Judgement

BOSE J. - This appeal marks the culmination of a series of acrimonious disputes that have been going on between a section of the Mahommedan community at Jabalpur and one Gulabshah and his sons the defendant since the year 1880 about portions of land that adjoin a mosque in Jabalpur known as the Kotwali Masjid. It is now admitted that the masjid proper and the ground on which it is built is wakf property.

At one time Gulabshah and claimed even the masjid as his own property but that was decided against him in the year 1881 and since then he, and after him, the present defendant, have admitted that the Masjid proper is wakf; but the dispute about the rest continues.

2. The suit is supposed to be a representative suit under O. 1, R. 8, Civil P. C. although it would be impossible to gather that from the plaint and the subsequent pleadings; and even now it is difficult to know exactly who the plaintiffs are supposed to represent; nor is there any order on record evidencing the permission of the Court.

However, as the learned Additional District Judge of Jabalpur said in his judgment that the suit was filed in a representative capacity O. 1, R. 8, and as the other side did not challenge that in appeal, we must take it that they are satisfied on that point.

3. The present suit was filed on 12-8-1936 and the decision of the High Court was given on appeal on 28-9-1945. The certificate of admission was signed on 9-4-1945 (sic). The appeal here has taken eleven years to come on for hearing and it is twenty years since the suit was filed. Most of the delay after the decision of the High Court was in the Nagpur High Court, for the records did not reach this Court till 12-10-1953, but even here it has taken 3 years. This is most unsatisfactory.

4. The plaintiff s case, as set out in the plaint, is that the masjid proper belongs to the sunni community of Mahommedans of Jabalpur city and that the defendant was appointed its mutwalli by the District Judge of Jabalpur on 3-8-1927.

The plaintiff case is that the lands and other properties that surround the masjid and are adjacent to it are also part of the masjid property, but the defendant claims them as his own personal property. Hence the plaintiffs sue for a declaration that the property is wakf property and not the defendants and that the defendant is only a mutwalli or trustee of this property as well as that of the masjid proper.

5. The plaintiffs admit that the defendant is in possession of these properties but they assert that he is there as mutwalli and that his possession is on behalf of the Sunni Mahommedan community. For that reason, the plaintiffs say that a declaratory suit will lie and that they need not sue for possession. They also claim that no question of limitation or adverse possession can arise because, firstly, the possession is, and always has been, that of the community through the defendant; and secondly, because the defendant is a trustee under a trust for a specific purpose and so cannot set up a title hostile to the trust.

6. Neither side has any document of title. In their plaint, the plaintiffs rely solely on the following facts :

(1) that the masjid proper is now admitted to be wakf property;

(2) that these other properties surround the mosque and adjoin it; and

(3) on five specific acts of user that are set out in para. 7 of the plaint.

There is also a general assertion that "these buildings and lands have always been used for the benefit of the community."

7. The first Court found in favour of the defendant and against the plaintiffs and dismissed the plaintiff s suit. On appeal the High Court reversed this and decreed the claim. The defendant appeals.

8. Now it is evident at the outset that the burden lies on the plaintiffs. The defendant is admittedly in possession and except for the fact that the plaintiffs claim that he is in possession of their behalf (a face which the defendant denies) the plaintiffs are out of possession. Hence they must prove that the def