1. Suit for possession of Wakf property — claim of adverse possession based on gift deed and long-term occupation — application of Section 10, Limitation Act. (Para 1 , 3 , 4 , 5 , 6 , 19 )
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1999 Supreme(SC) 241
SUPREME COURT OF INDIA
M. JAGANNADHA RAO AND M.B. SHAH, JJ.
Wali Mohammed (dead) by L.Rs, Appellants
VERSUS
Smt. Rahmat Bee and others, Respondents.
Civil Appeal No. 159 of 1990, D/- 23-2-1999.
Important Points
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.
Subject
Property Law - WAKF PROPERTY
Act Referred
Headnote
WAKF PROPERTY - ADVERSE POSSESSION - MUTAWALLI - LIMITATION ACT, 1963, SECTION 10 - APPLICABILITY - Adverse possession cannot be claimed by a Mutawalli or his progeny 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.
Fact of the Case:
The suit property was 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.
Finding of the Court:
The Court held that the respondent and his father were certainly in a fiduciary position so far as the house property was concerned and such persons in whom the management was so vested are in law in the position of Mutawallis. A Mutawalli is prohibited from setting up adverse title unlike a stranger.
Issues: 1. Whether the findings in the earlier suit O. S. No. 193 of 1963 filed by the respondent-defendant, operate as res judicata in the present suit against the defendant, under Section 11 of the Code of Civil Procedure, 1908? 2. Whether the plaintiff has proved title to the suit property including the house? 3. Whether the respondent-defendant has perfected title by adverse possession to the suit property or at any rate to the house property obtained by him under the gift deed of 1938 from his father?
Ratio Decidendi: 1. The findings in the earlier suit operate as res judicata in the present suit against the defendant, under Section 11 of the Code of Civil Procedure, 1908. 2. The plaintiff has proved title to the suit property including the house. 3. The respondent-defendant has not perfected title by adverse possession to the suit property or at any rate to the house property obtained by him under the gift deed of 1938 from his father.
Final Decision: The judgment and decree passed by the lower appellate Court and the High Court are contrary to law and are set aside and the appeal is allowed. The decree of the trial Court is restored. There will be no order as to costs in this appeal.
Legal Category Hierarchy
Table of Contents
2. Whether earlier findings operate as res judicata — whether title was perfected by adverse possession — whether recovery is barred by limitation under the Limitation Act. (Para 2 , 7 , 8 )
3. Findings of Wakf status are res judicata — managers of religious endowments are deemed trustees — a Mutawalli cannot acquire title by adverse possession against the trust. (Para 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 )
4. A Mutawalli cannot claim adverse possession against Wakf property; recovery from a non-valuable consideration assignee of trust property is not barred by limitation under Section 10. (Para 30 , 31 , 38 )
5. Appeal allowed — judgments of the lower appellate court and High Court set aside — trial court decree for possession restored. (Para 40 , 41 )
6. Can a Mutawalli claim adverse possession against Wakf property?
No. While a stranger to the trust may acquire title by adverse possession, a Mutawalli, being in a fiduciary position as a manager of the trust, cannot take such a position or set up adverse title against the Wakf. (Para 29 , 30 , 31 )
7. How does Section 10 of the Limitation Act, 1963 affect the recovery of religious endowment property?
Under Section 10, no suit for recovery of property vested in trust for a specific purpose is barred by time against a trustee or their assigns, provided the assign is not for valuable consideration. Managers of religious endowments are deemed trustees. (Para 34 , 35 , 37 , 38 )
8. Does a gift deed from a manager of a Wakf property confer title to the donee?
A manager (Mutawalli) cannot transfer a higher right than they possess. Since a Mutawalli cannot acquire title by adverse possession, they cannot transfer such title to a donee; the property remains Wakf. (Para 32 , 38 )
9. What is the effect of constructive res judicata on a plea of adverse possession?
If a party fails to set up a plea of adverse possession in an earlier suit between the same parties regarding the same property, they are barred from raising that plea for the period preceding the earlier suit. (Para 33 )
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
