TMI Blog2004 (4) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... perty 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t properly following the relevant provisions of the Wakf Act and without following due procedure prescribed therein and in a case where there is a dispute as to who is a stranger to the Wakf, a mere declaration by the Wakf Board will not bind such person and on that basis the Trial Court decreed the suit. The matter was carried in appeal. A Division Bench of the High Court examined the matter once over again and affirmed the findings of the Trial Court. The Division Bench also noticed that at the end of the arguments the appellant made a submission that as they have not produced some of the important documents, the matter may be remanded to the Trial Court in order to enable them to produce the said documents and with a direction to the Trial Court for a fresh disposal in accordance with law. The High Court did not allow the plea raised by the appellant that there are documents in question which will go to the root of the matter or which would be necessary in terms of Order XLI, Rule 27, CPC to permit them to adduce further evidence and on that basis rejected that claim. The High Court affirmed the various findings given by the Trial Court. In the circumstances, the learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e alleged acquisition by the Respondent itself is a concocted story; that the Notification and the Gazette publication itself is a notice to all concerned and the Respondent failed to reply to this notice; that the original suit is bad by limitation; that the original suit itself is not maintainable since there is no notice under section 56 of the Old Wakf Act; that the plea regarding title of the suit property by the Respondent and the plea of adverse possession is mutually exclusive; that therefore the appeal is to be allowed. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reating Gazette Notification as notice and limitation need not be looked into. As regards the compliance of notice under section 56 of the Old Wakf Act, the High court based on evidence and facts ruled that the same is complied with. This is a finding of fact based on evidence. Now we will turn to the aspect of adverse possession in the context of the present case. Appellants averred that the plea of the respondent based on title of the suit property and the plea of adverse possession are mutually exclusive. Thus finding of the High Court that the title of Government of India over the suit property by way of adverse possession is assailed. 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 v ..... 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