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Judgment
D. Appa Rao, J.—These appeals are preferred by the defendants against the decree and Judgment in O.S. No. 63/1976, on the file of the learned Subordinate Judge, Nellore decreeing the suit for possession filed by the Wakf.
Defendants 1, 25, 51 and 52 preferred A.S.504/1996, defendant No. 18 preferred A.S. 1353/1996, defendant No. 88 preferred A.S.1228/1997, defendant No. 45 preferred A.S.1240/1997 and defendants 12, 13 and 14 preferred A.S. 171/1998.
The case of the plaintiff in brief is that Fathekhanpet Mosque locally known as Kalam Mosque, situated in Nellore is a public wakf from times immemorial. An extent of Ac. 18-04 cents situated in S. Nos. 480/1, 480/2, 537/1, 542, 536 and 619 at Bit-II, Nellore District is a part of the property that had been endowed for upkeep and performance of Khatib and Mouzzan services in the said mosque. The incumbents of the office were enjoying the income of the said property towards their remuneration for the services rendered by them. They have no right or interest in the property. It had learnt that the persons who were rendering services have unlawfully alienated the schedule properties to various defendants. They cannot get any right in the property, as the vendors themselves have no right of alienation. They are void and not binding. They are trespassers in the eye of law. After due enquiry, the wakf board published Gazette notification dated 12-5-1963 u/s 5 of Central Act 29 of 1964 stating that the suit properties belonging to the mosque are wakf properties. The defendants did not file any suit within a period of one year as provided u/s 6 of the Wakf Act. Therefore, it was entitled to recover possession. The suit was within time by reason of the provisions of Public Wakfs (Extension of Limitation) Amendment Act 29 of 1959, and there is no limitation for a suit to be instituted by virtue of Section 10 of the Indian Limitation Act. Therefore, it sought possession of the suit property after evicting the defendants therefrom.
The defendants filed separate written statements, however, taking the very same plea that the plaint schedule property is not a wakf property. They were originally inam lands and after its abolition ryotwari pattas were issued to them. Properties were never endowed for the upkeep and performance of Khatib and Mouzzan services. By a registered settlement deed dated 21-1-1928, Nizam Shareef, conveyed some of the said lands in favour of his wife, daughters and son-in-laws mentioning that it was personal inam granted to him under Inam Patta 1494. Some lands were alienated to C.I.I.M High School, Nellore and the government levied full assessment. By virtue of the settlement deed, the settees in turn sold the properties to them under various registered sale deeds. They have purchased various extents of lands under valid registered sale deeds, after paying due consideration. The Gazette notification does not bind them. The suit is barred by limitation. Therefore, they prayed for dismissal of the suit with costs.
Upon the pleadings, the trial Court framed the following issues:
Whether the plaint schedule mentioned lands were wakf properties?
Whether the plaint schedule mentioned lands were only issued Inam Lands and ryotwari pottos were issued therefore before and after Inams Abolition Act to persons then in possession and enjoyment threof?
Whether the plaintiffs ceased to have any rights in the suit lands, even if any from 29.1.1928 when they were first alienated?
Whether the alienations of suit lands are not binding on the plaintiffs?
Whether the suit claim is in time?
To what relief?
The plaintiff wakf board in support of its case examined PWs. 1 to 4 and filed Exs. A. 1 to A. 14. Refuting their evidence, the defendants have examined DWs. 1 to 8 and filed Exs. B.1 to B.41, various registered sale deeds executed in their favour. Ex. X.1 - registered settlement deed dated 30-12-1947, was marked by PW.4.
The trial Court, after considering the oral and documentary evidence placed on record, opined that the plaint schedule properties were endowed to the mosque, and therefore they are wakf properties. Since they were given so as to render services to the mosque, it would not confer any ownership on the service holders. It cannot be alienated. The alienations were not valid. The suit was well within time. Therefore, it decreed the suit, entitling the plaintiffs to seek possession of the suit property.
Aggrieved by the said decision, various defendants have preferred the above appeals, which I have earlier adverted to, contending that the trial Court did not appreciate either facts or law in correct perspective. It ought to have seen that the lands are personal service inam lands and ryotwari pattas were granted to them. Some of the properties were sold as long back as in 1928 under Ex. B.19 dated 21-1-1928. Various extents of the properties have been purchased by them under various registered sale deeds Exs. B.1 to B.41. There are permanent constructions by way of houses, schools and colleges in the suit land. The suit was barred by limitation. Therefore, they prayed that the appeal be allowed setting aside the decree and judgment of the trial Court.
