JUDGMENT Karamat Husain and Chamier, JJ. - This was a suit by the respondents who are some of the Muhammadan residents of Kasba Gangoli in the Saharanpur district for a declaration that 3 bighas odd of land situated in the Kasba was waqf property, that certain sale deeds executed by the Muhammadan appellants in favour of the Hindu appellants were invalid, for possession of the property alienated, and for other reliefs. The respondents' case was and is that in the Kasba in question there has for a very long time been a shrine dedicated to one Abdulla Nekmard, a mosque, grave-yard, a takia, and various buildings; that the land and all the buildings thereon are waqf; that all the Muhammadans of the Kasba have a right to use the shrine, mosque, grave-yard, arid takia, and that the land which has been alienated was originally made waqf for the purpose of providing for the expenses of the mosque and takia. The respondents alleged that the Muhammadan appellants were mujawara attached to the mosque and takia. The appellants pleaded that the Muhammadan appellants were owners of the property which they had alienated. The first court found that the land and buildings were all waqf; that the transfers which had been made were invalid, and that section 539 of the CPC which was in force at the time the suit was brought, did not bar the suit and it decreed the claim. Its decision was confirmed on appeal by the District Judge who held that the property was waqf and that the suit was not barred by limitation. The first question for decision in this second appeal is, whether there is evidence to support the finding that the property is waqf. The District Judge rests his decision principally upon documentary evidence which begins with a Goshwara Khatauni prepared under Regulation IX of 1833 and ends with certain public documents dated as recently as 1897, We think that it is unnecessary to detail these documents.. In our opinion they fully justify the conclusion of the learned Judge that the property was made waqf many years ago, and has been treated as such until recently and that the Muhammadan defendants are no more than mujawars, although they in fact claim to be the proprietors of the property. In our opinion they fully justify the conclusion of the learned Judge that the property was made waqf many years ago, and has been treated as such until recently and that the Muhammadan defendants are no more than mujawars, although they in fact claim to be the proprietors of the property. The 13th ground of appeal to the District Judge was that the suit was barred by section 539 of the Code of Civil Procedure. The learned Judge notes in the course of his judgment that this ground of appeal was not taken in the memorandum of appeal to his Court, but the question was raised in the course of the argument, and we think we are bound to take notice of it. It seems to us quite clear that the suit is not one of the kind or kinds contemplated by section 539 of the Code of 1882 or section 92 of the present Code of Civil Procedure. But if it is not a suit of the kind contemplated by those sections the question arises whether the plaintiffs respondents have any right to maintain the suit. It is quite clear that all the Muhammadan residents of the Kasba could have joined in a suit of this description to protect the waqf property, and that if the respondents had obtained the leave of the court u/s 30 of the Code, they could have maintained the suit on behalf of the Muhammadan community. 2. They did not attempt to obtain permission of the court, but in view of the fact that no objection on the ground of the absence of such permission was taken to the suit, either in the court of first instance or in the lower appellate court, and to the fact that the objection based upon section 530 of the Code of 1882 was dropped in the lower appellate court, we think that it would be wrong to dismiss the suit on the ground that the permission of the court was not obtained u/s 30 of the Code. It seems that according to the decisions in Muhammad Abdullah Khan and Another Vs. Kallu and Another, (1899) ILR (All) 187 the respondents are entitled to maintain the suit themselves without reference to the provisions of section 30 of the Code, in either view, therefore, we must hold that the suit is maintainable. It seems that according to the decisions in Muhammad Abdullah Khan and Another Vs. Kallu and Another, (1899) ILR (All) 187 the respondents are entitled to maintain the suit themselves without reference to the provisions of section 30 of the Code, in either view, therefore, we must hold that the suit is maintainable. It seems to us, however, that whether the respondents are regarded as suing for themselves or on behalf of the whole Muhammadan community of the Kasba, they are not entitled to a decree for possession of the property. They are entitled only to a declaration that the transfers mentioned in the first prayer for relief are invalid on the ground that the property is waqf. In this view it is unnecessary to consider the question which was raised in the court below as to whether the plaintiffs respondents were at any time in possession of the property. 3. For the above reasons we allow the appeal in part and in lieu of the decree for possession of the property we declare that the transfers made by the Muhammadan defendants in favour of the Hindu defendants are invalid. As the appeal has in substance failed and the point on which the decree has boon modified was not taken in the grounds of appeal, we direct that the appellants pay the costs of the respondents.