JUDGMENT

Agha Haidar, J. - This appeal arises out of a suit for a perpetual injunction restraining the defendants from using the site indicated in the plan attached to the plaint for the purpose of building a mosque and also for possession of a certain area indicated in the plaint which has been enclosed by walls and on which the defendants intend to build a mosque. There was a further claim for a sum of Rs. 20, the price of a certain tree which was standing on the site in dispute and which it was alleged had been cut down by the defendants. The plaintiffs are certain proprietors of the village and their case is that the site in dispute had been occupied by Bagh and Buta and on their death it came into the possession of one Mangtu who died 4 or 5 years ago and on his death it reverted to the proprietors. The plaintiffs further allege that there was a kotha on the site which was burnt down by them about 2½ years ago and that the defendants are now raising certain walls and intend to build a mosque on the site of the old kotha. The case for the defendants is that there had been a kacha mosque on the site in dispute and all that they intended to do was to convert it into a pacca building.

2. The trial Court dismissed the plaintiffs suit holding that, although defendants 1 and 2 were not the owners of the site, they had been making use of the mosque which had existed for a long time and that it was too late for the plaintiffs to raise any objection. The plaintiffs went up in appeal. The lower appellate Court held that there was a kacha mosque on the disputed site but the defendants had no right to convert it into a pacca building. It accordingly held that the defendants can use the land in dispute as a place for offering prayers by maintaining only a kacha mosque on it. The plaintiffs were, therefore, granted an injunction restraining the defendants from making any use of the site alif, sin swad and toe excepting a portion 23 ft. X 35 ft. towards the northwest of the area. This portion the defendants were allowed to use as a place for offering prayers and they were given liberty to maintain a kacha mosque thereon. The claim regarding the price of the tree was rejected. The plaintiffs suit for possession of the portion alif, be, jim and dal was dismissed. The defendants have come up to this Court in second appeal and the plaintiffs have filed cross-objections. The sole question argued on behalf of the appellants was that the lower appellate Court, having recorded a finding of fact that there was a kacha mosque on the site in dispute, its decision was wrong in so far as it gave an injunction to the plaintiffs restraining the defendants from converting the kacha mosque into a pacca mosque. The lower appellate Court has referred to two authorities of the Punjab Chief Court. In Kalu v. Wasawa Singh (1904) 19 PR 1904, the finding of the Divisional Judge was that the evidence was not sufficient to show that there was a regular mosque at the spot. The learned Judges rightly pointed out that the defendants, who were kamins, and as such held land from the proprietary body, were not competent to build a mosque without the consent of the proprietors. This case therefore has no application. In the same way Sawan v. Mehr Din AIR 1918 Lah 117 is inapplicable. In that case a takyadar attempted to convert a thara on which some Muhammadans had been saying their prayers into a mosque. This he was not allowed to do as the land had been given to him with the primary object of maintaining a takya only.

3. In the present case the lower appellate Court has recorded a clear finding that after 1865 the mosque came into existence on a portion of site occupied by non-proprietors and was dedicated, very many years ago as a place of worship. It arrived at the conclusion that there was a mosque in the village on the place marked alif, be, jim and dal in the plan Ex. D/l, and that the proprietors could not be allowed, in view of the use to which the land had been p