The points that arise for consideration are:
Whether the suit property was endowed to the wakf or granted as a personal service inam to the original service holders?
Whether the suit is haired by limitation?
ASMP. 1177/2006 in A.S. 504/1996, ASMP. 1123/2007 in A.S. No. 1353/1996, ASMP. 1122/2007 in A.S. 1228/1997, ASMP. 1120/2007 in A.S. No. 1240/1997 and ASMP. 1121/2007 in AS. 171/1998 are filed by one Md. Saleem Ur Rahman to permit him to come on record as 3rd respondent, on the ground that he was mutawalli. His father Md. Ali Saheb was earlier the mutawalli. He died in the year 1972. He has been away from Nellore, on his employment. After his retirement he was appointed as mutawali, and he after taking charge, came to know that these appeals are pending. In order to protect the interest of the mosque, he be permitted to be impleaded as one of the parties.
In fact, both the Managing Committee of the mosque as well as the wakf board, are prosecuting the matter. In view of the fact that the Board has been constituted and contesting the matter all through, I do not see any justification to implead the mutawalli who according to him was appointed recently as party to the appeals. It is not a case where the officials of the board have colluded with the alinees or acting against the interest of Mosque. I do not see any merits. Petitions are dismissed.
The dispute pertains to an extent of Act 18-04 cents situate at Bit II village, Nellore district. It is the case of the plaintiff that the schedule property is a wakf property for performing Khatib and Mouzzan services. It was given to Nizam Sherrief and others to perform these religious ceremonies and so long as they perform these religious rites they could enjoy the property. At any rate, the defendants could not claim the properties on the ground that they had purchased it from service holders. It was a grant to the institution. On the other hand, it is the contention of the defendants that scheduled property was granted to the named individuals burdened with service. Alienation of the same is not void. It is not a wakf property, since the original inamdar had alienated the property by way of settlement deed, as long back as in 1928 under Ex. B.19, and the settees having enjoyed the property for some time, alienated in their favour under registered sale deeds Exs. B.1 to B.41, they were entitled to the properties. In the light of these contentions, the moot point would be whether it is a wakf property or a personal grant to the service holders.
The plaintiff in order to prove that the property belongs to wakf, filed Ex. A.1, certified copy of re-settlement register, Exs. A.2 and A.3 certified copies of Inam Fair Register (I.F.R). They are important documents to know the nature of grant. The description of the inam mentioned in Column No. 8, is for the services of ''Muzavir in the mosque of Fathekhanpet, Nellore''. The original grantee''s name is mentioned at Column No. 13 as Sheik Mohammed Mavazan. An extent of Ac.3-82 cents each was granted to Hussain Sahib, Sultan Sahib, Janabi Begum. Their relationship to the original grantee was mentioned in Column No. 18, as "grandson, great grandson and son''s daughter-in-law." I.F.R considered to be an Act of State entitled to be given all the credence. It discloses that the grant was to the individuals, no doubt, for doing services. In Column No. 2 it was mentioned that the class of inam is ''devadayam''.
At the outset, it may be stated that the use of the word ''devadayam'' in inam title deed is not conclusive to show that the grant was in favour of the temple or mosque itself, where the question is whether it is a grant to the mosque or to its servant. In some what similar case where the word ''devadayam'' was used, and the grant was to enjoy hereditarily by rendering Muzavir service in Darga, a Division Bench of this Court in Mir Mazhar Ali and Anr. v. Mir Gulam Murtujah and Ors. 1957 (4) ALT 27 opined "The use of the word ''devadayam'' in inam title deed is not conclusive to show the grant was in favour of the temple or mosque itself where the question is whether it is a grant to the temple or the temple servant. The inam statement having been made ante litem motem is entitled to weight The entry therein that the grant was to H for being enjoyed hereditarily by rendering Mwzavir service in the Darga cannot amount to a grant to the Darga. In the case of a grant burdened with service, though the service has to be rendered by the grantee, every member of the family is entitled to his share so long as the service is rendered regularly by whomsoever it be".
Their Lordships while considering whether a particular grant was to the Darga or it was attached to a particular office or a person, referred to an earlier decision Subrahmanya Odayar v. Srivaikunta Kailasanath Swami Koil 39 L.W. 389 wherein it was held "There are three possible views that may be taken of grants of this kind; first, that the land was granted to the institution; secondly, that it was intended to be attached to a particular office; and thirdly, that it was granted to a named individual burdened with service, the person so named, happening to be the office holder at the time of the grant."
