JUDGMENT Deoki Nandan, J.
1. This is a plaintiff's second appeal. The appellants are the heirs and legal representatives of the plaintiff Syed Manzoor Hussain.
2. The property, bearing at present municipal No. 97/120 of Talaq Mohal at Kanpur, was originally purchased by one Syed Moqbool Hassain in. the name of his wife Mst. Sayeeda Khatton through a sale deed dated 9th Aug., 1937 from one Mohd, Ishhaq. The sale deed provided that a strip of land four feet wide shall be left for the purposes of passage to the mosque which is situate to the north of the property. The land of passage is shown by letters 'A' 'B' 'C' 'D' on the map annexed to the plaint. The dispute relates to this passage. It is undisputed that the deceased plaintiff Syed Manzoor Hussain became the owner of the property by way of transfer. According to the plaintiff's case a number of doors and windows etc.. of the house No. 97/120, which was situate on both the sides of the passage land, opened on it. The plaintiffs and their predecessors-in-interest also used this land as a passage.
3. The mosque is known as Masjid Ramzani Paniwala. The four defendants were the office-bearers of the managing committee of the mosque and were actually managing the affairs of the mosque. The main door of the mosque was alleged to be towards west and the strip of land 'A' 'B' 'C' 'D' was used as a passage by the residents of house Nos. 97/120 and 97/119. It also appears that the members of the public also passed through this passage for going into the mosque. The plaintiff's complaint was that on 14th April, 1963 the defendants put up a door with mansonry constructions and thus obstructed the tree use of the passage by the plaintiffs. There were protests from the side of the plaintiffs and even a report was made at the police station. A notice was also served calling upon the defendants to remove the door but to no effect. Hence the suit. It was also pleaded by the plaintiffs in the alternative that in case they were held not to be the owners of the land of the passage 'A' 'B' 'C' 'D', they must be deemed to have acquired easementary right of passage through it by prescription, having used it as such for more than twenty years.
4. The defendants denied that the plaintiffs were the owners of the house and asserted that the plaintiff's right to the land, if any, had been extinguished. The plaintiffs were put to proof of their title. It was denied that the plaintiffs' predecessors-in-interest had made the floor of the passage pucca. The existence of the doors of the rooms, latrine and verandah was admitted. It was also admitted that there were constructions on the first and second floor over the passage but it was denied that the plaintiffs or their predecessors-in-interest were using the passage as owners of the land. It was asserted that the passage was a Waqf by user and pertained to the mosque. It was contended that the suit was not maintainable as it had not been filed against the mosque. Certain orders passed by the Custodian of Evacuee Property in respect of the passage were also challenged. It may be here observed that the plaintiffs' house had been declared evacuee property in respect of the share of one of its earlier owners, who had migrated to Pakistan. It was also contended that Haji Mohd. Ishhaq, originally the owner of the land who had sold it on 9th August, 1937 had orally dedicated the land of passage for the mosque long before the sale and that the passage was not included in the sale. It was asserted that this fact was clear from the further fact that no price was charged for the area of the land of the passage. The existence of a door towards west ot the mosque was admitted but it was asserted that that door was not the main entrance of the mosque and it was usually kept closed. The plaintiffs' claim of right to the passage by way of easement was also denied. On the other hand, it was asserted that the passage was used by the general public who went to offer their prayers in the mosque for more than twenty years and the right of easement of passage, if at all, accrued in favour of the mosque rather than in favour of the deceassed-plaintiff or his predecessors-in-interest. It was asserted that the passage was made pucca with the funds of the Waqf. However, the existence of the door of the latrine on the passage and the fact that the doors of the rooms and bathroom etc., also opened on the passage was admitted but it was asserted that from this it could not be implied that the passage was the property or the deceased plaintiff-Syed Manzoor Hussain. It was then asserted that when the deceased-plaintiff wanted to construct the first floor over the passage and to have a man-hole for the sewer line, permission was granted to him to do so on his agreeing to dedicate two rooms facing the mosque, as Hujras for the Imam and the Moazzins and also one latrine, one bath-room and one room for the children as a Madrasa along with the Verandah, and that it was on this condition that the plaintiff was allowed to make the man-hole in the passage and to cover it by erecting building on the first floor. The latrine and bathroom were said to be in the exclusive use of the Namazies, the Moazzins, tne Imam and the Madrasa. One of the rooms was used as Madrasa and the Verandah was used by those who frequented the mosque. The fixing of the door between points 'C' 'D' was admitted, but it was asserted that it was done because the passage had become unsafe on account of its remaining open all the time. It was asserted that since the passage was Waqf property, the defendants had the fullest right to close it by putting up a door. The door did not cause any obstruction to the plaintiffs as it was always kept open for going for prayers five times a day and it was only closed in the night. The deceased-plaintiff, it was said, could if he was a Namazi go to the mosque for offering prayers through the passage. Certain other pleas were also raised. Prescriptive right of easement of passage was also claimed in favour of the general public.
