JUDGMENT Hon’ble Ashwani Kumar Mishra, J.—This appeal is by the defendant, arising out of Original Suit No. 342 of 1957, filed by the plaintiffs for demolition of construction standing on the Suit property and to restore possession thereof to the plaintiffs’, which got decreed on 28.2.1977. 2. Plaintiffs, who are 10 in number, claim to be the members of the committee of management of a trust, alleged to have been created on 22.1.1957, and registered on 23.1.1957, by defendant No. 4. It is alleged that the property in issue, had devolved upon the Qazies, pursuant to a Sanad issued by ruler of Bundelkhand namely Maharaja Chhatrapal Singh Judev on 14.7.1874 in favour of one Abdul Latif who was a Qazi. The Sanad is Exb. 6 and is marked as Paper No. 60-C. It records that Abdul Latif was made Qazi by virtue of said Sanad. It is claimed that the entire property, which now forms part of Mohalla Qazipura was orally gifted to Abdul Latif. The plaint allegations are that in such circumstances, the Qazies continued to remain in possession over the suit property and the entire Qazipura Mohalla and various houses, Masjid, Mazar etc. came to be constructed over it. As per the plaint, suit property specified by letters A,B,C,D measures 55ft X 50ft. and letters E,F,G,H measuring 15ft x 10ft had passed on to Qazies from generation to generation, pursuant to the original grant (Sanad) and the same was being used for religious purposes and had assumed shape of a waqf. According to the plaint, on 23.1.1957, a trust was created by defendant No. 4, in which the plaintiffs were made members of the committee of management, and authorised to manage the suit property. It was claimed that the defendants have no right or authority over the suit property but have unauthorisedly encroached upon it, and have raised construction of certain shops. Demolition of illegal construction and possession is thus claimed. 3. The defendant contested the suit, denying plaintiffs’ right over the property or their right to institute suit, and instead claimed right over the suit property on the basis of a lease/patta executed by the then Zamindar. It was stated that the defendants are in possession over the suit property since long and various shops belonging to them are in existence. The defendant contested the suit, denying plaintiffs’ right over the property or their right to institute suit, and instead claimed right over the suit property on the basis of a lease/patta executed by the then Zamindar. It was stated that the defendants are in possession over the suit property since long and various shops belonging to them are in existence. It was also alleged that date of dispossession is not specified and the suit is otherwise barred by limitation. 4. Various oral and documentary evidence have been led by the parties in support of their respective case. The Trial Court, on the basis of respective pleadings put forth by the parties framed following 10 issues for consideration. (I) Whether defendant No. 4 and others had any proprietory rights in the land in suit and were entitled to waqf it? (ii) Whether any valid Waqf about the land in suit was created by the Waqf deed dated 22.1.1957? (iii) Whether defendant No. 4 and others Waqifs have in possession within 12 years of the land in suit? (iv) Whether the plaintiffs’ suit is delayed and barred by acquiescence? If so, its effect? (v) Whether the suit property has been under valued and Court fee paid is insufficient? (vi) To what relief if any are the plaintiffs entitled? (vii) Whether the plaintiffs or his predecessors in interest acquired title by adverse possession as alleged? (viii) Whether the plaintiffs and their predecessor in interest have acquired possessory title as alleged? If so, its effect? (ix) Whether on the date of the suit, plaintiffs were in actual physical possession over the two pieces of the land in suit? (x) Whether the defendants were the rank trespassers and were liable to be ejected from the pieces of land in suit”? 5. Issue Nos. 1,2,3,7 & 8 were relevant for the present purposes and were decided together by the trial Court as they were found to be inter-related. The Trial Court proceeded to crystalize the issue further observing that the plaintiffs have to prove that suit property belonged to the Qazies, and on the basis of original grant, they are owners in possession thereof. Whether defendant No. 4 had any right in the suit property so as to create trust, and vest right in the plaintiffs to maintain suit also required consideration. 