dealt with in that scheme suit as the properties belonging to the old street mosque and no objection was taken by the new street mosque thereto. In 1938 again, there was a suit--O.S. No. 14 of 1938--for the framing of a fresh scheme and a new scheme was framed. The defendant's contention accordingly was that right down from 1877, the old street mosque had always been in possession of the properties, so that its title thereto had become perfected by adverse possession. It was denied that there was any common management. In so far as the alleged meeting that was held in 1932 is concerned, the defendant mosque was not a party thereto, and whatever arrangement the other Jamaths might have sought to make could not bind the old street mosque, which was bound to carry on its affairs under the scheme that has been framed by the Court. It was also alleged that considerable improvements were made to the properties, such as by putting up structures for markets stalls and shops, by the old street mosque a fact which the plaintiff mosque itself concedes. It is accordingly claimed that the new street mosque never having been in possession of the properties for well over half a century, it is no longer entitled to lay claim to any portion of these properties.

2. The learned Subordinate Judge of Vellore framed a large number of issues. He found that the allegation that the two mosques were under common management was not established at all. He referred to the prior proceedings by way of scheme suits. He found that at no time was any title in the new street mosque conceded by any act on the part of the old street mosque. On the question of possession, there was no doubt whatsoever that it was only the old street mosque that was in possession of the properties. The demand notices by the Municipality, the receipts for the payment of the licence fees and the house-tax and the like had been issued only to the old street mosque ; their was no document to establish that the plaintiff mosque was ever in possession of any of the suit items. The mode of enjoyment established by these tax receipts and the like from 1942 onwards at any rate was positive proof of the exclusion of the new street mosque from any share in the enjoyment. From all these and other like features, the learned Subordinate Judge held that the whatever title might have originally existed in the plaintiff mosque was lost through adverse possession, it also not having been established that the plaintiff mosque was ever in possession of the properties within 12 years prior to suit. The suit was accordingly dismissed and this appeal is by the plaintiff mosque.

3. It is now necessay to enter into a discussion of the origin of title. It is admitted that in so far as items 1 and 2 are concerned, the defendant mosque obtained title thereto under Exhibit B-1, a document of the year 1877. It was executed in favour of a large number of persons by Naina Mohammed Kasim Sahib. It was a deed of gift in favour of the mosque situated in old Amburpettai for certain charitable purposes associated with that mosque. It is not in dispute that this document refers to items 1 and 2. The defendant mosque has no title deeds in respect of items 3 and 4 and relied only on the fact of its undisputed possession for a long number of years to resist the plaintiff's claim. In 1892, one Nannu Bi, wife of Khader Khan, executed a deed of sale of item 4 in favour of two persons, and the stipulation in the document was that this property should be used for the mosque in the ' aforesaid locality'. The plaintiff mosque claims that this is a document in favour of itself, though the document itself does not specify whether it is in favour of this mosque or that mosque. There being however no dispute on this point, we may take it that Exhibit A-4 was in favour of the new street mosque. The plaintiff also relies upon three documents, all of which were executed on 4th August, 1906 Exhibit A-1, A-2 and A-3. It is the plaintiff's case that the vendors under these documents were persons who were co-sharers in items 1 to 3 along with the vendor in Exhibit B-1 of the year 1877, which was in favour of the old street mosque. It is said that Exhibit B-1 accordingly covered Naina Mohammed Kasim Sahib's share only, which extended to 2/6th and that the vendors under Exhibit A-1 to A-3 who were entitled to 4/6th share in the property, purported to convey that share to Masthan Abdullah and two others on behalf of the plaintiff mosque. According to the plaintiff, two of these three vendees were persons who were trustees under the document, Exhibit B-1, and who were looking after the old street mosque. The plaintiff's claim was that the sale of the 4/6th share in items 1 to 3 in favour of those persons was the commencement of the joint management by the trustees of the old street mosque of properties belonging to and of the affairs of the new street mosque as well.

