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CASE NO.:

Appeal (civil) 16899 of 1996

PETITIONER:

Karnataka Board of Wakf

RESPONDENT:

Government of India & Ors.

DATE OF JUDGMENT: 16/04/2004

BENCH:

S. RAJENDRA BABU & G.P. MATHUR

JUDGMENT:

J U D G M E N T

[With C.A.Nos. 16900/1996 & 16895/1996]

RAJENDRA BABU, J. :

Three suits were filed by the first respondent

in each of these cases seeking for a declaration

that notifications issued by the Karnataka Board of

Wakf, i.e., the appellant before us, showing some

of the defendants to be illegal and void or in the

alternative, to declare the first respondent as

owner of the suit properties on the ground that

they have perfected their title by adverse

possession and consequential relief for permanent

injunction. There are three sets of properties in

each of these three matters. One is CTS No.24 of

Ward No.VI, described as "Karimuddin's Mosque",

another is CTS No.36 of Ward No.VI, described as

"Macca Masjid" and the other is CTS No.35 of

Ward No. VI, described as " Water Tower". All of

them were situated at Bijapur.

The claim made by the first respondent is

that they acquired the suit property under the

Ancient Monuments Preservation Act, 1904

(Ancient Monuments Act) and a notification has

been published in that regard and the suit

property had been entered in the Register of

Ancient Protected Monuments incharge of the

Executive Engineer. Thereafter, the Government

of India enacted the Ancient Monuments And

Archaeological Sites and Remains Act, 1958 and

the suit property came to be under the

management of the Department of Archeological

Survey, Government of India. It is asserted by the

first respondent that in all the relevant records,

the name of the Government of India has been

shown as the owner of the suit property and that

they came to know that the defendants got

published a notification No.KTW/531/ASR-74/7490

dated 21.4.1976 showing that the suit property as

having been declared as 'Wakf Property' in terms

of section 26 of the Wakf Act, 1954 and was also

stated to have been published in the Gazette.

Inasmuch as the suit property since inception was

under the ownership of the plaintiff with lawful

possession thereof, defendants could not have

made any claim thereto nor get the same declared

as Wakf property. The defendants contested this

claim of the plaintiffs in the original suits and that

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after following due procedure publication has been

made in the Karnataka Gazette in terms of Section

67 of the Karnataka Land Revenue Act and the

order passed by the concerned officer is binding

on the plaintiff and, therefore, the plaintiff cannot

claim any ownership on the ground of adverse

possession.

While this is the stand of the Wakf Board, the

appellant before us, and the other defendants

described as to be "mutawallis" of the Wakf

property, stated that one of the Arab Preachers,

Peer Mahabari Khandayat came as a Missionary to

Deccan as early as AD 1304 and occupied whole

Arkilla and erected "Mecca Masjid" according to

established customs to offer prayer which is

surrounded by a vast open area. The said

property had all along for seven centuries been

treated as Wakfs and have been since after the

time of Peer, managed, looked after and

maintained by Sajjada Nashin from time to time.

No one has interfered with their right. They claim

that they have appropriate sanads to show that

the property in question is Wakf property and that

another portion of the suit property also belongs

to the Darga of Peer Mahabari Khandayat and

Chinni Mahabari Khandayat Darga Arbkilla, Bijapur

and, therefore, the same has been appropriately

entered in the Wakf Register.

The trial court raised several issues in the

matter and gave a finding that on a consideration

of the oral and documentary evidence in the case

it is clear that even prior to the introduction of the

Survey Department at Bijapur, the Government of

India had taken these properties as ancient

monuments and they are protecting them by

keeping appropriate watch over these monuments

but now the defendants have come forward

contending that these properties are Wakf

properties and they have nothing to show that

even after the demise of Peer Mahabari Khandyat

they remained in the possession of the same. The

properties in question were acquired by the

Government of India as long back as 1900 and

they started preserving them as important

historical monuments and they remained in

possession and enjoyment of them. This was

clear both from oral and documentary evidence

and on that basis, the Trial Court held that they

are owning and managing the suit properties. The

Trial Court also gave a finding that the Wakf Board

itself declared these properties as Wakf properties

without properly following the relevant provisions

of the Wakf Act and without following due

procedure prescribed therein and in a case where

there is a dispute as to who is a stranger to the

Wakf, a mere declaration by the Wakf Board will

not bind such person and on that basis the Trial

Court decreed the suit.