6. Whether defendant No. 4 had any right in the suit property so as to create trust, and vest right in the plaintiffs to maintain suit also required consideration. 6. Trial Court found that although no specific grant of land to Qazi’s existed, but considering other evidence of continuous possession of Qazies over the area, sustained claim of grant in favour of the Qazies. The Sanad issued in Samvat 1747 is relied upon and an inference is drawn that usually grant of land followed the grant of Sanad in favour of Qazies. Various documents and oral statements have been referred to by the trial Court to hold that Qazipura was inhabited by Qazies since long and transfer of land etc. in the locality was by and with the permission of the Qazies alone. Continuous use of land as well as transfer of right to outsiders by Qazies was relied upon to hold right of Qazies in the suit property. Following observations of the trial Court, in that regard, is reproduced : “In my opinion the suit being for possession, which involves dispossession and ejectment, the plaintiffs have to stand on their own leg and cannot take any advantage of any defect in the title of the defendant’s. The evidence adduced on behalf of the plaitiffs thus establishes that plaintiffs ancestor Abdul Latif was appointed as Qazi by the Maharaja. However there is no clear proof that any land was gifted at the time of that appointment though the assertion on behalf of the plaintiffs is that the appointment was coupled with the grant of property of Qazipura. However it is note-worthy that in view of the documentary evidence Exhs. 6, 7, 9, 10, 13, 14, 15, 16, 17, 18, 19, 20, and 22 which are instances of transaction and show that the Qazis dealt with the land just contiguous to the land in suit. The argument of the defdt. counsel is that document exh. 22 at least could indicate that the land sold alone belong to the vendors and from the document there could not be any legal or factual inference could be drawn that any other land even nearby also belong to the vendors or their relations. I have perused the sale-deed Exh. 22 paper No. 168 Ga executed by Qazi Mohd. Yaqub Ali and Qazi Abdul Haq in favour of peer Mohammad s/o Qadir Mohammad dated 19.9.1916. I have perused the sale-deed Exh. 22 paper No. 168 Ga executed by Qazi Mohd. Yaqub Ali and Qazi Abdul Haq in favour of peer Mohammad s/o Qadir Mohammad dated 19.9.1916. The recetal of the sale-deeds are “JOKEY AREZ UFTADAKHANDAL 80 feet lambi uttar dakhin WA 45 FEET CHAURI PURAB PACHHIM. The boundaries of the properties are as under : PURAB: MAKAN PEER MOHAMMAD MUSTARI WA.. NATH AKANJAR. PACHHIM: ARAZI UFTADA MAQBUZA MST BIBI BEGUM ZAUjEY QAZI IMDAD HUSAIN. UTTAR: ARAZI UFTADA MAQBUZA PEER MOHAMMAD MUSTARI WA RASTA. DAKHIN: MAKAN KALLOO CHAPRASI”. 7. Issues being dealt with by the trial Court have been answered, holding as Under : “The result of the discussion is that it is proved beyond doubt that Qazi who are descendants of the main Qazi Abdul Latif are in possession over the land of Qazipura for the last so many generations. The origin of title is lost in obscurity however, the constant possession of the Qazis for more than 100 years over the land in suit is by itself is a source of title, it is for possessory title and which creates ownership. The plaintiffs rely on AIR 1970 Supreme Court page 846, wherein it has been laid down : “Therefore a person having possessory title can get declaration that he was the owner of the land in suit and an injunction restraining the defendant from interfering with his possession.” Possessory title thus under the law matures into ownership. The plaintiff Qazi are not thus the wrong doers. Their claim of ownership is bona fide and valid. Transfer deed, sale-deed gifted deed grant can be the source of title. Title can also follow from inheritance. If these source of title are wanting a person may acquire title to a property by virtue of uninterrupted possession for a long time. This long time possession can be established by providing instance of exercise of rights of ownership. This situation is in legal terms is described as possessory title. Title can also follow from inheritance. If these source of title are wanting a person may acquire title to a property by virtue of uninterrupted possession for a long time. This long time possession can be established by providing instance of exercise of rights of ownership. This situation is in legal terms is described as possessory title. In the situation, if somebody comes forward and challenges the right, a person who has acquired possessory title then it can be said as against the challenger that as there has been over possession for over 12 