Judgement

Appeal (No. 122 for 1921) from a judgment and decree of the High Court (March 26, 1920) reversing a decree of the Subordinate Judge of Howrah.

In 1894 Sheikh Abdur Rahim, deceased, dedicated certain property to wakf, the trusts being for the settlor for life, and after his decease to apply the income, after discharging rent and other outgoings, one-half to the worship at a certain mosque, and the other half to the heirs of the settlor of each degree, according to their shares by Mahomedan law. The settlor on his death was succeeded as mutawalli by his sister Nazir-un-nissa. On February 7, 1899, she and her surviving brother mortgaged the property by way of conditional sale to one Kedar Nath for purposes unconnected with the wakf. On the death of the mortgagee, which took place soon afterwards, litigation arose as to who was entitled to his property. Ultimately Sheo Prasad was found to be entitled, and in 1904 he brought a suit on the mortgage. On January 3, 1905, he obtained a preliminary decree for foreclosure and possession, and a final decree was passed in January, 1906. Meanwhile, on February 4, 1905, Sheo Prasad executed an assignment of the mortgage to the father of Narayan Das, the present first respondent, to whom formal possession was delivered by the Court in March, 1906. The first respondent then endeavoured to collect rents from the tenants on the land, and was met by opposition. Soon afterwards persons interested in the wakf, having procured the sanction of the Advocate-General, brought a suit under the Civil Procedure Code, c. 92, in the Court of the District Judge of Hooghly, for the removal of Nazir-un-nissa from her office and for the appointment of a new mutawalli. That suit resulted in a decree appointing the present appellant as mutawalli in her place.

The appellant commenced the present suit on May 2, 1913, to recover possession of the properties. The suit was defended by the first respondent who, in addition to other pleas no longer material, pleaded that the suit was barred by limitation.

The trial judge made a decree for possession. In the course of his judgment he found that Nazir-un-nissa had been in possession within twelve years of the suit being brought.

Upon appeal to the High Court the suit was dismissed as barred by limitation. Richardson J. held that art. 134 of Sch. I. of the Indian Limitation Act, 1908, applied, and that the twelve years period thereunder was to be computed from the date of the mortgage ; he however expressly con curred with the finding of the Subordinate Judge as to the time at which possession was obtained. Syed Shamsul Huda J. differed on the last question, being of opinion that the burden of proof was upon the plaintiff to negative the prescriptive title set up, and that he had failed to do so.

Nov. 9, 10. De Gruyther K.C. and Kenworthy Brown for the appellant. The High Court was wrong in applying art. 134 Vidya Varuthi Thirtha v. Balusami Ayyar (L. R. 48 I. A. 302.); the decision of the Board in that case was given after the judgment now appealed from. The concurrent findings of Richardson J. and the Subordinate Judge that the late mutawalli was in possession within twelve years of the date of the suit was supported by the evidence. The suit therefore was in time whether art. 142 or art. 144 applies. The onus under art. 144 was upon the defendants Secretary of State for India v. Chelikani Rama Rao (( 1916) L. R. 43 I. A. 192.); Kuthali Moothavar v. Peringati Kunharankutty. (( 1921) L. R. 48 I. A. 395.)

Dunne K.C. and E. B. Raikes for the representatives of the first respondent, deceased. It is conceded that having regard to the recent decision of the Board art. 134 do not apply. The suit was however barred. This was a suit in ejectment, and art. 142 applies; under that article the onus was upon the plaintiff to show possession within twelve years. Further, having regard to its provision, the wakf was invalid Mutu Ramanadan Chettiar v. Vava Levvai Marakayar. ((