Later in Vedulamannaty Bala Tripura Sundaramma v. The Secretary of State for India in Council 27 L.W. 101 the use of the word ''Devadayam'' in I.F.R was considered. The court held:
(1) As the British Government were dealing favourably with imams connected with Hindu and Muhamrnadan religions, whether grants to temples and mosques, or grants to officials and servants on condition of rendering certain services in such temples and mosques, both were described as ''devadayam,'' and the use of the word is not conclusively in favour of the temple or mosque itself where the question is whether it is grant to the temple or to a temple servant though it may some evidence along other circumstances; it is of very great weight where the claim of private property is set up.
(2) Where the grant is made to a person in the capacity of muttawalli, manager, superintendent, dharrnakartha, or even servant of the mosque or temple, and where it does not appeal that there is some other trustee, it may he regarded as a grant to the temple or mosque itself.
(3) Where it appears that a substantial part of the income goes to the benefit of the institution, as for the erection of a building or for its upkeep and repairs, or such other things the grant may be considered as a grant to the institution itself even though some surplus may be used by the trustees for their own maintenance.
(4) Where none of the above indications appears, that is where the grant, does not show that it was granted to a temple or mosque, nor describe the graiitee in the capacity of trustee, manager, etc, and where it does not appear that any portion of the income that may be considered as substantial has gone to the benefit of the temple or mosque, then in such a case it must be treated as a grant to the grantee named (personal designata) and if services are mentioned, it is a grant for service.
...If the succession of heirs is given or indicated, that is, the Wakf is in favour of the descendants generation to generation, the implication is that the near line or class takes first and after them the line next after. In other words f the grant is to a named person or persons burdened with service of Muzavar has to be enjoyed hereditarily.
Coming to the facts, as seen from various entries made in IFR, it was a inam granted for rendering personal service. In Column 22, the Inam Commissioner confirmed it. Even by then one Mr. Frason, an officer was in possession by "way of Bungalow". Undoubtedly, it is a service inam granted towards individual for purpose of rendering services and not towards the mosque. At no stretch of imagination, it can be held that it was a grant to the Mosque.
The plaintiff wakf Board in order to prove that it is a wakf property endowed to the mosque examined the Inspector of A.P. Wakf Board as PW. 1. He was appointed in 1988, subsequent to the filing of the suit. Except reeling out facts mentioned in the documents, he could neither confirm nor assert that the grant was to the wakf. According to him it was granted by Nawab of Karnataka to an inamdar. He admitted that neither the name of inamdar nor there is any document to show that the grant was by Nawab of Carnataka as mentioned in his chief examination. He himself admitted that "....Personally I do not know on what material the survey numbers are correlated to the specified title deed number in Ex. A.4. Similarly in Ex. A.5 also.... In C.A.S. No. 542, buildings have been constructed in the entire extent. It is considered to be posh locality in Nellare Town. The plaintiff has not taken any action to prevent the construction of these buildings within time. I cannot say how many houses are there in that survey number and what is their value.
PW. 2, Secretary of the Mosque reiterated the entries in the IFR. However, he could not confirm that it was granted to mosque. Several constructions were raised in the suit lands by third parties. He himself admitted that "I know that the suit site was sold to several other persons. Lay out was formed. I did not take any action to prevent the sales and sanctioning of lay out in my capacity as the Secretary. In most of the sites houses are constructed. It is a posh locality.... I am also deposing that the suit property is the wakf property basing upon Exs. A. 1 to A.3 and A.5. People of Tanguturu family have constructed buildings and are residing therein."
PW. 3, rendered Mozzan service at Kalam Maseed. He stated that he worked in the suit mosque from 1968 to 1972. Since no salary was paid to him, he left the service. He was not aware of. the nature of the grant. This would in a way indicate that no part of the income from this was utilized for rendering services to the mosque.
PW. 4, Mr Khalil Ahmed stated that he was one of the inamdars. Kalil Bee, one of the inamdars, was his maternal grandmother. He admits the execution of Ex. B.19 by Nizam Sharief. Except confirming the documents he could not state as to who was the original inamdar. He himself stated "....I have knowledge only from what others told him about this inam, but have no personal knowledge."
