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TMI Blog1933 (12) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... generation after generation and womb after womb from the time of the rule of the Moghul Emperors for the expenses of the dargah (shrine) of Hazrat Makhdum Ala-ud-din Ali Admad Sabir Saheb 'Quds-allah Sirrabulaziz' (May God sanctify his cause) situate 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 wagf, and that all the defendants except certain named defendants are mujawars. 5. 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. 6. The plaintiff is the present sajjadanashin of the said wakf property, and other parties to the suit were at one time mujawars, i.e., servants of the shrine and their assigns. 7. Both Courts have held, and it is not now disputed, that the entire village was dedicated in wakf for the maintenance of the abovementioned shrine and for the maintenance of the sajjadan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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, Muhammadan 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. 14. It was provided by Section 1(2) that the said Amendment Act should come into force on January 1, 1929. 15. The suit, which is the subject of this appeal, was brought on January 29, 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. 16. The provisions, therefore, of the Amendment Act of 1929 are not applicable, and the question is whether the unamended Section 10 of the Indian Limitation Act of 1908 is applicable to this suit. 17. 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ol or the institution he holds as manager with certain beneficial interests regulated by custom and usage. Under the Mahommedan 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 mutawalli or sajjadanashin, or by any other name, is merely a manager. He is certainly not a 'trustee' as understood in the English system. 21. It was stated that the amendment hereinbefore mentioned of Section 10 by the Act of 1929 was effected in consequence of the abovementioned decision. 22. Their Lordships are of opinion that, in view of the abovementioned 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 Section 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 abovementioned ground. 23. It was argued by the learned Counsel for the appellant-defendants that if Section 10 did apply to this suit, the defendants were assigns of the plaintiff for valuable consideration, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1908, and to the allegation that the possession of the defendant mujawars had been adverse for more than twelve years before the institution of the suit. 32. The learned Counsel for the appellants referred to Article 139 as well as Article 144. It may be noted at once that the appellants' plea of adverse possession is obviously inconsistent with the application of Article 139, which relates to the case of a landlord suing to recover possession from a tenant. 33. 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 twenty biswas (i.e., the entire twenty biswa village being divided into five shares, the plaintiffs are the owners of two of them). 34. The plaintiffs claimed further to be mutawallis of the shrine of Ala-Uddin. 35. 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. 36. In 1898 Zahur-ul-Hasan, the then sajjadanashin, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 44. 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. 45. 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 persist in their contention that they were owners and mutawallis; they were content to occupy the position of attendants and servants of the shrines, and they then limited their contention to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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