The matter was carried in appeal. A Division

Bench of the High Court examined the matter

once over again and affirmed the findings of the

Trial Court. The Division Bench also noticed that at

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the end of the arguments the appellant made a

submission that as they have not produced some

of the important documents, the matter may be

remanded to the Trial Court in order to enable

them to produce the said documents and with a

direction to the Trial Court for a fresh disposal in

accordance with law. The High Court did not allow

the plea raised by the appellant that there are

documents in question which will go to the root of

the matter or which would be necessary in terms

of Order XLI, Rule 27, CPC to permit them to

adduce further evidence and on that basis rejected

that claim. The High Court affirmed the various

findings given by the Trial Court.

In the circumstances, the learned counsel for

the appellant, reiterated the claim made before

the High Court that they should be permitted to

adduce further evidence before the court to

substantiate their claim but when the matters

were pending before the Trial Court and the High

Court they had ample opportunity to do so. If

they had to produce appropriate documents, they

could have done so and also it is not clear as to

the nature of the documents which they seek to

produce which will tilt the matter one way or the

other. The scope of Order XLI, Rule 27, CPC is

very clear to the effect that the parties to an

appeal shall not be entitled to produce additional

evidence, whether oral or documentary, unless

they have shown that in spite of due diligence,

they could not produce such documents and such

documents are required to enable the court to

pronounce proper judgment. In this view of the

matter, we do not think there is any justification

for us to interfere with the orders of the High

Court. However, in view of the arguments

addressed by the learned counsel for the

appellant, we have also gone into various aspects

of the matter and have given another look at the

matter and our findings are that the view taken by

the High Court is justified. However, one aspect

needs to be noticed. The High Court need not

have stated that the first respondent is entitled to

the relief even on the basis of adverse possession.

We propose to examine this aspect.

The case advanced by the Appellants is; that

one Arabian saint Mahabari Khandayat came to

Bijapur by around 13th century, acquired certain

properties (suit property) and constructed 'Mecca

Mosque' which is under the management of the

lineal descendants of the said saint; that by virtue

of Notification bearing No. KTW/531 ASR/74/7490

dated 21/04/1976 issued by Appellant and

Karnataka Gazette Notification page No. 608/Part

VI dated 08/07/1976 they became absolute

owners and title holders of the suit property; that

pursuant to the circulars dated 08/06/1978 and

22/01/1979 the Deputy Commissioner of the

Districts were instructed to handover possession

of any Wakf Properties that are under the

possession of any Government Department; that

by virtue of the said circular Assistant

Commissioner, Bijapur held enquiry under section

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67 of the Karnataka Land Revenue Act, 1964 and

arrived at the conclusion that the suit property is a

Wakf Property; that the alleged acquisition by the

Respondent itself is a concocted story; that the

Notification and the Gazette publication itself is a

notice to all concerned and the Respondent failed

to reply to this notice; that the original suit is bad

by limitation; that the original suit itself is not

maintainable since there is no notice under section

56 of the Old Wakf Act; that the plea regarding

title of the suit property by the Respondent and

the plea of adverse possession is mutually

exclusive; that therefore the appeal is to be

allowed.

Pertaining to the ownership claim of

Appellants over the suit property there is no

concrete evidence on record. The contention of

Appellants that one Arabian saint Mahabari

Khandayat came to India and built the Mosque

and his lineal descendents possessed the property

cannot be accepted if it is not substantiated by

evidence and records. As far as a title suit of civil

nature is concerned there is no room for historical

facts and claims. Reliance on borderline historical

facts will lead to erroneous conclusions. The

question for resolution herein is the factum of

ownership, possession and title over the suit

property. Only admissible evidence and records

could be of assistance to prove this. On the other

hand, Respondent produced the relevant copy of

the Register of Ancient Protected Monuments

maintained by the Executive Engineer in charge of

the Ancient Monuments (Exb P1) wherein the suit

property is mentioned and the Government is

referred to as the owner. Since the manner of

acquisition is not under challenge the entry in the

Register of Ancient Protected Monuments could be

treated as a valid proof for their case regarding

the acquisition of suit property under the

appropriate provisions of the Ancient Monuments

Act. Gaining of possession could be either by

acquisition or by assuming guardianship as

provided under section 4 thereof. Relevant

extracts of Exb P2 - CTS records fortifies their

case. It shows that the property stands in the

name of Respondent. Moreover, the evidence of

Syed Abdul Nabi who is the power of attorney

holder (of defendants 2A and 2B in the Original

suit) shows that the suit property has been

declared as a protected monument and there is a

signboard to this effect in the suit property. He

also deposed that the Government is in possession

of the suit property and the Government at its

expenditure constructed present building in the

suit property. On a conjoint analysis of Exb P1, P2

and deposition of Syed Abdul Nabi, it could be

safely concluded that the Respondent is in

absolute ownership and continuous possession of

the suit property for the last about one century.

Their title is valid. The suit property is government

property and not of a Wakf character.