5. The trial court held that the plaintiffs were not the owners of the land of the passage 'A' 'B' 'C' 'D' but that they had acquired an easementary right of passage through it, that the suit was maintainable that the suit was not barred by time nor by estoppel or acquiescence. In the result, the trial Court decreed the suit for mandatory injunction directing the removal of the door and other constructions at points 'C' 'D' as shown in the plaint map and also issued an injunction restraining the defendants from interfering with the plaintiffs' right of passage through the land 'A' 'B' 'C' 'D'.
6. On appeal by the defendants, the lower appellate court reversed the judgment and decree of the trial court and dismissed the suit.
7. The lower appellate court held, in agreement with the trial court's finding, that the plaintiffs were not the owners of the passage land 'A' 'B' C' 'D'; that the suit was maintainable and it could not be said that the suit was barred by principles of estoppel or acquiescence but it held that the plaintiffs' easementary right of passage had come to an end as the suit was not filed within two years atter the date of their ceasing to exercise the right of way.
8. Mr. S.M. Dayal, learned counsel for the appellants contended before me firstly that the finding of the lower appellate court against the plaintiffs on the question of limitation was on the face of it erroneous in law. A suit can be said to be barred by limitation only if the period prescribed by any of the articles of the Schedule to the Limitation Act, which applies to a suit of that kind, has expired. No such article of the schedule to the Limitation Act has been referred to by the lower appellate court. On the other hand, in a case like the present one, where the plaintiffs' right to passage through the land had been obstructed by the defendants, the obstruction was a continuing wrong and under Section 22 of the Limitation Act, 1963, a fresh period of limitation begins to run at every moment of time during which the obstruction continues. The fact that right of easement has been given up by not enjoying it for two years may destroy the right of easement but that has little to do with the bar of limitation for suits prescribed by the Limitation Act.
9. Mr. N.A. Khan, learned counsel for the defendant-respondents could not lay his hands on any specific article in the Schedule to the Limitation Act, for supporting the finding of the lower appellate court on the point. He merely reiterated what has been observed by the lower appellate court on this point. Section 3 of the Limitation Act provides that subject to the provisions contained in Sections 4 to 24 (inclusive) every suit instituted after the prescribed period shall be dismissed although limitation has not been set up as a defence. The period within which suits must be instituted are prescribed under the Schedule to the Limitation Act. It must, therefore, be held that the finding recorded by the lower appellate court that the suit was barred by limitation is erroneous in law and must, therefore, be set aside.
