JUDGMENT

1. Tins appeal arises out of a suit instituted by the Sunni Mahommedan community of Jubbulpore against the defendant for a declaration that the property mentioned in the map attached to the plaint and shown in state colour is wakf property and not the personal property of the defendant. The suit was filed under order I, Rule 8 of the CPC and is thus a representative suit. The case for the plaintiffs is that a Musjid known as the Kotwali Musjid near the City-Police Station house in Jubbulpore together with appurtenant land and buildings as shown in the map is wakf and that the defendant is the Mutwalli thereof and managing the properties as Mutwalli, that these lands and buildings have always been used for the use of the community, that the defendant's father and even the defendant used to admit that the property was wakf and under the Mutwalli, but when some of the plaintiffs learnt that the defendant had begun to assert his ownership over some of the buildings and lands appurtenant to the Musjid they approached the Deputy Commissioner for sanction under Section 92 of the CPC to file a suit against the defendant for his removal from the Mutwalliship and in reply to that application the defendant set up his own title to the property with the result that the Deputy Commissioner by his order dated the 15th May 1936 rejected the application with the remark:

“If his opponents now sue for a declaration that the Imambara etc. are wakf property and not the personal property of Fakir Mohamed Shah and win their case then obviously a request to the Collector for sanction to a suit for his removal from the post of Mutwalli would be more sympathetically considered.”

2. As their application for sanction to sue the defendant for his removal from Mutwalliship was dismissed and they were directed to file a suit for a declaration, the plaintiffs came to Court with this suit.

3. The plaintiffs further stated in their plaint that there were rooms at MNO and PQR which were formerly used as bath-room and urinal for the worshippers, that they were later removed to the rooms marked EFGH and GIKL in the map filed with the plaint and later on they were removed to the present position STUV. It was further stated that the Imambara X was formerly a single storeyed house in which a boys' school named Burhania Madarsa was located, and that it was later on made double storeyed and since then only the ground floor was used for tazias and prayers while the upper storey was let out. In the yard marked YZA in the map attached to the plaint, it is said, nimaz is performed and in places covered by A-2, A3, A-4 and A-5 marked in the map there was an open parchi in which articles required for carrying dead bodies used to be kept, that later on room and verandahs were built there and were let out to tenants and gahwara articles were kept in different places indiscriminately. The 5 rooms described as shops abut-ting on the main road in the map were built by the defendant on open land attached to the Musjid by placing beams on the wall of the mosque and were let out to tenants. An open space marked A.6 in the map was used for nimaz and specially for funeral prayers and the Government had taken this land on an annual rent of Rs. 500 since 1928.

4. These statements were made by the plaintiffs to indicate the user of the community over all lands and buildings surrounding the Musjid which is ABCD on the map. In a subsequent statement made on behalf of the plaintiff on the 28th October 1936 it was stated that the first removal of the bath-room and urinal was made over 50 years ago and the second removal was made over 30 years ago.

5. The defendant admitted that the mosque ABCD near the City Kotwali was by fiction of law wakf but denied that the portions shown as bath-room, urinal and water taps and other buildings appurtenant to it as shown in the plaint map were wakf as parts belonging to the Musjid. He asserted that they were the private property of the defendant and that the community had no right over them. It was admitted that the urinals and bath-room existed the places marked in the plaint but the same were ultimately removed to the rooms STUV. It is stated that the Imambara was his own where he constructed his tazia and let out the upper storey. He admitted that rooms were let out by him and the shops were constructed by him and let out. He stated that he was entitled to do so as he was the owner. He admit-ted the ownership of the community of the chabutra and Sehan only, but the rest of the property, it was stated, was his own. He further stated that the mosque proper was built by a Hindu for his protecting Saint “Hazrat Qubla Miskin Shah (Malang Sah) Sahib” on the land belonging to the said Saint in the compound of his Takiya 250 years back, but there were disputes between Chunnoo Shah, Pirbaksh Shah and Gulab Shah on one side and the Musalman community on the other (Civil Suit no. 8 of 1880) which was a suit under Section 92 of the CPC (then S. 539) and it was contended that it was held in that suit that the mosque and the properties in suit in the Takiya were the private property of the defendant and the plaintiffs had no right of suit. This decision it was contended was res judicata against the plaintiffs, the former suit being a representative suit as the present one. It was further contended that the defendant's father and after him the defendant continued to be in possession of the properties as owner thereof against the community and that by adverse possession they had become the owners thereof. With respect to the mosque ABCD it was conceded by the defendant to be wakf. It was stated that it has become wakf as a result of the decision in a civil suit that was instituted by him in 1919 (Civil Suit no. 118 of 1919) for possession of the key of the mosque from one Moulvi Abdul Salam who declined to deliver the same to the plaintiff alleging the mosque to be public. In this suit, though the trial Court held the mosque to be private, the Judicial Commissioner's Court on appeal (Second Appeal no. 353 of 1922) held the mosque to be wakf and it is therefore conceded that the mosque was wakf.

6. The defendant also referred to a litigation which was started in 1926 by some persons under Section 92 of the CPC for the appointment of the Mutwalli of the mosque and stated that as a result of that litigation the defendant was appointed the Mutwalli of the mosque and was placed in charge of the mosque only and that since this appointment the plaintiffs, who were annoyed by the defendant's appointment, have been harassing the defendant in all ways and the present litigation is the result of that quarrel. He stated that he was in adverse possession of the properties in dispute for more than 12 years and therefore the Claim of the public to the property of the wakf was barred by time.

7. This suit was filed in 1936 as already stated and in those days the rules regarding pleadings were not very strict. The plaintiffs tiled a rejoinder to the written statement Sled by the defendant and asserted further that they were unable to state as to when and alow the properties claimed by them as wakf became wakf but they stated very clearly that these were wakf and were being used and were regarded as wakf from time immemorial and that the defendant's father and the defendant always admitted them to be so and claimed to be in possession as Mutwalli thereof. It was admitted that a tazia is constructed in the Imambara in the room X which was so done with the help of subscription collected and the money belonging to the Musjid and the offerings made by worshippers. They did ??? admit that the Musjid was built by Sukhlal Patwa as alleged by the defendant and the time it was built. They urged that the decision in Civil Suit No. 8 of 1880 was not res judicata against them. In Second Appeal No. 353 of 1922 arising out of Civil Suit No. 118 of 1919 it was held that the decision regarding the title to the properties in dispute in the present suit was not called for and the findings of the lower Courts were gratuitous. The defendant was never in adverse possession of the properties in dispute but was in possession always as trustee and therefore being a trustee as Mutwalli the claim could not be held as barred by time. Regarding the suit of 1926 it was stated that the suit was for the appointment of a Mutwalli only and had nothing to do with the ownership of the surrounding lands and buildings. The defendant contended that a suit for a declaration merely under Section 42 of the Specific Relief Act was not tenable; the plaintiffs ought to have sued for possession.

8. On the 29th July 1937 two preliminary issues were framed:

(1) “Is the suit batted by limitation?

(2) Is the suit barred under Section 42 of the Specific Relief Act?”

9. It appears that these preliminary issues were framed but were not decided, as on the 6th July 1938 the parties stated that these issues could not be decided without evidence and therefore further issues were framed in the case for trial on the 5th August 1938. The further issues were:

[12] “(1) Whether the ‘Musjid proper’ portions, Chabutra and Sihan alone, are mosque property or whether these portions and other portions in suit are also mosque property?

(2) Whether the property in suit has been used and regarded as wakf from time immemorial as alleged by the plaintiffs.

Whether defendant's father had admitted that in his application dated the 8th September 1908 as alleged by the plaintiffs? Was any such application made by defendant's father?

(3) Whether the property in suit except Chabutra and Sihan is the private property of the defendant?

(4) Is defendant in possession of the property in suit as Mutawalli?

(5) Does the decision in Civil suit No. 8 of 1880 operate as res judicata as alleged by the defendant?

(6) Is defendant in adverse possession of the property in suit if so, since when? Whether plaintiffs' claim is time-barred?

(7) Whether plaintiffs' claim for mere declaration is not maintainable and whether it is necessary for the plaintiffs to claim possession of the property in suit?