years and acts of ownership have been exercised adverse to the title of the challenger for the requisite period then this very possession title in relation to the challenger will be said to be a title established by adverse possession. Thus these two apparent aspects are one and the same situation. There is no inconsistency between the two aspects. If there is no challenger, possessory title is possessory title but if somebody challenges then possessory title means possession adverse to the rights of challengers for the requisite period of 12 years. In my opinion such long possession by the Qazis regarding the land in suit and the adjoining land is a factor both for proving possessory title as against rank tress-passer and proving possession as against the alleged Zamidar who had never been in possession. In this approach I am fortified by page 1189 of V.B. Raju Evidence Act latest Edition which lays down as under : Possession under Section 110 must be adverse. The author submits that the nature of possession which will attract the presumption under Section 110 is the same as that of adverse possession under Article 144 of Schedule 1 of Limitation Act Section 110 applies only to possession enjoyed which rests on a basis consistent with a right of property. The author submits that the nature of possession which will attract the presumption under Section 110 is the same as that of adverse possession under Article 144 of Schedule 1 of Limitation Act Section 110 applies only to possession enjoyed which rests on a basis consistent with a right of property. The result of the above discussion is that though defendant No. 4 and others had no proprietary rights by virtue of any title deed, however, the plaintiffs and their predecessors in interest acquire possessory title and adverse possession as alleged with the result that when Waqf deed was executed on 22.1.1957 the plaintiffs who had become owners by virtue of long possession were competent to execute Waqf deed, the plaintiffs were further in possession over the land in suit within 12 years of this possession, so the issues are decided in favour of plaintiffs”. In view of the findings returned on the issue Nos. 1, 2, 3, 7 and 8 the plaintiffs’ suit has been decreed by the judgment under challenge. 8. Sri M.A. Qadeer, learned Senior advocate, assisted by M.A. Khan has challenged the judgment and decree essentially on the ground that; Plaintiff’s have no right in the suit property so as to maintain suit; plaintiff’s have not claimed to be Qazies nor were in prior possession; Plaintiff’s have no right to institute suit in respect of Waqf property and it is only waqif who could do so; Plaintiff’s also have no right in the property on account of registered trust deed as it pertains to open piece of land whereas plaintiff’s construction of shop existed from prior in point of time; None of the plaintiffs have appeared in the witness box to prove trust deed or plaintiff’s right; Plaintiff’s claim is inconsistent etc. 9. Sri Sharad Malviya, learned counsel appearing for the plaintiffs-respondent contends that the finding returned by the Trial Court on the aspect relating to right of Qazies over the suit land, on the basis of the evidence adduced,is based on materials on records, which is not liable to be interfered with. It is also stated that the plaintiffs, on account of the continuous possession of Qazies over the suit property have the right to maintain the suit. 10. It is also stated that the plaintiffs, on account of the continuous possession of Qazies over the suit property have the right to maintain the suit. 10. I have heard Sri Sri M.A. Qadeer, learned Senior advocate, assisted by Sri M.A. Khan for the appellant, Sri Rahul Mishra for Appellant No. 1/1 Iqbal Sadiq and Sri Sharad Malviya for respondents and have perused the materials on record. 11. On the basis of the submissions put forth by the learned counsel for the parties, following questions arise for consideration in the present first appeal; (a) Whether plaintiffs have any right to claim demolition and possession over the suit property, especially when they are neither waqif nor in possession, and have not claimed any individual right and suit is otherwise not in representative capacity? (b) Whether a suit for possession could be decreed, without specifying the date of dispossession in the plaint? (c) Whether plaintiffs, in their capacity as member of the committee of management of trust have any right to maintain suit for mandatory injunction? 