Sir Lancelot Sanderson:
This is an appeal by defendants, and the representatives of defendants who have died since the institution of the suit, against the judgment and decree dated 24th July 1930, of the High Court of Judicature at Allahabad, confirming the decree of the First Subordinate Judge of Saharanpur dated 19th January 1927. The question which falls for determination in the appeal is whether the plaintiff's suit to recover possession of certain lands from the defendants is barred by limitation. Both the Courts in India held that, in view of the provisions of S.10, Lim. Act, 1908, the suit was not barred. The result was that the Subordinate Judge decreed the plaintiff's suit, and the defendants' appeal therefrom to the High Court was dismissed with costs. The plaintiff's case is that:
"the entire village Piran Kalliar Sharif, pargana and tahsil Rurki, district Sahanpur, has been made wakf of generation after generation and womb after womb from the time of the rule of the Moghal Emperors for the expenses of the dargah (shrine) of Hazrat Makhdum Ala-ud-din Ali Ahmad Sabir Saheb 'Quds-allah Sirrabulaziz' (May God sanctify his cause) situated in the aforesaid village and for maintenance of the Sajjadanashin of the shrine generation after generation and the plaintiff as Sajjadanashin is the manager of the wakf,"
and that all the defendants except certain named defendants are mujawars. It was alleged that the predecessors of the plaintiff settled the ancestors of the mujawars in the said village and the Sajjadanashin for the time being, in return for their services in connection with the shrine, allowed the mujawars to occupy the lands in suit, being part of the wakf lands, for their maintenance. The plaintiff is the present Sajjadanashin of the said wakf property, and the other parties to the suit were at one time mujawars i. e., servants of the shrine and their assigns. Both Courts have held, and it is not now disputed, that the entire village was dedicated in wakf for the maintenance of the above-mentioned shrine and for the maintenance of the Sajjadanashin. It appears that in 1758 the ancestors of the mujawars executed an agreement in favour of the then Sajjadanashin. This was obviously entered into for the protection of the wakf and as a safeguard against the assertion of any adverse title by the mujawars. The following passage therein is material as showing the relations and positions of the respective parties:
"We do not in any way interfere with the village or the monastery. The Sajjadanashin is owner of the entire village and the shrine. If hereafter we make any sort of claim, it shall be false under the holy Mahomedan law. We relinquish our right to the 100 bighas pukhta of amlak land and the half share of sugar and bread which had been given by the Sajjadanashin's ancestors to our grandfather, because the Sajjadanashins are the proprietors of the village and the monastery. If they allow us to continue to sweep the holy shrine, they are the proprietors, and if they dismiss us and appoint another to sweep it in our place they are the proprietors. We have no claim of any sort."
The Courts in India having held that the entire village was included in the wakf, that the
plaintiff was the Sajjadanashin, and that the defendants (other than their transferees) had been in possession of the lands in suit as mujawars of the shrine, came to the conclusion that the mujawar defendants could not set up adverse possession, although they had been dismissed from their appointment as mujawars of the shrine in 1898, i. e., about 18 years before the suit was brought, and had remained in possession of the lands in suit until the date of the suit, viz. 29th January 1926.
The ground of their decision, as already stated, was that S.10, Lim. Act, 1908, applied. The section is as follows:
" Notwithstanding anything hereinbefore contained, no suit against a person in whom
property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time."
Section 10 was amended by S. 2, Limitation (Amendment) Act, 1929, which provided as follows:
"2. In S. 10, Lim. Act, 1908 (hereinafter referred to as the said Act), the following paragraph shall be inserted namely:
‘For the purposes of this section any property comprised in a Hindu, Mahomedan or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose, and the manager of any such property shall be deemed to be the trustee thereof.' "
It was provided by S. 1 (2) that the said Amendment Act should come into force on 1st
January 1929. The suit, which is the subject of this appeal, was brought on 29th January 1926, and the question whether it was then barred by limitation must depend upon the law of limitation which was applicable to the suit at that time. The provisions, therefore, of the Amendment Act of 1929 are not applicable, and the question is whether the unamended S. 10, Lim. Act, 1908, is applicable to this suit.