(8) What is the value of the subject-matter in suit?

(9) What amount of Court-fees are plaintiffs liable to pay?

(10) What reliefs are the plaintiffs, entitled to?”.

10. The trial Court held that the plaintiffs' suit for mere declaration was tenable and that it was unnecessary for the plaintiffs to claim possession of the properties in suit, that the subject-matter of the suit was properly valued by the plaintiffs, but it held that the Musjid proper with Chabutra and Sihan alone is the wakf property and that the other portions in suit were not mosque property. It held that the property claimed by the plaintiffs as mosque property as appurtenant to the mosque was not proved to be used or regarded as wakf from time immemorial as alleged by the plaintiffs, and there was no admission of this by the defendant's father in his application dated the 8th September 1898, that the defendant was not in possession of the property as Mutwalli, that the decision in Civil Suit No. 8 of 1880 operated as res judicata against the plaintiff, that the defendant was in adverse possession of the property in suit and that the plaintiffs' suit was barred by time. The Court therefore dismissed the plaintiffs' suit and the plaintiffs have come up in appeal and challenge all adverse findings given by the lower Court.

11. The main point that was hotly debated before us was about the property in suit being regarded as wakf. It was argued on behalf of the appellants that though the learned Judge has referred to a number of cases and has quoted law extensively he has failed to grasp the essentials regarding the property in dispute which would have enabled him to decide correctly whether the property in dispute was wakl or otherwise. The Court below came to the conclusion that the plaintiffs had failed to prove that the property in dispute was wakf. It was contended before us that the Court below failed to appreciate the facts and their bearing on the point to be decided. The plain-tiffs asserted in their pleadings that they were unable to state since when and how the musjid and the properties in suit became wakf property, that is to say, property dedicated to the worship of God; but they asserted that these properties, viz. the properties in suit, have always been used and regarded as wakf from time immemorial. The defendant claimed the property in suit as private property but admitted that the mosque ABCD as shown in the plaintiffs' map was wakf. He relied on the decision given in civil suit No. 8 of 1880, which was a suit filed under Section 539 of the CPC (now S. 92) on behalf of the Mahomedans against Chunnoo Shah, Pirbakhah Shah, and Gulab Shah, for setting a scheme of management of the mosque property including the mosque ABCD and the adjoining properties which are now claimed by the plaintiffs in the suit and for appointment of trustees by removing the defendants in the case from the management of the trust. It was contended on his behalf that in that litigation the property in dispute was claimed by the community as wakf but it was held that it was not wakf and the suit was dismissed. He therefore contended that the decision was res judicata against the present plaintiffs and that the plaintiffs were not entitled to say that the properties in dispute were wakf. The plaintiffs denied this allegation and denied the property in suit was private property.

12. The lower Court relying on this previous litigation came to the conclusion that the property in dispute was private property and not wakf. We are, however, of the opinion that the lower Court did not properly appreciate what was decided in the previous litigation of 1880. The plaint in the previous litigation has been filed in this case as Exhibit-D. 197. It was stated in that plaint that near the City Kotwali there was a mosque of the Sunni community and in it there were a takin and other public buildings, that in that mosque all members always offered their prayers, and that from the charities received from the mussalmans they spent for lights, decorations, carpets, repairs, etc. It was then stated that the defendant who lived in the takia had begun to misappropriate the income and had begun to assert proprietary rights over the buildings and compound appurtenant to the mosque. It was therefore prayed that there should be a proper management of the mosque and the buildings appurtenant thereto, and that trustees should be appointed and the defendant's connection severed. The plaint thus makes it clear that it referred not only to the Musjid which is shown as ABCD but to all the buildings in-eluding the takia and Imambada and other buildings in the mosque compound. In the plaint the mosque was said to be the main building to which the other buildings in the compound were appurtenances, and all these buildings were alleged to be wakf managed by the defendants in that suit in a manner not in the public interest and therefore it was sought to have a scheme made for the management of the property and to work it out by fresh trustees by removing the then defendants from management. It was clearly a suit which fell within Section 539 of the CPC as it then stood.

13. The case was referred to arbitrators, and an award was given by the arbitrators through their umpire, which is Exhibit D-15 in the case. The arbitrator, or rather the Sar Panch, after deciding the points referred to him for decision and holding that the defendants were not guilty of misconduct stated that the management of the mosque should be carried out in future just in the same way as it had been carried out till then. He, however, appended a history of the mosque to his award, and in that history he purported to show that the mosque and all the buildings appurtenant thereto were private properties and that the mosque was constructed by one Patwa named Sukhlal out of reverence to and with the object of pleasing his Murshid, a fakir who was living in that takia near about.

14. When the case came before the course after reference to arbitration with the award of the arbitrator the Deputy Commissioner who decided the case dismissed the suit as not falling under Section 539 of the CPC as the award stated that the property in dispute was private an appeal was preferred against this judgment, and the appellate Court remanded the case for fresh decision. Exhibit D-1 is a copy of the judgment in that appeal. While remanding the case the appellate Court observed:

“It may be inferred from defendant's pies that they denied the right of the public to interfere in their management of what was a private not a public charity but the question was not distinctly raised and was certainly not a point in issue and could not form a just reason for dismissing the claim therefore reverse the decree of the lower Court and remand the suit for disposal with reference to the foregoing remarks.”

15. It is significant to note that the learned Judge who remanded the case for trial treated the entire property as being claimed by the plaintiffs in the case as public charity while the defendant claimed it to be private property, and he wanted that point to be decided before the suit could be dismissed. The trial Court then framed the necessary issue, viz. whether the musjid in question came under the denomination of an institution erected for public charitable purposes. By ‘musjid’, as is clear from the plaint and the orders that we have referred to up till now, was meant musjid? together with all the appurtenances including the takia, Imanibada, and all the properties that were in the musjid compound, and the decision was that musjid in question, necessarily meaning thereby the properties in dispute in the suit, was an institution used for public charitable purposes. It was further stated by the Judge that it was shown that subscriptions were raised by the Mahomedan community and ‘repairs to the buildings carried out by them and as the musjid is used regularly on Fridays for public worship it is shown and is open to Mahomedans. I therefore find this issue in favour of the plaintiff.’

16. It will thus be seen that when the case was sent to the arbitrators for decision no issue regarding the nature of the property in dispute was framed and remitted to the arbitrators for decision. The issues that were framed for decision at that stage were only issues regarding mismanagement of the trust property on the assumption that it was trust property. The Sar. Panch or the umpire-arbitrator having decided there was no mismanagement went out of his way and decided that the property was not wakf but private property. The trial Court relying on the award dis-missed the suit as not falling under Section 539 as the property was private. The appellate Court pointed out the mistake and stated that there was no issue framed regarding the nature of the property and without an issue being raised no decision could be given against the plaintiffs on that point. The trial Court thereafter framed the necessary issue and came to the conclusion that the property in dispute as stated in the plaint was wakf. But he dismissed the suit again because the arbitrator had found on the other issues that were remitted to him that there was no mismanagement of the trust. Exhibit D-2 is the decision of the trial Court.

17. It seems there was an appeal filed against that decision, but the decision of the trial Court was affirmed. The appeal was admitted only on a preliminary point, whether the award was vitiated by want of the signature of one of the plaintiffs in the application for reference. The appellate Court held that it was not so vitiated and dismissed the suit.

18. The defendant, and with him the Lower Court, are of the opinion that it was decided in civil suit 8 of 1880 that the proper, to in dispute was private property. It was contended on behalf of the defendant that what was held to be public charity was the musjid and not the other property which the defendant claimed as his own. We are clearly of the opinion that this is a misreading of the decision in the proceedings that took place in 1880–1881. The Mahomedan community in their plaint (Ex. D-197) very clearly stated that the entire compound was a mosque compound in which there was takia and other public buildings. It is with reference to this mosque, meaning mosque compound in which there was a takia and other public buildings that the decision was given by the trial Court after remand that it was wakf or public charity. The decision given by the Sar-Panch that it was private property was a decision given by him at a time when no issue had been framed and remitted to him on that point. When the appellate Court pointed out the want of issue on that point the trial Court framed an issue and itself decided it holding the property to be public, and finding that there was no mismanagement it dis-missed the suit. The proper reading of those proceedings therefore is that the property described in the plaint (Exhibit D-197) was held to be wakf and that the defendants who were managing that trust were not removed from the trusteeship as no mismanagement was proved Though the trial Judge stated in his final judgment, which was upheld in appeal, that he was giving the decision according to the award he must be understood to mean the award as modified by his decision that the property was wakf.

