Can limitation act not appled to wakf property/wakf act.
Guest
(Querist) 22 October 2011
This query is : Resolved
Will you please guide me whether limitation act apply to wakf property. As per Wakf act a07, Ac 36 of 1963 limitation act not apply for recovery of wakf properties.Pls explain in full detail also send its latest amendment case laws
ajay sethi
(Expert) 22 October 2011
please find judgement on wak f property . limitation is not applicable for recovery of wakf property
ajay sethi
(Expert) 22 October 2011
delhidistrictcourts.nic.in/.../Tirath%20Singh%20Vs.
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CODE OF CIVIL PROCEDURE, 1908
RFA No. 359/1996
DATE OF DECISION : 18th February, 2011
TIRATH SINGH (DECEASED) & OTHERS ...... Appellants
Through: Mr. Vishrov Mukherjee, Advocate.
VERSUS
DELHI WAKF BOARD ...... Respondent
Through: Mr. Javed Ahmed, Advocate.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of the present Regular First Appeal
under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the
impugned judgment and decree dated 8.7.1996 whereby the suit of the
respondent-plaintiff/Wakf Board was decreed for possession against the
appellants/defendants for the property Shahji Ghatali Ka Gumbad, Khasra
No.9 Hauz Rani, Malviya Nagar, New Delhi shown in red colour in the site
plan Ex.PW3/1.
2. The facts of the case are that the subject property was
recognized as Wakf property by virtue of a notification Ex.PW1/2 dated
16.4.1970. In terms of the provision of Section 6 of the Wakf Act, 1954 as
applicable in the year 1970, if any person disputed the property as not being
a Wakf property, such a person had to file a suit in a Civil Court within one
year of the publication of the list of Wakfs under sub section (2) of Section
6. No such suit was filed by the appellants/defendants. The
respondent/plaintiff filed the subject suit for possession on 2.1.1986.
3. The appellants/defendants appeared and contested the suit and
took up various defences. The first defence was that they were displaced
persons from Pakistan and were therefore allotted the property by
government officials. The second defence was that the appellants were in
adverse possession of the subject property.
4. The trial Court after completion of pleadings framed issues on
22.7.1991 and which read as under:-
“1. Whether the plaintiff is entitled to recover the possession of the
suit land from the defendants? OPP
2. Whether the plaintiff is entitlement to get the super structure
demolished by the defendant on the suit land? OPP
3. Whether the present suit is barred by limitation? OPD
4. Whether the suit is bad for non-joinder and mis-joinder of necessary
parties? OPD
5. Whether the suit has not been properly valued for the purpose of court
fees and jurisdiction? OPD
6. Whether the suit is not maintainable in the present form? OPD
7. Whether the plaintiff is not the owner of the suit property? If so, its
effect? OPD
8. Relief.”
5. Out of the above issues, we are concerned with issue Nos.1, 3
and 7 as it is the decision on these issues which have been challenged by the
appellants. These issues have been dealt with together by the trial Court
from paras 33 to 62 of the impugned judgment and decree wherein it has
been held that the respondent was the owner and that the appellants had not
become the owners by adverse possession.
6. The trial Court while dealing with issue Nos.1, 2 and 7 has
arrived at the finding/conclusion that the respondent was the undoubted
owner of the suit property because the subject property was declared as
Wakf property by the notification dated 16.4.1970 exhibited as Ex.PW1/2
and to which there was no challenge. I agree with this conclusion because
once the property was declared as a Wakf property, any person who sought
to challenge the ownership of the Wakf Board had to file a suit in a Civil
Court under the Wakf Act, 1954, as per Section 6, to challenge the
publication of the property as a wakf property and which admittedly the
appellants failed to do. The consequence was, and was so rightly held by the
trial Court, that the subject property is undoubtedly a Wakf property and the
respondent was entitled to file the suit for possession of the Wakf property.