12. Before proceeding to examine the questions arising for consideration, it would be relevant to notice some of the averments made in the plaint itself. Paras 1, 1(b) and (2) discloses the plaintiffs’ right to sue and is extracted here in after. “1. That the site plan annexed to this plaint shows the situation in regard to the matters in dispute. In the said site plan plot shown as A B C D measuring about 55” x 40" and the plot shown as E F G H measuring about 15" x 10" situate in Mohalla Quazipura, Mahoba, District Hamirpur alongwith other plots of land in the vicinity were owned by defendant No. 4 and others. Annual Moharrum processions used to pass along and over the said plots. Mohalla Qazipura, bears No. 1898 over which from the time of oral grant the possession has been of the original guarantee. Sri Abdul Lateef and his descendants from generation to generation. In this Mohalla the houses belong to the people of Qazi biradari or to such Raiyat to whom land was given by the Qazis or their ancestors. In this Mohalla there is situate Jama Masjid etc. In site plan annexed to the plaint is part of the Qazipura Mohalla and the graves shown in the site plan are those of the ancestors of the Qazis. In this Mohalla there is situate Jama Masjid etc. In site plan annexed to the plaint is part of the Qazipura Mohalla and the graves shown in the site plan are those of the ancestors of the Qazis. One Mosque also shown in the site plan has also been built by the Qazi people. By virtue of the said grant and since the grant the Qazis have been the exclusive possession of the said Mohalla while includes the disputed plots A B C D and E F G H. Qazi people had dedicated the land excluding the houses as shown in the site plan by trust deed dated 22.1.1957 registered on 23.1.1957. This land has been used from time to time of grant for religious purposes such as gatherings on Bara Wafat occasions, for holding Milad Shareef, for Tazia procession etc. The land in dispute also contains Imam Chowk on which Tazias are kept during Moharram period. The trees standing in the said land were planted by the Qazi people of the Mohalla and inti timber has been utilised by them. The land in suit including the plot in dispute including the plot in dispute has been utilised from time immemorial for religious purposes by Mohalla people, who are Qazis and Tazia has been placed there and thus the land at any rate become waqf by user even before the trust deed was executed or at any rate the Muslims community has acquired customary right of the nature stated herein the said land. The trustees constitute the committee of management of the land in suit and were in possession on the date of institution of the suit. The plaintiffs have also in any case acquired possessory title to the disputed property. Amended vide Court order dated 21.5.1973. Sd/- Illegible 25.5.1973". (1)(b) That the said Abdul Latif ancestor referred to above was awarded Sanad as absolute Qazi of town Mahoba and thereafter about two hundred and fifty years Mohalla Qazipura was gifted orally to Abdul Latif, since then he and his descendants given above are after the other become sole owner thereof and remained the exclusive actual and physical possession thereof. (1)(b) That the said Abdul Latif ancestor referred to above was awarded Sanad as absolute Qazi of town Mahoba and thereafter about two hundred and fifty years Mohalla Qazipura was gifted orally to Abdul Latif, since then he and his descendants given above are after the other become sole owner thereof and remained the exclusive actual and physical possession thereof. (2) That by a deed dated 22nd January 1957 registered on 23rd January, 1957 the defendant No. 4 and other named in the said waqf deed with consent of allowance executed a valid waqf deed in regard to the plots for the purposes of running a school and also for the Moharrum processions. By this deed of Waqf the plaintiff No. 1 Haji Aulad ...’ where is deed was made the President and after his death Abdul Subhan Khan alias Idarat Khan has been made President while plaintiffs 2 to 9 and defendants No. 5 to 7 were made members of the said Committee relating to Waqf under the said Waqf deed. The plaintiffs are suing in their capacities as such President and Trustees”. 13. In para 5 of the plaint, it is claimed that some evidence was created in favour of the defendant No. 1, in collusion with the Chairman of the local authority, for the purpose of seeking permission to raise construction and that on the strength thereof, the defendants are making constructions and have dug foundation. In para-8 of the plaint, it is claimed that the defendants have forcibly constructed a Chhapper (shed) over the portion of suit property, which amounts to encroachment over waqf property. The date of such construction is shown as 30.10.1957. In para-11 of the paint, cause of action in the suit is stated to have arisen on 12.8.1957 when defendant threatened to take forcible possession over the suit property and also started construction and took possession of Ramjan’s shop on 30.10.1957. 