19. The contention therefore advanced on behalf of the defendant that the property in suit was declared to be private property in the litigation between the parties in 1880–81 is without foundation. This has been the basis of the entire contention on behalf of the defendant in this case. The defendant has adduced no evidence whatsoever to prove that the mosque and the property in dispute which is now being claimed by the plaintiffs, as wakf property was built by a Patwa as stated by him or as stated in the gratuitous award (Exhibit D-15) by the Sar-Panch. Both parties are agreed that the mosque and the buildings round about are existing for more than 250 to 300 years in the same compound with such changes as were made from time to time, but none is in a position to give a clear history of how they came into existence. The plaintiffs have always been asserting that the musjid and the property adjoining the same are public property it was decided in the civil suit filed by them that it was public property.

20. It is true that there is no evidence on either side about the dedication of the properties in dispute as wakf. But the institution is a very ancient one, about 250 years old and except this documentary evidence afforded by the litigation of 1880 no other ancient documents are available. This documentary evidence leads us to hold that the property in dispute, or at any rate the property in dispute in that suit, was held to be wakf property.

21. It is admitted by the defendant that the mosque ABCD is wakf. He says that he admits it to be wakf as a result of the litigation of 1880–1881, but he asserts that he still retains ownership over the other parts of the property excluding the musjid proper as ABCD.

22. This contention of the defendant also appears to us to be baseless. In a case of this nature where ancient history is not available a decision will have to be based on such evidence as can be gathered from how the public regarded this property, its environment and the conduct of the parties. After the decision in 1880–1881 we have a statement on record, which is proved to be an application made by the defendant's father who was a party to the litigation of 1880–1881, viz., Exhibit P-18, where, by Gulabshah (defendant's father) applied to she municipal committee for permission to make constructions, and in applying he stated:

‘Within the compound of the Imam-Bada masjid the house of the Imam Bada which stands (at present) is to be opened (i.e dismantled) and built two-storeyed (high) and extended and the parchhi (verandah) which is to be built within the compound of the Imam Bada, the tomb, and the filed Parchhi which stands built (in) the compound of the Imam Bada north to south in length of the mosque have become worn out and have stooped down on account of which a great trouble is caused in passing. The same is to be heightened and built dopaliya. Hence it is requested that permission may be kindly granted by the Municipal Committee, Jubbulpore.’

23. This was signed by Gulab Shah as the mutawalli of the Kotwali mosque, resident of Jubbulpore, and is dated the 8th September 1893. In this there is a clear admission made by Gulabshah that all the buildings that he wanted to reconstruct were within the compound of the, Imambada ???, i.e they were all appurtenant to the musjid and parts thereof and were in the same compound; and inasmuch as he was applying as mutawalli of that musjid, within the compound of which all these buildings stood, for permission to repair and reconstruct, the admission is all the more significant and it leads one to think that he regarded the entire property as wakf of which he was the mutawalli. There are two plans which are filed on behalf of the plaintiffs as Exhibits P-19 and P-20, a copy of one of which was obtained in the year 1323 and the other 1932. These maps clearly show that the entire property in dispute in this case including A-6, which is to the north as shown in the plaintiff's map, was the property to which reference is made in this application (Exhibit P-18), and the constructions intended to be made have been indicated on all these parts. Exhibit P-15 is a notice from the municipal committee addressed to Gulab Shah in which Gulab Shah is described as the mutawalli of the mosque; and exhibit P-14 is another application dated the 28th September 1926 in which also Gulab Shah describes himself as a mutawalli, and asks for permission to repair the chabutra of the musjid. These applications by Gulab Shah, the father of the defendant, clearly indicate that after the decision of the civil suit 8 of 1880, Gulab Shah regarded the entire compound of the Imambada musjid near the City Kotwali as musjid and applied for permission to repair or re-construct such buildings as required repairs or reconstruction including the plot A-6, which was lying to the north of the compound. This conduct on the part of Gulab Shah is a clear indication that he accepted the decision given in civil suit No. 8 of 1880 that the musjid compound including the musjid, the Imambada and the tombs and other structures and also A-6, which lies to the north, were wakf properties.

24. On behalf of the defendant a strenuous attempt was made to show that Ex. P-18 was not proved in the case as the original was not shown to have been signed by Gulab Shah. We are of the opinion, however, that the evidence given by the plaintiff is in the circumstances of the case sufficient proof of this document. This document is accompanied by two maps, Exs. P-19 and P-20. They are certified copies of documents which were obtained by the members of the Mahomedan community, and they lend support to the genuineness of Ex. P-18. It is not possible to get more evidence regarding it at this distance of time.

25. The same argument was used regarding exs. P-14 and P-15, which are signed by Gulab shah. We accept what Abdur Rehnian (P.W 14) stated in examination-in-chief in preference to what he stated after some time in cross-examination. Parmanand Gupta (P.W 8) stated that he searched for the Originals of Ex. P-18 and P-20 and was able to rind them out and that the copies Ex. P-18 and P-19 were true copies of the originals brought by him in Court. He also stated that Ex. P-20 also appeared to be a true copy of the original, just as Exhibit P-19 was a true copy of the same. Exhibit P-20 was obtained in 1923, while the copy Exs. P-19 was obtained in 1932. The original of Ex. P-14 was missing, which led to the dismissal of one Ganesh Prasad, who was then the person in charge of that record. It is in evidence that about the same time the defendant also was a member of the municipal committee and had asked for inspection of these records and it was soon after that it was discovered that the original of Ex. F-14 was missing. When Parmanand Gupta (P.W 8) was in the witness-box no attempt was made to show that the signature on the original of Ex. P. 18 was spurious.

26. Ganesh Prasad (P.W 21) is the person who was dismissed for the loss of the original of Ex. P-14; and he tells us that he made a copy of the original and Ghani Babu and himself compared the same with the original. Exhibits P-14 and P-15 have further been proved to be true copies of the original by Abdul Ghani (P.W 17). The defendant admits that before Ganesh Prasad was dismissed he had gone to the municipality for inspection of certain records. He further admits that he asked Ganesh Prasad to give him inspection of the building files of the Kotwali mosque, but he could not say what was the purpose for which he wanted chat inspection. It was soon after this that the trouble regarding the loss of the documents started and a quarrel ensued between Ganesh Prasad and Sunderlal Verma. This mysterious loss of the original of Ex. P-14 when the defendant himself was inspecting leads one to think that the defendant had something to do with the loss, and it is stated in the inquiry papers that he had something to do with it.

