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Allahbad High Court
JAGMOHANLAL
Jamal Uddin - Appellant
Versus
Mosque at Mashakganj - Respondent
Decided On : 01/10/1973
LIMITATION ACT, 1908 - ARTICLE 142 - POSSESSION - BURDEN OF PROOF - ADVERSE POSSESSION - ARTICLE 144 - APPLICABILITY - WAKF - SHIA LAW - DELIVERY OF POSSESSION - ESSENTIAL - ORAL WAKF - VALIDITY - REQUIREMENTS - EVIDENCE - APPRECIATION - LEGAL PRINCIPLES.
Fact of the Case:
Plaintiffs, representing a mosque and its Mutawalli, filed a suit for possession of a piece of land against defendants, claiming ownership through an oral wakf allegedly made by Nasir Husain, one of the predecessors-in-interest. Defendants contested the suit, denying the plaintiffs' title, the factum of the alleged oral wakf, and claiming adverse possession for more than seventy-five years.
Finding of the Court:
The trial court decreed the suit for possession in favor of the plaintiffs, holding that the mortgage of 1881 was redeemed before the sale deed of 1883, that Plot No. 292 was free from mortgage and not transferred to the defendants' predecessor, that Nasir Husain became the owner of the land by inheritance, that he made an oral wakf of half of the plot in favor of the mosque in 1940, and the remaining half in 1943 for constructing a school, and that the defendants failed to prove adverse possession for more than twelve years. The lower appellate court reversed the finding on the custom of exclusion of daughters from inheritance, but upheld the plaintiffs' claim for possession based on the oral wakf, rejecting the plea of jus tertii.
Issues: 1. Whether the plaintiffs had the burden of proving possession within twelve years under Article 142 of the Limitation Act, 1908, or the defendants had the burden of proving adverse possession for more than twelve years under Article 144. 2. Whether the alleged oral wakf made by Nasir Husain was valid under Shia law. 3. Whether the courts below erred in appreciating the evidence and reaching a finding on the issue of possession.
Ratio Decidendi: 1. The suit fell within the ambit of Article 142 of the Limitation Act, 1908, and the burden was on the plaintiffs to prove their possession within twelve years. Article 144 had no application. 2. Under Shia law, delivery of possession is necessary for the validity of a wakf. In the absence of a registered document, cogent evidence of delivery of possession to the Mutawalli is required. 3. The courts below erred in placing the burden of proof on the defendants to prove adverse possession and in not appreciating the evidence properly. The plaintiffs failed to prove their possession within twelve years, and the defendants had established their adverse possession.
Final Decision: The appeal was allowed. The judgments and decrees of the courts below were set aside, and the plaintiffs' suit was dismissed with costs to the defendants throughout.
2. The suit had a chequered career. It was originally dismissed by the trial Court on 16-8-1960 on the finding that the plaintiffs had not been in possession of the property in suit within twelve years and the suit was barred by limitation under Article 142 of the Limitation Act. The plaintiffs filed an appeal. The Appellate Court allowed certain amendments to be made in the pleadings and without reversing that finding of fact allowed the appeal and remanded the suit for retrial after considering the new pleas taken through amendment of the pleadings. After remand the plaintiffs impleaded Zawar Husain. (Respondent No. 3) also as a pro forma defendant in the suit. This time the suit was decreed by the trial court on 20-5-1963. An appeal filed against that decision was dismissed by the Civil Judge Mohanlalganj at Lucknow on 28-7-1966.
3. Jamaluddin and Shamshuddin defendants then filed this second appeal before this Court impleading the plaintiffs as respondents Nos. 1 and 2, the pro forma defendant Zawar Husain as respondent No. 3 and Smt. Nanhi (one of the legal representatives of the deceased defendant Qamaruddin) as respondent No. 4. During the pendency of this appeal Smt. Nanhi died and her legal representatives were not brought on record. Hence an order dated 23-9-1968 was passed by this Court that the name of Smt. Nanhi shall be struck off from the array of respondents and the appeal shall stand dismissed against her for want of prosecution.
4. The plaintiffs' case as set out in its final shape after repeated amendments of the pleadings was that Mehar Ali and Qasim Ali who are real brothers were owners of a house, an Ahata and Plot No. 292 which they had inherited from their ancestors. On 29-3-1881 Qasim Ali and Mehar Ali made a usufructuary mortgage of this property in favour of one Wazir Khan for a sum of Rs. 50/- by means of a registered document. The period for redemption stipulated in the mortgage deed was two years and within this period the mortgage was redeemed by making payment to Wazir Khan of the mortgage money. Qasim Ali then executed a registered sale deed dated 12-6-1883 in favour of Bulaqi, predecessor of the defendant-appellants, transferring the house and the Ahata to him for a sum of Rs. 18/- Plot No. 292 was not, however, included in this sale deed and it remained in possession of Qasim Ali and Mehar Ali.
Qasim Ali died issueless and his interest in the property was inherited by his brother Mehar Ali. After Mehar Ali's death, his son Azam Husain succeeded to that property. When Azam Husain died, he left a widow Smt. Sanwli Begum, a daughter, Smt. Sayada Begum, and a son Nazir Husain as his heirs. According to the plaintiffs there was a custom in this family excluding the daughter from inheritance. So it was alleged that Nazir Husain alone became the owner of Plot No. 292 as the ultimate successor of Mehar Ali. Adjacent to Plot No. 292 was a mosque which figured as plaintiff No. 1 in the suit and of which Abdul Haq plaintiff No. 2 was alleged to be the Mutawalli. Nasir Husain made an oral wakf in respect of half of Plot No. 292 in favour of this mosque some time before 1940 and after wakf the mosque was extended over this portion.
The remaining half portion of this plot which is the land in dispute, was lying as vacant land and it was in possession of Nasir Husain who m
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