TMI Blog1995 (3) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... a permanent injunction restraining the defendant Nos. 1 and 2A and 2B from obstructing the plaintiffs possession over the suit property. As an alternative relief, the plaintiff prayed for a declaration of its title to the suit property by adverse possession, The suit having been decreed as prayed for, the first defendant has filed this appeal implead-ing the plaintiff as the first respondent and defendant Nos. 2, 2A, 2B and 3 as respondent Nos. 2, 2a, 2b and 3 respectively. 2. The facts which have led to this appeal may briefly be stated as follows:-- For the purpose of convenience, we will refer to the parties to this appeal by the position they have occupied in the lower Court. 3. The plaintiff is the State of Karnataka represented by Deputy Director of Public Instructions, Bijapur. The first defendant is the Karnataka Wakf Board represented by its Secretary. The second defandant is Peer Mahabari Khandayat and Peer Chinni Mahabari, managed by its managing Muta-walli and Sajjada Nashin, the defendant Nos. 2A and 2B. The third defendant is the Assistant Commissioner, Bijapur. During the pendency of this appeal, respondent No. 2a died and his legal representative has been b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Deputy Commissioner directed the plaintiff to file a civil suit by an order dated 8-4-1980. It is contended the order passed by the third defendant is illegal and it has been passed without giving any opportunity to the plaintiff to defend itself. It is alleged, as soon as the order was passed by the third defendant, the defendant Nos. 1 to 2B, in collusion with the City Survey officials, got entered their names in the property extracts, which is also illegal. The plaintiff has further contended that it has become the owner of the suit property by adverse possession having been in possession of the same for more than the statutory period as owner adversely and to the knowledge of the defendant Nos. 1 to 2B. 7. The first defendant in its written statement denied the plaintiff's claim of title over the suit property. It denied that the District Local Board purchased the property and it was then handed over to the District School Board. It contended that the first defendant, after following the legal procedure, has registered and declared the suit property as 'wakf property' and the plaintiff itself has published it in the Gazette and therefore the plaintiff cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the plaintiff and they are not binding on them ? (3) Do plaintiff prove that they have become owner by adverse possession ? (4) Whether it is proved that the order of defendant -- 3 (sic) on 10-1-1980 is illegal and not binding on the plaintiffs? (5) Whether the defendant -- 3 was entitled to hold any enquiry ? (6) Whether the suit is barred by time ? (7) Whether the suit is not maintainable for want of notice under Section 56 of the Wakf Act ? (8) Whether the plaintiffs are estopped for claiming adverse possession ? (9) do defendants prove that plaintiff is estopped from contending that suit property is of plaintiff's ownership ? 10. To what reliefs the parties are entitled to? 10. After trial, the learned Trial Judge answered Issue Nos. 1, 2, 3, and 4 in favour of the plaintiff and Issue Nos. 5 to 9 against the defendants. Consequently the Trial Court decreed the plaintiff's suit. Being aggrieved by the said Judgment and decree, the first defendant has prefrrcd this appeal. 11. In the appeal memo, the appellant has contended that the appreciation of evidence on record by the Lower Court is not proper. It is contended, sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. Our findings on the above points are as follows:-- Point No. (i) -- Yes. Point No. (ii) -- Yes. Point No. (iii) -- Yes. Point No. (iv) -- No. Point No. (v) -- See last paragraph. 16. Point No. (i) :-- On this point, in the Lower Court, the plaintiff examined one witness and relied upon the documents Exs. P1 to P8 produced by it. the defendant Nos. 2 to 2B examined one witness and relied upon the documents Exs. D1 to D3 produced by them. 17, P. W. 1 Mallikarjun is the Superintendent in the Office of the D.D.P.I., Bijapur. He has stated in his evidence that the suit property belongs to the State Government where the office of the D.D.P.I. is situate. That office was previously belonging to the District School Board. The District School Board merged in the State Government alongwith its properties, assets and liabilities. The School Board was existing when Bijapur District was part of the State of Bombay. After the reorganisation the properties were handed over to the Slate of Mysore. In this regard, the plaintiff has produced certified copies of two documents Exs. P1 and P2 and the wtiness has spoken to them. Ex. P1 is the certified copy of the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendant Nos. 2A and 2B. He has stated in his evidence that the second defendant-Trust was found in the name of and by Peer Mahabari Khandayat and Peer Chinni-Mahabari Khandayat. Peer Mahabari Khandayat was an Arabian Saint, he had come to Bijapur earlier to the regime of Adil Shahi and settled down in the area known as Arkilla area, there are two dargas in that area, Peer Mahabari Khandayat died in Bijapur and has been buried in Arkilla area and it is known as Mahabari Khandayat darga. He has stated that the suit property is inside the darga area. He has stated the suit property belongs to the second defendant-Trust and it is in the possession of the second defendant. There is a Sajjadanashin and mutawalli to manage the properly, they are looking after the ritual ceremonies tike uras and other festivals. He has stated the second defendant is a registered public trust under the Bombay Public Trusts Act and the suit property is included in the said Trust. In the year 1965, the defendant Nos. 2A and 2B filed an application before the Wakf Board for registration of the suit property as 'wakf' and it was registered. Accordingly the name of the second defendant has been enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the school board office was constructed in the year 1961. He says they objected to the construction at that time. But he has admitted that he has not produced any documents to show the same. He has admitted that the name of the second defendant had never been entered in the C.T.S. records in 1938 or subsequently and on the strength of the order passed by the Assistant Commissioner, they got the name of the second defendant entered in the C.T.S. records (this is in 1980 as seen in Ex. P4). D.W. 1 has further stated that there is a geneology to