27. But we need not pursue this matter farther. We think that the evidence on record is sufficient to prove that the Originals of Exs. P-14, P-15, and P-18 were signed by the defendant's father and that the documents on record are the true copies, of the originals. The admission of the defendant's father is in conformity with the decision in 1880 that the musjid compound including the Imam-bada, takia, and tombs were all wakf and that the defendant's father was the mutawalli thereof. The defendant claims to have succeeded Gulab Shah, his father, and we have on record Ex. P-21 and P-22 wherein we find that the defendant has described himself as mutawalli. Exhibit P-21 admittedly refers to the land A-6 in the plaintiffs' plan. It is true that in his application the defendant stated that his land was to be acquired by Government, but he signed the application as Fakir Mohammad Shah, Mutawalli of the Mosque site in Mohalla Kotwali Bazar. This is dated the 6th July 1917. When asked in cross-examination what site he meant he admitted that he was referring to a-6 as shown in the plaintiffs' map. This application shows that the defendant claim-ed himself to be a mutawalli of the mosque in dispute and described it as a mosque site. Exhibit P-22 is another application by the defendant to the Secretary, Municipal Committee, Jubbulpore, dated the 27th November 1917. In this the defendant described himself as Fakir Mohammad Shah, mutawalli of mosque and Imam-bada. This is an indication that he regarded both the Imam-bada and the mosque as one and described himself as mutawalli thereof. The Imam-bada is situate within the compound of the mosque and is one of the items claimed by the plaintiffs as mosque property; In this application the present defendant claimed the mosque also as his as he claimed the Imam-bada to be his. But by merely stating ‘my mosque’ and ‘my houses’ he did not divest himself of his character as mutawalli. As a mutawalli he thought all properties were vested in him, and he described them as ‘mine’, ‘my houses’, and ‘my mosque’. But what is significant about this statement is that he described himself as mutawalli not only of the mosque but of the Imam-bada. These admissions of the defendant's father and the defendant indicate that they regarded the property in dispute as forming part of the mosque. Most of it was within the compound of the mosque, and A-6 was also described as mosque site by the defendant himself. When the trial Court Judge inspected the spot he made a remark in his inspection note dated the 30th October 1938 that the musjid and the adjoining places appeared to be interconnected with each other, that the musjid was a small one in the beginning and was extended later on. This inter-connexion appears to be clear from the statements of the defendant's father and the defendant also as shown by us.

28. On behalf of the appellants great stress was laid on the admission made by the defendant in his cross-examination that the urinals and bath-room shown in the plaintiffs' map and also shown at another place at an earlier stage, which is called by the defendant as the second stage and shown in his map filed with the written statement were meant for the use of the persons attending the musjid for prayers. It was contended on behalf of the appellants that a Wuzukhana (ablution place), a bath-room, and a urinal are necessary adjuncts of a mosque as all Mahomedans have to be clean before they enter the mosque for prayers, and as the defendant admits that these were constructed for the use of the community they are wakf, but strangely enough the defendant in this suit claims them to be his own property. It is contended that the property in suit is wakf but that the defendant is claiming it as his own, though he had to admit that the bath-room and Wuzukhana constructed from time to time were meant for the use of the public. The plaintiffs in their plaint stated:

“The rooms M.N.O, and P.Q.R were formerly used as bath-room and urinal for the worshippers. The bath-room and urinal were then removed to the rooms marked E.F.G.H.G.I.K.L (which are to the South) and have now been removed to S.T.U.V (which is to north of the mosque). The vacated rooms being now let out to tenants by the defendant.”

29. The plaintiffs have examined several witnesses to prove that the Wuzu-khana and urinals were shifted from time to time. Haji Sheikh Kalloo (P.W 3), Abdul Ghaffar (P.W 4), and Rustom Khan (P.W 10) swear to the shiftings as alleged. The defendant also has not very seriously disputed the shiftings of the urinals and the Wuzu-khana and has admitted that the urinals and the Wuzu-khana were meant for the community. In the map attached to Ex. D-39, which is a copy of the lease deed executed by the defendant in favour of Government on the 23rd July 1927 there is an admission that the bath-room, water-pipes and urinals belonged to the community. In 1907 it appears that some members of the Mahomedan community applied for construction of urinals and Wuzu-khana, and there is some evidence adduced on behalf of the plaintiffs to Show that these persons actually constructed the Wuzu-khana. Exhibit P-11 is the application made by some members of the Mahomedan community on behalf of the mosque stating that new bath-rooms ought to be constructed, in the mosque situate near the Kotwali after demolishing the old ones. They also asked for permission to open windows in the Kotwali mosque in accordance with a plan and to repair the drains. Exhibit F-12 is the sanction given by the municipality and Ex. P-13 the plan of the proposed bath, room. Abdur Rehman (P.W 14) stated that these additions were made by subscriptions. It appears that the statement of the defendant in the witness-box that these were constructed by him in 1923–1924 is not true, they must have been constructed somewhere in the year 1907–1903 or even later, but not as late as 1924. There is nothing on record to indicate that any sanction was asked for in or about the year 1924. That this may have been constructed in the year 1907–1908 and again about the year 1917 is evidenced by Exs. P-11; P-12, P-13, and P-22. In 1917 also the defendant applied as mutawalli. It is not disputed by the defendant that the Mahomedan community used the urinal, bath-room and the Wuzu-khana and that they have always been so using them; and yet the defendant lays-claim to the site covered by these constructions. They are adjuncts of the mosque; they have always been used as such by the community; they are situate in the mosque compound; and they have been shifted from place to place within the compound—all these clearly indicate that the entire com-pound of the mosque was a dedication to charity and was used by the public for purposes connected with the mosque. The decision of the Court below that the defendant allowed the community to use the urinals, bath-room and Wuzu-khana out of grace is unwarranted.

30. The learned Judge in para. 31 has stated:

“A perusal of the maps filed by the parties will show that the bath-room, urinal and the Wuzu-khana even, stand in the south-eastern portion of the northern open plot, at a distance of more than about two yards from the Chabutra and Sihan of the Masjid. The Namazis may be using them at the grace of the defendant, along with his tenants in the neighboring shops and kothas. They too therefore, be regarded as appurtenant to the Masjid under the above circumstances. The situation shows that the passage running on the north east and the south of the Chabutra and Sihan of the Masjid is also used by the Namazias, without any obstruction by the defendant. The user of that passage as such, does not however form the subject-matter of any issue between the parties so far as this suit is concerned, and therefore I would not like to dilate upon it any more.”

31. The defendant never stated that he allowed the user of the bath-room, urinal and Wuzu-khana out of grace to the plain-tiffs, and yet the Court says that it may be at the grace of the defendant. The Court, however, has held that they may be regarded as appurtenant to the musjid under all the circumstances. Similarly, it says that the passage which runs round about the musjid on the north east and south of the Chabutra and Sihan of the musjid is used by she Namazis without any obstruction from the defendant. The site of that passage, though it does not separately form the subject-matter of any issue between the parties is certainly a part of the property in dispute claimed by the plaintiffs. The Court below has arrived at the finding, though reluctantly, that the plaintiffs and the Mahomedan community used it as a passage; but it tries to get over giving a finding in respect of it in favour of the plaintiffs by saying that, that was not a matter in issue. A reference to the plaintiffs' map will show that all that land which lies under that passage is claimed by the plaintiffs as wakf. Though the Court below arrived at a finding that Wuzu-khana, urinal, bath-room and the passage are appurtenant to the musjid it has not decreed the plaintiffs' claim even to that extent.

32. Exhibit P-5 together with the map attached to it is a copy of the order passed by the nazul settlement officer in the year 1924. The nazul officer recorded the bath, room, urinals and Wuzu-khana as belonging to the Mahomedan community. He also recorded the passage to the north, south, and east of the mosque as belonging to the community. He recorded a Part of A-6 as also belonging to the Mahomedan community. We have therefore no hesitation in finding accordingly. We are of the opinion that the plaintiffs have successfully proved that the urinal, bath-room and Wuzu-khana, together with the passage as indicated in the map are adjuncts of the mosque and are used by the community as part of the mosque and are wakf.

33. It appears from Exhibit D-5, which is a copy of the judgment in civil suit No. 118 of 1919 that the plaintiff in that case claimed the Imam-bada as a part of the musjid premises. It is true that he was then laying claim to the entire premises including the musjid as his private property, but what we are trying to show is that he never thought that the musjid and Imam-bada were separate. In paragraph 7 the Judge has stated that there is an Imam-bada attached to and forming part of the mosque premises where Miskin Shah used to live. This Imam-bada, which is claimed by the then plaintiff Fakir Mohammad Shah as a part of the musjid is shown by the letter X in the map and is to the extreme south of the mosque. The map shows that immediately to the south of the mosque there is a tomb and an open yard and then this Imam-bada, There is also a tomb to the east of the mosque, and there are certain rooms to the east of the tomb.

