MT ALLAH RAKHI Vs. SHAH MOHAMMAD ABDUR RAHIM

JUDGEMENT

(1.) 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 24 July 1930, of the High Court of Judicature at Allahabad, confirming the decree of the First Subordinate Judge of Saharanpur dated 19 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."

(2.) 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. 29 January 1926.

(3.) 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."