IMPORTANT POINT
The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.

Headnote:Ancient Monuments Preservation Act, 1904-Ancient Monuments and Archaelogical Sites and Remains Act, 1958-Wakf Act, 1954-Section 26-Notifications issued by Karnataka Board of Wakf declaring suit properties as Wakf property -There are three sets of properties described as Karimuddin s Mosque , Macca Masjid and Water Tower , all of them situated at Bijapur-Claim made by respondents that they acquired suit property under the Ancient Monuments Preservation Act-Pertaining to ownership claim of appellants over the suit property there is no concrete evidence on record-Respondent is in absolute ownership and continuous possession of suit property for the last about one century-Suit property held to be government property and not of Wakf character-Plea of adverse possession held liable to be dismissed.
       Held : Pertaining to the ownership claim of Appellants over the suit property there is no concrete evidence on record. The contention of Appellants that one Arabian saint Mahabari Khandayat came to India and built the Mosque and his lineal descendents possessed the property cannot be accepted if it is not substantiated by evidence and records. As far as a title suit of civil nature is concerned there is no room for historical facts and claims. Reliance on borderline historical facts will lead to erroneous conclusions. The question for resolution herein is the factum of ownership, possession and title over the suit property. Only admissible evidence and records could be of assistance to prove this. On the other hand, Respondent produced the relevant copy of the Register of Ancient Protected Monuments maintained by the Executive Engineer in charge of the Ancient Monuments (Exb P1) wherein the suit property is mentioned and the Government is referred to as the owner. Since the manner of acquisition is not under challenge the entry in the Register of Ancient Protected Monuments could be treated as a valid proof for their case regarding the acquisition of suit property under the appropriate provisions of the Ancient Monuments Act. Gaining of possession could be either by acquisition or by assuming guardianship as provided under section 4 thereof. Relevant extracts of Exb P2 -CTS records fortifies their case. It shows that the property stands in the name of Respondent. Moreover, the evidence of Syed Abdul Nabi who is the power of attorney holder (of defendants 2A and 2B in the Original suit) shows that the suit property has been declared as a protected monument and there is a signboard to this effect in the suit property. He also deposed that the Government is in possession of the suit property and the Government at its expenditure constructed present building in the suit property. On a conjoint analysis of Exb P1, P2 and deposition of Syed Abdul Nabi, it could be safely concluded that the Respondent is in absolute ownership and continuous possession of the suit property for the last about one century. Their title is valid. The suit property is government property and not of Wakf a character. (Para 8)
       In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is nec vi, nec clam, nec precario , that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (Para 11)
       As we have already found, Respondent obtained title under the provisions of Ancient Monuments Act. The element of Respondent s possession of the suit property to the exclusion of the Appellant with the animus to possess it is not specifically pleaded and proved. So are the aspects of earlier title of Appellant or the point of time of disposition. Consequently, the alternative plea of adverse possession by Respondent is unsustainable. High Court ought not have found the case in their favour on this ground. (Para 13)

Judgement Key Points

Based on the provided legal document, the key points are as follows:

The primary issue concerns the ownership and possession of certain properties, specifically whether they are government properties, Wakf properties, or otherwise. The evidence indicates that the properties are under the ownership and continuous possession of the government, and there is no concrete evidence to establish that they are Wakf properties or owned by the appellants (!) .
The entry in the Register of Ancient Protected Monuments and the deposition of a government official confirming government possession and management of the properties serve as substantial proof of government ownership and custodianship (!) .
The claim that the properties were acquired by the appellants through historical claims or by virtue of notifications declaring them Wakf properties is not substantiated by admissible evidence. The alleged historical possession by a religious figure does not suffice to establish legal ownership (!) (!) .
The plea of adverse possession by the respondents is not sustainable because the elements necessary to establish adverse possession—such as hostile, open, peaceful, and continuous possession—are not proved. The respondents' possession was not shown to be hostile or adverse to the true owner, and their claim was not supported by specific pleadings or evidence of hostile intent (!) (!) .
The legal principle that ownership is not affected by non-use over a long period is acknowledged; however, adverse possession requires clear and continuous hostile assertion of rights, which is absent in this case (!) .
The court emphasizes that claims based on historical or border-line facts are insufficient for establishing ownership or adverse possession. Only admissible evidence and records can substantiate such claims (!) .
The courts have consistently held that the burden is on the claimant to prove their title and adverse possession with clear, continuous, and hostile possession, which was not satisfied here. Therefore, the appeals are dismissed, confirming the government's ownership and rejecting the adverse possession claim (!) (!) .
The procedural aspects, including the opportunity to produce additional evidence and the proper application of relevant statutes, were duly considered, and the courts found no grounds to alter the findings of the lower courts (!) (!) .