Refuting their evidence, the defendants have examined DWs. 1 to 7. D.2 is examined as DW. 1, D. 22 as DW. 2, D. 25 as DW. 3, D 18 as DW. 4, the son of DW. 24 as DW. 5, D. 29 as DW. 6 and D. 88 as DW. 7. All of them asserted that they have purchased the properties under various sale deeds Exs. B.1 to B.13, 15, 16, 19 to 21, 23 to 28, 30, 31 to 39 and 41. Their purchases were far anterior to the filing of the suit. They obtained permission from the municipality and constructed houses. They are paying taxes. At no point of time, either the wakf or any institution belonging to the mosque, objected for their purchases nor filed suits impugning their sale deeds. They have been in possession by constructing houses. They are bona fide purchasers for consideration after satisfying themselves that they were personal imams granted to the persons mentioned in the IFR.
The evidence discloses that Ex. B.19 is a Settlement Deed, dated 29-1-1928 wherein Nizam Shereef settled the property in favour of his wife, daughter and son-in-law. The lands were mentioned as Shaka Majid Kidmat and granted to render Kalam Mosque Mouzzan service. Even in Ex. B.20, a registered lease deed, dated 11-4-1953, there was a mention that it is inam patta Dajula Magani Sy. No. 1576/977." Evidently, these properties are variously described as "Peddamanyam" and "Sultan Manyam". All these properties are collectively described as "Rottela Dampu". In fact interestingly the inam Sy. No. 1576/995 was endowed as "Polerammagudi Chenu". A perusal of Ex. B.30, a registered sale deed shows that the service holders formed into an association by name Kalam Mazeed Service Inamdar''s Association, and in order to create fund for rendering service to the Mosque. They sold the properties under Ex. B.30. In all these sale deeds Exs. B.1 to B.18, the fact that the property was given for rendering Mouzzan service was made a mention.
Learned Counsel for the respondent contended that all the sale deeds under which the defendants have purchased there is a recital that it was wakf property. It was granted to the mosque. Assuming without admitting that they were granted to the persons, it would be a personal grant burdened with service. Alienation of service inam is void.
The learned Counsel for the respondent contended that the word wakf means detention or stoppage. There is extinction of the proprietor''s ownership and detention in the implied ownership of God and by dedication and declaration the property in the wakf is divested and vests in the Almighty. The expression "vested in trust" in Section 10 of the Limitation Act does not apply to the mutawalli of a wakf. It was for this reason that the Section was amended by section 2 of the Limitation Act, 1929, and it is also for this reason, that the Indian Trusts Act, 1882 exempts from its scope the rules of law applicable to wakfs. A wakf, however, is a trust for the purposes of section 92 of the Code of Civil Procedure. The Mahomedan Law relating to trusts differs fundamentally from the English law. There is no prohibition in Muslim law to create a charitable trust as in English law. The learned Counsel referred some passages (pages 143 and 144) from the text book of Principles of Mahomedan Law by Mulla published in N.M. Tripathi Private Ltd. 1990 for the above submission.
In Y. Mallareddi v. Sayed Amanulla Hussain (1992) 2 AWR 327 the court had observed that "...in order to constitute wakf it is not necessary to use the word wakf in deeds. If the intention of donor is to use proceeds of any specific property for pious purposes recognized by Mohammedan law, it constitutes valid wakf." That was a case where there was a specific mention that the proceeds whereof was set apart for the maintenance or the support in perpetuity of a specific object. Basing on the evidence, it was held that the Kazi was in possession as a trustee of wakf property. The said decision has no application to the facts of the instant case.
Ex. A.3, the entries in I.F.R undoubtedly disclose that the grant was made to the service holder. No where it was stated that the grant was made to the mosque. Evidently, it was granted to the person by name Shaik Mahammad to perform Masvan the service. It is not a case where the grant was made to a person in the capacity of Muttawalli, manager, Dharmakartha or even servant of the mosque. There is no mention that it was some trust. It may be stated herein that no part of income went to the benefit of the institution at any time. Undoubtedly, it was a grant to the grantee. In fact succession of heirs was also indicated.