4. We may take it as settled that originally, the old street mosque obtained only Naina Mohammed Kassim Sahib's share of 2/6th in item 1 and 2 and that the remaining share of 4/6th in those items as well as item 3 was conveyed by the co-sharers to the persons who are said to have represented the new street mosque. In so far as item 4 is concerned, it was the full owner of that item who sold it under Exhibit A-4. According to the plaintiff, apart from the question of common management of the properties belonging to the mosque, the old street mosque having purchased only a fractional share in certain properties belonging to a co-sharer cannot claim to have established adverse title against other co-sharers or persons claiming under them, for whatever length of period the old street mosque might have been in exclusive possession of the entirety of the property. This argument ,of course, will not apply to item 4, for it was the full interest in the property which was purported to be conveyed under Exhibit A-4 let us assume it was in favour of the new street mosque but of which property the old street mosque alone continued to be in possession. In so far as that is concerned, the question would arise whether the possession of item 4 by the old street mosque, was on behalf of the new street mosque, so that the old street mosque could not claim any adverse title. In the case of the remaining items, the question would necessarily involve the extent to which an alienee of one co-sharer can set up a claim of adverse possession against the alienee for another co-sharer.

5. Having regard to all these facts, there is no doubt that the theory of common management is wholly unfounded and was rightly rejected by the Court below.

6. It appears to be a case to our minds, where a richer institution was induced to pay some small sums to a poorer institution of a similar kind. These proceedings cannot be taken as a recognition on the part of the old street mosque of any title in the new street mosque to any part of the properties in the possession of the old street mosque.

7. Coming to the question of possession, the plaintiff is unable to establish any incident of possession of the properties not merely within the last 12 years prior to suit but within a period covering more than half a century. As we said earlier, we shall distinguish the case of items I to 3 and of item 4. That the new street mosque originally claimed title to item 4 under the document Exhibit A-4 of 1892 is conceded. Though the document itself does not expressly refer to the new street mosque as the institution for whose benefit the document came into existence, there was no denial by the defendant of that fact. Nevertheless, right from the date of the execution of the document, that property continued to be in the possession of the old street mosque, undoubtedly treating that property as its own ; it was thus in open and continuous possession for well over half a century. As we said, the plaintiff also was unable to prove possession within twelve years except by the vague and unsubstantiated assertion that because the two institutions were managed jointly, the possession of the old street mosque should be deemed to have been on behalf of the new street mosque. The result follows that the plaintiff had lost its title to item 4 and the appeal in that regard must fail.

8. Turning to items 1 to 3, it is not in dispute that the old street mosque, the defendant, had no title deed in respect of item 3. The plaintiff mosque claims that in 1906, certain persons claiming to be co-sharers of 4/6ths in items 1, 2 and 3, executed the documents, Exhibits A-1, A-2 and A-3 on 4th August, 1906, conveying their fractional interest to the plaintiff mosque. In so far as items 1 and 2 are concerned, it is also not in dispute that Naina Mohammed Kassim Saheb gifted those items under Exhibit B-1, dated 23rd May, 1877. He purported however to gift the entirety of those items. The plaintiff claims that the vendee under Exhibits A-1, A-2 and A-3 were co-sharers of all the three items, items 1 to 3, along with Naina Mohammed Kassim Sahib, we shall assume that to be the case. But it is noticeable the defendant does not purport to claim any title in respect of item 4, either from Naina Mohammed Kassim Sahib or from any one else. It would accordingly follow that it has been in possession of this item of property presumably from 1877 down to the present time, notwithstanding that the vendors under Exhibits A-1, A-2 and A-3 purported to convey their fractional interest in items 1 to 3 to the plaintiff mosque in 1906. Since the defendant mosque did not derive its title from any co-sharer in so far as item 3 is concerned, its possession of that item must be equated to possession by a trespasser and the principles of law applicable to adverse possession by one co-sharer against another cannot apply to item 3. Since the facts establish that the possession of item 3 by the defendant mosque has been open and continuous and obviously hostile to the true owner for well over half a century prior to the suit, the claim of the true owner must be held to have been destroyed. It follows that the plaintiff cannot claim any relief in respect of item 3.

