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2004 (4) TMI 613 - SUPREME COURT

2004 (4) TMI 613 - SUPREME COURT - 2004 (1) Suppl. SCR 255, 2004 (10) SCC 779, 2004 (4) SCALE 856 - Appeal (civil) 16899 of 1996 With C.A.Nos. 16900/1996 & 16895/1996 - Dated:- 16-4-2004 - S. RAJENDRA BABU & G.P. MATHUR, JJ. 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 .....

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Tower". All of them were situated at Bijapur. 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 .....

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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 .....

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d" 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 Darg .....

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g 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 question were acquired by the Government of India as long back as 1900 and they started preserving them as important historical monuments and they remained in possession and enjoyment of them. This was clear both from o .....

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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 .....

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Court that they should be permitted to adduce further evidence before the court to substantiate their claim but when the matters were pending before the Trial Court and the High Court they had ample opportunity to do so. If they had to produce appropriate documents, they could have done so and also it is not clear as to the nature of the documents which they seek to produce which will tilt the matter one way or the other. The scope of Order XLI, Rule 27, CPC is very clear to the effect that the .....

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lso gone into various aspects of the matter and have given another look at the matter and our findings are that the view taken by the High Court is justified. However, one aspect needs to be noticed. The High Court need not have stated that the first respondent is entitled to the relief even on the basis of adverse possession. We propose to examine this aspect. The case advanced by the Appellants is; that one Arabian saint Mahabari Khandayat came to Bijapur by around 13th century, acquired certa .....

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cted to handover possession of any Wakf Properties that are under the possession of any Government Department; that by virtue of the said circular Assistant Commissioner, Bijapur held enquiry under section 67 of the Karnataka Land Revenue Act, 1964 and arrived at the conclusion that the suit property is a Wakf Property; that the 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 Responde .....

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ants 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 admiss .....

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arding 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 .....

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tle is valid. The suit property is government property and not of a Wakf character. The Old Wakf Act is enacted "for the better administration and supervision of wakfs." Under section 4 of the Old Wakf Act, Survey Commissioner(s) could only make a " survey of wakf properties existing in the State at the date of commencement of this Act." Wakf Board could exercise its rights only over existing wakf properties. Since the suit property itself is not an existing wakf property the .....

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d 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 tit .....

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itle 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. (See : S .....

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t date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sh .....

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