34. Fakir Mohammad (P.W 9) stated that the tazia was always kept at the Imam-bada and the costs of the tazia were met by the offerings made by the public, Qazi Fasiuddin (P.W 2) stated that Imam-badas were attached to musjids and that this Imam-bada was attached to this musjid. He further stated that the expenses of the construction of tazias and Imam-badas were met with by subscriptions as well as by offerings at the tazia, that there was a Madarsa known as Burhania Madarsa for some time in this Imam-bada and the Holy Quoran used to be taught there to the boys. We have already referred to Exhibit P-18 where the defendant's father called himself the mutawalli of the mosque and called the mosque the Imam-bada mosque, and stated that all the buildings were within the compound of the Imam-bada musjid. That admission clearly shows that he regarded the Imam-bada and the musjid as one and as parts of the same property. There is evidence on record that while reconstructing the Imam-bada beams from the mosque were used for the Imam-bada. The defendant himself admitted this fact, though of course he stated that he regarded it as his own property: see the evidence of Fakir Mohammad (P.W 9), who stated that the Imam-bada is attached to the musjid towards the south, that originally it was a filed Parchhi but had been made double-storeyed 12 or 14 years previously, that old beams of the musjid had been used in the Imam-bada and that arches had been substituted for the beams in the musjid.

35. There is also evidence by other witnesses on behalf of the plaintiff on the same lines. Many of them have stated that the reconstruction of the mosque and the Imam-bada was simultaneous and that material from the musjid was used for the Imam-bada. There is also evidence on behalf of the plaintiff that there was a stair-case by the side of the southern mazar leading to the roof of the musjid and to that of the Imam-bada but that it was dismantled by the defendant. Several witnesses on behalf of the plaintiffs have testified to this fact. The defendant in the witness-box admits that the stair-ease was removed, but says it was a staircase which was meant for reaching to the roof of the kotha of a Halwai as well as to the second storey of the Imam-bada and that the roof of the musjid could not be reached from that stair-case. It is, however, admitted by him in his deposition that the place which is known as Paizoo Halwai's kotha now forms part of the musjid and it was amalgamated with the musjid during his minority by his guardian Gharibullah Shah. In Exhibit D-42, this Gharibulla Shah (defendant's guardian during his minority) stated that the kothas, stair-case etc., belonging to the mosque required repairs.

36. Taking the entire evidence on record we are of the opinion that the musjid and the Imam-bada were connected and the stair-case was meant to reach to the roofs of both. There is thus further proof of the inter, connexion between the musjid and the Imam-bada and shows that the Imam-bada is an adjunct of this musjid.

37. On behalf of the plaintiffs evidence has been given that the articles for bearing the dead. (gahiwaras) used to be kept in gahiwaras to the east of the musjid, where now some kothas stand which are marked in the plaintiffs' map as A/1, A/2, A/3, A/4, A/5 and a part of which is shown by the letters MNOPQR, and that as these kothas were constructed the gahiwaras are now kept in the mazhar or the second storey of the Imam-bada.

38. We have so far dealt with the properties that are inside the compound shown in state colour in the plaintiffs' map and have shown that the structures round about the musjid are inter-connected with the musjid, are within the compound of the musjid, and are so inter-connected and used as to form part of the musjid. Admittedly the musjid is wakf, and if these structures round about the musjid are appurtenances to that musjid it necessarily follows that they also partake of the nature of wakf and are not private properties as claimed by the defendant. We have held, differing from the trial Court, that as far back as 1880–1881 in civil suit No. 8 of 1880 it was held that the musjid including the Imam-bada and other buildings was public property. We have shown from the admissions of the defendant in this case that these structures which are in the musjid proper cannot but be regarded as adjuncts of the musjid. We are not therefore prepared to accept the decision of the Court below that Miskin Shah's tomb was the main private property and that the other structures formed part of the same property and that the musjid was erected later on that private property by some devotee of Miskin Shah.

39. The view taken by the lower Court is based upon the decision given by the Sar-Panch in the award Exhibit D-15. We have shown that what is stated regarding the nature of the property in Exhibit D-15 was unauthorized and without jurisdiction. The point was never referred to the arbitrator for decision. After Exhibit D-15 an issue was framed whether the property which included all the buildings round about the musjid, viz., the Imam-bada, the tomb, the kothas, urinals, water tap, Wuzu-khana, etc., was public charity; and it was eventually held that it was so. The decision in the award that it was private property was therefore set aside, it being held that it was public charity. What was incorporated in the decision of the Judge, when he eventually stated that the decree be passed in terms of the award, was that part of award which was not superseded, and that part of the award was that there being no mismanagement by the defendant's father and two others they were not liable to be removed from the management. Had the lower Court properly appreciated this as the decision given in the year 1880–1881 it would have come to a conclusion different from the one to which it has come, because there is nothing on record to prove which was the first, the tomb or the musjid.

40. This history is lost in antiquity. On the contrary there is a decision to show that they were all one property and that property was public. The statements made by the defendant's father and the defendant thereafter have to be co-related to this state of affairs, and inasmuch as the defendant's father in the year 1898 in Exhibits P-18, P-19, and P-20 regarded himself as a mutawalli of the mosque and the property surrounding it and the defendant himself later on in the year 1917 called himself a mutawalli, they were mutawallis of such a public charitable trust and not of any private trust as was contended before us and as also through mistake they may have considered themselves to be.

41. In A.I.R 1929 Cal. 5331 it was stated:

“If the entire premises can upon its various physical features, be regarded as one whole lying within the compound wall and if the evidence suggests the inference that the members of the Mahomedan public have exercised acts on parts of it in assertion of their right to the whole as forming the endowment, the defendant's original rights whatever they may have been must be held to have been extinguished.”

42. The same principle is re-affirmed in A.I.R 1934 Bom. 2572 where it was laid down:

“Where for a considerable number of years the public have been offering prayers in a mosque close by a tomb of a Mahomedan saint, and an annualuras attended by persons belonging to incmin sect of Mahomedans has been regularly held it must be presumed that the mosque and the tomb have been duly dedicated and have become wakf by user and that the presumption might fairly be extended to other buildings and land enclosed within a compound wall which might be regarded as appurtenant to the tomb.”

43. We have shown that the entire property so far discussed is within one compound with one gate and is so inter-connected as to form part of one property. It is admitted that the musjid is wakf, and we are entitled to raise a presumption that the other properties also are wakf. In this case in addition to the presumption that can he raised we have evidence on record to prove that all these parts of the property used to be utilized by the public for public purposes; the urinals, bath-room and Wuzu-khana were meant for the worshippers, and were being used by them as such, the court-yard which is still open, has always been used by the public for going to the musjid and for standing thereon whenever required. The Imam-bada was used for a school and for purposes of offering prayers during the moharrum. Gahiwara articles were stocked there. Tasias used to be prepared by the aid of public subscriptions. Gahiwaras used to be kept at places where there are now kothas standing towards the east, and that part of the property to the south where one Faizoo Halwai had his shop has now been amalgamated in the musjid building. This evidence conclusively proves the correctness of the finding that was arrived at by the Deputy Commissioner in the year 1881 that all these, viz., the musjid together with the appurtenances was public charity. It was this nature of the property that led the defendant's father and after him the defendant's guardian and the defendant himself to call themselves mufmoallis of the properties whenever they had an occasion to describe themselves.

44. There is also evidence in record to prove that in the year 1907–1908, and even thereafter some members of the public were actually taking part in the management of the affairs as is evidenced by Ex. P-11 an application made by some members is the year 1907 for erection of a bath-room, urinal, and Wuzu-khana, and the sanction obtained by them. Some of the witnesses for the plaintiff have stated that the bath-rooms were shifted by the public from one place to another till they have come to rest as the present place where they are. The user by the public therefore of these properties as wakf is proved by the evidence on record. The public regarded the defendant as the mutawalli and claimed to be in possession through him.

45. We have so far dealt with the property which is within the compound. Outside the compound there is a strip of land between the musjid and the road over which shops have been constructed. The plaintiffs claim that this site is an adjunct of the musjid and was open and that the defendant has constructed shops on this site by scraping off the minars of the musjid and by resting the roof on the wall of the musjid. The defendant does not seriously dispute this fact, bus denies that site is public or that it forms part of the musjid premises. There is nothing on record to prove that the defendant has any title to the property as apart from its being & part of the musjid. It is a small strip of land that lies between the road and the musjid compound and could not have been the land of anyone except the musjid. The defendant constructed these shops with a view to increasing the income, and if these shops have been erected on the site belonging to the musjid by the defendant who is the mutawalli of the musjid, the shops and income thereof belong to the musjid. The defendant claims these shops as his own because he claims the other parts of the property as his own. We have held that neither the musjid nor the other parts of the property are his, and it necessarily follows that these shops are also parts of the musjid, which is public.

