မရွှေ့မပြောင်းနိုင်သောပစ္စည်းကိုသတ်မှတ်ကာလကြာဆန့်ကျင်လက်ရှိထားသူသည်ထိုဥပစာ၏ပိုင်ရှင်ဖြစ်သွားသလော ?

ဆရာကြီးဦးမြသင်ကြားပို့ချချက်များ

မရွှေ့မပြောင်းနိုင်သောပစ္စည်းကိုသတ်မှတ်ကာလကြာဆန့်ကျင်လက်ရှိထားသူသည်ထိုဥပစာ၏ပိုင်ရှင်ဖြစ်သွားသလော ?

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ကာလစည်းကမ်းသတ်အက်ဥပဒေပုဒ်မ၂၈တွင်”ပစ္စည်းလက်ရောက်ရလိုကြောင်းတရားစွဲဆိုခြင်းအတွက်၊အက်ဥပဒေအရကန့်သတ်ထားသည့်ကာလအပိုင်းအခြားကုန်ဆုံးသောအခါတွင်၊ထိုပစ္စည်းပိုင်ဆိုင်ခွင့်သည်လည်းကုန်ဆုံးပြတ်စဲစေရမည်။”ဟုပြဌာန်းထားသည်။

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AIR 1938 LAHORE 369( F. B. )

Lahore High Court

HON'BLE JUDGE(S): YOUNG, C.J. AND BHIDE, DIN MOHAMMAD, JJ

အမှုတွင်၊တရားဝန်ကြီးချုပ်က၊ကာလစည်းကမ်းသတ်အက်ဥပဒေပုဒ်မ၂၈ကိုအကြောင်းပြုပြီးဆန့်ကျင်လက်ရှိထားသောပစ္စည်းတွင်ခိုင်လုံသောဆိုင်ရေးဆိုင်ခွင့်ရရှိပြီးပိုင်ရှင်အဖြစ်ထိုပစ္စည်းတွင်အခွင့်အရေးအပြည့်အဝရရှိသည်ဟု၊စီရင်ထုံးစာမျက်နှာ၃၇၇တွင်-

“The Sikhs(မှတ်ချက်။   ။ပစ္စည်းဆန့်ကျင်လက်ရှိထားသူများ)on the other hand by virtue of S.28, Limitation Act, obtained a good title to the land and building thereon and have full rights therein as owners.”

ဟုပြဆိုသည်။

အခြားတရားဝန်ကြီးက၊တရားပြိုင်များသည်၁၂နှစ်ကျော်ဆန့်ကျင်လက်ရှိထားပြီးနောက်၊အချင်းဖြစ်အဆောက်အအုံတွင်၊တရားလို၏အခွင့်အရေးများဆုံးရှုံးသွားကြောင်းပြဆိုပြီးနောက်၊အချင်းဖြစ်ပစ္စည်း၏ပိုင်ဆိုင်ခွင့်သည်၎င်းတို့ထံသက်ရောက်သည်။

(Further the Sikhs having remained in possession for over 12 years, the ownership of the property vested in them.(ef.3 Cal 224, 3 All 435, 4 Cal 699 etc.)

ဟုစီရင်ထုံးစာမျက်နှာ၃၈၅တွင်ထုံးဖွဲ့သည်။

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အင်တာနက်မှရှာဖွေတွေ့ရှိသော-

Res Judicata and Limitation Principles in Masjid Shahid Ganj v. SGPC: A Comprehensive Legal Commentary

စာတမ်းတွင်အောက်ပါအတိုင်းဖော်ပြသည်-

Res Judicata and Limitation Principles 

in Masjid Shahid Ganj v. SGPC: 

A Comprehensive Legal Commentary

Introduction

The case of Mosque Known As Masjid Shahid Ganj And Others v. Shiromani Gurdwara Parbandhak Committee, Amritsar And Another, adjudicated by the Privy Council on May 2, 1940, stands as a pivotal judicial decision concerning the intersection of religious property rights, limitation statutes, and the doctrine of res judicata within British India. 