The learned Counsel for the respondent contended that simply because a service inam was granted to a person, it does not cease to be a wakf. When the land was granted to an individual to perform service, it does not mean that he acquires title to that property. When once the wakf is created it constitutes to be a wakf. In support of his contention he relied K. Doraswamy Reddy v. Board of Wakf (1979) 1 AWR 445. That was a case where inam was granted to one of the ancestors of the vendors by some unknown persons, so that the income therefrom might be utilized for maintaining Makkan, where tazian are installed in the month of Muharram and also for providing shelter for traveling Fakirs. In that context, it was held that the suit property was wakf property. The said decision is besides the point
It was further contended that once a wakf is always a wakf. Mere grant of patta in favour of individuals by way of service inam under Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956 could not effect the original character of the wakf property. In support of his contention the learned Counsel relied Sayyed Ali and Others Vs. Andhra Pradesh Wakf Board Hyderabad and Others, . That was a case where some property was endowed by Nizam of Hyderad for Syed Ali Tshaw Madina Vali Dargah in port area of Visakhapatnam district. Property was granted by way of service inam for the purposes recognized by Muslim law. A grant in favour of Mokhasadar was subject to condition of their rendering service at Dargah and various obligations including incurring expenditure for upkeep of the Dargah and performing Moharram and other festivals. On facts it was held that the property was a service inam granted to individuals burdened with service, which answered the description of all the ingredients of a wakf. It was also held that mere grant of patta in favour of individuals by way of service inam under Act, 1956 would not effect the original character of the wakf property. In the present case admittedly no expenditure was made for upkeep of the mosque or for any service from out of the income of the property.
Learned Counsel for the respondents contended that since the grant is burdened with the condition of service, it should be held that the grant was in favour of Mosque and not in favour of any person. In support of his contention he relied Andhra Pradesh Wakf Board, Hyderabad Vs. Bowlat Bibi, wherein the learned Judges relied the decision of the Supreme Court Nanduri Yogananda Lakshminarasimhachari and Others Vs. Sri Agastheswaraswamivaru, and on facts the held that the grant is in favour of the temple concerned therein and not to the person. In the present case, in view of the fact that the property was granted to the descendants of the grantee, it cannot be said that the grant was made in favour of the office of the inamdar.
The learned Counsel for the respondent contended that the suit properties were declared as wakf properties, and it was published in A.P Gazettee dated 2-5-1963 u/s 5 of the Act. Since the defendants did not object by way of suit, within one year, from the date of its publication, they were not entitled to question the same. Though Wakf Board by virtue of the above notification, became the owner, and knowing fully well that the defendants were in possession, did not chose to take any action till it filed the suit in 1976. It may be stated herein that the Wakf Board knew fully well even by then there was alienation in the year 1928. For a period of 60 years it did not chose to take any action. The suit being filed against a stranger, contentions put forward would not come to its rescue. The suit is hopelessly barred by limitation.
Learned Counsel for the appellants contended that the law of limitation provided u/s 6 of the Wakf Act 1954 would apply to the persons vested in the wakf. They being 3rd parties and strangers, the limitation prescribed u/s 6 has no application. In support of his contention he relied a decision of the Hon''ble Supreme Court in Karnataka Wakf Board Vs. State of Karnataka and Another, .
Section 6 of the Wakf Act reads as follows:
Dispute regarding Wakfs : (1) If any question arises (whether a particular property specified as Wakf property in a list of Wakfs published under sub-section (2) of Section 5 is Wakf property or not whether a Wakf specified in such list is a Shia Wakf or Sunni Wakf) the Board or the mutawalli of the Wakf or any person interested therein may institute a suit in a Civil Court of competent jurisdiction for the decision of the question and the decision of the Civil Court in respect of such matter shall be final :Provided that no such suit shall be entertained by the Civil Court after the expiry of one year from the date of the publication of the list of Wakfs under sub-section (2) of Section 5:
(Provided further that in the case of the list of Wakfs relating to any part of the State and published or purporting to have been published before the commencement of the Wakf (Amendment) Act, 1969 (38 of 1969), such suit may be entertained by the Civil Court within the period of one year from such commencement.)
Explanation. - For the purposes of this section and Section 6A, the expression ''any person interested therein,'' occurring in sub-section (1) of this section and in sub-section (1) of Section 6-A, shall, in relation to any property specified as Wakf property in a list of Wakfs published, under sub-section (2) of Section 5, after the commencement of the Wakf (Amendment) Act, 1984, shall include also every person who, though not interested in the Wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry u/s 4.
The Hon''ble Supreme Court in Kamataka Wakf Board (Supra 9) held:
The appellant''s plea of limitation, was rightly not accepted by the High Court as the plaintiffs in both the instant suits could not be construed as "persons interested in the wakf. The explanation to Section 6(1) was added by Act 69 of 1984. At the time when these plaintiffs filed the suits, they were strangers and were not interested in the wakf as such. The Explanation added to Section 6(1) could operate against these plaintiffs only after the insertion of the same in Section 6 of the Act. Prior to the insertion of the Explanation, a third party claiming independent title over a property, which was illegally included as wakf property was entitled to file a suit within the period provided for under the law of limitation. Therefore, the inhibition provided under the proviso to Section 6 regarding the period of limitation was not applicable to the plaintiffs at the time when they filed the suits."