14. Trial Court has extensively scanned evidence brought on record to hold that pursuant to an oral grant Qazipura locality continued to be with qazies through generations. Various sale-deeds, rent deeds etc. were relied upon to arrive at a conclusion that right in favour of outsiders got created in Qazipura only by the qazies. 14. Trial Court has extensively scanned evidence brought on record to hold that pursuant to an oral grant Qazipura locality continued to be with qazies through generations. Various sale-deeds, rent deeds etc. were relied upon to arrive at a conclusion that right in favour of outsiders got created in Qazipura only by the qazies. On such finding the Court proceeded to hold that respondent No. 4 had right to create trust and the plaintiffs’ as members of Committee constituted under the trust had right to maintain suit for demolition and possession. 15. From the material placed and the evidence adduced, it is admitted that the plaintiffs, who are 10 in number, have chosen not to appear in the witness box in support of their case. None of the plaintiffs appeared to prove the trust deed. No individual right was claimed by any of the plaintiffs and they have clearly categorised their status as being members of the committee of management of the trust created on 22.1.1957. During the course of argument, learned counsel for the plaintiffs-respondents Sri Sharad Malviya has taken a categorical stand before this Court that they are not claiming any right on the basis of trust deed and that the right claimed is on the basis of oral gift in favour of the Qazies. 16. From the pleadings put forth in the suit, it is apparent that the plaintiffs have neither alleged themselves to be Qazies nor have claimed to be in possession over the suit property. In case the trust deed is ignored, the suit for possession could have been filed only by Qazies, and that too in a representative capacity under Order-I Rule-8 CPC, which is not the case here. The plaintiffs have also not alleged that they were put in possession of the suit property pursuant to the trust created. The trust deed dated 22.1.1957 is Exb. 9 and its perusal indicates that a trust had been created for the purposes of construction of Islamia Arbi School and land is proposed to be donated for the purpose. Trustees for such purposes have been nominated in the trust deed. Plaintiffs are the trustees as mentioned therein. Once a stand is taken on behalf of the plaintiffs that no right is being claimed by them on the basis of the trust deed, the suit at their instance would clearly not be maintainable. Trustees for such purposes have been nominated in the trust deed. Plaintiffs are the trustees as mentioned therein. Once a stand is taken on behalf of the plaintiffs that no right is being claimed by them on the basis of the trust deed, the suit at their instance would clearly not be maintainable. None of the waqifs has come forward representing cause of a waqf. No Qazi has come either, in representative capacity, for protection of the property claimed to be belonging to Qazies. Suit on behalf of plaintiffs, for the relief sought would thus not be maintainable even if it is assumed that Qazipura locality continued to be with Qazies for generations together. The first question is answered accordingly. 17. So far as the averments made in the plaint is concerned, there is no allegation as to on what date, the plaintiffs were dispossessed. The only allegation made is that the defendants have started raising of construction of shed on 30.10.1957. In the evidence, led on behalf of the plaintiffs existence of 3 shops upon the disputed property is admitted. P.W.1 in his statement has come out with the case that the 3 pre-existing shops upon the suit property had fallen and thereafter defendants started raising construction by encroaching upon such land. Such plea taken by the plaintiffs’ witnesses is not backed by any pleading in the suit. It is settled that in the absence of pleading no amount of evidence can be taken note of. The plaintiffs’ witnesses have admitted existence of shops. Once the plea of earlier shops having fallen and thereafter raising of construction of fresh shops is ignored, on account of absence