This case revolved around the ownership and usage rights of a mosque in Lahore, its historical occupation by Sikhs, and the subsequent legal battles attempting to reclaim it for Islamic worshippers.

Summary of the Judgment

The Privy Council dismissed the appeal brought forth by the plaintiffs seeking to reclaim the Masjid Shahid Ganj for Muslim worshippers. 

The court upheld the decisions of lower courts, emphasizing the applicability of the Limitation Act, which barred the plaintiffs from enforcing their claims after an extended period of adverse possession by the Sikh custodians. 

Additionally, the Privy Council rejected the notion that the mosque could be recognized as a juristic person capable of holding property rights independently of its  custodians.

Legal Reasoning

The Privy Council's decision hinged on several key legal principles:

The Limitation Act, 1908: The court affirmed that procedural statutes like the Limitation Act apply to wakf properties, meaning that claims to recover property after the statutory period are time-barred.

Adverse Possession: The prolonged Sikh occupation of the mosque constituted adverse possession, extinguishing the original waqf property's rights under the Limitation Act.

Limitation Act

The Limitation Act sets time limits within which legal actions must be initiated. 

After the period lapses, the courts typically dismiss the case regardless of its merits.

Conclusion

The Privy Council's decision in Masjid Shahid Ganj v. SGPC underscores the paramount importance of statutory limitations and the finality of judicial decisions within the British Indian legal framework. 

By dismissing the plaintiffs' claims based on the Limitation Act and res judicata, the court reinforced the principle that procedural laws can supersede longstanding religious or customary property rights. 

Furthermore, the rejection of juristic personhood for the mosque signifies a cautious approach towards recognizing religious institutions within the legal personality doctrine. 

This judgment serves as a critical reference point for future disputes involving religious endowments, emphasizing the necessity for timely legal action and clear ownership documentation to uphold religious and charitable property rights.

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AIR 1938 Lahore 369.အမှု၏အမှုသည်အပြည့်အစုံအမည်မှာအောက်ပါအတိုင်းဖြစ်ပါသည်-

Masjid Shahid Ganj

                 v. 

Shiromani Gurdwara Parbandhak Committee, Amritsar,

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Masjid Shahid Ganj Mosque 

                     vs 

Shiromani Gurdwara Parbandhak ... 

on 2 May, 1940

Equivalent citations: (1940)42 BOMLR 1100, AIR 1938 Lahore 369.

JUDGMENT

George Rankin, J.

အမှု၌၊စီရင်ချက်စာမျက်နှာ-၃၊အပိုဒ်၆နှင့်၇တွင်အောက်ပါအတိုင်းသုံးသပ်သည်-

6. The plaint in the present suit was filed on October 30, 1935, in the Court of the District Judge, Lahore, against the Shiromani Gurdwara Parbandhak Committee, and the Committee of Management for the notified Sikh gurdwaras at Lahore-the authorities who were in possession of the disputed property as being property belonging to the gurdwara.

7. It contained no claim for possession of the property or ejectment of the defendants or that the property be handed over to the hereditary mutawali. 

The relief claimed was a declaration that the building was a mosque in which the plaintiffs and all followers of Islam had a right to worship, an injunction restraining any improper use of the building and any interference with the plaintiffs' right of worship: and a mandatory injunction to reconstruct the building. 

The learned District Judge dismissed the suit by decree dated May 25, 1936, and an appeal to the High Court was dismissed on January 26, 1938, by Young C.J. and Bhide J., Din Mohammad J. dissenting.

စီရင်ချက်စာမျက်နှာ-၅၊အပိုဒ်-၁၁တွင်ကာလစည်းကမ်းသတ်ဥပဒေပြဿနာနှင့်ပတ်သက်၍အောက်ပါအတိုင်းသုံးသပ်သည်-

11.The rules of limitation which apply to a suit are the rules in force at the date of institution of the suit, limitation being a matter of procedure. 

