1. The Andhra Pradesh Wakf Board, the plaintiff in the suit is the appellant. The defendants thirty in number are in possession and enjoyment of small parcels of land of a total extent of Ac. 25-55 cents in S. Nos. 462 and 463 of Tadikonda village, more fully described in the plaint schedule. The plaintiff Board filed the suit for possession of the plaint schedule properties with profits by way of damages alleging that the plaint schedule properties with profits by way of damages alleging that the plaint schedule properties are the Wakf properties. It is the plaintiff's case that the suit schedule properties were granted to the Darga of Hazarat Niamatulla at Tadikonda village for its maintenance and upkeep and to perform services of Darga along with some other properties, that the 13th defendant is the heir of the original grantee, that the predecessors in interest of the 13th defendant leased out items 1 and 2 of the plaint schedule properties to the predecessors in interest of defendant 1 to 12 in S. Nos. 462 and 463 of Tadikonda village, that the said predecessors in interest of defendants 1 to 12 and continued as lessees till 1936 and that they were now claiming adverse possession by virtue of their long possession. It is further the case of the plaintiff that the plaint schedule properties were surveyed by the Assistant Commissioner of Wakfs, who held that the said properties are wakf properties attached to the Darga of Hazarat Naimatulla and that the said report has become final. It is also averred that the 13th defendant is not the mutawalli of the Darga of Hazarat Niamatulla and, therefore, he has no right to represent the same and that the suit O. S. No. 74 of 1954 on the file of the Subordinate Judge, Guntur, and the subsequent proceedings were collusive in nature between the 13th defendant and the predecessor in interest of defendant 1 to 12 and that the said decree was not binding either on the Darga or on the plaintiff Board. It is, therefore, averred that the decision in O. S. No. 74 of 1954 on the file of the Subordinate judge, Guntur, and the appeal thereon in A. A. No. 635 of 1959 on the file of the High Court are not a bar to file the suit. Therefore, the plaintiff filed the suit for delivery of possession of the suit schedule properties, since the defendants failed to hand over possession.
2. The main defence in the suit was that the suit schedule properties are not wakf properties and that neither the plaintiff nor the Darga of Hazarat Niamatulla at Tadikonda Village had either title or possession and enjoyment of the said properties at any time and much less within the statutory period and, therefore, suit the was barred by limitation. It was also pleaded that the suit was barred by res judicata by virtue of the decision in O. S. NO. 74 of 1954 on the file of the court of the Principal Subordinate Judge, Guntur.
3. The learned Principal Subordinate Judge, Guntur on a consideration of the entire evidence adduced by the parties, held that the plaintiff Board failed to establish that the suit properties are Wakf properties within the meaning of S. 3(1) of the Wakf Act, 1954 (hereinafter referred to as the Act'). He also held that either the Darga or the plaintiff Board was never in possession of the suit properties within twelve years prior to the filing of the suit and that the defendants perfected their title to the suit properties by adverse possession. The Court below further held that the decision in O. S. No. 74 of 1954 operated as res judicata. Consequently the suit was dismissed.
4. In this appeal, the first and foremost question that was raised and debated in detail before me was whether the suit properties are Wakf properties within the meaning of S. 3 (1) of the Act. S. 3 (1) defines 'Wakf' as follows:
'Wakf' means the permanent dedication by a person professing Islam 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;
(ii) granted (including mashru ul khidmat) for any purpose recognised by the Muslim law as pious, religious or charitable; and
(iii) a wakf alal aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable; and 'Wakf' means any person making such dedication'.
