IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR CIVIL REVISION PETITION No.153 OF 2010 BETWEEN 1. Puliyanda U. Madappa, S/o. Late Puliyanda Uthappa, Aged about 79 years, R/at Panjerpet, Virajpet, Kodadu District.
2. N.K.Abdul Rahaman, S/o. N.Kunhi Mohammed, Aged about 42 years, R/at Kallubane Post, Arji Village, Virajpet, Kodagu District-571218.
(Petition against first petitioner abated vide order dated 7.9.2011) (By Sri. Mahmood Patel, Advocate) AND 1. Masjid-e-Azam, Virajpet Town, Kodagu District, Represented by its President.
2. The District Wakf Advisory Committee, Madikeri, Kodagu District.
…Petitioners 3. The Chief Executive Officer, Karnataka Stage Board of Wakf, No.6, Cunningham Road, Bengaluru-560052.
…Respondents (By Smt. S.R.Anuradha, Advocate, for R2 and R3; Sri. Syed Imran, Advocate for C/R1) This CRP is filed under Section 83(9) of Wakf Act 1995, against the judgment dated 09.03.2010 passed in O.S.No.2/2008 on the file of the Presiding Officer, Karnataka Wakf Tribunal, Mysuru Division, Mysuru, dismissing the suit filed under Section 26, Order 7 Rule 1 CPC, read with Section 54(4) and 83(2) of Wakf Act.
This CRP having been heard and reserved on 24.06.2019, coming on for pronouncement this day, the Court pronounced the following :
ORDER In this revision petition the petitioners have assailed the judgment dated 9.3.2010 passed by Karnataka Wakf Tribunal, Mysuru Division, Mysuru, in O.S.2/2008. The petitioners are the plaintiffs in the said suit.
2. The dispute is in respect of 1½ cents of land out of 4 cents in Sy. No.3/3 of Block No.2, Virajpet Municipality, Kodagu District. The first defendant in the suit had earlier filed a suit, O.S.42/1965 against one K.P.Krishnan Gurikal seeking the reliefs of declaration of title of the Muslim community in respect of the suit schedule land and possession of the said land from him. Krishnan Gurikal was the absolute owner being in possession of 0.10 acres of land in Sy. No. 3/4, Block No.2 of Virajpet Municipality. The suit land is contiguous to the land in Sy. No.3/4. Krishnan Gurikal did not know that he had encroached upon the land in Sy. No. 3/3 belonging to the Muslim community and that he had already constructed a building in the land belonging to him as also the land in Sy. No.3/3. Therefore, in the suit O.S.42/1965 he denied the encroachment as alleged against him and also set up a hostile title by adverse possession. Since Krishnan Gurikal purchased the property in 1962 and that the suit was filed by the first respondent in the year 1965, the adverse title contended by him was negatived on the ground that 12 years period had not been completed after construction of a building in Sy. No. 3/3. Challenging the judgment in the said suit, Krishnan Gurikal did not file appeal and it became final.
3. The first plaintiff is a purchaser of land in Sy. No.
3/4 from Krishnan Gurikkal under a registered sale deed dated 25.2.1975. When he purchased the land in Sy. No. 3/4, he not only took over possession of purchased land but also the building constructed in Sy. No. 3/3. On 31.3.2008, the second plaintiff purchased the property from the first plaintiff. It is stated in the plaint that at that time the first plaintiff forgot to inform about the earlier proceedings to the second plaintiff. However, the first plaintiff held the suit property openly and peacefully by setting up hostile title against the real owners including Muslim community at Virajpet and around with animus to make the property as his own.