It cannot be doubted that the Indian Limitation Act of 1908 applies to immoveables made wakf, notwithstanding that the ownership in such property is said in accordance with the doctrine of the two disciples to be in God, Thus in Abdur Rahim v.Narayan Das Aurora (1922) L.R. 50 I.A. 84 it was expressly stated by Lord Sumner delivering the judgment of the Board (p. 90):-

The property, in respect of which a wakf is created by the settlor, is not merely charged with such several trusts as he may declare, while remaining his property and in his hands. It is in very deed ' God's acre' and this is the basis of the settled rule that such property as is held in wakf is inalienable, except for the purposes of the wakf.

Yet in that very case it was taken as plain that if Article 134 of the Indian Limitation Act did not apply to a waqf, the claim to recover possession of waqf property was governed either by Article 142 or Article 144. 

The rule of Hanafi law that waqf property is taken to have ceased to be held in human ownership is applied to all such property even if the waqf be a wagi-alal-aulad or waqf for the benefit of descendants.

စီရင်ချက်စာမျက်နှာ-၇နှင့်၈၊အပိုဒ်-၁၆၊၁၇တွင်အောက်ပါအတိုင်းဆက်လက်သုံးသပ်သည်-

16. The property now in question having been possessed by Sikhs adversely to the waqf and to all interests thereunder for more than twelve years, the right of the mutawali to possession for the purposes of the waqf came to an end under Article 144 of the Indian Limitation Act and the title derived under the dedication from the settlor or wakif became extinct under Section 28. 

The property was no longer, for any of the purposes of British Indian Courts, " a property of God by the advantage of it resulting to his creatures." 

The main contention on the part of the appellants is that the right of any Moslem to use a mosque for purposes of devotion is an individual right like the right to use a private road (Jawahra v. Akbar Husain (1884)I.L.R. 7 All. 178); that the infant plaintiffs, though born a hundred years after the building had been possessed by Sikhs, had a right to resort to it for purposes of prayer; that they were not really obstructed in the exercise of their rights till 1935 when the building was demolished; and that in any case in view of their infancy the Indian Limitation Act does not prevent their suing to enforce their individual right to go upon the property.

This argument must be rejected. 

The right of a Muslim worshipper may be regarded as an individual right, but what is the nature of the right? It is not a sort of easement in gross, but an element in the general right of a beneficiary to have the waqf property recovered by its proper custodians and applied to its proper purpose. 

Such an individual may, if he sues in time, procure the ejectment of a trespasser and have the property delivered into the possession of the mutawali or of some other person for the purposes of the waqf. 

As a beneficiary of the religious endowment such a plaintiff can enforce its conditions and obtain the benefits thereunder to which he may be entitled. 

But if the title conferred by the settlor has come to an end by reason that for the statutory period no one has sued to eject a person possessing adversely to the waqf and every interest thereunder, the rights of all beneficiaries have gone: the land cannot be recovered by or for the mutawali and the terms of the endowment can no longer be enforced (ef. Chidam-baranatha Thambiran v. Nallasiva Mudaliar(1917) I.L.R. 41 Mad. 124, 135). 

The individual character of the right to go to a mosque for worship matters nothing when the land is no longer waqf and is no ground for holding that a person born long after the property has become irrecoverable can enforce partly or wholly the ancient dedication.

17. This seems to their Lordships a sufficient answer to the argument that the only article of the Indian Limitation Act which affects the right of the plaintiffs (other than plaintiff No. 1) is Article 120. 

Under that article any plaintiff who had been of age for more than six years before the date of the suit would be barred as he has clearly been excluded from resort to the building for purposes of prayer. 

But the true answer to these plaintiffs and to the minor plaintiffs is that the rights of the worshippers stand or fall with the waqf character of the property and do not continue apart from their right to have the property recovered for the waqf and applied to its purposes. 

As the law stands, notice of the rights of individual beneficiaries does not modify the effect under the Indian Limitation Act of possession adverse to the waqf. 

Were the law otherwise, the effect of limitation upon charitable endowments would be either negligible or absurd. 

The plaintiffs may, if they choose, refrain from asking that the land be recovered for the waqf but they do not alter the character of their right by deserting the logic of their case.