It is thus clear from the definition of 'wakf' that any person making dedication of any movable or immovable property must be a person professing Islam and that the dedication must be for any purpose recognised by the Muslim law as pious. Religious or charitable. It is, therefore, necessary to examine whether the dedication was made by a person professing Islam. There is no wakf deed forth coming in this case. The only document that is available is Ex. A-1 the Inam Fair Register extract relating to the suit properties. The entries in Ex. A-1 show that the grant was made by one Venkata Narasimharao in Fasli 1180 for the maintenance of Durga of hazarat Niamatulla at Tadikonda. Obviously, the grantor is a non Muslim and, therefore, it cannot fall within the definition of 'wakf' as defined in the Act. But, the learned counsel for the wakf Board relying on S. 66 (c) of the Act, which was introduced by the amendment Act 24 of 1964, submits that the legislature having noticed the lacuna in the definition of 'wakf' brought within the purview of this Act all properties including those donated by persons not professing Islam by the said amendment Act. Section 66 (c) of the Act reads as follows: -
'Nothwithstanding anything contained in this Act where any movable or immovable property has been given or donated by any person not professing Islam for the support of a Wakf being -
(a) a mosque, idgah, imambara, dargah, khankah or a maqbara;
(b) a Muslim graveyard;
(c) a choultry or a musafarkana, then such property shall be deemed to be comprised in that wakf and be dealt with in the same manner as the wakf in which it is so comprised'.
This Section was inserted by S. 21 of Act 34 of 1964 and by the said section, the Act is made applicable to properties given or donated by persons not professing Islam for the support of certain wakfs. As the section itself indicates properties donated or given by the non Muslims for the maintenance of certain wakfs are brought within the purview of the Act, but the section does not enable non Muslims to create a wakf. The learned counsel for the appellant, however, Submits that the words in column 8 of Ex. A-1 indicate that the properties were donated for the maintenance of the Darga at Tadikonda village and, therefore, they fall within the definition of 'Wakf' by virtue of Section 66 (c) of the Act. It is true that the entries in Ex. A-1 show that the suit properties were granted by a non Muslim for the maintenance of the Darga of Hazarat Niamatulla. But who was the Wakif or the person that made the dedication? There is no Wakfnamah, in order to ascertain the name of the wakif, which is regarded as sacrosancr. In the absence of the Wakf deed, it is not possible to assert that the wakf is a Muslim. But it is the contention of the learned counsel for the appellant that a presumption of lawful origin has to be drawn in the absence of any evidence as to the person that created the wakf and so it should be presumed that the dedication was originally made by a person professing Islam. In support of his submission, the learned counsel placed reliance on a decision in Md. Mazaffaralmusavi v. Bibi jabeda Khatun, AIR 1930 PC 103, where in the Privy Council observed:
'The presumption of an origin in some lawful title, which the Courts have so often readily made in order to support possessory rights, long and quietly enjoyed, where no actual proof of title is forth coming, is one which is not a mere branch of the law of evidence it is resorted to because of the failure of actual evidence ..... The presumption is not an 'open sesame', with which to unlock in favour of a particular kind of claimant a closed door, to which neither the law nor the proved facts would in themselves have afforded any key. It is the completion of a right, to which circumstances clearly point, where time has obliterated any record of the original commencement.'
There, the Privy Council was concerned with the presumption of real existence of necessity to alienate the temple property in the absence of proof of such necessity after a lapse of nearly 100 years. The learned counsel also referred me to the decision of the Privy Council in mazhar Hussain v. Adiya Saran. AIR 1948 PC 42 and the decision of the Supreme Court in : 8SCR347 . But I do not see how they are relevant for the decision of this case. The Supreme Court approved the decision of the Privy Council in Mohammad Muzaffar Al Musavi v. Bibi Jabeda Khatun (Supra). What the Privy Council observed in Mazhar Hussain's case was as follows: -
There is no evidence that Haidar bakhsh ever executed a wakfnamah and no direct evidence of any oral dedication by him. But if the proper inference from the history of the matter, the dealings with the properties, the litigation that has affected it and the admissions and assertions made by the respondent's predecessors in title is that Haidar Bakhsh purchased the villages in the names of Maiku Lal and Bahadur Lal on the express footing that they were to be an endowment of an existing wakf consisting of the mosque, grave and imambara, their Lordships do not doubt that all the requirements of Shia law necessary to the valid creation of a wakf attaching to the villages were satisfied'.
But, in this case as already observed, there is no wakfnamah or deed of wakf and it is not known who the wakif is. On the other hand, Ex. A-1 shows that a non Muslim donated the properties for the maintenance of the Darga. Under the Mohammedan Law, a non Muslim may also create a wakf for any purpose which is religious under the Mohammedan law provided it is also lawful according to his own religious creed. (Vide: Mulla principles of Mohammedan :Law Eighteenth Edition at page 198). But, the definition of 'wakf' in the Wakf Act, 1954 limits the applicability to wakfs dedicated by persons professing Islam. The Supreme Court in Saraswathi Ammal v. Rajagopal Ammal, : 1SCR277 no doubt observed that perpetual dedication of property for worship at a tomb is not valid amongst Hindus. But the Supreme Court also observed that 'Three have been no doubt instances of Hindu Saints having been deified and worshipped but very few, if at all, have been entombed and we are not aware of any practice of dedication of property for such tombs amongst Hindus. Such cases, if they arise, may conceivable stand on a different footing from the case of an ordinary private individual who is entombed and worshipped thereat.' In this case, it is contended by the learned counsel for the respondents that dedication was for the worship at the tomb of a Saint, Hazart Niamatualla, and therefore, the dedication was not for a purpose not permitted by Hindu law. This submission of the learned counsel is supported by the report of the Commissioner of Wakfs. Ex A-6 is the report of the Commissioner of Wakfs where in it was mentioned under col. 7 that the dedication of property made by Venkatakrishnamma was for religious purpose. In such circumstances, it is not possible to draw any presumption that the wakf itself was crested by a person professing Islam and, therefore, the burden is on the plaintiff Board to establish that the Wakif is a person professing Islam and the suit property is wakf property.
5.The Madras High Court in M. S. Wakf Board Madras v. Khazi Mohideen, : AIR1974Mad225 observed:
'Another question of fact raised is as to whether the grant has been made by a muslim or a non Muslim. Really there is no evidence on record either way. The plaintiff as P. W. 1 stated in the witness box that the grant had been made by a Hindu Rule. But that statement cannot be accepted as evidence and that is a statement of only his case and nothing more. The plaintiff himself had to concede in cross examination that he did not know who was the grantor, whether the grantor was a Muslim or a non Muslim. No doucmentary evidence had been placed either by the plaintiff or by the defendant in order to find out who the grantor was. Due to complete lack of evidence regarding this aspect, the burden of proof becomes important. Alagiriswami, J., has held that the defendant, namely the Board has to prove that the grant was made by a Muslim, if it wants to support its case that the property is wakf on the ground that it has been granted by a Muslim.... Therefore, it is the defendant Board which wants to establish that the property is wakf should shoulder the burden of proof initially. As there is no evidence on either side, the conclusion of the learned Judge that it has not been proved that the grant had been made by a Muslim has to be accepted as correct'.
In this case also, as already said, there is no evidence that the original grant was made by a Muslim. On the other hand, it is not possible to exclude the possibility of the grant being made by a Hindu. From the remarks of the Commissioner of Wakfs Col. 23 of Ex. A-6
It is clear that the lands were granted by non Muslims and the circumstances under which they were granted are not known as the original sanad is not available for verification. It was further observed therein that there was a Civil suit pending between the riots who were enjoying the land by adverse possession and the original Mutawalli. Even the Commissioner could not have any information with regard to the circumstances under which this property was dedicated to the Darga. The possibility of the construction of the Darga and the endowment of the property to it taking place at one time cannot be ruled out. At any rate, in the absence of any evidence that the wakf was created in the first instance by a Muslim, the suit property cannot fall within the definition of 'wakf' as defined under the Act. Therefore, the suit by the plaintiff Board is not maintainable. It is not necessary in view of this finding to go into the other questions, namely, whether the defendants have perfected their title by adverse possession or whether the decision in the suit O. S. No. 74 of 1954 on the file of the Court of the Principal Subordinate Judge, Guntur, operates as res judicata. It may, however, be relevant to notice that even in the plaint, in para. 3 (a), it is admitted that the defendants 1 to 12 continued as lessees till 1936 and they were claiming title by adverse possession. Even in Ex. A-6 the Commissioner of Wakfs observed that there was a civil suit pending between the riots who were enjoying the land by adverse possession and the original Mutawalli. In O. S. No. 74 of 1954 the learned Principal Subordinate Judge, Guntur, held that the said decision was affirmed by this court in A. S. No. 635 of 1959. Therefore, the decision undoubtedly operates as res judicata.
6. In the result, the appeal fails and is accordingly dismissed with costs.
7. Appeal dismissed.