4. The first defendant had no right or title over the property and failed to produce the grant certificate or mutation copy to show that it has any semblance of right. The second defendant is a statutory body created under the Wakf Act. The second defendant was supposed to maintain impartiality and judge the dispute between the plaintiff and the first defendant judiciously. But, it joined with the first defendant and moved the Wakf Board for evicting the plaintiffs stating that they are the encroachers. The third defendant, without holding any summary enquiry contemplated under section 54 (3) of the Wakf Act passed an order to evict the plaintiff. The third defendant passed an order without following the procedure and touching the points raised by the plaintiffs. The plaintiffs asserts that the suit property is not registered with the Wakf Board under section 36 of the Wakf Act and hence no suit, appeal or other legal proceedings for enforcement of any right could be instituted, commenced or heard. The name of the Wakf Board came to be entered in the Jamabandi of the suit property without hearing anybody under a mistaken notion of law. The entry in the Jamabandi will not confer any right in favour of any person. The second plaintiff is a bona fide purchaser for value without notice of any of the proceedings that took place in connection with the suit property. He came to know about all the proceedings only after he purchased the same. He is in possession of the suit property. The plaintiffs state that that they acquired title over the suit property by adverse possession also. With these pleadings the plaintiffs sought for cancellation of the order of the third defendant in proceedings No. KRW/INQ/6/KDU/2003, declaration that they have acquired title to the suit property by adverse possession and that the second plaintiffs have perfected title by adverse possession by law of tacking and for permanent injunction to restrain the defendants from evicting the second plaintiff or from demolishing the building constructed in or about the year 1962, and alternatively for delivery of possession of schedule property to the second plaintiff.
5. The first and second defendants in their written statements have contended that the suit property in Sy. No. 3/3 belongs to Wakf. Being aware of the fact that proceedings were initiated as contemplated under the Wakf Act in respect of 4 cents of land in Sy. No. 3/3, if the first plaintiff sold the land in favour of second plaintiff, the said sale was void ab initio. The second plaintiff does not derive any title. The proceedings conducted as per section 54 (3) of the Wakf Act are binding on the plaintiffs. The second plaintiff’s plea of ignorance about previous proceedings pertaining to the Wakf property are far from truth. As admitted by the plaintiffs, the earlier suit filed for adverse possession was negatived and therefore this suit is also liable to be dismissed. They contended further that after dismissal of application No. 1/2007 on 29.9.2007 by the tribunal, upon the directions of the third defendant and as contemplated by law, a notice dated 16.10.2007 was caused by the Sub-Divisional Magistrate, Madikeri under Rule 51 (1) of the Wakf Act. Subsequently, an order under section 52 (2) was passed on 25.10.2007. The Sub-Divisional Magistrate forwarded a report dated 31.10.2007 to the third defendant stating that the encroachment was removed and possession of the same was delivered to the first defendant. The statement dated 5.11.2007 reveals that the first plaintiff had delivered the encroached property and on 7.11.2007 he had also addressed a letter to the first defendant seeking re- delivery of the property. The first plaintiff was also aware of the fact that the property was let out to a tenant by name T.H.Razak and one Kumar under separate lease agreements.
Therefore, the plea of adverse possession set up by the plaintiff is not sustainable. The suit is liable to be dismissed for these reasons and also for want of mandatory notice as contemplated under the provisions of section 45 of the Wakf Act, 1995.
6. The tribunal raised six issues and one additional issue and recorded evidence of the witnesses. After appreciating oral and documentary evidence, it dismissed the suit recording the following findings : -
6.1. Burden is on the person who bases his title on adverse possession. By clear and unequivocal evidence such a person must prove his possession to be hostile to the interest of true owner. Mere possession of a vacant piece of land does not constitute adverse possession. The possessor must accept or admit the ownership of the true owner and should also establish his possession continuously and uninterruptedly for more than 12 years. According to the plaintiff, Ex.P13 is the document to establish their possession. This document shows Pattana Panchayat transferred 4 cents in Sy. No. 3/3 along with a house in the name of Puliyanda Madappa, i.e., plaintiff No.1. But, the Pattana Panchayat, Virajpet, has no authority to transfer the title only on the basis of report. This transfer is unknown to law. If Jamabandi and resolution of Pattana Panchayat are accepted as title deeds, nobody’s property will be safe. PW2 claims adverse possession tracing his possession over the suit property to Krishnan Gurikal. In O.S.42/1965, the learned Munsiff held that Krishnan Gurikal had not trespassed over the suit property and therefore it can be said that Krishnan Gurikal was not in possession of the suit property on the date of judgment, i.e., 10.7.1972. Therefore, the plaintiffs’ say that after Krishnan Gurikal, they were put in possession and their possession was adverse to the true owner cannot be accepted. In Ex.P6 it is stated that plaintiff No.1 acquired title by adverse possession in continuation of hostile title set up by Krishnan Gurikal. At the time of execution of this sale deed, plaintiff No.2 knew that there was no decree of the civil court and therefore the sale deed itself shows that the suit property was not inherited by plaintiff No.1 in the manner known to law. In these set of circumstances, plaintiff No.1 and Krishnan Gurikal and the tenants who are in occupation of the suit property were the best witnesses to establish the plaintiff’s adverse possession. But, plaintiff No.1 was not examined at all. PW4 is a hearsay witness whose evidence is of no use. For this reason adverse inference has to be drawn against the plaintiffs for withholding the material evidence.