9. The case of items 1 and 2 stands on a different footing. The admitted position is that the vendor Naina Mohammed Kassim Saheb under Exhibit B-1 was possessed of only a 2/6th share in items 1 and 2, though under the settlement Exhibit B-1 he purported to convey the entirety of the items. In 1906, certain other persons claiming to be co-sharers along with Naina Mohammed Kassim Saheb purported to convey their interest under Exhibits A-1, A-2 and A-3. The claim of the defendant mosque is that the vendors of the plaintiff mosque had lost their title having been out of possession from 1877 onwards for over 12 years, so that by 1906, they had no surviving title to the properties in question. Even otherwise, it is claimed that since the defendant mosque alone had been in possession from 1906 down to the date of the suit, the plaintiff suing for possession has failed to establish that if ever had possession of the property within 12 years of the suit. This contention is again coupled with the claim of the defendant to have acquired title by adverse possession. Mr. Ahmed Meeran, learned Counsel for the plaintiff, however urges that in so far as co-sharers are concerned, the principle of law applicable to the destruction of a co-sharer's interest is different from that applicable to the case of a trespasser and his endeavour has been to show that for however long a period the defendant mosque might have been in possession of the properties, that possession must be equated to the possession of a co-sharer. It is well recognised that one of several co-sharers can be in possession and enjoyment of the common property in exclusion of the other co-sharers without affecting their interest in the property and unless the co-sharer in possession does something which operate as an ouster of the interests of the other co-sharers, the latter's rights cannot be destroyed. It should follow, according to the learned Counsel, that in this case, the fact that the old street mosque was in possession and enjoyment of the properties as representing one co-sharer cannot destroy the title of the other co-sharer, which had validly passed to the plaintiff mosque. The question is how far this broad principle applies to the facts of the present case.

10. It will be noticed that the contending parties to this case are not the co-sharers themselves but the respective alienees from them. The defendant mosque purported to obtain title to the entirety of items 1 and 2 from Naina Mohammed Kassim Saheb in 1877, and from that date onwards, the defendant mosque had been in possession. It is not the case of the plaintiff that when in 1906 certain other co-sharers conveyed their interest in items 1 and 2 to the plaintiff mosque, the plaintiff mosque obtained possession of its share. We have already dealt with the case of the common management of the mosques on the basis of which it was contended that the possession by the old street mosque must be taken to amount to possession on behalf of the new street mosque as well and agreed with the Court below in rejecting that claim. The undisputed fact, therefore, is that the old street mosque alone has been in possession of these two items openly and continuously for several decades prior to the suit.

11. The learned Counsel for the plaintiff-appellant has referred to a decision of the Supreme Court in Lakshmi Reddi v. Lakshmi Reddy : 1995(5)SCALE509 , where their Lordships observe thus:

The possession required must be adequate in continuity in publicity and in extent to show that it is possession adverse to the competitor....But it is well settled that in order to establish adverse possession by one co-heir as against another, it is not enough to show that one of them is in sole possession and enjoyment of the properties. The ouster of the non-possession co-heir by the co-heir in possession who claims his possession to be adverse should be made out. The possession of one co-heir is considered in law as possession of all the co-heirs. When one co-heir is found to be in possession of all the properties, it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. It is a settled rule of law that as between co-heirs, there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of a hostile title and continuous in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title....It may be further mentioned that it is well settled that the burden of making out ouster is on the person claiming to displace the lawful title of the co-heir by his adverse possession.