10. But the lower appellate court has considered the question of limitation raised by point No. 4, together with the question whether the plaintiff had acquired easementary right of passage through the land ABCD that was raised by point No. 2. It found on the second point that the deceased plaintiff Syed Manzoor Hussain had acquired an easementary right of passage through the land in suit by continuous user for more than 20 years; but at the same time held that he had been interrupted from doing so by the defendants' act of putting up the door in question at the place shown by letters C D on 14th April, 1963, which was the date of the accrual of the cause of action as pleaded in the plaint and the suit having been filed on 12th April, 1966, more than 2 years after the interruption, it was established on the plaintiffs own case as pleaded in the plaint that "the right of way did not continue within 2 years next before the institution of the suit." I have held above, that the suit could not be said to be barred by limitation on the ground. Nevertheless, it is an essential condition of the acquisition of right of way as an easement by prescription under Section 15 of the Indian Easements Act. In this sense, if the enjoyment of the right of way was interrupted by the erection of the door on 14th April, 1963, more than 2 years before the institution of the suit, as pleaded in the plaint itself, the plaintiff could not be said to have a right of way through the land in suit as an easement acquired by prescription on the date of suit, and that being so the plaintiff could not succeed on the alternative ground taken by him that he had a right of way through the land in suit as easement acquired by prescription.
11. Faced with this situation, learned counsel for the plaintiff-appellants, contended that the finding of the two courts below that the plaintiff was not the owner of the land was erroneous in law, as it was based on a mis-construction of the basic document of the plaintiffs' title namely the sale deed dated 9th August, 1937.
12. According to the sale deed what was sold was 210 sq. yards of land out of old plot No. 97/35 of Mohalla Talaq Mohal of the City of Kanpur. It was said that there was a passage four feet wide, between the land sold which had been left for coming and going into the mosque but the purchaser could construct a building 'over' the land of the passage, obviously meaning thereby that he could cover the land with a roof and raise constructions on the first floor. The two courts below have held that inasmuch as the area of the land sold was specified to be 210 sq. yards which did not include the area of the land under the passage, and inasmuch as no price was charged for the land under the passage, it must be deemed that the plaintiffs predecessor-in-interest did not acquire any rights of ownership over the four feet wide strip of land left for passage. The argument, however, is that all the land under the passage originally belonged to Haji Mohammad Ishaq, who had sold the land by that deed. He had reserved a four feet wide strip of land which cut across the land sold into two parts, for use as a passage for coming from and going to the mosque. That is the reason why he did not charge any price for the four feet wide strip of land, but the fact that the plaintiffs predecessor-in-interest was given the right to make constructions on the first floor and above, over the passage, showed that no rights of ownership were reserved by Haji Mohammad Ishaq in the four feet wide strip of land and also that he had not dedicated that four feet wide strip of land to the mosque, for if he had done so, he could not have permitted the purchaser to cover it by a roof or to raise constructions on the first floor and above. It follows that the entire right, title and interest of Haji Mohammad Ishaq in the four feet wide strip of passage was conveyed by him along with the land sold to the plaintiffs' predecessor-in-interest, subject to the right of the faithful to use that strip of land as a passage for going into and coming from the mosque. That this was so is evident also from the fact that the deceased plaintiff had used the air space above the passage land by raising constructions on the first and second floors and had used the underground land lor laying sewers and constructing manholes and had opened doors and windows and had been using the land of the passage without any obstruction from any side since ever. His use of the land of the passage for free access to his house which lies on both sides of it, was obstructed for the first time by the erection of the door on 14th April, 1963 and since it was an obstruction of his right to use the land of the passage in the manner in which he was authorised to do under the sale deed dated 9th August, 1937 he could very well file a suit for a mandatory injunction for the removal of the obstruction and for a prohibitory injunction restraining the defendants from interfering with its use in the manner it was being used since ever, within three years of the date of the obstruction. His rights over the four feet wide strip of land of the passage may not be equal to the right of a full owner of the land but he certainly had the right to use the passage without any obstruction for egress from and ingress into his house and to cover it by raising constructions on the first floor and above, without any obstruction from anyone. The right may be of a nature ot or similar to a right or easement as it was annexed to ownership of property but it was granted to the plaintiffs' predecessor-in-interest along with the rights of ownership of the land sold under the sale deed dated 9th August, 1937 by Haji Mohammad Ishaq. It was, however, not a mere right of passage as an easement acquired by prescription. It was much more than that and was acquired by grant, and consequently it cannot be said that the plaintiff had lost the right when he filed the suit on account of the fact that more than 2 years had elapsed since the date of the construction of the door which obstructed his free exercise of the right.