In order to bring the suit within that section it would be necessary for the plaintiff to show that the lands in question had become vested in the defendants in trust for a specific purpose, or that they were the assigns of the sajjadanashin, in whom the lands had become vested for such purpose. Now, it had been held by this Board in the judgment which was delivered by Mr. Ameer Ali in Vidya Varuthi Thirtha v. Balusami Ayyar (1)at p. 312 (of 48 IA) that the Mahomedan law relating to trusts differed fundamentally from the English law. It was said that:
" It owes its origin to a rule laid down by the Prophet of Islam, and means ‘the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings.' When once it is declared that a particular property is wakf, or any such expression is used as implies wakf, or the tenor of the document shows, as in the case of Jewan Doss Sahu v. Shah Kubeeruddin (2), that a dedication to pious or charitable purposes is meant, the right of the wakf is extinguished and the ownership is transferred to the Almighty. The donor may name any meritorious object as the recipient of the benefit. The manager of the wakf is the muttawali, the governor, superintendent, or curator. In Jewan Doss Sahu's case (2) the Judicial Committee call him 'procurator." That case related to a khankah, a Mahomedan institution analogous in many respects to a math where Hindu religious instruction is dispensed. The head of these khankahs, which exist in large numbers in India, is called a sajjadanashin. He is the teacher of religious doctrines and rules of life, and the manager of the institution and administrator of its charities, and has in most cases a larger interest in the usufruct than an ordinary muttawali. But neither the sajjadanashin nor the muttawali has any right in the property belonging to the wakf; the property is not vested in him and he is not a 'trustee' in the technical sense."
After a reference to the provisions of S.10, Lim. Act, 1908, the judgment proceeds as follows, at p. 315:
" The language of S. 10 gives the clue to the meaning and applicability of Art. 184. It clearly shows that the article refers to cases of specific trust, and relates to property "conveyed in trust". Neither under the Hindu law nor in the Mahomedan system is any property 'conveyed' to a shebait or a muttawali, in the case of a dedication. Nor is any property vested in him; whatever property he holds for the idol or the institution he holds as manager with certain beneficial interests regulated by custom and usage. Under the Mahomedan law, the moment a wakf is created all rights of property pass out of the wakif, and vest in God Almighty. The curator whether called muttawali or sajjadanashin, or by any other name, is merely a manager. He is certainly not a 'trustee' as understood in the English system."
It was stated that the amendment hereinbefore mentioned of S. 10 of the Act of 1929 was effected in consequence of the above-mentioned decision. Their Lordships are of opinion that, in view of the above-mentioned decision (which apparently was not brought to the attention of the learned Judges who adjudicated upon this case), it must be held that the suit did not come within the provisions of S. 10 as it stood unamended at the time of the institution of the suit, and consequently that the decision of the Courts in India cannot be supported on the above-mentioned ground. It was argued by the learned counsel for the appellant-defendants that if S. 10 did apply to this suit, the defendants were assigns of the plaintiff for valuable consideration, and that therefore the section did not apply. In view of the above-mentioned conclusion of their Lordships, it is not necessary to express any opinion on this argument.
The learned counsel for the plaintiff, however argued that although the plaintiff could not succeed on the above-mentioned point, he could uphold the judgment of the Courts in India on another ground. It was urged by him that inasmuch as the defendants relied upon Art. 144, Sch.1, Lim. Act, 1908, it was necessary for the defendants to show that they had been in adverse possession of the lands in suit for more than 12 years prior to the institution of the suit. The learned counsel drew attention to the fact that issue 4 settled in the trial Court was as follows:
4. "Whether the defendants have been in possession for more than 12 years, and has their possession become adverse and proprietary, and is the suit therefore not maintainable."
and that the defendants had not succeeded in obtaining a decision in their favour on that issue by either of the Courts in India. It is clear that the learned Judges of the High Court did not decide this issue; they based their conclusion on S.10, Lim. Act, and therefore it was not necessary for them to go further. The learned Subordinate Judge referred to the said issue 4 and the question of adverse possession, but he too held that S.10, Lim. Act, 1908, was applicable to the case, and that therefore no question of limitation arose. In view of the absence of any findings by the Courts in India upon the above-mentioned material issue, their Lordships have considered whether the case should be remitted to the Courts in India in order that a specific finding might be arrived at in this respect. But having regard to the fact that the suit was instituted nearly eight years ago, that the value of the lands in suit is not very large, and that, as far as they are aware, no evidence, beyond what appears in the record, could be produced, their Lordships have come to the conclusion that the issue should be disposed of upon the evidence which is now before them. The main argument on behalf of the appellants in respect of this part of the appeal related to Art. 144 of the Schedule of the Lim. Act, 1908, and to the allegation that the possession of the defendant mujawars had been adverse for more than 12 years before the institution of the suit. The learned counsel for the appellants referred to Art. 139 as well as Art. 144. It may be noted at once that the appellant's plea of adverse possession is obviously inconsistent with the application of Art. 139, which relates to the case of a landlord suing to recover possession from a tenant. The grounds mainly relied upon as supporting the plea of adverse possession were as follows: In May 1894 the mujawars brought a suit against Zahur-ul-Hasan, who was then the Sajjadanashin, praying for a declaration that,
"the plaintiffs are the owners of two out of five shares in 20 biswas (i. e., the entire 20-
biswa village being divided into five shares, the plaintiffs are the owners of two of them)."