Therefore, this contention has no legs to stand.
In the light of the entry in I.F.R and the evidence placed on record, I am of the opinion that it is not grant to mosque. It was grant to a named individual. May be he happened to be the office holder at that time, the wakf board is not entitled to the property. Learned Counsel for the respondent contended that the suit filed by the respondent was barred by limitation by virtue of Section 10 of the Limitation Act. Relying Sri Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar 1922 Privy Council 123 it was contended that the article refers to cases of specific trust and relates to property conveyed in trust. Neither under the Hindu Law nor in the Mahomedan system is any property conveyed to or vested in a shebait or mutawali, in the case of a dedication. Therefore alienation made by either cannot be treated as alienation made by a trustee u/s 10. Neither the original alienation nor the subsequent adoption would create a bar by adverse possession. By referring to the above decision Privy Council in (1934) 66 MLJ 431 (Privy Council) held "It was stated that the amendment hereinbefore mentioned of Section 10 of the Act of 1929 was effected in consequence of the above-mentioned decision. Their Lordships are of opinion that, in view of the above-mentioned decision (which apparently was not brought to the attention of the learned Judges who adjudicated upon this case), it must be held that the suit did not come within the provisions of Section 10 as it stood unamended at the time of the institution of the suit, and consequently that the decision of the Courts in India cannot be supported on the above-mentioned ground."
Learned advocate for the appellants contended that the suit is barred by limitation. Learned Counsel for the appellants relying on decision in L. Machi Reddy Vs. The Wakf Board of Andhra Pradesh, contended that a suit filed by Wakf Board for recovery of possession of property alienated by the Mutawalli, whether he is in or out of the office, is, governed by Article 96 and not by Article 65 and therefore is barred by limitation. That was a case where admittedly the property was a wakf property. It was held:
A glance at the antecedents of Article 96 would immediately reveal that even under the law as it stood prior to the enactment in 1929 of article 134-B of the Limitation act of 1908, corresponding to the present Art 96, a suit by the manager of a Muslim religious or charitable endowment of recovery of possession of immovable property alienated by a previous manager was governed by a twelve years'' period of limitation running from the date of the termination of the tenure of off side of the alienating manager. Article 134-B gave legislative effect to this view which is followed by Article 96.
In C. Beepathumma and Others Vs. V.S. Kadambolithaya and Others, the Hon''ble Supreme Court held that law of limitation is procedural law and the provisions existing on the date of the suit should apply to it.
Since the defendants were strangers, and the alienation was made as long back as in 1928, and the suit having been filed in the year 1976, at no stretch of imagination it can be said that it was in time.
The learned Counsel for the respondents contended that the suit land was service inam land alienated by one Nizam Shereef, the inamdar of the mosque. He should be treated as the person, who has illegally disposed of the wakf property. The suit filed by the appellants for possession is said to be within the time, in the light of Article 96 of the Limitation Act 1983 as well as Section 3 of Public Wakfs (Extension of Limitation) Act, 1959. Consequently, the defence of the defendants that the suit was barred by limitation and that the defendants were in adverse possession has to be negatived, and the decree of the trial court has to be upheld.
In order to appreciate the contentions, Section 3 of the Public Wakfs (Extension of Limitation) Act, 1959 has to be considered. It reads:
Section 3. Extension of period of limitation in certain cases for suits to recover possession of immovable property forming part of public wakfs - Where a person entitled to institute a suit of the description referred to in Article 142 or Article 144 of the First Schedule to the Indian Limitation Act, 1963, for possession of any immovable property forming part of a public wakf or any interest therein has been dispossessed, or as discontinued the possession, at any time after the 14th day of August, 1947 and before the 7th day of May, 1954, or, as the case may be, the possession of the defendant in such a suit has become adverse to such person at any time during the said period, then notwithstanding anything contained in the said Act, the period of limitation in respect of such a suit $hall extend up to the 31st day of December, 1970.
