Abdul Aziz V. Abdul Rahim

[Full Bench. ]

Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Middleton, and Mr. Justice Wood Renton.

ABDUL AZIZ v. ABDUL RAHIM et al.

D. C, Colombo, 26, 976.

Muhammadan mosque - Trustee - Possessory action - Requisites of " possession. "

A person appointed by the congregation of a Muhammadan mosque as " trustee " for a term of years, whose duties and powers are defined by the rules framed by the congregation, and who is controlled in the exercise of his powers by an " assembly " elected by the congregation, is not entitled to maintain a possessory action.

The Roman-Dutch Law requires the plaintiff in a possessory action to have had quiet and undisturbed possession for a year and a day; and the requisites of possession are the power to deal with the property as he pleases, to the exclusion of every other person, and the animus domini, i. e., the intention of holding it as his own.

APPEAL from a judgment of the Acting Additional District Judge of Colombo (G. S. Schneider, Esq. ).

This was a possessory action brought by the plaintiff against the defendants. The plaintiff in this case claimed to be trustee of the mosque at Maradana, and he alleged that he was in the quiet and undisturbed possession thereof for over five years prior to June 21, 1908, and that on that date the defendants unlawfully entered upon the said mosque and ejected him from the control and management of the said mosque.

The plaintiff was appointed trustee under the following " Rules and Regulations for the Management of the Mosque, " which were adopted by the congregation at a public meeting held on October 10, 1902: -

General Rules.

"1. All affairs appertaining to the Maradana mosque shall be controlled and supervised by a Committee of fourteen members elected every five years by the congregation from their members for the purpose, and that Committee shall be called' the Mussalmans' United Assembly, ' and referred to in the following rules and regulations as ' the assembly. ' Five members to form a quorum.

" 2. The congregation shall appoint one of the assembly as the trustee and one as assistant trustee of the Maradana mosque, one as the chairman and one as vice-chairman, and one as the secretary of the assembly, each for a period of five years.

" 3, The assembly shall give written authorities or directions to the trustee and the assistant trustee in the name of the congregation No to transact all business connected with the mosque, and such written authorities shall be signed by not less than five members of the assembly. The assistant shall be authorized to succeed the trustee on his demise or dismissal, to assume all his powers, and to transact all business connected with the mosque as a lawful trustee for the remainder of the period for which the deceased or dismissed trustee was appointed.

"4. It shall be the duty of the trustee-

'' (a) To take charge of the lands and houses and all movables belonging to the mosque, and to collect the income, rents, and issues thereof.

" (b) To keep clean and in repair the mosque, and the houses, lands, and premises belonging to the mosque.

" (c) To attend to and make the repairs of houses, movables, and immovable premises belonging to the mosque.

" (d) To lease the houses, lands, and premises belonging to the mosque, such lease not to extend beyond a period of two years, and the conditions, terms, and provisions to be submitted to and approved by the assembly.

" (e) To spend out of the income towards repairs and defraying other incidental expenses.

" (f) To appoint and pay the Mohideen.

" (g) To inquire into disputes and differences of the priest Mohideen and members of the congregation in respect of the congregation, mosque, the worship carried on therein, and other matters connected with the mosque.

" 9. There shall be a stamp of the trustee, and it shall be in custody of the trustee. "

Rules for the Guidance of the Tr

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