The plaintiffs claimed further to be mutwalis of the shrine of Ala-Uddin. The Subordinate Judge dismissed the suit. The mujawars appealed to the High Court of Judicature at Allahabad, which dismissed the appeal with costs in 1897. In 1898 Zahur-ul-Hasan, the then Sajjadanashin, dismissed the mujawars from service at the said shrine of Ala-Uddin, and appointed others in their places. The mujawars, however, were allowed to remain in possession of the lands now in suit. It appears that there are two other shrines in the said village, and that the mujawars claimed to be attendants of all three shrines and to be entitled to perform the services connected therewith. In 1901 the mujawars brought a suit against Zahur-ul-Hasan alleging their right to act as attendants of the three shrines, that Zahur-ul-Hasan, the Sajjadanashin, had obstructed them in the performance of their duties in one shrine (i. e., the shrine of Alla-Uddin), and that he threatened to interfere with the performance of their duties in the other two shrines, and they claimed an injunction to restrain the defendant from obstructing the plaintiffs in the performance of their duties and collection of fees.
The Munsif, who tried the case, dismissed the suit with costs, and this decision was affirmed on appeal. It was held that the mujawars were liable to be dismissed and had been properly dismissed from their office in respect of the said shrine of Alla-Uddin. This was in 1903. It is to be noted that in this last-mentioned litigation no claim was made by the mujawars to be owners of the lands occupied by them or that they were mutwalis. Their claim was limited to a right to perform services as attendants at the shrines. This litigation and the allegations therein of the mujawars, in their Lordships' opinion, are quite inconsistent with the mujawars setting up a title to the lands occupied by them adversely to the Sajjadanashin. On the other hand, they are consistent with the contention of the plaintiff that the mujawars had acquiesced in the decrees of the Courts in the 1894 suit, which decided that the mujawars were not owners of the lands, and that consequently in the 1901 suit the mujawars were asserting a right to act as attendants at the shrines under the supervision of the Sajjadanashin and no more. On behalf of the appellants reliance was placed upon an agreement alleged to have been made in January 1815, between the mujawara and the then Sajjadanashin, by which the village was divided into five shares, of which the mujawars were to have two shares, and upon the fact that the mujawars were subsequently recorded as the proprietors of such shares. It is difficult to understand how this came about, for the lands in the village were undoubtedly wakf, and the Sajjadanashin could not convey any valid title in such lands to the mujawars, and as long as the mujawars remained in possession of the lands by reason of the services which they rendered to the shrines, no question of possession adverse to the Sajjadanashin could arise.
It is not necessary for their Lordships to refer in further detail to the evidence, except to notice that no witness was called to support the case of the appellant mujawars, who relied entirely on the documentary evidence. Their Lordships, having considered all the evidence in the case, are of opinion that the mujawars in or about the year 1894 undoubtedly did assert their title to the lands in suit adversely to the predecessor of the plaintiff in this suit, the then Sajjadanashin; but when the suit, which was brought by the mujawars, was decided against them, they did not presist in their contention that they were owners and muttawalis; they were content to occupy the position of attendants and servants of the shrines, and they then limited their contention to an assertion of their right to perform the services in connexion with the three shrines without obstruction from the then Sajjadanashin.
When this further contention was decided against them in 1903, they were allowed to remain in occupation of the lands by the Sajjadanashin. In considering the effect of this continued occupation of the lands it must be remembered that the mujawars, the predecessors of the appellant-defendants, had been let into possession of the lands in consideration of their services as attendants at the shrine of Ala-Uddin, and though they were dismissed from attendance at that shrine, they claimed to be entitled to render services and to collect fees, as mujawars, at the other two shrines in the village, and apparently they were permitted so to do.
Their Lordships are of opinion that the facts relating to the period subsequent to the year 1903 are consistent with the occupation of the lands by the appellant-defendants being by the leave and licence of the Sajjadanashin, which was induced through the mujawars continuing to perform the services at two of the shrines in the village. There is no doubt that the title to the lands was in the plaintiff, and the onus was on the appellant-defendants to prove the adverse possession relied on. In the words of Lord Robertson, when delivering the judgment of the Board in Radha moni Debi v. Collector of Khulna (3), at p. -140 (of 27 IA):
"The possession required must be adequate in continuity, publicity and in extent to show that it is possession adverse to the competitor."
Their Lordships for the reasons above-mentioned are of opinion that the appellant defendants have not discharged that onus. It is necessary to refer to one other matter, viz., the fact that certain transfers were made by some of the mujawars ; but the Subordinate Judge stated, and it has not been disputed, that the transfers which have been impeached were made within twelve years of the institution of the suit and so no question of limitation arises as to them. There were apparently other transfers of older date, but these were transfers between the mujawars inter se and it has not been shown that any of such transfers was made with the knowledge of the Sajjadanashin, so that such transfers cannot be relied on as showing that the possession of the mujawars was adverse to the Sajjadanashin. For the above-mentioned reasons their Lordships are of opinion that the appeal should be dismissed with costs, and they will humbly advise His Majesty accordingly.