Full Judgment Text
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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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