Judgement

Appeal (No. 17 of 1932) from a decree of the High Court (July 24, 1930) affirming a decree of the first Subordinate Judge of Saharanpur (January 19. 1927).

In 1925 the first respondent, as sajjadanashin of a wakf, instituted a suit against the appellants and the other respondents (joined in the appeal pro forma) for possession of certain land in the village of Piran Kalliar Sharif. The village had been dedicated as wakf during the Moghul empire for the maintenance of a shrine there situate and the support of the sajjadanashin. At some date earlier than 1758 the sajjadanashin had settled the lands in suit with the ancestors of certain of the defendants as mujawars (sweepers and attendants) of the shrine ; the other defendants were transferees from the mujawars under transfers made within twelve years of the suit. In 1S9S the plaintiffs predecessor as sajjadanashin had dismissed the mujawars from service and appointed others ; in a suit brought by them the High Court, affirming the lower Court, had held that the dismissal was in accordance with law.

Various defences were raised, among them that the property in suit had not been dedicated in wakf. and that the suit was barred by limitation.

The facts appear more fully from the judgment of the Judicial Committee.

The High Court affirmed a decree for possession made by the trial judge. The learned judges (Banerji and King JJ.) agreed with his finding that the whole village had been dedicated, also with his view that s. 10 of the Indian Limitation Act, 1908, applied and precluded the defence of limitation.

1933. Nov. 27, 28, 30. De Gruyther K.C. and Sir Thomas Strangman for the appellants. The suit being before Act I. of 1929, which amended s. 10 of the Limitation Act, the property in suit was not " vested in trust for a specific purpose " within the meaning of s. 10 and the section did not apply Vidya Varuthi Thirtha v. Balusami Ayyar (( 1921) L. R. 48 I. A. 202.); Annamalai Chettiar v. Muthukaruppan Chettiar (( 1930) L. R. 58 I. A. 1.); Mohunt Bhugwan Ramanuj Das v. Ramkrishna Bose. (( 1919) 26 Cal. W. N. 722 (P. C).) As in the case last mentioned the suit was barred by art. 139. The mujawars were merely servants and their holding a lease within the definition in s. 105 of the Transfer of Property Act, 1882 ; as the suit was not brought within twelve years of their dismissal it was barred by art. 139. Alternatively, the suit was barred under art. 144 by adverse possession for over twelve years. Bilas Kunwar v. Desraj Ranjit Singh (( 1915) L. R. 42 I. A. 202.) is distinguishable, because in that case the defendants case was that the plaintiff never had a title, not that his right to possession had become barred.

Dunne K.C. and Jinnah for respondent No. 1. Even if, having regard to the judgment of the Board in Vidya Varuthis case (L. R. 48 I. A. 302.), s. 10 of the Act does not apply, the decree was right. The title of the plaintiff was established, and the suit was not barred by limitation. Art. 139 does not apply, as there was no tenancy within that article. It is only upon this appeal that that article has been relied upon, and the con tention that it applies is entirely inconsistent with the adverse possession which was pleaded. The onus was upon the defendants, and having regard to the facts it was not established that their possession after 1900 was adverse to the title of the plaintiff. The facts are more consistent with the view that they were allowed to remain in possession as attendants at the other two shrines in the village.

De Gruyther K.C. replied.

Dec. 18. The judgment of their Lordships was delivered by

SIR LANCELOT SANDERSON. This is an appeal by defendants, and the representatives of defendants who have died since the institution of the suit, against the judgment and decree dated July 24, 1930, of the High Court of Judicature at Allahabad, confirming the decree of the first Subordinate Judge of Saharanpur dated January 19, 1927.

The question which falls fo