Continuous possession for over 12 years establishes adverse possession, and possession by a trustee for a charity cannot change to that of a beneficial owner.

Sir John Beaumont.-

This is an appeal from a judgment and decree of the High Court of Judicature at Fort William in Bengal, dated 28th May 1941 confirming a decree of the First Class Subordinate Judge, 24 Parganas Alipore, dated 31st May 1934.

2. Respondent No. 1 (hereafter referred to as 'the plaintiff') instituted this suit on 18th July 1931, claiming a declaration of title to the property in suit Nos. 2 2/1, 2/2, and 3, Rowland Road, Calcutta and possession of the premises other than No. 2/2 Rowland Road, of which the plaintiff was already in possession. The present appellant was the first defendant, and he claimed that the property in suit was wakf property, and that he was the Mutwalli of the wakf estates having been appointed to that position by the will of Abdul Alim Abed (who will be referred to hereafter as "Abed") the alleged former Mutwalli. The second respondent was the second defendant, and claimed to be in possession under a lease granted by the first defendant of the premises of which the plaintiff sought possession.

3. The facts giving rise to this appeal are these : On 28th January 1876, Juman Mistry, a Mohammedan inhabitant of Calcutta, executed a Towliatnama (deed of trust) by which he purported to create a wakf of certain pieces of land and appointed Mutwallis of the wakf. The properties in suit which Juman owned were not included in the wakf. On 21st June 1880, Juman executed a fresh Towliatnama by which he varied the deed of 1876. In the year 1884 Juman died intestate leaving as his heirs his son Umar Ali and his daughter, Aberjan, and Umar Ali thereupon acted as Mutwalli of the wakf properties. On 5th April 1888, Umar Ali and Aberjan executed a deed of partition dividing between them the properties left by Juman other than those the subject of the two deeds. The properties allotted to the share of Umar Ali included the property in suit. On 11th November 1908, Umar Ali executed a wakfnama by which he purported to make wakf, for the purposes and as part of the wakf created by Juman by the deed of 1880 above mentioned of certain properties including the property in suit. He appointed Aberjan and Samiruddin, son of his cousin Karim Bux, to be Mutwallis, on his death, of the entire properties. He also purported to provide that on the death of either of the said Mutwallis, Abed, son of his daughter, should be appointed Mutwalli in his or her place. On either 7th September or 7th November 1911, Umar Ali died intestate leaving as his heirs Aberjan and Karim Bux. Both dates are given in the record, but nothing turns on the exact date of Umar Ali's death.

4. In the year 1912 Aberjan instituted Title Suit No. 36 of 1912 in the Court of the First Subordinate Judge at Alipore. The defendants were Karim Bux, his sons Samiruddin and Aminuddin, the minor sons of Samiruddin, Abed the minor grandson of Umar Ali, and Mohammed Buksh. The minor defendants were represented by their guardian Karim Bux. The relief sought was a declaration that Aberjan, as coheir with Karim Bux of Umar Ali, was entitled to a share of the properties purported to have been made wakf by Juman and Umar Ali, and a declaration that the said wakfs were invalid and did not affect the title of Aberjan to the properties, and for partition. The final decree in the suit, passed on 5th October 1912, declared the wakfs of 1876, 1880 and 1908 to be invalid, set them aside, and partitioned the property of Umar Ali between Aberjan and Karim Bux the property in Rowland Road now in suit being allotted to the share of Aberjan. On 2nd March 1913, in execution of this decree Aberjan was put in possession of the properties decreed to her including the property in suit. On 22nd June 1913, by a Heba - bil - ewaj, or deed of gift, Aberjan gave the property in suit to Badruddin, grandson of her husband's brother.

5. In the year 1915 Samiruddin, his three minor sons and four Mohammedan members of the public, instituted Title Suit no. 190 of 1915 in the Court of the First Subord