12. The above decision set out in broad outline the principles that should apply.

13. Mr. Ahmed Meeran next referred to Subahlai v. Fateh Mohamed : AIR1932All393 . That was a case where co-owner in asserting his exclusive title executed a possessory mortgage of the whole of the property. The mortgagee set up a claim to adverse title and in making up the 12 years' period sought to add his period of the mortgage to the period of occupation as vendee. The above decision was to the effect that when a person is in possession of the property in the capacity of a usufructuary mortgagee unlawfully against the true owner, the only title which he could secure by adverse possession is that of a mortgagee and if that title is perfected, he would be entitled to insist on being redeemed, but he could not, after a lapse of 12 years possession as a usufructuary mortgagee successfully claim to have acquired full proprietory interest. He can never acquire title which he did not profess to hold during his possession as mortgagee, in which event he cannot add his period of mortgage to the period of occupation as vendee in order to complete the 12 years' adverse possession as full owner. Only this title as mortgagee would be unimpeachable. That was a decision upon the facts of that case. The learned Judges point out that as between co-owners, one co-owner has no duty cast upon him to watch the conduct of another co-owner and that he is entitled to assume that the permissive nature of possession by one co-owner has passed to that co-owner's transferee. They also say that if the assertion of title to the whole is brought to his knowledge and it is accompanied by his ouster and exclusion, adverse possession would then commence as against him. This decision once again emphasises the nature of a co-owner's interest. There is no doubt the observation that an alienee from one co-owner cannot occupy a better position than the co-owner himself. If such alienee seeks to perfect title by adverse possession then the same limitations as apply to the case as between co-owners would apply. In Dipnarayana Rai v. Pondev Rai : AIR1947Pat99 , the learned Judges point out the classic requirements of adverse possession, viz., that the possession must be adequate in continuity and publicity and in extent and that it is sufficient if the possession is overt and without any attempt at concealment, so that the person against whom time is running, must, if he exercises due deligence, be aware of what is happening. Dealing with co-owners, they observe that there can be no adverse possession by one co-owner unless there has been a denial of title and ouster to the knowledge of the others and that the same principle applies to the case of a transferee from a co-owner, who professedly takes the transfer of the whole property from him and a co-owner's heir cannot stand on a different footing than an assignee, and that even in such cases, the person in possession ought to show that there was an ouster of which the co-owner had actual or constructive notice. In Halim Shah v. Rahimbux A.I.R. 1930 Oudh 475, it was held that a transferee from a co-owner becomes entitled to all the rights and subject to all the liabilities of his transferor and that being so, he becomes as much a co-owner as his transferor and the rule applicable to co-owners with regard to adverse possession is equally applicable to transferees from co-owners. Mr. Ahmed Meeran purports to contend that this principle of law has been ignored in the present case and it has been presumed that because a transferee from a co-owner was in possession, the factum of such possession for over twelve years was sufficient to constitute adverse possession against other co-owners. Reference was made by the learned Counsel to Mohamed Khaliba v. Mohamed Abdullah : AIR1963Mad84 , where a Bench of this Court pointed out that the mere fact of the alienation of the interest of the alienor, the co-sharer, will not amount to ouster or impress the possession of the alienee for the co-sharer with the character of adverse possession. The learned Judges reiterate the well recognised position that the mere non-participation in the receipts from the properties or mere non-action in respect of them for any length of time on the part of one or more of the co-sharers cannot be regarded as amounting to ouster. This decision docs not lay down any new principle. In common with the other cases, it only points out that there should be positive evidence of acts on the part of the co-sharer or the transferee from him claiming adverse possession, which would be inconsistent with any other co-sharer entitled to any interest in the property, and that the mere possession either by one co-sharer or an alienee from him is not sufficient for that purpose.

14. For the respondent, considerable reliance has been placed on a Full Bench decision of our High Court in Palania Pillai v. Ibrahim Rowther : AIR1942Mad622 . In this case, some co-owners usufructuarily mortgaged specific items of property held in common by the members of a Muhamedan family. The mortgagee entered into possession and was in such possession from 1920 onwards. The suit was filed by the other co-owners for partition of their share. That was in 1937. The plea was put forward by the plaintiffs in that suit that they had no knowledge of the mortgage and that limitation would not commence to run till they had acquired knowledge of it and it was in fact undisputed that they acquired such knowledge within 12 years of suit. When the matter came before the High Court, it was contended on behalf of the plaintiffs that unless the mortgagee proved exclusion of the other co-sharers, he cannot rely upon adverse possession and in view of the conflict of opinion, the question was referred to the Full Bench ; whether in such a case, the suit would be barred under Article 144 of the Limitation Act at the end of 12 years of such possession by the mortgagee, or does adverse possession begin only from the date of ouster to their knowledge. The Full Bench referred to Bavrao v. Rakhmin I.L.R. (1899) 23 Bom. 137, where the question was considered as to the possession of a purchaser from a coparcener. It was said therein that as such purchaser enters as owner and in right of his conveyance, his possession is adverse to the others as well. While conceding that a purchaser from a single coparcener does not get a title to the land conveyed to him but only a qualified title and that he is liable to be evicted if the coparceners take the requisite steps within the statutory period, nevertheless, this decision laid it down that his exclusive possession does not for that reason cease to be adverse. It was pointed out that '' adverse possession depends upon the claim or title under which the possessor holds and not upon a consideration of the question in whom the true ownership is vested, whether in a single person or in many jointly. These observations of the Bombay High Court found full approval with the Full Bench, who also referred to Jogendranath Rai v. Baldeo Das I.L.R. (1908) Cal. 961. In that case, the learned Judges observed that where a tenant in common puts forward the plea of adverse possession, much stronger evidence should be required in his case than in the case of a stranger doing so. A co-tenant must clearly establish that he has repudiated the title of his co-tenant and is holding adversely to him and that the fact of adverse holding should be brought home to the other co-owner either by information to that effect given by the tenant in-common asserting the adverse right or there must be outward acts of exclusive ownership of such a nature as to give notice to the co-tenant that an adverse possession and dissension are intended to be asserted. Agreeing with the observations of the Calcutta High Court in the above decision, the Full Bench of this Court expressed its view that while possession by one co-owner is in itself rightful and does not imply a hostility to the other co-owner, the position is different when a stranger is in possession and that the possession of a stranger in itself indicates that his possession is adverse to the true owners. After noticing the requirements of adverse possession that it should be adequate in continuity, publicity and in extent and that it should be overt and without any attempt at concealment, they proceeded to say:

