2023 Supreme(SC) 357

SUPREME COURT OF INDIA
K.M. JOSEPH, HRISHIKESH ROY, JJ.
Sabir Ali Khan – Appellant
Versus
Syed Mohd. Ahmad Ali Khan And Others – Respondents
Civil Appeal Nos. 7086-7087 of 2009
Decided on : 13-04-2023

IMPORTANT POINTS
(1) Waqf property can be subject matter of acquisition of title by adverse possession – However, Mutawalli cannot acquire rights over Waqf property by adverse possession.
(2) Suit for possession of property – Transfer must be for valuable consideration – In order that there is a transfer, it must not be still born – It should not be a void transaction.

Headnote:

(A) Limitation Act, 1963 – Article 65 – Waqf Act, 1995 – Section 52(2) – Creation of Waqf property – Waqf property can be subject matter of acquisition of title by adverse possession – However, Mutawalli cannot acquire rights over Waqf property by adverse possession – Beneficiary of a Waqf cannot be described as a stranger to Waqf – In case of adverse possession, since a requirement is that possession must be hostile to real owner and since real owner is Almighty, requirement would be that such a person must has necessary animus to hold contrary to title of God – In case of a co-owner while mere assertion of title in himself may hardly suffice as possession of a co-owner is taken to be possession on behalf of all co-owners a case of ouster being successfully established would entitle co-owner to succeed. (Paras 22 and 56)

(B) Waqf Act, 1995 – Section 52 – Limitation Act, 1963 – Section 27 and Article 96 – Indian Trusts Act, 1882 – Section 14 – Suit for possession of property – Limitation – In order that a suit may fall under Article 96, there must be a transfer by a Manager which would include a Mutawalli of a Waqf – It must be for valuable consideration – In order that there is a transfer, it must not be still born – It should not be a void transaction – A void transaction would not amount to a transfer – There cannot be any embargo against a beneficiary of a Waqf claiming acquisition of title by adverse possession – Law of limitation is what prevails as on date of suit – Taking 1997 as the date on which a suit is filed, and applying the Act which enables plaintiff to disregard bar of law of limitation, it cannot mean that what stood extinguished under earlier law would revive – Beneficiary of a Waqf is endowed with rights in terms of Waqf deed – Beneficiary is not like a Trustee who assumes possession in his character as a Trustee, coming under restraint of discarding his character as Trustee and donning robes of an encroacher or a person asserting hostile title – Even in regard to a proceeding under the Act be it Section 52 if as on the date action is taken, title in property stood vested with person in possession by virtue of Section 27 of Limitation Act then it may not be permissible to ignore right which had been acquired – Appeals dismissed. (Paras 61, 63, 66, 71, 72 and 73)

Facts of the case:

Appeals are lodged against Order passed by High Court of Allahabad in Civil Revision Nos. 595 and 596 of 2003. Revisions, in turn, were directed against the Order passed by the Waqf Tribunal on an Appeal filed by the first respondent before us. First respondent again, in turn, put in issue the Order passed by Collector. Order passed by Collector was passed under Section 52(2) of the Waqf Act, 1995. Collector was acting on the basis of a requisition given by the Controller of Waqf Board to obtain and deliver possession of land in dispute to the Waqf Board. Requisition was made under Section 52(1) of the Act. By Order passed by Tribunal, it had set aside Order passed by the Collector on various grounds. By impugned Order passed by High Court in Revisions filed against Order by the appellants, High Court has affirmed Order passed by Tribunal, however, on the ground that the first respondent, in Appeals, had perfected title by adverse possession.

Findings of Court:

Article 96 has no application. Even in regard to a proceeding under the Act be it Section 52 if as on the date the action is taken, the title in the property stood vested with the person in possession by virtue of Section 27 of the Limitation Act then it may not be permissible to ignore the right which had been acquired.

Result : Appeals dismissed.