A Mutawalli or his progeny cannot claim adverse possession in respect of Wakf property. Section 10 of the Limitation Act, 1963 bars limitation for recovery of property from a donee of a Mutawalli who is not a transferee for valuable consideration.

Judgement

M. JAGANNADHA RAO, J. :- This is an appeal by the plaintiff in the suit - O. S. No. 938 of 1976 on the file of the First Assistant Judge, City Civil Court, Secunderabad. The appellant filed the suit as Mutawalli and person-in-charge of the suit property, for possession. The suit was decreed by the trial Court by Judgment dated 13-10-1977. The respondent-defendant filed appeal A. S. No. 83 of 1978 and the same was allowed on 17-3-1979 by the Additional Chief Judge (cum-Special Judge S.P.E.,) City Civil Court, Hyderabad and the suit was dismissed. The plaintiff then filed Second Appeal No. 575 of 1979 in the High Court and it was dismissed on 2-8-1982. Against that Judgment, the plaintiff has filed this appeal by special leave. Pending this appeal, plaintiffs legal representatives have been brought on record. We are, however, suo motu impleading the A. P. Wakf Board as an appellant in exercise of our power under Article 136 of the Constitution of India, so as to safeguard the interests of the Wakf property.

2. The main point urged by the learned counsel for the appellant-plaintiff is that the finding of the lower appellate Court and the High Court that the respondent-defendant acquired title by adverse possession to the suit property is not correct in law.

3. The suit property is an extent of 300 sq. yards in Secunderabad containing various premises and buildings thereon, located within the graveyard and Darga described in the plaint scheduled as Syed Khaja Peer Darga. The suit property is claimed by the Wakf Board through the plaintiff as Mutawalli.

4. We shall initially refer to the earlier litigation between the parties and to the findings therein. Earlier, Rahiman Khan, the respondent herein filed O. S. No. 193 of 1963 on the file of the First-Assistant Judge, City Civil Court, Secunderabad against the appellant, Wali Mohammed claiming to be in possession and claiming that his father late Yakub Khan had constructed a house in the suit property a few years before 1938. He sued for declaration of "his right to manage and possess the graveyard and Darga and to restrain the defendant therein (present plaintiff) from cutting branches of certain trees". That suit was filed on 27-7-1963. It was dismissed by the trial Court on 27-2-1965. 1138 Therein the trial Court referred to the evidence of PW-1, a clerk from the Wakf Board, to the effect that the Darga related to one Syed Peer Ali, who died 15 years earlier and the said Syed Peer Ali was buried there, that the mosque adjoins the graveyard which contains the tombs and Darga, that the Graveyard and mosque are public property and that the Wakf Board manages the grave- yard and mosque as trustee. The said witness produced Ex. B-1 therein being the book of Endowments which showed that this mosque and graveyard were entered in that book. It appears that the counsel for the respondent (plaintiff in that suit) conceded that the suit graveyard and Darga are a Wakf by user.

5. Adverting to the plea of title to the property set up by the respondent, the Court held that there was absolutely no evidence on behalf of the respondent that the suit property was either his own or he had any right in the graveyard or the Darga. The Court held, on the other hand that the present plaintiff (defendant therein) was the person performing the Urs at the Darga and managing the graveyard and the house therein and that the house was being used as a Musafir Khana. There was a further finding that the respondents father was only a Chowkidar appointed by the Mosque Committee. The suit was accordingly dismissed by the trial Court by Judgment dated 27-2-1965. Against the said judgment, the respondent herein (plaintiff in that suit) appealed in A. S. No. 32 of 1965 before the Chief Judge, City Civil Court, Hyderabad and the appeal was dismissed on 22-1-1968. Thereafter, the Second Appeal No. 684 of 1968 was also dismissed by the High Court on 24-4-1970. Thus, in all the three Courts, the respondent was unsu