46. We now proceed to discuss the position of A-6, which is to the north of the yard, urinal and the water-pipe, adjoining the musjid. It is not clear from the decision in 1880–1881 whether this was a part of the claim in that suit, because the plaint in that case, which is Ex. D-197, only stated that there is a mosque in which there is a takia and other public buildings. We have not got the plan that was filed with the plaint in that case, and therefore it is very difficult to understand whether it did form part of that litigation or not. Though in is not quite clear whether it formed part of that suit or not we have Exs. P-18, P-19 and P-20 on record. In Ex. P-19 and P-20, which are maps accompanying the application made by the defendant's father in 1898 to the municipal committee as mutawalli, he had shown the whole of the plot A-6, and had asked for permission to erect buildings on some portions thereof. He was thus claiming this plot as a part of the musjid, whose mutawalli he claimed to be.

47. Exhibit D-16 is a list of expenditure dated the 14th October 1898 said to have been incurred by Gulab Shah over what is called she famous and well-known Kotwali mosque situate in the Jubbulpore bazar proper, and at the end it is stated that the work has been started after showing an expenditure of about Rs. 530. This expenditure was incurred by the defendant's father soon after Ex. P-18, which is dated the 8th September 1898. It appears that after applying for sanction to the municipal committee for building constructions as per maps Ex. P-19 and P-20 he obtained sanction and in Ex. D-16 he is showing the expenditure that he incurred over some constructions that he carried on; and this he has shown as if he was rendering an account to someone. That appears to be the purport of Ex. D-16. Otherwise it would not have been necessary for him to have stated at the end that the work had started. This lends support to the story that he regarded himself as a mutawalli of a public trust.

48. We have already shown that it was held in 1880 that the musjid was public charity; and this land was stated by the defendant's father in the year 1898 to be a part of the musjid of which he was the mutawalli. Later on, in the year 1917 the defendant in Ex. P-21 called himself a mutawalli of the mosque site, and when asked what he meant by mosque site he admitted that he meant A-6. We have thus clear indication that the defendant and his father both regarded this A-6 as a part of the mosque and as a site appurtenant to the mosque. On behalf of the plaintiffs, evidence has been given that over this site A-6 funeral prayers used to be offered and that when there was a large gathering the Mahomedan community generally used this site for prayers.

49. As against this the defendant relies on a sale deed (Ex. D-161) and says that he purchased a part of this site from one Murlidhar in the year 1912. In support of the contention that it was Murlidhar's property reliance was placed on a sale deed (Ex. D-176) of the year 1895 wherein the vendor of a neighboring plot has described this plot as lying to the west of his properties and as belonging to Murlidhar. Recitals made in Ex. D-176 are not in any way binding on the parties. They are not the recitals either of the plaintiffs or of their predecessors; nor are they the recitals of the defendant or of his predecessors. They are recitals by a vendor of that site in favour of his vendee, neither of whom is a party to this suit. Such recitals in a document, which is not inter partes are not admissible in evidence: Soney Lal Jha v. Darabdeo Narain Singh*. 3

50. Moreover, these recitals are against the recitals of defendant's father in Ex. P-19 and P-20, the maps which he filed, wherein he showed this plot as belonging to the musjid whose mutawalli he claimed to be and asked for permission to build on that land. If this plot A-6 was one already attached to the musjid in 1898 as claimed by the defendant's father we fail to understand why it was necessary for the defendant to purchase a part of it from Murlidhar in 1912 by a sale deed Ex. D-161. The story that is given by the defendant about this purchase is very suspicious. In his deposition he stated the western portion of plot A-6 was his ancestral property while its eastern portion was purchased by him by sale deed dated the 4th December 1912 (Ex. D-161) executed by Chhoteylal, son of Murlidhar, through his guardian Sheodeenlal, and he paid Rs. 875 for it. He further stated that the purchased portion was shown byhim in red in the map. When asked why he got this sale deed executed he stated that this plot was agreed to be purchased by his father and that his father died thereafter and he got the sale deed executed. When further asked he stated that on the death of his father, Murlidhar showed him a receipt executed by his father in 1897–1898 showing the agreement in respect of the portion which had been agreed to be purchased by the father, and being satisfied that plot belonged to Murlidhar he obtained the sale deed of that plot which was not in his possession, and that he did not obtain any sale deed of the other portion, viz., the western half. Of that portion, he claimed, he was then in wrongful possession, and subsequently Murlidhar relinquished his interest over it. When asked when this receipt was shown to him he stated that it was shown to him in 1903–1904 or 1905. In 1903–1904 or 1905 the plaintiff was necessarily a minor, much below the age of understanding when he could have been approached and shown the receipt by Murlidhar. He was asked about the title to the other part and he stated that it was Sheodeenlal who relinquished his interest over the western half. He admitted that Sheodeenlal was alive and lived very near the Kotwali. He has not examined this Sheodeenlal. He has not examined any attesting witness of the sale deed. In fact, except his own statement that he purchased it from Murlidhar's son Chhoteylal, minor through guardian Sheodeenlal, there is no evidence on record to prove this sale. Evidence was, according to his statement, available and yet not called. The receipt alleged to have been seen by the defendant in the year 1904–1905 but which was of the year 1897–1898 has not been filed on record, no attempt has been made to get it filed. There is absolutely no reference to this receipt or to the agreement in the sale deed (Ex. D-161). We are of the opinion that he is inventing this sale deed of 1897–1898 to get over the admission of his father in the year 1898 contained in Ex. P-18, P-19, and P-20. The father had claimed this land as land appurtenant to the musjid of which he was the mutawalli and over which, he wanted construction to be made. In order to get over that admission the defendant appears to be inventing falsely this story of a receipt by his father in the year 1897–1898. There is no proof of any relinquishment as alleged by him. This evidence is on the very face of it unbelievable and cannot be accepted. We hold that this sale of 1912 is very suspicious and not proved to be a genuine sale. The defendant is a very astute person. He has been in the service of a pleader for many years, and ever since attaining majority has been trying to lay hands on public property.

51. It is true, however, that when the nazul officer made an inquiry, he on the faith of this sale deed recorded the eastern portion of plot A-6 close to the Kotwali as in the possession of the defendant, and recorded the western portion as in the possession of the Mahomedan community. This decision by the nazul officer is in no way conclusive. It is only a summary inquiry regarding possession. It was apparently based on a sale deed, which, in our opinion, is not proved to be genuine. No part of A-6 has thus been proved to be his. It is adjacent to the mosque, and there is evidence on record to prove that it is used by the Mahomedan community for offering prayers, and in particular funeral prayers.

52. It is true that this land was leased to the police under Exhibit D-39 in the year 1927; but the police entered into the agreement with the clear understanding that the title to the property was sub-judice and that the Mahomedan community laid claim to it. The fact that it was the defendant who let out the land to the police does not therefore show that he is the owner thereof. The mere fact that the defendant is described as owner or described himself as mutaioalli of a private mosque or Imam-bada will not make that property his own if there is evidence on record to prove that the property was wakf by user. As stated in 29 N.L.R 1004 following 40 Cal. 2975 even if there is in the record of rights a description that a private person is owner that also will not imply that person is not a mutawalli. We, therefore; hold that plot A-6 is also wakf and not the private property of the defendant.