6.2. Ex.D7, a letter written by the Sub-Divisional Magistrate, Madikeri, clearly shows that 3 acres of open space was vacated and handed over to the President of the Mosque. Ex.D8 is a letter addressed by plaintiff No.1 to the President and the Secretary of the Maszid-E-Azam, Virajpet. This letter shows that plaintiff No.1 demanded delivery of possession of the suit property to him. Exs.D9, D10 and D11 show that defendant No.1 is in possession of the suit property. Ex.D15 shows that 4 cents of land in Sy. No. 3/3 is notified as Wakf property and it is included in the list of wakfs. This notification has not been challenged. Ex.D16A shows that plaintiff No.1 received Rs.15,000/- from defendant No.1 and it is not denied. For all these reasons, it is difficult to accept the plaintiffs’ stand that they perfected their title by way of adverse possession.
6.3. Referring to the decree in O.S.45/1965, it is held by the tribunal that the plea with regard to adverse possession was negatived. In this suit the Mutawalli of defendant No.1 sought declaration of title. In the said suit the Wakf Board was not a party. The Mutawalli being a caretaker cannot institute a suit on his own regarding the wakf property and therefore the finding given in the suit does not bind the Board. Despite there being a finding that Krishnan Gurikal had not encroached upon Sy. No. 3/3, because the Wakf Board was not a party in the said suit, Section 11 of CPC does not apply.
6.4. In regard to issuance of notice under section 89 of the Wakf Act before institution of the suit, the tribunal has rejected the plaintiff’s stand that notice was not necessary in view of the order passed in CRP 655/2007. Referring to the order passed in CRP 655/2007, it is observed that though this court provided an opportunity to the plaintiffs to file a suit, the order does not say that issuance of notice under section 89 is waived. Therefore issuance of notice was very much necessary. It is also observed that plaintiff did not file suit within 15 days as directed by this court in W.P.18136/2005. Instead of filing the suit as observed in the writ petition, the plaintiffs preferred an appeal and it was also dismissed for default. Therefore, the plaintiffs stand that suit is maintainable even without issuing notice cannot be accepted.
6.5. On additional issue No.1, it has been held by the tribunal that Ex.D2, i.e., the order of the third defendant does not show as how principles of natural justice are violated. Therefore, this issue is also answered in negative.
7. Assailing the findings of the tribunal, learned counsel for the appellant Sri Mahmood Patel argued that the tribunal has failed to notice that there was no dedication of the suit property so as to say that it became a wakf property. Dedication of property is a must or otherwise it cannot be held that particular property belongs to wakf. Section 4 of the Wakf Act requires a survey to be conducted for identification of the wakf property. There is no document evidencing that according to the survey, the suit property was included in the list of wakfs. The list of wakf properties must be published in an official gazette. This gazette notification is also not there in respect of the suit property. If wakf had been created before commencement of the Wakf Act, an application for registration of the property as a wakf property should have been made within three months from commencement of the Act. There is no evidence in this regard also. The defendants rely upon Ex.D15. It is the only document that the defendants have produced to assert that the suit property was dedicated to wakf. In the absence of survey as contemplated under section 4 or registration under section 36 preceded by an enquiry straightaway Ex.D15 cannot be considered to hold that suit property was dedicated to wakf. The Chief Executive officer before passing the order under challenge must have held an enquiry as contemplated under the Wakf Act. Such an enquiry is not forthcoming. Certificate of registration is pre-mature. Limitation of one year prescribed under section 5 of the Wakf Act is not applicable because suit property does not belong to Wakf. One of the plaintiffs is not a Muslim. It is applicable only in respect of properties notified under Section 4 of the Act. With regard to issuance of notice under section 89 of the Wakf Act his point of argument is that proceeding before the tribunal is a continuation of proceeding under section 54, therefore non-issuance of notice is not fatal. Wakf Board was not a party to the suit. He argued that the findings in O.S.42/1965 bind the defendants to assert claim on the suit property. The ingredients of Section 11 of CPC are very much attracted. There is a clear finding that first plaintiff’s vendor Krishnan Gurikal was not an encroacher. His defence regarding adverse possession might have been negatived but his being in possession was upheld. Therefore, the plaintiff’s possession can also be inferred because of this reason.
