Judgement

Appeal (No. 91 of 1938) from a decree of the High Court (January 26, 1938) which had affirmed a decree of the District Judge, Lahore (May 25, 1936).

A structure which had been built as a mosque in Lahore was dedicated in A.D. 1722, but from about 1762 the building and adjacent land had been in the occupation and possession of the Sikhs. In 1849, at the time of the British annexation, the mosque building and the property which had been dedicated therewith were in the possession of certain Sikhs, Mahants of a Sikh shrine (gurdwara), and the mosque building was used by the custodians of the Sikh institution. In 1927, by notification made pursuant to the Sikh Gurdwaras Act (Punjab Act VIII. of 1925), the old mosque building and land adjacent thereto were included as belonging to the Sikh gurdwara. Litigation was brought before the Sikh Gurdwaras Tribunal in 1928 "on "behalf of the Mohammedans,’ who claimed that the land and property were dedicated for a mosque and did not belong to the gurdwara. The Tribunal held that the claim failed by reason of adverse possession and previous decisions, and in the result the property and building were given into the custody of the defendants, and on July 7, 1935, the building was suddenly demolished by or with the connivance of its Sikh custodians under the influence of communal ill-feeling.

The suit out of which the present appeal arose was brought by eighteen plaintiffs, the first being the mosque itself, in the sense of the site and building, suing by a next friend, and the other plaintiffs, including minors and women, were persons who claimed that they had a right to worship in the mosque. The suit was brought against the Shiromani Gurdwara Parbandhak Committee and the Committee of Management for the notified Sikh gurdwaras at Lahore, who were in possession of the disputed property, and was for (inter alia) a declaration that the building was a mosque in which the plaintiffs and all followers of Islam had a right to worship there, and a mandatory injunction to reconstruct the building.

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

The District Judge dismissed the suit, and his decision was affirmed on appeal to the High Court (Young C.J. and Bhide J., Din Mohammad J. dissenting).

1940. April 4, 5, 8 and 9. L. P. E. Pugh K.C and J.M .Pringle for the appellants. The question is Can the appellants maintain a right to worship in a particular mosque and on the site of that mosque, and in

Law. Rep. 67 Ind. App. 251 ( 1939- 1940) Mosque Known as Masjid Shahid Ganj v. Shiromani Gurdwara 78

a new mosque on the same site if they can get it erected; is that suit hit by the Limitation Act ? It is conceded that it cannot be argued that Mahomedan law is entirely outside the Limitation Act. The appellants case may be put briefly thus s. 28 of the Limitation Act has no application, because it only relates to a suit for possession; the appellants have not brought a suit for possession, and are not obliged to do so, and therefore they are not affected by s. 28. Their bare right of suit as individual Mahomedans continues so long as the mosque is there, and is not affected by their disuser or their fathers or grandfathers disuse; their right is not inconsistent with the decision that the mosque now belongs to somebody else. It is conceded that if a mosque be pulled down and a secular building erected in its place, that would attract the provisions bf adverse possession. A masjid or mosque is a juristic person owned by no one, perpetual, inalienable, irrevocably dedicated, and has a sanctity and existence which can never be destroyed, even if it falls into ruins, and is there fore not subject to any law of limitation based upon adverse possession. [Reference was made to Vidya Varuthi Thirtha v. Balusami Ayyar (( 1921) L. R. 48 I. A. 302, 310-12.); Pramatha Nath Mullick

v. Pradyumna Kumar Mullick (( 1925) L. R. 52 I. A. 245, 250.); and Hukum Chand v. Maharaj Bahadur Singh. (( 1933