53. It was very hotly contested on behalf of the defendant that the burden lay heavily on the plaintiffs to prove unmistakably that the property was dedicated and therefore became wakf. Several rulings were quoted in support of this proposition, but these rulings apply only to cases where the plaintiff is in a position, to allege and prove dedication. This is a case in which the plaintiffs have from the very beginning clearly stated that they are not in a position to trace the dedication of the properties as wakf but that from time immemorial there has been a user of these properties as wakf and therefore they claim them as such. We have shown that as far back as 1880–1881 the community established that the properties in suit, at any rate a major portion thereof, were wakf or public charity. Apart from the question of res judicata, with which we shall deal later, the fact that there was such a decision in the year 1880–1881 superseding that part of the award which stated that it was private property is a very relevant fact in deciding this case. In addition to that fact, we have, further, the admissions of the defendant's father and defendant himself up to the year 1917 that they regarded themselves as mutawallis of these properties and not as owners. The mere fact that in these applications to which we have already referred they used expressions like ‘my mosque’ or my ‘Imam-bada’ etc. would not make Imam-bada or mosque their own when to their knowledge the property was held to be wakf. All the witnesses for the plaintiff, except those who are merely formal to prove certain documents, and who belong to the community, establish user as wakf. They prove unity of title and possession with respect to all these properties and we have no hesitation in coming to the conclusion that the properties are wakf.

54. In this view of the case it is not necessary for us to deal with the other points decided by the Court below regarding the effect of the award (Exhibit D-15) and whether there could be a reference to arbitration in a suit under Section 539 of the CPC. It is very doubtful whether a dispute of such a nature could be referred to arbitration, but even if such a dispute could be referred to arbitration we have shown that what was decided by the arbitrator regarding the nature of the property was not accepted by the Court as there was no reference on that point and a fresh decision was given by the Court holding the property in dispute in that case to be public charity. We therefore refrain from giving any finding regarding these points.

55. It was also contended before us that the copy of the award was not admissible as there was some suspicion regarding its being a certified copy, and that the original of the award was not on the record of the case. That point has now become immaterial, and we are satisfied that it is a certified copy of the award. There is an endorsement on the award, though the words ‘certified copy’ are not used. There are indications that the copy was applied for and was granted and the Clerk of Court has signed it. We do not think there is any doubt regarding its genuineness.

56. But we do not agree with the Court below in holding that the previous suit, viz. civil suit No. 8 of 1880, was not one falling under Section 539 of the CPC. The plaint in that case very clearly disclosed that it was a suit not against a trespasser but a suit under Section 539 of the CPC (which is now equivalent to Section 92 of the CPC) for framing a scheme for the management of the trust property, and for appointing fresh trustees by removing the old existing trustees as they were mismanaging the trust. It cannot therefore be regarded as a suit for ejectment of a trespasser as has been stated by the Judge of the lower Court. That part of the decision of the lower Court is wholly unsound. The defendant's predecessors who were parties' to that suit as defendants were in law not trespassers but trustees. They claimed to be so. They acted as such, but had wrongly begun to assert title to which they were not entitled to and therefore the suit against them. A suit under S. 539 (equivalent to the present Section 92) of the CPC does lie for removal of such de facto or constructive trustees, as has been laid down in I.L.R (1942) 1 Cal. 2116 at pp. 215, 219 and A.I.R 1940 Pat. 425.7; The plaintiffs in their plaint never stated that the defendants were, trespassers, and it is the allegations in the plaint that determine the nature of the suit and the jurisdiction. The defendant's denial in the pleadings will not in any way affect the nature of the suit under S. 92, as held in 11 Pat. 2888 and 63 Cal. 74.9

57. The Court below having taken a wrong view of the decision of 1880 thought it necessary to uphold the award (Exhibit D-15) given by the Sar-Panch wherein it was stated that the property in suit was private property and not wakf, and therefore it went out of its way in holding that the said suit under section 539 was not tenable as it was against a trespasser. It was only thus that the Court below could hold that in its opinion there could be a reference to arbitration, because it held that there could be no reference to arbitration in a suit under section 539. In order to get over that bar it held the suit to be one not falling under section 539. The reference to arbitration therefore was treated as proper and the award given by the arbitrator deciding the property to be private was held to be binding on the parties. This reasoning of the Judge, which is contained in para-graphs 10 and 11 of his judgment, is wrong.

58. This brings us to the question of res judicata that was agitated in the Court below and before us. The lower Court held that the decision in Civil suit no. 8, of 1880 was res judicata between the parties and that the decision there was that the property was private and not wakf. We have shown that the decision was that the property was wakf and not that the property was private. Though the property was declared to be wakf the plaintiffs' suit was dismissed on the ground that no mismanagement by the defendant's predecessors was proved. That decision was no doubt based upon the decision given by the arbitrator, which was upheld. If the plaintiffs are at all barred, they are only barred from saying that in those days the plaintiffs in that suit failed to prove that there was any mismanagement of the property. There is no other bar against the plaintiffs by reason of that decision.

59. We are also not in a position to say that the defendant is barred by res judicata from raising the contention that the property is private because it could be argued that the plaintiffs' suit was dismissed land the defendant's predecessor had no opportunity to appeal against that decision. We have therefore, in deciding the case, used the decision in civil suit No. 8 of 1880 as merely a fact relevant in tracing the history of the property in suit and not necessarily as res judicata between the parties. Such a use of that decision is justified in the circumstances of this case, and the decision lends support to the subsequent conduct of the defendant's father and the defendant in calling themselves mutawallis. The defendant's father was regarded as a mutawalli in the previous suit, but as no mismanagement was proved his removal was not ordered. He continued to be such a mutatvalli and claimed himself to be such a mutawalli and conducted himself as such throughout his life. After his death the defendant's guardian also considered himself to be a mutawalli on behalf of the mosque, and thereafter the defendant regarded himself as a mutawalli as has been shown by his admissions in several documents.

60. It was, however, argued that these admissions should not be taken very seriously because with the admission the defendant at any rate claimed himself to be the owner of the mosque and the properties round about the mosque. We have Shown that he could not claim himself to be the owner of the mosque and the other properties in suit. We have his admission that he was a mutawalli. Even apart from that admission of his there is enough material on record to show that he was throughout working as a mutawalli and treated himself as a mutawalli.

61. It was next contended that the plaintiff's evidence was held by the Court below to be not worthy of credence, and that the decision of the lower Court was right and should not be disturbed. We have gone through the entire evidence adduced on behalf on the plaintiffs. It is true that some of the witnesses of the plaintiffs are persons who have been fighting for the rights of the public for some time. But they have unanimously stated that the community has user over the property in suit as public property. Some of them are as old as 83 years and 73 years. Their evidence is consistent with the finding given in the litigation of 1880–1881. There are indications that they did at times help in the management of the properties. As against this evidence given by them—though the evidence is interested—there is only the defendant's word that he alone is the owner of the property and that the public has got nothing to do with it. He had to admit in cross-examination that the bath-room, Wuzu-khana, and urinals were at different places and were always used by the community. He had also to admit in cross-examination that the passage is used by the public. He had to admit that there was a stair-case which he demolished and to which the witnesses for the plaintiffs have referred. We have already referred to his other admissions wherein he stated he was a mutawalli on behalf of the mosque and Imam-bada and the site A-6. We have shown that the entire property in suit formed one unit. It is surprising that the defendant, though he claims ownership, has not been in a position to put up a single witness, except himself, in his favour to show the non-user by the pubic of the property in suit. The mere fact that the rent-notes were executed in his favour, as was shown to us, or that he entered into a contract of lease with Government so for as A-6 is concerned, or that he recovered rent from the tenants who occupied parts of this property does not go to prove that this was not wakf and that he was not a mutawalli, but owner. As mutawalli he had every right to do all these acts which he says he did. The fact that he constructed kothas in the east and shops in the west and the second storey to the Imam-bada and realized rents from the tenants is consistent with his capacity as a mutawalli. In this capacity he signed his applications to the municiple committee.

62. It was urged that the Imam-bada and takia could be private and that the burden lay on the plaintiffs to prove that this Imam-bada and takia were public properties. We have shown that this Imam-bada and takia are situate in the same compound, which is known as the musjid compound, and are adjuncts of the musjid. The mere fact that they can be private is no reason to hold that in the circumstances of this case they have been proved to be private.

