Shama Churn Roy and Others vs Abdul Kabeer and Others

This is a second appeal from a judgment of the Subordinate Judge of Hooghly dismissing the Plaintiff''s suit brought against the Defendants on the 21st of August 1894, for recovering possession of a certain piece of land which it was alleged, the Defendants had dispossessed them in Bysack 1300, that is, some time in the year 1893. The Plaintiffs alleged that the land in suit, along with others, had been dedicated by a person of the name of Sheikh Keamuddin, who was the rightful owner at the time of the premises in question, to a certain mosque situated at a place called Tatar Chuck, in the district of Burdwan. By the deed by which the dedication was effected certain persons were appointed trustees of the mosque and the lands so dedicated; that on the 19th of Falgoon 1294, the said trustees sold the lands which form the subject matter of the present suit to the Plaintiffs in order to raise money for repairing the mosque and defraying the expenses of suits relating to the said mosque and other properties; that under the deed of sale the Plaintiffs obtained possession conveyed to them as aforesaid, and remained in such possession until they were dispossessed by the Defendants in Bysack 1300, as already stated.

The Defendants in answer to the suit, among other objections, contended that as the property was wakf the sale of the land in question by the trustees was absolutely void; and therefore the Plaintiffs being out of possession had no title to recover possession; and they put forward some title of their own in regard to the subject-matter of the suit.

Upon the pleadings the Munsif framed several issues, and he came to the conclusion that the Defendants had no title whatsoever; and that inasmuch as the property was sold to meet the expenses of litigation and the repair of the mosque, the sale was valid, and the Plaintiffs were entitled to recover the property. He accordingly decreed the Plaintiffs'' claim.

On appeal the Subordinate Judge held that the mutwallis not having obtained the sanction of the Judge for the alienation of the trust property, the sale gave no title to the Plaintiffs; and that, therefore, their suit must fail, and ho accordingly dismissed it.

The Plaintiffs have now appealed specially to this Court; and the main contention raised on their behalf is that although under the conveyance by the trustees the Plaintiffs may not have acquired a valid title to the land, yet as the Defendants are mere trespassers, they, the Plaintiffs, are entitled to recover in this action, on the principle of the case of Ismail Ariff v. Mahomed Ghous (I. L. R. 20 Cals 834). It seems to us, however, that the facts of that case differentiate it from the present. The Plaintiff there whilst in actual possession of the property, which commenced under some semblance of title, was disturbed, though not dispossessed by a person who was found to have no title whatsoever. Under those circumstances their Lordships of the Privy Council considered it a fit case for an injunction restraining the Defendant from interfering with the Plaintiffs'' possession. In the present case the Plaintiffs are out of possession, and they bring the suit to recover possession. In order to see whether such an action is maintainable we shall have to consider : first, whether under the sale by the trustees the Plaintiffs acquired any title. In other words, what was the nature of the transaction between the Plaintiffs on the one hand, and the trustees on the other; and, secondly, if it was a void transaction, whether the mere fact that the Plaintiffs had obtained possession, and had remained in possession for some time, would entitle them to obtain a decree for recovering possession against the Defendants who have ousted them, and who do not show title. It must be remembered that this is not an action under sec. 9 of the Specific Relief Act, but a suit based primarily on title. It has been contended by the learned pleader for the Appellant that the sale by the trustees to the Plaintiffs was not absolutely void, but only voidable, and that consequently, although any person interested in the wakf, might come in and get the sale set aside on the ground that the requirements of the law regarding sanction had not been complied with, so long as that is not done the sale should be considered good and valid. No authority, however, has been cited in support of the preposition that such a transaction is only voidable. On the other hand the principle laid down in the case of Musst. Rajeshwari Dasya v. Mahomed Abdullah (7 Sel. Rep. 320) is distinct. It was hold there in express terms that the alienation, temporary or absolute, by mortgage or otherwise, though for the benefit of the endowment, is illegal, according to the Mahomedan Law. And the enunciations of the Privy Council in the case of Jewan Das Sahu v. Shah Kabiruddin (1 Moo. I. A. 422) are to the same effect. Having regard therefore to the general provisions of the Mahomedan Law and the principles enunciated in the two cases referred to, we must hold that the transaction was not merely voidable but void. We must state, however, that we do not agree with the Subordinate Judge that leave should have been obtained under sec. 539, 0. C. P. A proceeding under that section has reference to wholly different matters, but the Civil Court of Superior Jurisdiction in the District is vested, generally speaking, with the powers exercised by the Kazi under the Mahomedan regime. Before an alienation of a trust property can be made by the trustee the sanction of the Kazi, in other words the Judge, is essential. The transfer of the Plaintiffs having been made by the trustees without such sanction must be held to have conveyed to the Plaintiffs no title to the land in suit. That being so, the question arises, are the Plaintiffs who were in possession under deed of sale entitled to maintain this action as against the Defendants who have shown no title under the English Law ? no doubt, mere possession gives the right to recover as against a tortfeasor who ousts the person in possession without any title in himself. In this Court there seems to have been at one time some difference of opinion, but the course of decisions latterly has been in favour of the proposition that unless a suit is brought under sec. 9 of the Specific Relief Act, mere possession cannot enable a person who is dispossessed to recover against a tortfeasor. In other words, when a man who has been in possession is dispossessed, and brings his suit beyond six months from the date of dispossession he is bound to prove his title, and cannot rely merely upon his previous possession for recovering in the action. That principle was laid down in distinct terms in the case of Purmeshur Chowdhry v. Brijo Lall Chowdhry (I. L. R. 17 Cal. 256), which followed the case of Ertaza Hossein v. Bany Mistri (T. L. R. 9 Cal. 130); and it seems to be supported by the enumciations of the Judicial Committee in the case of Wise v. Ameerunnissa Khatoon (L.R. 7 I.A. 73(1879-80)). We are not prepared, as at present advised, to differ from the view taken in the case of Purmeshur Chowdhry v. Brijo Lall Chowdhry (I.L.R. 17 Cal. 256(1890)). We have come to this conclusion not without some hesitation, but it seems to us the Plaintiffs are not seriously prejudiced by the dismissal of their suit, for it is open to their vendors to bring an action to eject the Defendants from the land and afterwards to take proper steps to give a good title to the Plaintiffs. On the whole we are of opinion that the view taken by the lower Appellate Court is correct, and that this appeal should be dismissed. But under the circumstances of the case we give no costs.