When one of several co-sharers, lets into possession a stranger who proceeds to cultivate the lands for his own benefit, the other co-sharers must, unless they deliberately close their eyes, know of what is going on, but if they are so regardless of their own interests, they must take the consequences. Where a person who is in possession under a usufructuary mortgage granted by one of several coparceners remains in possession of land and cultivates it for years, a position which we have here, there can be no doubt that the requirements of continuity, publicity and extent for adverse possession are fully complied with....

15. It is the contention of Mr. Ahmed Meeran, learned Counsel for the appellant, that this decision requires reconsideration for it departs from the long line of cases which have laid down that mere possession by one co-owner or by an alienee from co-owner for however long a period it may be is not sufficient to constitute adverse possession. A careful examination of the decision in the light of the other cases which we have referred to does not convince us that this decision lays down any new principle at all. In that particular case, when a stranger was openly in possession for a long number of years, they proceeded to draw the inference that such open and continuous possession for a lengthy period would itself operate as evidence that the other coparceners should have had knowledge that their claims were being repudiated. No decision has laid it down that the fact that a hostile title was being set up should be brought to the knowledge of the other co-owners in any particular way. Indeed, as their Lordships of the Supreme Court point out in Lakshmi Reddi v. Lakshmi Reddy : 1995(5)SCALE509 , it does not mean that there should be a demand by one co-owner or a denial by the other. It is the cumulative weight of circumstances surrounding the possession that can give an unmistakable indication of the intention underlying such possession and whether such acts of exclusive ownership were not in themselves sufficient to bring to the knowledge of the other co-owners the existence of a claim adverse to their interests.

16. There is no dispute about the factual position. It has been sufficiently explained earlier. The defendant mosque purported to come into possession of the entirety of the properties by a sale deed which on the face of it conveyed the whole of items 1 and 2 to it in 1877. Assuming that in 1877 there were certain other co-sharers who were entitled to 4/6th share in items 1 and 2, they did not question the defendant mosque's possession (possession by a transferee from one co-sharer) though they must have been fully aware that a stranger was in possession of the property. In 1906, these other co-sharers purported to execute sale deeds conveying their interest to the plaintiffs mosque. It is abundantly clear from the evidence on record that the plaintiff mosque, which obtained the interest of some of the co-sharers, took no steps whatsoever to exercise its rights of ownership over that share, such as taking either actual possession or claiming such share in the income from the properties as it would be entitled to. It is even conceded by the plaintiff mosque that during this lengthy period from 1906, the defendant mosque put up valuable structures on the property, shops, markets, and the like, and according to the suggestion, which was not denied, there is a tablet in these properties indicating them to be the properties of the defendant mosque. It is also seen from the evidence that at least from 1941 onwards these properties have stood in the name of the old street mosque in municipal registers and other revenue records ; the payment of taxes and other items of revenue had been only by the old street mosque, the defendant. We have referred to the fact that in 1932, some claim to title were set up by the plaintiff mosque which went before some mediators. But this mediation did not settle any question with regard to title but was more or less an award made by certain Jamaiths, that is, persons representing several mosques in that area, seeking to put an end to a dispute between two mosques and suggesting that the bigger mosque should pay certain sum per mensem to the smaller mosque ; but this award did not either in terms or by implication say or show that this recommended payment was in any way referable to any right which the plaintiff mosque had in the properties. As we have pointed out, there is no evidence that any payments were actually made, for the defendant mosque was not a party to this arrangement. Where an alienee from one co-sharer who has been in possession of the properties has been acting in the manner as has obtained in the present case, there cannot to our mind, be any better evidence of ouster than this. It may be that one co-sharer is not expected to be critical of the actions of another co-sharer and is entitled to assume that the possession by the other co-sharer is in law equivalent to his own possession. But though an alienee who comes into the picture might stand in the shoes of his alienor the co-sharer, and the law as regards adverse possession as between co-sharers would also be applicable to the alienee, that is to say, that positive evidence of ouster of the contending co-sharer's title must be established, such evidence is available in abundant measure in the present case.

