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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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