The Old Wakf Act is enacted "for the better

administration and supervision of wakfs." Under

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section 4 of the Old Wakf Act, Survey

Commissioner(s) could only make a "\005survey of

wakf properties existing in the State at the date of

commencement of this Act." Wakf Board could

exercise its rights only over existing wakf

properties. Since the suit property itself is not an

existing wakf property the Appellant cannot

exercise any right over the same. Therefore, all

the subsequent deeds based on the presumption

that the suit property is a Wakf Property are of no

consequence in law. The Notification bearing No.

KTW/531 ASR/74/7490 dated 21/04/1976 issued

by the Appellant and Karnataka Gazette

Notification page No. 608/Part VI dated

08/07/1976 is null and void. The same is liable to

the deleted. In view of this, the aspects relating to

treating Gazette Notification as notice and

limitation need not be looked into. As regards the

compliance of notice under section 56 of the Old

Wakf Act, the High court based on evidence and

facts ruled that the same is complied with. This is

a finding of fact based on evidence.

Now we will turn to the aspect of adverse

possession in the context of the present case.

Appellants averred that the plea of the respondent

based on title of the suit property and the plea of

adverse possession are mutually exclusive. Thus

finding of the High Court that the title of

Government of India over the suit property by

way of adverse possession is assailed.

In the eye of law, an owner would be deemed

to be in possession of a property so long as there

is no intrusion. Non-use of the property by the

owner even for a long time won't affect his title.

But the position will be altered when another

person takes possession of the property and

asserts a right over it. Adverse possession is a

hostile possession by clearly asserting hostile title

in denial of the title of true owner. It is a well-

settled principle that a party claiming adverse

possession must prove that his possession is 'nec

vi, nec clam, nec precario', that is, peaceful, open

and continuous. The possession must be adequate

in continuity, in publicity and in extent to show

that their possession is adverse to the true owner.

It must start with a wrongful disposition of the

rightful owner and be actual, visible, exclusive,

hostile and continued over the statutory period.

(See : S M Karim v. Bibi Sakinal AIR 1964 SC

1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D

N Venkatarayappa v. State of Karnataka

(1997) 7 SCC 567). Physical fact of exclusive

possession and the animus possidendi to hold as

owner in exclusion to the actual owner are the

most important factors that are to be accounted in

cases of this nature. Plea of adverse possession is

not a pure question of law but a blended one of

fact and law. Therefore, a person who claims

adverse possession should show (a) on what date

he came into possession, (b) what was the nature

of his possession, (c) whether the factum of

possession was known to the other party, (d) how

long his possession has continued, and (e) his

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possession was open and undisturbed. A person

pleading adverse possession has no equities in his

favour. Since he is trying to defeat the rights of

true owner, it is for him to clearly plead and

establish all facts necessary to establish his

adverse possession. (Dr. Mahesh Chand

Sharma v. Raj Kumari Sharma (1996) 8 SCC

128).

Plaintiff, filing a title suit should be very clear

about the origin of title over the property. He

must specifically plead it. (See: S M Karim v. Bibi

Sakinal AIR 1964 SC 1254). In P Periasami v. P

Periathambi (1995) 6 SCC 523 this Court ruled

that - "Whenever the plea of adverse possession is

projected, inherent in the plea is that someone

else was the owner of the property." The pleas on

title and adverse possession are mutually

inconsistent and the latter does not begin to

operate until the former is renounced. Dealing

with Mohan Lal v. Mirza Abdul Gaffar (1996) 1

SCC 639 that is similar to the case in hand, this

Court held:

"As regards the first plea, it is

inconsistent with the second plea.

Having come into possession under the

agreement, he must disclaim his right

there under and plead and prove

assertion of his independent hostile

adverse possession to the knowledge of

the transferor or his successor in title or

interest and that the latter had

acquiesced to his illegal possession

during the entire period of 12 years,

i.e., up to completing the period his title

by prescription nec vi, nec clam, nec

precario. Since the appellant's claim is

founded on Section 53-A, it goes

without saying that he admits by

implication that he came into possession

of land lawfully under the agreement

and continued to remain in possession

till date of the suit. Thereby the plea of

adverse possession is not available to

the appellant."

As we have already found, Respondent

obtained title under the provisions of Ancient

Monuments Act. The element of Respondent's

possession of the suit property to the exclusion of

the Appellant with the animus to possess it is not

specifically pleaded and proved. So are the

aspects of earlier title of Appellant or the point of

time of disposition. Consequently, the alternative

plea of adverse possession by Respondent is

unsustainable. High Court ought not have found

the case in their favour on this ground.

In the result, these appeals stand dismissed.

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