17. Nextly it was contended that the plaintiff mosque had no mutavalli till the appointment of the person now representing it in the suit and it was argued that till a mutavalli had been validly appointed, limitation against the institution cannot commence to run, and in support of this contention, Manickam Pillai v. Thanikachalam Pillai (1916) 4 L.W. 369, was cited. That was a case where the plaintiff and the defendant temples had a common trustee, on whose death, new trustees were appointed only for the defendant temple and not for the plaintiff temple ; for the latter, new trustees were appointed in 1900, and a suit was brought in 1911 by the trustees of the plaintiff temple to recover the lands which were in possession of the defendant temple all along. The judgment is a short one and it merely states thus:

Since however there was no properly constituted trustees of the plaintiff temple there was no person with knowledge of the acts of the defendants or capable of taking proceedings necessary for the protection of the suit property, and therefore, possession was not adverse till the appointment of the trustees in 1900.

18. It seems to us however that the facts in the present case are different. Whether a trustee as such had been appointed or not, it is clear that the Jamaith, which is the authority for appointing the trustee, purported to be in full knowledge of all the events, and it was the Jamaith representing the New Street Mosque that set up certain claims against the old street mosque, resulting in the award in 1932. The Jamaith would appear to be fully competent to manage the institution and the trustee only derives his power by virtue of an appointment made by the Jamaith. It would accordingly follow that the Jamaith itself could have instituted the suit and it cannot be heard to say that because it failed to appoint a trustee, the operation of the Limitation Act would remain suspended till it chose to do so. In a decision of the Supreme Court in Sarongadeva v. Ramaswami : [1966]1SCR908 , their Lordships dealing with a similar case, observe:

The math is the owner of the endowed property. Like an idol, the math is a juristic person having the power to acquire, owning and possessing properties and having the capacity of suing and being sued. Being an ideal person, it must of necessity act in relation to its temporal affairs through human agency.... It may acquire property by prescription and may likewise lose properties by adverse possession. If the math, while in possession of its property, is dispossessed or if the possession of a stranger becomes adverse, it suffers an injury, and have the right to sue for the recovery of the property. If there is a legally appointed Matadhipathi, he may institute a suit on its behalf; if not, the de facto Matadhipathi may do so...and where necessary, a disciple or other beneficiary of the math may take steps for vindicating its legal rights....With due diligence, the math or those interested in it may avoid the running of time. Running of limitation against the math under Article 144 is not suspended by the absence of a legally appointed Matadhipathi, clearly limitation would run against it where it is a managed de facto Matadhipathi...and we think it would run equally if there is neither a de jure nor a de facto Matadhipathi.

19. It was next contended that the period of limitation stands extended by reason of the public Wakfs Extension of Limitation Act XXIX of 1959. This Act is clearly of a very limited application. Section 3 of the Act, which extends the period of limitation, in certain cases for suits to recover possession of immovable properties belonging to public wakfs, applies where a person entitled to sue has been dispossessed or has discontinued possession ' at any time after the 14th day of August, 1947 and before the 7th day of May, 1954, or as the case may be, the possession of the defendant in such a suit has become adverse to such person at anytime during the said period.' In such cases, the period of limitation extends upto the 31st December, 1968. We are unable to agree that the case of the plaintiff mosque falls within the scope of this provision. To our minds, the possession by the defendant mosque had become adverse to the plaintiff mosque, in so far as items 1 and 2 are concerned, which as covered by Exhibit B-1 of the year 1877, within 12 years of that date. In any event, even assuming that the other co-owners purported to assert their claims by reason of the execution of Exhibits A-1, A-2 and A-3 in 1906, at least after the lapse of 12 years from that date; this was not a case where the plaintiff mosque was dispossessed or discontinued in possession during the relevant period or where the defendant's possession become adverse during that period. The plaintiff mosque lost its title to the property long before the period referred to in this provision.

20. It follows from what has been stated above that the plaintiff's suit was rightly dismissed. The appeal fails and is dismissed. Each party to bear its own costs in this appeal.


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