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A I R 1942 P C 64 ( Equivalent citations: (1943) 45 BOMLR 275 )အမှုတွင်၊ပိုင်ရှင်မှန်၏ပိုင်ဆိုင်ခွင့်ကုန်ဆုံးပြတ်စဲခြင်းသည်မမှန်မကန်ပြုသူအားခိုင်မာသောပိုင်ဆိုင်ခွင့်ရရှိစေသည်ဟုပြဆိုသည်။

Bombay High Court

Lala Hem Chand vs Lala Peary Lal 

on 24 June, 1942

Equivalent citations: (1943) 45 BOMLR 275

Author: M Nair

Bench: Thankerton, G Rankin, M Nair

JUDGMENT Madhavan Nair, J.

အယူခံတွင်အဆုံးအဖြတ်ပြုရန်အတွက်အငြင်းပွါးသောဥပဒေပြဿနာမှာအောက်ပါအတိုင်းဖြစ်ကြောင်း၊စီရင်ချက်စာမျက်နှာ၁၊အပိုဒ်၃တွင်ပြဆိုသည်-

“3.The question for decision in this appeal is whether the plaintiffs have' established their title to, and right to recover possession of, the suit property from the defendant.”

စီရင်ချက်စာမျက်နှာ၃၊အပိုဒ်၁၈တွင်၊လက်ထောက်တရားသူကြီး၏သုံးသပ်ဆုံးဖြတ်ချက်ကိုအောက်ပါအတိုင်းပြဆိုသည်-

“18. The Subordinate Judge accepted the contentions of the defendant, and dismissed the plaintiffs' suit, holding that the defendant is in "possession" and cannot be ousted by any person not holding a superior title. He held further that the house in question was used for public and charitable purposes from 1909 to 1931, and that the defendant was not stopped from contesting the validity of the trust.”

စီရင်ချက်စာမျက်နှာ၃နှင့်၄၊အပိုဒ်၁၉တွင်၊အယူခံတရားရုံးဖြစ်သောတရားလွှတ်တော်က၊လက်ထောက်တရားသူကြီး၏ဆုံးဖြတ်ချက်ကိုပယ်ဖျက်၍တရားလိုစွဲဆိုသည့်အတိုင်းဒီကရီချမှတ်ကြောင်းအောက်ပါအတိုင်းပြဆိုသည်-

“19. On appeal by the plaintiffs, the learned Judges of the High Court held that the adoption of the defendant was invalid under Hindu law, inasmuch as the adoptive mother, Mst. Bhugli, could not by her adoption divest Mussammat Durgi of the estate that she held, and that the defendant's claim cannot be maintained for the reasons, that he was present when the property was purchased with the avowed object of building a dharmasala, that it was with his knowledge and consent that the building was consecrated as a dharmasala, and that during the course of more than twenty years he never asserted his title to it. They also came to the conclusion that it was for the first time in 1931 that the defendant obtained possession of the property, with the permission of the then manager. In the result, the decision of the Subordinate Judge was set aside and the plaintiff's suit was decreed.”

စီရင်ချက်စာမျက်နှာ၄၊အပိုဒ်၂၀နှင့်၂၁တွင်၊ကာလစည်းကမ်းသတ်အက်ဥပဒေပုဒ်မ၁၀အကြောင်းကိုဋီကာချဲ့၍အောက်ပါအတိုင်းပြဆိုသည်-

“20. The law is well settled that in an action for ejectment the plaintiff can recover only by the strength of his own title, and not by the weakness of that of the defendant. Mr. Parikh, appearing for the respondents, admitted at the outset that the provision of the' will relating to charity is vague, and is therefore inoperative to create a charitable trust; but he did not admit that the result of the failure of the trust is, as was held by the Subordinate Judge, that the executor must be considered as holding the undisposed of residue as trustee for the benefit of the author of the trust or his legal representative, his position being, that the resulting trust which arises when the trust fails or is void on account of vagueness or uncertainty is a trust against the deed and the property if retained by the executor is prima facie held by the executor adversely to the heir-at-law; and if, as in the present case, he dedicates the property to charity, the trust so created, after the expiry of twelve years' adverse possession, would acquire a statutory title to it.