The trial Court has further disbelieved the plea of adverse possession as was
the case of the appellants/defendants, on the ground that the appellants
claimed to have been allotted the property by the government and since the
ownership was claimed by allotment, there did not arise any issue of
claiming adverse possession to the self ownership. Further, the trial Court
has also arrived at a finding that the adverse possession has not been proved
as a matter of fact and that merely because the appellants are sitting on the
wakf property since 1947-48 will not mean that this possession will be
adverse possession. Mere actual physical possession and adverse possession
are two totally separate concepts. A person may be in possession, however,
to claim the right of adverse possession, it is necessary that there is an overt
act of claim of ownership of the property and which must be very clearly
and categorically proved to have commenced at a specific point of time i.e.
the month and year from which such adverse possession began, for the
period of limitation, so as to give ownership rights by adverse possession to
the tresspassers. I also note that the appellants failed to lead any
documentary evidence whatsoever to substantiate their claim of adverse
possession from the year 1947-48 or even from a later period so as to claim
ownership of the property by adverse possession. Mere, oral
statements/depositions cannot discharge the onus of proof which is indeed
strict in the case of adverse possession which is ordinarily frowned upon by
the Courts.
7. Learned counsel for the appellants basically argued the appeal
under two broad heads. The first head was that the respondent was not the
owner of the property and therefore the suit for possession did not lie. The
second head of argument was that the appellants being in possession since
1947-48, they are therefore in adverse possession of the property and hence
became owners thereof.
I may, at this stage, state that an issue came up before the trial
Court as to whether at all there was a period of limitation for the Wakf
Board to sue for possession of property inasmuch as the Wakf Act, 1954 was
amended in the year 1985 whereby Section 66(G) was brought into effect for
the first time and as per which it was stated that there is period of 30 years
for the Wakf to file a suit for possession of the property. In fact, in the
extant Wakf Act, 1995, there is no period of limitation because there is a
specific provision, being Section 107, to the effect that the provisions of
Limitation Act, 1963 will not apply for filing suits for the recovery of Wakf
property. This issue of the period of limitation required of 30 years or 12
years or no period at all does not detain me because I am presuming that
Article 65 of the Limitation Act, 1963 applies and in which a period of 12
years is prescribed for adverse possession to fructify into the ownership
rights when read alongwith Section 27 of the said Act.
8. I am afraid I am unable to agree with any of the arguments as
raised on behalf of the appellants. Firstly, the trial Court has rightly arrived
at a finding that by virtue of the notification dated 16.4.1970 Ex.PW1/2, the
respondent became owner of the property. Admittedly, the appellants did
not file any civil suit to challenge the declaration of the property as a Wakf
property. The trial Court has therefore rightly held the respondent to be the
owner of the property. The counsel for the appellants sought to place
reliance upon a judgment of the Apex Court reported as Board of Muslim
Wakfs, Rajasthan Vs. Radha Kishan & Ors. AIR 1979 SC 289 and
paragraph 39 thereof to contend that the appellants are entitled to question
the ownership of the Wakf because a non-muslim can always challenge the
ownership rights of the Wakf in a Wakf property and also that there was no
requirement of the appellants to have filed the suit in the Civil Court within
one year as provided in Section 6 of the Wakf Act, 1954. I do not
understand as to how the decision in the case of Radha Kishan & Ors.(supra)
would apply because this case dealt with the transfer of a wakf property and
which transfer was under challenge. This case did not pertain to an issue as
to declaration of ownership of the Wakf property on the ground of adverse
possession.
So far as the argument that the appellants had become owners
by adverse possession is concerned once again the argument is devoid of any
merit. It is now settled law that the plea of adverse possession has to be very
categorical and clearly proved. This plea of adverse possession must be
proved by showing a clear overt act claiming ownership of the property and
which is adverse to the owner or the world at large. I have already noted
above that the case of the appellants was firstly that they were allotted this
property being displaced persons by government officials. This plea, of
course, was not proved before the trial Court. The case, therefore, of the
appellants was not of adverse possession but possession through ownership
by virtue of allotment. In any case, even assuming that the appellants could
set up the plea of adverse possession, it had to be established by showing
documents such as mutation in the municipal records, income tax records
claiming ownership or other unquestionable documents to show claim of
ownership of the subject property and which is something more than mere
possession of the subject property.