63. The nazul settlement (Exhibit P-5) of the year 1924 was relied on. The Settlement instructions lay down that Section 80 of the Land Revenue Act does not apply to entries regarding nazul settlement. The nazul settlement is based on a summary inquiry regarding possession. Moreover, Exhibit P-5, is mostly in favour of the plaintiffs and partly in favour of the defendant. No party has filed a suit after this settlement in 1924. If anyone has filed a suit it is the plaintiffs. That entry is not in any way conclusive. It has not even the presumption ordinarily raised in the case of a record-of-right entry. The defendant therefore cannot take advantage of only that part of the settlement entry which is in his favour and disregard the rest and say that the plaintiffs' inaction shows that the defendant is the owner.

64. The next point for decision is whether the plaintiffs' suit is barred by the adverse possession of the defendant. The Court below has held that the suit is so barred. It is contended on behalf of the defendant-respondent that ever since the decision in 1880–1881 the defendant and his predecessors were in possession of the properties in dispute as their own, that only the musjid had been declared wakf and that later on airs result of the decision by Kotwal A.J.C in second appeal 353 of 1922 (Exhibit D-34) they conceded that the mosque was a public trust, but that so far as the rest of the properties were concerned the defendant and his predecessors continued to be in possession and therefore the plaintiffs' suit is barred by their adverse possession for more than 12 years before suit. In Exhibit D34 Kotwal A.J.C had to decide the question of the mosque only. The suit related merely to the mosque, which was claimed by the plaintiff (who is now the defendant) as his private property. The other parts of the property were not in dispute in that case. It was a suit instituted by the defendant against the person who declined to hand over the key of the mosque to him and he relied on the award given by the arbitrator in civil suit No. 8 of 1880 as proving that the mosque was private. The Additional Judicial Commissioner without going into the question of interpretation of the decision in civil suit No. 8 of 1880 stated ‘Whatever may be the effect of the decision in 1881, it appears that after that year the musjid has been treated as wakf’. From the treatment by the defendant himself and the public regarding the mosque even after the year 1881 the Court held that the musjid was wakf. This was decided in 1924 as the suit related merely to the musjid proper and not to the adjacent properties or the appurtenant properties which are in dispute in this Court. The additional Judicial Commissioner remarked that the other properties not being in suit, viz., the properties within the takia, including the Imambada, kothas and land, the finding by the Courts below in respect of those properties was gratuitous; and it was very cleary stated that there was no occasion in that suit for a decision as regards the ownership of that property and that any decision given by the Courts below in that respect would not be res judicata.

65. It will thus be seen that in 1919 the defendant tried to assert his private ownership over all the properties including even the musjid. The suit related, however, only to the key of the musjid, and so far as the musjid was concerned it was further stated that it had all along been wakf and not private property, and a decision regarding the nature of the other properties was left out of consideration in that suit as it was not material. Kotwal A.J.C's decision very clearly leaves out of consideration the effect of the previous decision and its interpretation. He bases his decision only on the conduct after 1881. Under these circumstances it is not open to the defendant to say that he was really the owner of the rest of the properties or asserted himself to be the owner of the rest of the properties leaving out only the mosque.

66. Soon after this litigation ended, which was not, however, inter partes, the community started a suit against the defendant in the year 1926, civil Suit 7 of 1926, asking for the removal of the defendant from mutawalliship. But curiously enough it was held in that case that no other property except the mosque was in question in that suit, and Mr. Woodward, the District Judge, in his judgment declined to decide the question regarding ownership of properties other than the mosque and left it to be decided in a separate suit. Eventually he decided that the defendant had a preferential right to be appointed mutawalli of the mosque and ordered that he be appointed mutawalli. He further found that the defendant had been acting as a mutawalli in fact, though no formal appointment had been made.

67. It will thus be seen that in none of these previous decisions except the decision in 1880–1881 has the question of the defendant's ownership of these properties been decided against the plaintiffs; but what has always been decided is that the defendant's father was a mutawalli and was not liable to be removed and that thereafter the defendant was working as a mutawalli, and that he had a preferential claim to continue to work as a mutawalli of the mosque. The defendant and his father being thus mutaioallis of the mosque which was thus a public trust, and we having held that the properties in suit were parts of that trust as appurtenances thereto, those properties also came under their management and they were managers of those properties as such mutawallis. All the acts of the defendant and his predecessors which are claimed as acts showing adverse possession are therefore referable to their lawful fiduciary position as mutawallis. They were not therefore entitled to assert adverse possession against the trust.

68. As was stated in 60 Cal. 5410 at p. 77, “adverse possession, in such circumstances, is a notion almost void of content”. However flag-rant the breaches of duty be on the part of the trustee or the mutawalli he acts on behalf of the trusts and has no right to claim adverse possession. That is also the principle underlying Section 14 of the Indian Trusts Act; see also I.L.R (1943) Bom. 49511 at pp. 505, 508 and Ghosh's ‘Law of Endowments’, Second Edition, at page 897. We hold therefore that the defendant was not in adverse possession of the property.

69. Defendant's father was held to be a mutawalli who was not liable to be removed in the litigation of 1880–1881. He therefore must be deemed to have continued in that position till his death. We have evidence on record that he acted consistently with that decision claiming himself to be a mutawalli. Thereafter the defendant's guardian during his minority and the defendant also claimed themselves to be mutawallis and continued to be in possession. So these persons who entered into possession as trustees were estopped from setting an adverse title as laid down in 34 Mad. 25712 until they had obtained a proper discharge from the trust. The plea of adverse possession thus fails.

70. It was contended on behalf of the defendant that the suit for a mere declaration as such was not tenable, that the plaintiffs were in a position to claim consequential relief and that such consequential relief not having been claimed the plaintiffs' suit ought to be dismissed. In any case, it was contended, relief under Section 42 of the Specific Relief Act being discretionary the present suit should be dismissed as the plaintiffs had failed to prove that this was a case in which the discretion should be exercised in their favour. We have held that the plaintiffs have successfully proved that the properties in suit are wakf. We have shown that the defendant and his predecessors had always held themselves out as trustees and that the defendant was recently appointed a trustee in the litigation started in 1926, civil Suit No. 7 of 1926. Having entered into possession he had no right to set up an adverse title. He began, setting up an adverse title and therefore the plaintiffs deemed it necessary to remove him. With that end in view they applied to the Deputy Commissioner for sanction to sue him under Section 92 of the CPC. There the defendant claimed adverse title and stated that he was owner of the properties other than the mosque, with the result that the Deputy Commissioner ordered the plaintiffs to institute a suit for declaration that the properties other than the mosque were also wakf; and it was therefore that the plaintiffs instituted the present suit. In such a suit it was not necessary for them to claim any consequential relief. They did not claim to possess the property in their own behalf. According to them the defendant is in possession on behalf of the community but is putting the title of the community in jeopardy by asserting adverse title. Under these circumstances a suit for a mere declaration is tenable as held in A.I.R 1925 Mad. 42113 and A.I.R 1936 Lah. 283.14 We hold that a suit for a mere declaration is tenable and that this is a fit case in which the plaintiffs are entitled to a declaration in their favour.

71. Lastly, it was contended that the suit is barred under Article 120 of the Limitation Act. Article 120 of the Limitation Act does not apply to the facts of the present case. This is a representative suit on behalf of the community under order I, Rule 8 of the CPC. It cannot be said that the community as such was ever aware before the institution of this suit that; their title was in jeopardy. It may be that some members thereof learnt about the attitude of the defendant, but that does not mean that the assertion was to the knowledge of the entire community. We therefore hold that on an order by the Deputy Commissioner to institute a suit for a declaration regarding title to these properties the plaintiffs got a fresh cause of action for the suit and were entitled to sue for a declaration as per terms of the order.

72. We have dealt with all the points that were raised before. We hold that the plaintiffs' suit was wrongly dismissed by the Court below. The plaintiffs are entitled to the declaration asked for, viz., that all the immovable properties in suit comprised in the map filed with the plaint outside the musjid proper (marked ABCD) are wakf attached to the musjid and are not the personal property of the defendant. We allow the appeal, set aside the decision of the Court below, and grant the declaration asked for. Costs in both the Courts to be paid by the defendant-respondent.

V.R/D.H

73. Appeal allowed.