A void transfer of waqf property by a Mutwalli is not covered by Article 134B of the Limitation Act, 1908 and the possession of the alienee is adverse from the date of the transfer.

Narasimham, J.

1. This is an appeal from the judgment of a Single Judge of this Court reversing the concurrent decisions of the two lower courts and dismissing the appellants (plaintiffs) suit for declaration of title and recovery of possession of certain property which has been claimed to be waqf property. The following genealogical tree will be helpful in appreciating the case of the parties:

Waris Ali

|

Abdul Rahman = Most. Hazra

|

_____________________________

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Ataur Rahman Fazlur Rahman (dead)

= Bibi Kulsum

______________________________

| | |

Anisul Rahman Nasir Ahmad Sultan Ahmad

2. The waqf was founded by Saiyid Waris Ali by a deed of waqf dated the 20th August, 1920, dedicating the disputed property as a burial ground for the members of his family and for other charitable purposes. He constituted himself as the first Mutwalli and further directed that after his death his grandsons Ataur Rahman and Fazlur Rahman, or either of them who survived the other, should be the Mutwalli, and after their death it will devolve on the members of the family from generation to generation in the male line. He further stipulated in the waqi deed that the Mutwalli for the time being shall have no right either to sell, mortgage or encumber the property. Warts Ali died about 34 years ago. Fazlur Rahman died sometime in 1925 leaving no male issue and Ataur Rahman died sometime in December, 1953. The plaintiffs alleged that they therefore became the Mutwallis in respect of the waqf property. On the 10th September, 1935, Abdul Rahman, his son Atam Rahman and the latters wife Bibi Kulsum conveyed the property by a sale deed in favour of one Khalilur Rahman, the father of the respondent (defendant) Sheikh Abui Hayat, and also put him in possession of the same. The plaintiffs alleged that the deed of conveyance of the waqf property was void and that consequently they were entitled to acquire possession of the same from the alienee and his successors in interest.

3. The main question in controversy was as regards limitation. As admittedly defendant No. 1 and his father were in possession of the property from the date of the sale dead, namely, 10th September, 1935, the suit would be barred by limitation if the starting point would be the date of delivery of possession, namely, the 10th September, 1935. If, on the other hand, it is held that adverse possession as against the Mutwallis would start only after the death of Ataur Rahman in 1953, the suit would be in time. It was contended on behalf of the appellants that the correct Article to apply would be Article 134B of the Limitation Act of 1908, corresponding to Article 96 of the new Limitation Act. On the other hand, the contesting defendant-respondent contended that as the alienation was void ab initio the possession of the alienee became adverse from the date of the alienation and that he has acquired his title by twelve years adverse possession by virtue of Article 144 of the Limitation Act, 1908 . The learned Single Judge accepted this contention and hence dismissed the suit.

4. Before discussing the aforesaid question of law I may refer to previous litigation between the parties in respect of the same property. Sometime in 1943 Musammat Bibi Hajra, wife of Abdul Rahman on behalf of her minor grandsons, namely, Anisul Rahman, Naisar Ahmad and Sultan Ahmad (plaintiffs in this litigation) filed a suit in the Court of the Munsif of Arrah against the alienee, impleading her own son Ataur Rahman as a second defendant, and sought for a declaration that the disputed property was Waqt property and also claimed delivery of possession after dispossession of defendant No. 1. The litigation was fought up to the Hi