show that the defendant Nos. 2A and 2B are the descendants of Peer Mahabari Khandayat and he has also got old sannads. He has admitted that he has not produced any of the documents deposed to by him. He has denied the suit property never belonged to the second defendant at any time. He has admitted that the building in the suit property was constructed in the year 1962 at a cost of ₹ 4,00,000/- to ₹ 5,00,000/-. There is no explanation in the evidence of D.W. 1 as to why he has not produced the documents referred to by him. 20. The defendant Nos. 1, 2, 2A and 2B have merely relied upon the publication made under Section 5 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther a particular property is existing wakf and make a report to the Wakf Board to enable it to publish a list of such wakfs. In this regard, the learned Counsel of the appellant relied upon a decision reported in The Board of Muslim Wakf, Rajasthan v. Radhakishan, . It is not possible to know how this decision is helpful to the appellant's contention. It has been held therein that the Wakf Commissioner has the power to enquire whether a certain property is a wakf property or not. Thus, in view of this legal position, when the plaintiff has taken a contention that there is no enquiry held as required under Section 4(3) of the Act and consequently the list published under Section 5 of the Act is not legal and is not binding on the plaintiff, it was for the defendants to have proved by adducing satisfactory evidence that a valid enquiry has been held and the plaintiff had notice prior to such enquiry. It was for the Wakf Board, the appellant, who was the first defendant in the suit, to have placed the necessary records before the Trial Court in that regard. But the first defendant did not adduce any such evidence. In the absence of any such evidence, it is not possible to hold th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff is necessarily hostile to the claim of title made by the defendants and is to their knowledge. The period of plaintiffs possession being well over the statutory period under Article 64 of the Limitation Act, 1963, the learned Trial Judge has rightly held that the plaintiff has established its title to the suit property by adverse possession also. There is no substance in the contention of the appellant that the appreciation of evidence on record by the Trial Court is not proper. Hence, Point No. (i) is answered in the affirmative. 23. Point No. (ii):-- Defendant No. 1 in Para 12 of its written statement has contended that the suit has been filed by the plaintiff without complying with the requirement under Section 56 of the Act and therefore, the suit is not maintainable. Section 56 of the Act provides that no suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of the Act or of any rules made thereunder, untill the expiration of two months next after the notice in writing has been delivered to, or left at, the office of the Board, stating the cause of action, the name, description and place of residence of the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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. xxx xxx xxx xxx The learned Counsel for the appellant argued that the publication of the list under Section 5 of the Act in this case has been made on 8-7-1976 in the Gazette whereas the suit has been filed on 18-12-1980 which is far beyond the period of one year from the date of Notification and therefore the suit is barred by the law of limitation. Per contra, the learned Counsel for the first respondent argued that the limitation of one year prescribed under this provision is only in respect of suits Which are to be filed by the Wakf Board or a Mutawalli of the wakf or any person interested in the wakf and has no application to a stranger. There is much force in this contention. A perusal of Section 6 of the Act extracted above, goes to show that the suit contemplated under the said Section is by the Mutawalli of a wakf or any person interested therein. It cannot be said that the plaintiff in this case is a person interested in the wakf. The learned Counsel for the first respondent relied upon the very same decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f different Government Departments, should be handed over to the concerned Mutawalli of Wakfs. The learned Counsel for the appellants alongwith a memo dated 10-1-1995 has filed xerox copies of Government Circular dated 8-6-1978, Government Order dated 7-1-1984, communications dated 8-6-1978 and 2-4-1985 and Judgment of this Court in R.F.A. Nos. 51 to 55 of 1978. He submitted that the defendant Nos. 1 to 2B may be permitted to produce the originals in the Lower Court and requested for an order of remand. After carefully considering the request, we find that it is not possible to accede to it. The circumstances under which a remand order could be passed are governed by well laid down principles. In this regard, we may also refer to a decision reported in Bishnu Putel v. Bajra Putel, . It has been held therein as follows :-- A remand should not, generally speaking, be ordered when the defect in the proceeding has been made due to the negligence or default of the party who will benefit by the remand. XX XX XX XX XX The mere fact That the evidence on record is not sufficient to enable the Court to come to a definite finding on the point in issue is not sufficient to enabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the lower Court, it should have cleared as to for which reliefs the suit is decreed and what are the exact reliefs granted. But the learned trial Judge, in para 8 which is the operative portion of the judgment, has merely stated as follows:-- The suit of the plaintiff is decreed as prayed for. The decree which has folowed the judgment is equally vague. The decree also reads that:-- The suit of the plaintiff is decreed as prayed. This error in the lower Court's judgment needs to be corrected. Since the lower Court's decree merges with appellate Court's decree, the error can be rectified by this Court even though the plaintiff has not preferred any appeal. Since this Court has confirmed the judgment of the trial Court and dismissed the appeal, it is hereby clarified that the plaintiff's suit is decreed as follows :-- 1. It is hereby declared that the plaintiff is the owner of the suit property and defendant Nos. 1 to 2B are restrained by an order of permanent injunction from interfering with the plaintiff's possession over the suit property in any manner. 2. It is hereby declared that the two notifications, one published by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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