13. Mr. N.A. Khan, learned counsel for the defendants then contended that the land of the passage was Waqf in favour of mosque. There was no deed of dedication nor was there any evidence worth the name of dedication by word of mouth. The contention was that the dedication could be inferred from immemorial user. Now the passage was not used by the mosque. It was used by the Namazies or other persons who had occasion to go into or to come out from the mosque. The land under the passage could in no sense be said to be appurtenant to the mosque. It was left by Haji Mohammad Ishaq for the convenience of :he faithful who went to offer prayers at the mosque. These were an indeterminate Dody of persons and the right of passage was not annexed to ownership of any property by them. It was a mere convenience given to the faithful for easy access to the mosque from the main road. A dedication of property in order to amount to a waqf must be for a particular religious purpose. The setting apart of a piece of land for construction of a mosque including the land appurtenant thereto makes it waqf. But a man who leaves some land for the convenience of the members of the public to go to the mosque from a public highway does not make it a waqf lor the purposes of the mosque but dedicates it to the public for use as a passage. The dedication, if any, was not for the purposes of the mosque but for the purposes of passage by the faithful who frequented the mosque. It is, therefore, impossible to say that there could be any waqf in favour of mosque in respect of the land of the passage in suit. The dedication could be said to have been made in favour of the faithful, for use as a passage from the main road to the mosque. The plaintiff's rights over it were certainly subject to the right of the faithful to use the lands as such passage.
14. Reference may in this context be made to the decision of the Supreme Court in the case of Municipal Board Manglaur v. Mahadeoji Maharaj (1965 All LJ 335): (AIR 1965 SC 1147). In that case the plaintiff owned a plot of land through which ran a public road and two Nalis. There was a vacant piece of land laying in between the Nalis and the road. Both the road and the Nalis were being maintained by the Municipal Board. The Municipal Board sought to make a structure on the vacant land for installing a statue of Mahatma Gandhi and also to put up two rooms on either side for piyo and library. The plaintiff sued the Municipal Board for an injunction restraining it from making the said structure and for possession. The High Court held that the vacant piece of land between the metalled road and drains did vest in the Municipality but the Municipality did not own the soil. It had the right to manage and control the surface of the soil and so much of the soil below and of the space above the surface as was necessary to enable it to adequately maintain the land as a public street. It also had a certain property in the soil enabling it to bring a possessory action against trespassers but, subject to the rights of the Municipality and the public to pass and repass on the road, the owner of the soil in general remains the occupier of it and e could, therefore, maintain an action for trespass against any member of the public who acts in excess of the right; the Municipality also could not put up any such structures on the public pathway as were not necessary for the maintenance or user of it as a pathway. The putting up of the structures in question for installing the statue of Mahatma Gandhi and for piyo and library could not be said to be necessary for the maintenance of the public pathway and the defendant Municipal Board was accordingly restrained by an injunction from erecting those structures.
15. In the present case also the defendants who constitute the Managing Committee of the mosque, or the faithful who frequent the mosque could certainly ensure that the right of passage through the four feet wide strip of land in suit was not obstructed by the plaintiffs in any way but they could not block the passage by erecting a door at the place shown by letters CD on the plaint map and to obstruct the use of the land by the plaintiffs. The plaintiffs were accordingly entitled to the injunction claimed by them for the removal of the obstruction and for restraining the defendants from interfering with the plaintiffs rights thereon.
16. In the result the appeal succeeds and is allowed. The judgment and decree of the lower appellate court are set aside and the suit is decreed for a mandatory injunction directing the defendants to remove the door and other constructions at the place C D on the plaint map and for an injunction restraining the defendants from interfering with the plaintiffs rights over the land marked by letters A B C D in premises No. 97/120, Talaq Mohal, Kanpur, as described in the plaint. The defendants may remove the door and the constructions within three months from the date of this judgment failing which the plaintiff-appellants shall be entitled to have them removed through the process of the court at the defendants cost. In the circumstances, the parties shall bear their own costs throughout.