Though the findings of the trial Court in this regard are
extensive from paragraphs 33 to 62 and therefore cannot be reproduced as a
whole, I would refer to some of the paragraphs and which read as under:-
“44. DW 2 has also not challenged the veracity or the authenticity of
Ex.PW3/1; in fact no dispute has been raised about the area shown in
occupation of the defendants or the demarcation affected by the draftsman.
No objection had also been filed to the report of the Local Commissioner
who had filed the site plain in court in terms of order of this court dated
14.2.1989.
48. PW 1 has proved the Gazette Notification dated 16.4.1970 as
Ex.PW1/2; this notification is published in the official Gazette Under
Section 5 of Delhi Wakf Act, 1954. Admittedly no challenge has been made
to the aforestated publication. Under Section 6 of the said Act the suit shall
be entertained by a Civil Court after the expiry of one year from the date of
such a publication, Under Section 5 of the said Act.
49. In the present case if the defendants claim to be the owners of the suit
property and were aggrieved by the notification dated 16.4.1970 which was
a public notice and which was admittedly known to them they should have
taken appropriate remedial action and challenged the same. Admittedly no
such challenge was made defendants.
Xxxxx
51. In the present case on 16.4.1970 it was publicly notified that the suit
property had become Wakf Property. Defendants in spite of opportunity
failed to challenge the aforestated notification. In fact even in their written
statement there is no specific dispute raised by them that the suit property
does not form a part of the Wakf Property. Had they been aggrieved by the
aforesaid notification they should have filed a conderatory suit for the
cancellation of the aforestated notification.
Xxxxxxx
58. The defence of the adverse possession set up by the defendants is
clearly sham and bogus. They have failed to establish the ingredients of the
same. The plea of adverse possession can be set up only when the
defendants openly and categorically claimed possession of the suit property
adversely to that of the plaintiff. In the present case the possession of the
defendant became adverse qua the plaintiff only on 16.4.1970 when
notification to the said effect was published that the suit property was a part
of Wakf Property. The defendants have been merely sitting on the Wakf
property since 1947-48. Admittedly no user charges either in the form of
lease money or licence fee had been paid to any person. The plea of adverse
possession cannot be sustained especially in law of the admission of the
defendant himself i.e. in the deposition of DW1 Shri Ajit Singh who has
stated that he is the owner of the suit property and the suit property belongs
to no other person. Plea of adverse possession has to be taken against the
owner. In this case DW1 has stated in his examination-in-chief that this
property is not owned by any other person and he is the owner of the same.
In these circumstances this plea of adverse possession cannot be sustained.
Even otherwise the defendant has failed to lead any evidence to the
aforestated effect.
59. In view of the above discussion I am satisfied that the plaintiff has
been able to establish his ownership over the suit property which has been
depicted in red colour in Ex.PW3/1 which is admittedly a Wakf property.
Plaintiff is clearly entitled to recover possession of the same from the
defendants. It is not in dispute that apart from one room there is one tin shed
apart from any open space which is in occupation of the defendants. DW 1
has admitted that certain repairs in the suit property has been carried by him.
DW 2 has admitted that he has constructed one room a boundary wall
therein. It is admitted in the cross examination that no permission had been
taken from any authority for the aforestated construction. It is admitted that
there is no bathroom in the suit property land a temporary arrangement is
made there. In these circumstances it is clear that illegal construction had
been made in the suit property and the plaintiff is entitled to seek demolition
of the same.”
9. I do not find any illegality or perversity in the aforesaid
findings and conclusions of the trial Court. This Court is not entitled to
interfere with the detailed findings and conclusions of the trial Court merely
because two views are possible. The trial Court is entitled to take one
plausible view and which view cannot be interfered with, unless the said
view is perverse and causes grave injustice. I do not find that any of such
ingredients exist to enable this Court to interfere with the impugned
judgment and decree.
The appeal, therefore, being devoid of merits is dismissed, leaving the
parties to bear their own costs. Interim orders are vacated. Trial Court
record be sent back.
Sd/-
VALMIKI J. MEHTA, J