These points summarize the court's reasoning and conclusions regarding ownership, possession, and the inadmissibility of adverse possession claims in this context.

JUDGMENT

Rajendra Babu, J.-Three suits were filed by the first respondent in each of these cases seeking for a declaration that notifications issued by the Karnataka Board of Wakf, i.e., the appellant before us, showing some of the defendants to be illegal and void or in the alternative, to declare the first respondent as owner of the suit properties on the ground that they have perfected their title by adverse possession and consequential relief for permanent injunction. There are three sets of properties in each of these three matters. One is CTS No. 24 of Ward No. VI, described as "Karimuddin s Mosque", another is CTS No. 36 of Ward No. VI, described as "Macca Masjid" and the other is CTS No. 35 of Ward No VI, described as "Water Tower". All of them were situated at Bijapur.

2. The claim made by the first respondent is that they acquired the suit property under the Ancient Monuments Preservation Act, 1904 (Ancient Monuments Act) and a notification has been published in that regard and the suit property had been entered in the Register of Ancient Protected Monuments incharge of the Executive Engineer. Thereafter, the Government of India enacted the Ancient Monuments And Archaeological Sites and Remains Act, 1958 and the suit property came to be under the management of the Department of Archeological Survey, Government of India. It is asserted by the first respondent that in all the relevant records, the name of the Government of India has been shown as the owner of the suit property and that they came to know that the defendants got published a notification No. KTW/531/ASR-74/7490 dated 21.4.1976 showing that the suit property as having been declared as Wakf Property in terms of section 26 of the Wakf Act, 1954 and was also stated to have been published in the Gazette. Inasmuch as the suit property since inception was under the ownership of the plaintiff with lawful possession thereof, defendants could not have made any claim thereto nor get the same declared as Wakf property. The defendants contested this claim of the plaintiffs in the original suits and that after following due procedure publication has been made in the Karnataka Gazette in terms of Section 67 of the Karnataka Land Revenue Act and the order passed by the concerned officer is binding on the plaintiff and, therefore, the plaintiff cannot claim any ownership on the ground of adverse possession.

3. While this is the stand of the Wakf Board, the appellant before us, and the other defendants described as to be "mutawallis" of the Wakf property, stated that one of the Arab Preachers, Peer Mahabari Khandayat came as a Missionary to Deccan as early as AD 1304 and occupied whole Arkilla and erected "Mecca Masjid" according to established customs to offer prayer which is surrounded by a vast open area. The said property had all along for seven centuries been treated as Wakfs and have been since after the time of Peer, managed, looked after and maintained by Sajjada Nashin from time to time. No one has interfered with their right. They claim that they have appropriate sanads to show that the property in question is Wakf property and that another portion of the suit property also belongs to the Darga of Peer Mahabari Khandayat and Chinni Mahabari Khandayat Darga Arbkilla, Bijapur and, therefore, the same has been appropriately entered in the Wakf Register.

4. The trial court raised several issues in the matter and gave a finding that on a consideration of the oral and documentary evidence in the case it is clear that even prior to the introduction of the Survey Department at Bijapur, the Government of India had taken these properties as ancient monuments and they are protecting them by keeping appropriate watch over these monuments but now the defendants have come forward contending that these properties are Wakf properties and they have nothing to show that even after the demise of Peer Mahabari Khandyat they remained in the possession of the same. The properties in qu

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2004 Supreme(SC) 508

IMPORTANT POINTThe pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.

Cases Referred (6)

IMPORTANT POINT
The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.