Suit is barred by the limitation of time

THIRDLY: The suit is barred by the limitation of time prescribed by law. The Court has, therefore, no jurisdiction to try it and must dismiss it as such.

The suit was filed on 18-12.1961. According to the Plaintiffs the subject matter of the suit are the alleged mosque called Babari Masjid and the alleged grave-yard called Ganj Shahidan. Their material allegations with regard to limitation are that on 23.12.1949, "a large crowd of Hindus with the mischievous intention of destroying, damaging or defiling the said mosque... entered the mosque and desecrated the mosque by placing idols inside the mosque"; that the City Magistrate "attached the said mosque by order dated 29.12.1949 under section 145 Cr. P.C., and delivered possession to Sri Priya Dutt Ram as Receiver depriving the Muslims of their "right of offering prayers in the said mosque"; that on the application of the Plaintiff of Suit No. 2 of 1950 "temporary induction was served restraining the defendants of that suit from removing the idols from the mosque in dispute, and from interfering with the puja etc.. of the Hindus", that the result of the injunction was that "while Hindus are permitted to perform puja of the idols, placed by them in the mosque, the Muslims are not allowed even to enter the mosque" which was a public waqf; and that the "injunction is fraught with injustice" hence the suit "on behalf of the Muslim public under Order 1 rule 8 C.P.C. against the Hindu public". The cause of action was said to have arisen "against the Hindu public" on 23.12.1949 when they "entered the mosque and desecrated" it "thus causing obstruction and interference with the rights of the Muslims in general, of saying prayers and performing other religious ceremonies in the mosque." It was further pleaded that the "Hindus are also causing obstruction to the Muslims going in the grave-yard (Ganj-Shahidan) and reciting Fatiha to the dead persons buried therein"; and that the "injuries so caused are continuing injuries and the cause of action arising therefrom is renewed de-die-indiem and as against defendants 5 to 9 the cause of action arose to the plaintiffs on 29.12.1949", which was the date of attachment of the disputed 'mosque'.

The FuIl Bench of the Lahore High Court had observed the following in the Shahidganj Mosque case: AIR 1938 Lahore 369 :

When a mosque is adversely possessed by non-Muslims, that is to say, by the Hindus, the Muslims lose all the rights in the land and the building, including the right to worship. The building cannot maintain the character of a mosque and no duty is cast upon the person in possession thereof to maintain its original character or to maintain it even as a building. All the rights of the Muslims being thus extinguished the persons in possession commit no wrong, much less a continuing wrong by not permitting, or by refusing the right of the Muslims to pray in it. A suit instituted by a Muslim as a beneficiary for the exercise of his right to pray at a mosque is a suit for the enforcement of a individual right and is not covered by the provisions of Order 1, Rule 8 of the Code of Civil Procedure.

The plea that it was a case of a continuing wrong was clearly untenable. Under section 23 of the Indian Limitation Act, 1908, which was sought to be relied upon by the Plaintiffs, by their plea of continuing wrong and the cause of action arising de-die-in-diem. It has been held by the Supreme Court in Balkrishna Sawalram Pujari vs. Shree Dayaneswhwar Maharaj Sansthan: AIR 1959 SC 798 = 1959 Suppl. 2 SCR 476: that –

"Section 23 refers not to continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury, which is complete, there is no continuing wrong even though the damage resulting from the act may continue.... it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as effect of that injury."

As to the effect of attachment of the alleged 'mosque' and the handing over of its possession to the Receiver, it has been pleaded that it resulted in the complete ouster of the Muslims therefrom and. As against the Defendants 5 to 9, that is the City Magistrate etc., the suit was barred by the limitation of 1 year prescribed by Article 14 of the Limitation Act, 1908, in so far as the order of attachment and appointment of Receiver was concerned. The City Magistrate could be said to have committed any wrong or tort against the Muslims when he passed his order on 29.12.1949. He only put the seal of his authority behind the worship carried on by the Hindus. The alleged wrong or injury was complete when the Muslims were completely ousted on 23.12.1949 according to the Plaintiffs' allegation. The continuance of the attachment was not the continuance of any "injury independent of contract" within the meaning of section 23, or a continuing wrong or tort. Even if the order was an injury or a wrong, it was complete when passed on 29.12.1949.

| TOP |

Nor did the issue of injunction by the Civil Judge on 16.1.1950, and its continuance, give rise to any fresh cause of action to the Plaintiffs. The issue or continuance of the injunction cannot be termed to be wrong or a tort, much less a continuing one. In fact a separate suit for cancellation of that injunction did not lie.

It has also been pleaded that the building in suit is in possession of a Receiver who holds for the real owner, and could be released in favour of the Plaintiffs on proof of their title. But if the property in suit was a Muslim Waqf its owner was Allah, and the Plaintiffs not being the Mutawalli, they could not represent Allah the owner. Even so, on the said plea the only proper relief to claim was declaration, and for that the prescribed period of limitation was 6 years from the date of accrual of cause of action under Article 120 of the Limitation Act, 1908

For a beneficiary's suit for recovery of Waqf property the proper article applicable is 120, and not 142 or 144. The Plaintiffs have claimed declaration as the principal relief, and possession by the removal of the Idols and other objects of Hindu worship only if the Court is of opinion that possession is the proper relief.

On the Plaintiffs' case that they are the true owners and entitled to possession of the property in suit, they need not have asked for possession for it is also their case that the possession of the Receiver is the possession of the true owner. The relief for declaration is the appropriate relief in such cases. Moreover, their claim for possession is in effect a claim for the relief of mandatory injunction. It is not a claim for possession of immovable property within the meaning of either of the Articles 142 or 144 of the Limitation Act, 1908. They have asked for possession by the removal of the Idols and other objects of Hindu worship, obviously because possession over the place cannot be had under a decree of possession simpliciter, inasmuch as the Deities are not chattel but have a juridical personality of their own and are in possession of the place as owners. The limitation for a suit for mandatory injunction was also 6 years under Article 120 of the Limitation Act, 1908.

Assuming that the substantive relief claimed was for recovery of possession and that it could be had without a decree for mandatory injunction commanding the Idols to remove themselves, and further that a suit by the beneficiaries for possession of Waqf property is maintainable in the sense that after the declaration of title of the Waqf to the property its possession vests in the Mutawalli on behalf of Allah, the Article of the Limitation Act, 1908 applicable to such a suit is still 120 and not 142 or 144, for the Plaintiffs are not the owners of the property nor the agents of Allah the owner. They could not be said to have been dispossessed or to have discontinued possession of property in their possession. Being mere beneficiaries and not the owners or the agents of the owner, like a Mutawalli, they could not be said to have been in, or entitled to that possession of the property of the Waqf, which is, contemplated by Article 142 or 144.

The Plaintiffs' suggestion that the possession and dispossession was of the Muslim community is clearly untenable in law. They are a fluctuating body of persons and do not have a corporate character, or constitute a corporation or have any juridical personality capable of owning or possessing property. A suit for recovery of trust property by its beneficiaries has consistently been held to be governed by Article 120 and not 142 of 144 or the Limitation Act, 1908. : Rani Chhatra Kumari Devi vs. Mohan Bikram Shah: AIR 1931 PC 196 = 58 IA 279: