1. First defendant has filed this second appeal against the judgment and decree dated 26th August 1976 passed in R.A. No. 116 of 1971 by the Addl. Civil Judge, Dharwad, reversing the Judgment and decree dated 22nd July 1971 passed in O.S. No. 16 of 1969 by the I Additional Munsiff, Dharwad.
2. For the sake of convenience the parties to this appeal Will be referred according to their ranking in the Trial Court.
3. Briefly staled, the facts of the case are as below : The plaintiffs claiming to be the trustees of Soudagar mosque situated in Line Bazaar, Dharwad, a wakf institution originally registered under the Bombay Public Trusts Act, 1950 and subsequently under the Wakf Act, 1954 (Central Act), filed the suit for possession of the suit properties. Plaintiff has been officiating as the mutawalli of the said mosque. One Khatijabi who was the owner of the suit properties bearing C.T.S. No. 1037/LB and C.T.S. No, 1038/ A/LB situated in Line Bazaar, Dharwad, created a wakf in respect of the suit properties and permanently dedicated the same for religious purposes, to wit, for the benefit of Soudagar mosque, under the registered deed of wakf dated 8th April 1937. Under the said deed, thewakf i.e., the founder of the wakf, divested herself completely of her ownership and possession of the suit properties for the said purposes and constituted herself and one Mohamad HayatsahebSushiwales, as joint muthawalli. Under the same deed she reserved for herself the usufruct of the properties for her maintenance during her life time. It was further provided in the said deed that after the death of the founder of the wakf, the joint mutawalli should collect the entire income of the suit properties and spend it for the benefit of the Soudagar mosque. The said joint mutawalli was also given the power of appointing his successor. However, it transpires that the joint mutawalli viz., Mohammed Hayath saheb Sushiwale, left India and migrated to Pakistan in the year 1947. Khatijabi, the wakif, however remained in actualpossession and enjoyment of the suit properties till her death in or about the year 1950. Defendant-1, who was brought up by the said Khatijabi and residing with her in the suitproperties continued to be in occupation of the same even after her death. It is the case of the plaintiffs that he used to collect the income from the suit properties and spend it for the mosque; but put off giving possession of the same to the management of the mosque on one pretext or the other. It is further averred that defendant-1 was an attestor to the said wakf deed and was fully aware that the suit properties constituted a public trust for the benefit of the mosque. In the year 1956, defendant-1 appears to have got his name entered in the C.T.S. records on the basis of his actual possession of the suit properties. He also leased out one of the suit properties to one Kallawwa. Defendant-2 is the relative of the said Kallawwa, who was in occupation of the suit house as a tenant.
4. Since the suit was relating to title of a wakf property, statutory notice as required under Section 57 of the Wakf Act was duly issued to the Karnataka Board of Wakfs. The plaintiffs have further pleaded that the suit is in time by virtue of Public Wakfs (Extension of Limitation Act, 1959- Central Act 29 of 1959) as amended by Act No. 22 of 1967 which extended the period of limitation for suits to recover possession of immovable properties forming part of public wakf. till 31st December 1968. As 31st December 1968 and 1st January 1969 being Court holidays, the suit was filed on 2nd January 1969 on the reopening of the Civil Courts after winter vacation.
5. The first defendant resisted the suit generally denying the plaint allegations. He denied that Soudagar mosque is a registered public trust and wakf under the Wakf Act and plaintiff-1 being its mutawalli. Regarding the wakf deed dated 8th April 1937, defendant-I has in the first instance denied its execution by Khatijabi and denied the plaintiffs' right to claim the suit properties. He has denied that his possession of the suit properties was, on behalf of the mosque and alleged that even during the life time of Khatijabi, he was inpossession of the properties as owner and his name was entered after due enquiry in the C.T.S. records. He has further alleged that Soudagar mosque being registered under the Bombay Public Trusts Act, 1950 and later under the Wakf Act, 1954, the registration of the Wakf without notice to him is irregular. He has also alleged that after enquiry the Charity Commissioner has held that the suit properties are not trust properties. He has questioned the jurisdiction of the Civil Court to decide whether the suit properties are the trust properties. He has also pleaded that the suit is not in time and the Public Wakfs (Extension of Limitation) Act is not applicable to the facts of the present case. In the alternative, he claims title to me suit properties by adverse possession. On these grounds he prayed for dismissal of the suit.
6. On appreciation of the oral and documentary evidence, the Trial Court held that Soudagar mosque is a public trust under the Wakf Act and the plaintiffs are its trustees.However, it held that the plaintiffs have failed to prove execution of the wakf deed and dedication of the suit properties by Khatijabi by way of wakf. It has further held thatdefendant-l is in possession of the suit properties as an owner having perfected his title by adverse possession by virtue of his possession thereof for more than 12 years adversely to the interests of the plaintiffs. Consequently the suit was dismissed with costs.
7. The plaintiffs having preferred an appeal, the lower appellate Court onre-appreciation of the evidence on record has held that the plaintiffs have proved permanent dedication of suit properties by Khatijabi, divesting herself completely of her ownership and possession thereof in pursuance of thewakf deed dated 8th April 1937, It has further held that defendant-1 has failed to establish that he has perfected his title in respect of the suit properties by adverse possession. Further, it has held that defendant-1's possession during the life time of Khatijabi and even thereafter was permissive as that of a licensee and decreed the suit as prayed for.
8. Mr. Riazuddin, Learned Counsel for defendant-1, has raised the following contentions before me:
(i) that the plaintiffs had no locus standi on behalf of the mosque to file the suit and the suit is otherwise not maintainable for want of necessary sanction by the Wakf Board as required under the provisions of Section 55 of the Wakf Act;
(ii) that the suit document, i.e., the Wakf deed dated 8th April 1937 under which the plaintiffs trace their title, is not proved in accordance with law and consequent dedication of the suit properties by way of wakf is not proved;
(iii) that the Public Wakf (Extension of Limitation) Act, 1959 (Act No. 29 of 1959) as amended by the Act No. 22 of 1967, is not applicable to the facts and circumstances of the case; and hence, the suit was barred by time; and
(iv) that the lower appellate court was in error in rejecting the alternative plea of defendant-1 having perfected his title by adverse possession.
9. Regarding the first contention it was urged by Mr. Riazuddin that there is no proof of the plaintiffs having been duly appointed as mutawallis under the Wakf Act and as such they are not entitled to represent the mosque. It was further urged that in the absence of a sanction under Section 55 of the Wakf Act the suit is not maintainable.
10. Both the Courts below have concurrently held on facts that the plaintiffs are the trustees of Soudagar mosque and pJaintiff-1 being in de facto management of the mosque as its mutwalli, the suit as filed is maintainable. Under the Wakf Act 'mutawalli includes any person or committee for the time being managing or administering any wakf property as such. It is well settled that even a de facto manager of a trust can maintain an action to protect the interests of the trustproperties.
11. In Vikrama Das Mahant -v.- Daulat Ram Asthana and others, : AIR1956SC382 the Supreme Court has observed thus :
'The ordinary rule that persons without title and who are mere intermeddlers cannot sue as of right is clear, but where public trust are concerned, Courts have a duty to see that their interests and the interests of those for whose benefit they exist are safeguarded. Therefore, the Courts must possess power to sustain proper proceedings by them in appropriate cases and grant relief in the interests of and for the express benefit of the trust imposing such conditions as may be called for.'
In Mulla's Principles of Mohomedan Law (18th Edition) Section 195 at page-212 the principle is stated as follows:
'195. Suit for a declaration that property is wakf - A suit for a declaration that property belongs to a wakf can be brought by Mahomedans interested in the wakf without the sanction of the Advocate-General. The provisions of Section 92 of the Code of Civil Procedure, 1908, do not apply to such a suit. That Section applies only to suits claiming any of the reliefs specified in it.'
It is further observed :
'Even a worshipper will be entitled to maintain a suit for possession of a trust property where the trustee has alienated the trust property and would not proceed to recover possession of the same or has disabledhimself otherwise from maintaining suit in respect thereof, or declines to institute a suit. The Court may after setting aside the alienation hand over the properly to the trustee or to the worshippers, if there is no trustee.'
12. Mr. Riazuddin strongly relied upon the decision of this Court in Dadepir Hamidasaheb-v.- Usman Sirajasaheb, RFA No. 6 of 1972. That appeal had arisen out of a suit coming within the purview of Section 92 of the Code of Civil Procedure, inter alia for framing a scheme in respect of a public trust. The plaintiffs therein had obtained sanction for filing the suit under Section 50 of the Bombay Public Trust Act, 1950, However, the suit having been filed in 1966 after the Wakf Act, 1954, had come into force in Karnataka, it was held that in the absence of a sanction under Section 55(2) of the Wakf Act 1954, the suit as filed on the basis of the earlier sanction under the Bombay Public Trust Act, was not maintainable in law. Obviously the ratio of the said decision is not applicable to the facts of the present case. As such there is no substance in the contention of Mr. Riazuddin.
13. The next contention of Mr. Riazuddin is that the execution of the wakf deed having been denied and the plaintiff not having produced the original deed itself it was incumbent upon the plaintiffs to have proved due execution thereof by examining at least one attesting witness in accordance with the provisions of Section 68 of the Evidence Act. As against this, the contention of Mr. Tarakaram, Learned Counsel for the plaintiffs is that in the absence of a specific denial of the execution of the wakf deed it was not incumbent on the part of the plaintiffs to prove the execution of the document by calling an attesting witness. It is well settled that what the law requires is not mere denial but a specific denial which must be in express terms and it should bedefinite and unambiguous. Defendant-1 in his written statement having first denied the execution of the wakf deed dated 8th April 1937 by Khatijabi has stated as follows :
'The alleged deed of wakfnama was a nominal one and had been taken by undue influence and it was never acted upon.'
In para-4 defendant-1 has further stated as follows:
'The possession of the properties was never handed over either ; actual or constructive at any time. The claim of Smt. Khatijabi for taxes and repairs was rejected and the gift deed dated 8-4-1937 was returned to her by the then panchas not being willing to carry out their part of agreement or to take the benefits thereunder.'
In this connection it may be mentioned that Ex. P.4 the certified copy of the wakf deed reveals that defendant-1 himself has attested the deed as one of the witnesses, which fact, however, has been denied by defendant-1, Mr. Riazuddin, placed strong reliance upon the decision of the Bombay High Court in Ramakrishna Canpat Futane & Ors. -v.- Mohammad Kasani & ors, : AIR1973Bom242 which is to the effect hat mere certificate of registration given under Section 60(2) of the Registration Act is not by itself sufficient to prove due execution of the document as required under Section 67 of the Evidence Act. In that case, the denial of the execution of the document was specific, unambiguous and definite. The facts and circumstances of that case are not parallel to the facts of the instant case. Hence, the ratio of the said decision is wholly inapplicable to the instant case.
14. Under the Muslim Law of wakfs, a wakf inter vivos is completed by a mere declaration of endowment by the owner, the founder. A wakif may constitute himself as the first mutawalli. The founder and the mutawalli being the same person, no transfer of physical possession is necessary nor is it necessary that the properties should be transferred from his name as owner to his name as mutawalli. Under the Hanafi Muslim Law the wakif (dedicator) may provide for his maintenance out of the income of the wakf properties and may reserve the whole income for himself for life. Even a provision for the residence of thesettler for life in the endowed property is not invalid (Vide : Mulla's Principles of Mahomedan Law Page-209-210, 18th Edition).
15. The Appellate Court has on proper appreciation of the evidence on record rightly held that the wakf deed dated 8th April 1937 is proved and that in pursuance of the same the wakif (dedicator) had divested herself completely of her ownership and possession of the suit properties and was holding the suit properties till her death in 1950 as its mutawalli. Smi. Khatijabi, the wakif had constituted herself and one Mohamad Hayatsab Sushiwale as the joint mutawallis of the wakf, the latter having been given the power to appoint his successor. The question of handing over of actual possession by the mutawallis under the wakf deed to the management of the mosque did not arise on account of the fact that the mutawallis had to manage the same and spend the income thereof on the mosque. The dedicator beside residing in the suit properties had reserved to herself the income thereof during her life time. Admittedly, she died in the year 1950. The Lower Appellate Court has found that during the life time and after the death of the wakif, defendant-1, was in permissive possession of the suit properties and not in his own right. This being a pure finding of fact, there is no reason to disturb the same in this appeal.
16. It is well settled that the law of limitation is a procedural law and the provisions existing on the date of a suit apply to it and therefore, Article 65 of the Limitation Act, 1963 is applicable, under which if a suit is brought on the basis of title and if the plaintiff proves his title, it is incumbent upon the defendant to show that his possession has become adverse to the real owner in order to maintain a plea of adverse possession. In S. M. Karim -v.- Bibi Sakina, : 6SCR780 Hidayathulla, J., as he then was, has observed :
'Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least when possession becomes adverse so that the starting point of limitation against the party affected can be found.'
A specific averment as to the point of time at which, the possession, which was otherwise for the benefit of the object of the trust, turned hostile and adverse is an essential ingredient of a plea of adverse possession. Neither in the pleading nor in the course of evidence of defendant-1 was there any assertion regarding the point of time at which his possession became adverse. No adverse possession could be set up against Khatijabi as the mutawalli under the wakf deed, who, as the evidence indicates, was in possession of the properties till her death.
17. In the instant case, it is further interesting to note that defendant-1 has attempted to improve his case during evidence by setting up an alleged gift stated to have been made in his favour by Khatijabi. Defendant-l's standregarding his alleged title to the suit properties is from the beginning ambiguous, inconsistent and unreliable. As foundby the Lower Appellate Court, his name was entered in the C.T.S. records for the first time in 1956 on account of the fact that he was in actual occupation of the suit properties, which by itself is not sufficient to prove his title. Beside the fact that defendant-1 is inconsistent in respect of the commencement of the period of limitation for the purpose of claiming adverse possession, he has failed to discharge the burden in accordance with Article 65 of the Limitation Act, 1963.
18. In the view I have taken it appears to be unnecessary to consider the applicability of the Public Wakfs (Extension of Limitation) Act, 1959. However, since the Learned Counsel on both sides have addressed arguments on this aspect, I shall briefly deal with the same.
Section 3 of the Public Wakfs (Extension of Limitation) Act, 1959 reads as fellows :
'Section 3. 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,1908, for possession of any immovable property, forming part of a public wakf or any interest therein has been dispossessed or has 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 lime during the said period, then, notwithstanding anything contained in the said Act, the period of limitation in respect of such a suit shall extend up to the 15th day of August 1967.'
This period of limitation was extended upto 31st December 1968 and even thereafter from time to time by further amending Acts. The suit was filed on 2-1-1969. In the circumstances it is clear that possession of the properties is deemed to have been discontinued by the mutawalli on her death in 1950, the other joint mutawalli having left the country earlier. Even assuming that the date of death of the mutawalli in the year 1950 is the commencement of defendant-1's alleged adverse possession, in view of the extension of the period of limitation by virtue of the Public Wakfs (Extension of Limitation) Act, 1959 (as amended from to time) the plaintiffs' suit for possession of the suit properties was in time.
19. In view of the above, there is absolutely no merit in this appeal and accordingly it is dismissed with costs. Advocate's fee Rs. 250/-.