De facto trusteeship of a Pallivasal entitles the trustee to a decree for possession, and considerations applying to de facto guardians of Muhammadan minors do not apply.

Viswanatha Sastri, J.

1. Appeal by the legal representative of the deceased 1st plaintiff against the appellate decree of the Court of the Subordinate Judge of Sivaganga in Appeal Suit No. 66 of 1920. The suit was instituted by the deceased 1st plaintiff as hukdar of the Wallajah Nawab Jumma Kotwa Pallivasal at Sivaganga for delivery of possession of the site leased to the 1st defendant. The 1st defendant denied the sole right of the 1st plaintiff to the hukdarship and management of the Pallivasal and contended that the Pallivasal and its properties were being managed by the Muhammadan community of Sivaganga through persons appointed by them. He further contended that he was only in possession of the southern portion of the site as lessee from Keelaka, Perottasi, with the permission of the then managers, that he had executed a rent deed in their favour on 14th June 1915, for a period of three years, and that he was never in possession of the northern portion. The first issue framed related to the question whether plaintiff was the sole trustee of the Pallivasal and whether he was entitled to maintain the suit. The third issue and the additional first issue related to the question whether the northern and the southern portions of the suit site had been leased by the 1st plaintiff to the 1st defendant. These issues were found in favour of the plaintiff by the District Munsif and a decree-passed accordingly.

2. On appeal the learned Subordinate Judge held that the leases were not made out and that plaintiffs were not the sole hukdars of the plaint mosque. The latter finding was contested before me, and it was further urged on the facts found, it was clear that the 1st plaintiff was the de facto manager of the Pallivasal and that since the right of the Pallivasal site was conceded, the lower Court ought to have passed a decree for possession on the authority 0f the ruling in Benarsi v. Altaf Husain [1921] 63 I.C 171.

3. That on the facts found the 1st plaintiff must be deemed to have been the de facto manager of the mosque is clear to my mind. Evidence was let in to prove: (1) that plaintiff and his ancestors have been as trustees letting the mosque shops for rent and collecting rents therefrom and paying union tax thereon ; (2) that they have done the necessary repairs to the shops: (3) that they have repaired and improved the mosque building by erecting a front gate and a water cistern; (4) that they have acquired properties for the mosque and have charged or alienated the mosque properties for necessary purposes; (5) that they have sued the tenants and got decrees as trustees ; and (6) that they have openly asserted their rights as trustees in various proceedings and they have been so recognized by the public. The District Munsif has carefully considered the evidence on all these points, dealing with each point, separately. Bach point was found proved, and he came to the conclusion on the first issue that plaintiff was the sole trustee. The learned Subordinate Judge found that since the year 1867, plaintiff, his father, and grandfather were managing the affairs of the Pallivasal, and that they were doing the duties of Levvais in the mosque. He also found they had been taking rent-deeds with respect to properties belonging to the Pallivasal and that they were parties to the suits relating to Pallivasal properties; but he held that these circumstances did not lead to the conclusion that plaintiff was the sole trustee. This is what he says:

The documents filed in the case taken along with the oral evidence adduced on the plaintiffs side go to show that in the former times the mosque affairs were being managed by the Levvais of the mosque in conjunction with the Uravaini Murayara, that from and after 1867 or there abouts, ancestors of Plaintiffs Nos. 1 and 2 have been calling themselves hukdars and doing some acts of management including the collection of rent due from shops belonging to the mosque.

4. Then he goes on to say tha