21. The law is well established that where a trustee has been in possession for upwards of twelve years of property under a trust which is void under the law, an action against him by the rightful owner would be barred by limitation under the statute, the reason being that the possession of the trustee is as much adverse to the true owner as that of any trespasser. Section 10 of the "Indian Limitation Act (IX of 1908) says :

..no suit against a person in whom property has become vested in trust for any specific purpose or against his legal representatives or assigns (not being assigns for valuable consideration)' for the purpose of following in his or their hands such property or the proceeds thereof or for an account of such property or proceeds shall be barred by any length of time.

If this section could successfully be invoked in favour of the appellant, then the respondents would be precluded from relying on the plea of adverse possession in their favour; but Mr. Rewcastle has frankly conceded, and in their Lordships' opinion rightly, that the appellant cannot claim the benefit of this section, as it would be impossible to hold that the property in respect of which the direction in the will is void has become "vested in trust for a specific purpose" within its meaning. Since the provision in the will creating the charitable trust is invalid, and Section 10 of the Indian Limitation Act is inapplicable to the case, it follows that the property is held by the executor adversely to the true owner; and if he' so holds it for the statutory period, he would acquire a good title to it.”

စီရင်ချက်စာမျက်နှာ၄နှင့်၅၊အပိုဒ်၂၂တွင်၊အယူခံတရားလို၏ရှေ့နေကစောဒကတက်ပုံကိုအောက်ပါအတိုင်းပြဆိုသည်-

“22. The learned Counsel for the appellant then contended that in this case the executor has shown by his conduct that he did not hold the property for himself, that he held it in no other capacity than purely as executor under the will, that his son after his death continued to act in the same manner, and that, in any event, it has not been shown that the property was dedicated: as "dharmasala," and that Lala Janaki Das and Ramchand have been in adverse possession of it for upwards of twelve years. Neither branch of his argument can be accepted. In support of the first part, reliance was placed on the facts that it was with the proceeds of the sale of the property allotted in the will to charity and other funds of the estate that the property in dispute was bought by Lala Janaki Das, and that the house tax receipts issued by the Municipality show that they were issued in favour of the testator Sri Ram, deceased. But this is no proof that the executor was not holding adversely to the heir.”

စီရင်ချက်စာမျက်နှာ၅နှင့်၆၊အပိုဒ်၂၄တွင်၊ကာလစည်းကမ်းသတ်အက်ဥပဒေပုဒ်မ၂၈ကိုရည်ညွှန်းသုံးသပ်၍အောက်ပါအတိုင်းဆုံးဖြတ်သည်-

“This Board held in Gunga Gobind Mundul v. The Collector of the Twenty-four Pergunnahs (1867) 11 M.I.A. 345 at p. 361, that if the owner whose property is encroached upon suffers his right to be barred by the law of limitation, "the practical' effect is the extinction of his title in favour of the party in possession." Section 28 of the Indian Limitation Act says :-

at the determination of the period hereby limited to any person for instituting a suit for possession of any property his right to such property shall be extinguished.

Lala Janaki Das and Ramchand having held, the property adversely for upwards of twelve years on behalf of the charity for which it was dedicated, it follows that the title to it, acquired by prescription, has become vested in the charity and that of the defendant, if he had any, has become extinguished by operation of Section 28 of the Indian Limitation Act. 

Their Lordships have no doubt that the Subordinate Judge would also have come to the conclusion that the title of the defendant has become barred by limitation, had he not been of the view that Lala Janaki Das retained possession of the suit property as trustee for the benefit of the author of the trust and his legal representatives, and that presumably Section 10 of the Indian Limitation Act would apply to the case, though he does not specifically refer to the section. 

For the above reasons their Lordships hold. that the plaintiffs have established their title to the suit property by adverse possession for upwards of twelve years before the defendant obtained possession of it; and since the suit was brought in January, 1933, within so short a' time as two years of dispossession, the plaintiffs are entitled to recover it from the defendant, whose title to hold it if he had any has become extinct by limitation, in whichever manner he may have obtained possession, permissively or by trespass.”

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