of any pleadings in that regard, the existence of shop over the suit property cannot be questioned. The possession of defendants over such shops is also not disputed. There is further no specific allegation in the plaint as to when exactly plaintiffs were dispossessed from the suit property. In fact plaintiffs have not even alleged that they were in possession and the possession claimed in the suit was of Qazies who are not before the Court. The plaintiffs otherwise claimed their right on the basis of a Patta/lease by one Mohd. Saukat who was recorded as tenure holder. The possession of Mohd. In fact plaintiffs have not even alleged that they were in possession and the possession claimed in the suit was of Qazies who are not before the Court. The plaintiffs otherwise claimed their right on the basis of a Patta/lease by one Mohd. Saukat who was recorded as tenure holder. The possession of Mohd. Saukat and thereafter of defendants is not seriously questioned but the claim of defendant, in this regard, appears to have been disbelieved only on the ground that there had been no partition and that share of Mohd. Saukat had not been segregated. The defendant had disclosed his right in the property on the basis of Patta and his possession, at the time of filing of the suit, was also admitted. In the absence of any suit filed in representative capacity, on behalf of Qazies, the same could not have been decreed at the instance of the plaintiffs, who had set up their right only on the basis of the trust deed. Even otherwise, the trust deed refers to certain open piece of land to be donated for the purposes of establishment of schools, whereas, construction of shop upon the suit property is shown to exist, on the basis of the material brought on record. It is not established that any trust was created in respect of the shop or the land beneath it. Plaintiffs’ witness has admitted that land in question was not open and that shops did exist over it even earlier. The trust deed clearly refers to an open piece of land. The mere fact that Qazies generally were in possession over the entire locality would not vest any individual right in defendant No. 4 to create a Trust, over the suit land, which aspect is not taken into consideration. Though the trial Court judgment appears lengthy and exhaustive, but discussion regarding plaintiffs’ right on the basis of evidence led on material aspect is lacking. It has not been considered by the trial Court as to how plaintiffs could maintain the suit for possession in the circumstances noticed. Individual rights of plaintiffs over suit land is otherwise not proved. It is otherwise not a suit filed in representative capacity. It has not been considered by the trial Court as to how plaintiffs could maintain the suit for possession in the circumstances noticed. Individual rights of plaintiffs over suit land is otherwise not proved. It is otherwise not a suit filed in representative capacity. In such circumstances, I am inclined to hold that the defendants were in possession over the suit property and a decree for mandatory injunction against the defendants, in possession, could not have been granted by Civil Court, on the basis of possessory right of Qazies, in favour of plaintiffs. The Trial Court has erroneously discarded the defendants’ case of Patta solely on the ground that a partition had not taken place. The further conclusion drawn by the trial Court that there was no zamindari only because the sale-deed was executed by one of the Qazi in 1960, cannot be relied upon inasmuch as the mere fact that some portion of land was sold by one of the Qazis, would not lead to an inference that there was no Zamindari in existence, particularly when revenue records produced did indicate existence of abadi. Second and third questions formulated are answered holding that in the absence of date and details of dispossession the suit for possession could not be decreed in favour of the plaintiffs. The defendants possession over the shop has also continued during the pendency of Suit and appeal for more than 60 years. 18. In view of the discussions aforesaid, I find that the trial Court has erroneously decreed the plaintiffs’ suit. Right is claimed of Qazies but Qazies have not come forward to file any suit in the representative capacity nor the Waqifs had joined the suit and the claim, based on trust deed, has been given up during the course of hearing of this appeal. The judgment and decree of the Trial Court dated 28.2.1977 is consequently set aside. The plaintiffs’ suit for mandatory injunction in respect of the shop is dismissed.