The law of limitation applies based on the date of the suit and the period of possession by the defendant.

( 1 ) FIRST defendant has filed this second appeal against the judgment and decree dt. 26th Aug. 1976 passed in R. A. No. 116 of 1971 by the Addl. Civil Judge, Dharwad, reversing the judgment and decree dt. 22nd July 1971 passed in O. S. No. 16 of 1969 by the I. Addl. Munsiff, Dharwad.

( 2 ) FOR the sake of convenience the parties to this appeal will be referred according to their ranking in the trial Court.

( 3 ) BRIEFLY stated, the facts of the case are as below : The plaintiffs claiming to be the trustees of Soudagar mosque situated in Line Bazaar, Dharwad, a wakf institution originally registered under the Bombay Public Trusts Act, 1950 and subsequently under the Wakf Act, 1954 (Central Act), filed the suit for possession of the suit properties. Plaintiff has been officiating as the mutawalli of the said mosque. One Khatijabi who was the owner of the suit properties bearing C. T. S. No. 1037/lb and C. T. S. No. 1038/a/lb situated in Line Bazaar, Dharwad, created a wakf in respect of the suit properties and permanently dedicated the same for religious purposes, to wit, for the benefit of Soudagar mosque under the registered deed of wakf dt. 8th April 1937. Under the said deed, the wakif, i. e. , the founder of the wakf, divested herself completely of her ownership and possession of the suit properties for the said purposes and constituted herself and one Mohamad Hayatsaheb Sushiwale as joint mutawallis. Under the same deed she reserved for herself the usufruct of the properties for her maintenance during her lifetime. It was further provided in the said deed that after the death of the founder of the wakf, the joint mutawalli should collect the entire income of the suit properties and spend it for the benefit of the Soudagar mosque. The said joint mutawalli was also given the power of appointing his successor. However, it transpires that the joint mutawalli viz. , Mohammed Hayatsaheb Sushiwale, left India and migrated to Pakistan in the year 1947. Khatijabi, the wakif, however remained in actual possession and enjoyment of the suit properties till her death in or about the year 1950. Defendant-1, who was brought up by the said Khatijabi and residing with her in the suit properties continued to be in occupation of the same even after her death. It is the case of the plaintiffs that he used to collect the income from the suit properties and spend it for the mosque; but put off giving possession of the same to the management of the mosque on one pretext or the other. It is further averred that defendant-1 was an attestor to the said wakf deed and was fully aware that the suit properties constituted a public trust for the benefit of the mosque. In the year 1956, defendant-1 appears to have got his name entered in the C. T. S. records on the basis of his actual possession of the suit properties. He also leased out one of the suit properties to one Kallawwa. Defendant-2 is the relative of the said Kallawwa, who was in occupation of the suit house as a tenant.

( 4 ) SINCE the suit was relating to title of a wakf property, statutory notice as required under Sec. 57 of the Wakf Act was duly issued to the Karnataka Board of Wakfs. The plaintiffs have further pleaded that the suit is in time by virtue of Public Wakfs (Extension of Limitation) Act, 1959 (Central Act 29 of 1959) as amended by Act No. 22 of 1967 which extended the period of limitation for suits to recover possession of immovable properties forming part of public wakfs till 31st Dec. 1968. As 31st Dec. 1968 and 1st January 1969 being Court holidays, the suit was filed on 2nd Jan. 1969 on the reopening of the Civil Courts after winter vacation.

( 5 ) THE first defendant resisted the suit generally denying the plaint allegations. He denied that Soudagar mosque is a registered public trust and wakf under the Wakf Act and plaintiff-1 being its mutawalli. Regarding the wakf deed dt. 8th April 1937, defendant-1 has in the first instance, denied its execution by