Their Lordships of the Supreme Court in Wakf Board Andhra Pradesh represented by its Secretary Vs. Biradavolu Ramana Reddy, considered these questions in extenso. Therefore, I excerpt some passages for reference:
A mere look at Section 3 of the Extension Act shows that it would be of any help if it is found that the possession of the land which was sought from the defendant belonged to a public wakf. The term ''public wakf is defined in Section 2 of the said Act to mean permanent dedication by a person professing Islam of any immovable property for any purpose recognised by Muslim Law as a public purpose of a pious, religious or charitable nature. It cannot be disputed that the land in question which was sold by the then Paish Imam, Ghous Saheb in 1952 was a service Inam land granted to him for performing services as Paish Imam at the Mosque. It was not directly dedicated to the Mosque. Therefore as per the definition of Public Wakf the suit land being a service grant cannot be treated to be a public wakf. In this connection it is profitable to refer to the definition of ''wakf as found in the Wakf Act, 1954. As per Section 3(1) of the said Act, the definition of ''wakf is as under.
3(1). "wakf" means the permanent dedication by a person professing Islam or any other person of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes-
(i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser;
(ii) grants (including mashrut-ul-khidmat, muafies, Khairati, qazi services, madadmash for any purpose recognised by the Muslim law as pious, religious or charitable; and
(iii) a wakf-alal-aulad;....
The aforesaid definition shows that at least from 1964 when sub-clause (ii) was added to the definition in Section 3(1) thereof, grants'' including mashrut-ul-khidmat were also to be treated as part of wakf. Apart from the question whether 1954 Act definition of wakf can be read with the definition of public wakf under the Extension Act, in 1952 when the first alienation by the Paish Imam took place even this definition was not available to cover the said transaction. But even proceeding on the basis that on the date of the suit, the definition of Wakf as per Wakf Act, 1954 was available for being pressed into service, it only treated mashrut-ul-khidmat, i.e. grant for rendering service to be Wakf. The Extension Act required the property to be of a public wakf and not a mere wakf before Section 3 thereof can be pressed in service for extending the period of limitation. Consequently, on the express language of definition of public wakf as found in Section 3 of the Extension Act read with Section 3 thereof, the conclusion becomes inevitable that the extension of time would not be available to the appellant for challenging the alienations in question. It is obvious that suit property even if a wakf as per Wakf Act, 1954 as not within the sweep of the definition of a ''public wakf'' as per the Extension Act wherein service grants are not treated to be public wakf. In view of our aforesaid conclusion it is not necessary for us to examine the other question whether the Extension Act could have been of any assistance to the learned Counsel for the appellant for treating the suit to have been filed within limitation on account of Pongal holidays during which the Civil Courts were closed in Andhra Pradesh and after holidays the Courts reopened on 17-1-1973. It is also not necessary for us to examine the other question whether there was practice in the Civil Courts of Andhra Pradesh about reopening of the registry for filing of cases on a day previous to the date on which the Courts reopen after Pongal holidays. We keep this question open.
The second plank of submission of learned Counsel for the appellant is Article 96 of the Limitation Act, 1963. The said provision reads as under.
-------------------------------------------------------------------------- Description of suit Period of Time from which period begins to run -------------------------------------------------------------------------- 96. By the manager of Twelve years The date of death, a Hindu, Muslim or resignation or Budhist religious or removal of the charitable endowment transferor or the to recover possession date of of moveable or appointment of immovable property the plaintiff as comprised in the manager of the endowment which has endowment, been transferred by a whichever is later. previous manager for a valuable consideration. --------------------------------------------------------------------------
It becomes at once clear that 12 years period may be available from the date of death, resignation or removal of the transferor or the date of appointment of the plaintiff as manager of the endowment, whichever is later provided the plaintiff challenges alienation by previous manager for valuable consideration. Learned Counsel for the appellant was right when he contended that the present appellant Board got constituted when the Board came into existence on 4-3-1961 in the State of Andhra Pradesh. Even if that is so, and 12 years period is counted from that date, the nature of the suit must be such that the plaintiff therein must seek to recover possession of the property alienated by the previous manager such as Mutawalli or Sajjada Nashin. So far as Ghous Saheb was concerned, he was never the previous manager of the Mosque. He was merely a Paish Imam who could not be considered to be the previous manager. Hence alienation by him in 1952 cannot be said to be alienation by previous manager of the Mosque for valuable consideration. Therefore, Article 96 of the Limitation Act, 1963 also cannot be of any assistance to learned Counsel for the appellant. In this connection our attention was drawn by learned senior counsel for the respondent to Article 134-B of the earlier Limitation Act, 1908, which reads as under. 134-B - By the manager of Hindu, Mohammadan or Buddhist religious or charitable endowment to recover possession of immovable property comprised in the endowment which has been transferred by a previous manager for a valuable consideration. Twelve years the death, resignation or removal of the transferor.
The said provision is also in pari materia with slight modification with Article 96 of the present Act, the difference being that the limitation may also start from the date of appointment of a new Manager in the place of old one but still the requirement of both these Articles is that the impugned alienation must be effected by the previous manager. As we have already held that Ghous Saheb was not the previous Manager and he was only a Paish Imam neither Article 134-B of the old Act nor Article 96 of the Limitation Act, 1963 can be of any assistance to learned Counsel for the appellant. These were the two provisions on which reliance was placed by the trial Court in holding the suit to be within the period of limitation. Both these provisions were not found by the High Court to be applicable. That view of the High Court is well sustained as we have already discussed. The inevitable result is that the suit filed by the appellant is to be treated to be barred by limitation.
Learned Counsel for the appellant tried to salvage the situation by inviting our attention to Section 56G of the Wakf Act, 1954. The said provisions reads as under.
66-G. Period of limitation for recovery of wakf properties to be thirty years - Notwithstanding anything contained in the Limitation Act, 1963 (36 of 1963), the period of limitation for any suit for possession of immovable property comprised in any wakf or possession of any interest in such property shall be a period of thirty years and such period shall begin to run when the possession of the defendant becomes adverse to the plaintiff.
A mere look at the said Act indicates that Sections 66-D to 66-H were brought on the statute of Wakf Act, 1954 by amending Act 69 of 1984. Since the present suit was filed in 1973 the said provision was not available to the appellant for getting the extension of period of limitation. Consequently, even this section can be of no avail to learned Counsel for the appellant.
Coming to the facts, admittedly the land in question was alienated by way of settlement by the service holder by name Nizam Shereef in 1928. It was granted to him for performing services at the mosque. At the cost of repetition, it may be stated that it was not directly dedicated to the mosque. Therefore, as per the definition of Public Wakf, the suit land being a service land, cannot be treated to be a public wakf. Later, pursuant to the settlement deed Ex. B.19 dated 29-1-1928, they alienated the properties to the defendants under Exs. B.14 lease deed dated 1-12-1939, B.20 lease deed dated 11-4-1953, B.2 sale deed dated 11-7-1957 etc. The Honourable Supreme Court in Wakf Board Andhra Pradesh (supra 13) has categorically held that the suit property is even if a wakf as per Wakf Act, 1954 is not within the sweep of the definition of public wakf, as per the extension Act wherein service grants are not treated to be public wakf. Evidently, the board came into existence on 4-3-1961 in the state of A.P. The suit was filed on 31-12-1975. Necessarily, twelve years period has to be counted from 4-3-1961. The nature of the suit must be such that plaintiff therein must seek to recover possession of the property alienated by the previous inamdar. I may state herein that Nizam Shereef never managed the mosque. His alienation was on 29-1-1928, it cannot be said to be alienation by the previous manager of the mosque. Article 96 of the Limitation Act cannot be of any assistance, since the alienation was made by the inamdar, who cannot be said to be a manager. Neither Article 134B of the old Act nor 96 of the Limitation Act is of any avail.
Recoursing to the above decision of the Supreme Court, which equally applies to the facts of the present case, it can be said that Section 66-D to Section 66-H were brought on the statute of the wakf Act, 1954 by amending Act 69 of 1984. Since the suit was filed on 31-12-1975, the said provision was not available to the respondent for getting the extension period of limitation. Legislation cannot revive the limitation period. In other words, subsequent amendment in 1984 cannot revive the suits that were barred by limitation. The Judgment of the trial Court that it was a wakf property, and that Article 94 of the Limitation Act would apply, cannot be upheld by virtue of the decision Wakf Board Andhra Pradesh (Supra 13), which equally applies in all fours to the facts of the present case. The defendants cannot be said to be in unauthorized possession. They have purchased the property from the legal representatives of the service inamdars. At no time, the wakf board claimed the property. Though the board was constituted in 1961, till 1975, it did not choose to take any action. Naturally twelve years period of limitation should be reckoned from 4-3-1961. Since the suit was not within limitation, it was barred by limitation. Consequently, the appeals are liable to be allowed.
In the result, A.S. Nos. 504/1996, 1353/1996, 1228/1997, 1240/1997 and 171/1998 are allowed. Consequently, O.S. 63/1976, on the file of the learned Subordinate Judge, Nellore is dismissed. However, in the circumstances, each party to bear its own costs.