8. Smt. S.R.Anuradha, learned counsel appearing for the respondents argued that the reliefs claimed by the plaintiff are mutually destructive. The plaintiffs claim adverse possession and alternatively, they also sought possession. This shows that they are not in possession. Ex.D7 clearly shows handing over of possession to the defendants. Ex.P1 is the order passed in the civil revision petition. Before filing of this petition possession had been handed over. The order passed in a proceeding under section 54 became final and therefore the principles of res judicata are very much applicable. Ex.P6 came into being after handing over possession to the defendants. Therefore, there was no actual delivery of possession by plaintiff No.1 to plaintiff No.2 on the basis of sale deed. Plaintiff No.2 cannot claim to be in possession by tacking.
8.1. Section 54 contemplates holding of a summary enquiry and if the said order is perused, there is nothing to show that the Chief Executive Officer did not follow the procedure. Issuance of the certificate was according to Section 36 of the Wakf Act. Before issuing a certificate section 52 contemplates a procedure to be followed. This procedure having been followed, the said certificate became final and plaintiff No.2 being a Muslim is bound by decision taken by the Wakf. According to the decision of this Court reported in 1992 KAR 586, the second plaintiff should have questioned the registration within one year from the date of its issuance. Section 56 of the old Act which is analogous to section 89 of the new Act contemplates issuance of notice before institution of a suit. The stand of the plaintiff that notice is not necessary cannot be accepted. The plaintiffs have sued the Executive Officer. He does not have independent existence. He represents the Board and therefore in all respects the suit is against the Wakf Board only. Issuance of notice was mandatory. The tribunal has rightly come to conclusion that the suit is not maintainable because of want of notice. Therefore, she argued for sustaining the order of the tribunal.
9. Arguments at the Bar leads to answer five points.
The first question is whether suit property is a wakf or not? The petitioner dispute this aspect only for the reason that the respondents have not placed any evidence as regards inclusion of suit property in a list after conducting survey according to section 4 of the Wakf Act and notification made in the Gazette. It is true that this evidence is not available. But this cannot be a reason for taking a contrary view. Plaint itself discloses knowledge on the part of the plaintiffs that the suit land belongs to Muslim community. Merely for this reason, it is not possible to hold that property is a wakf property; it should satisfy other requirements also. The defendants mainly rely on Ex.D15, Certificate of Registration dated 7.5.1991. This certificate was issued under sections 25 and 26 of the Wakf Act, 1954. Ex.D1 is a corrigendum issued in the year 2005 to set right some discrepancy in respect of boundaries of the property given in Ex.D15. These two documents prove that the suit property is a wakf property. The learned counsel for plaintiffs dispute the authenticity of the documents for the reason that there is no evidence for inclusion of suit property in the list prepared after survey. But this argument cannot be accepted because the first plaintiff admitted the suit property to be wakf property, Ex.D9 is the proof for this. This is an agreement executed between the first plaintiff and the President of Masjid-E-Azam, Virajpet Town. This agreement is signed by first plaintiff admitting that 4 cents of land in Sy. No.3/3 is a wakf property. The first plaintiff did not enter the witness box to deny this document. The second plaintiff therefore cannot dispute this document, and he being a purchaser from the first plaintiff is bound by this document. Hence unhesitatingly inference can be drawn that the suit property is wakf property. The finding of the tribunal in this regard is to be upheld.
10. The second question is whether the second plaintiff can claim to be in possession of suit property, and can he tack his possession to be adverse to the title of defendants?
11. In the plaint it is stated that when one N.G.Ahmed instituted a suit O.S.No.42/1965, the pleas of Krishnan Gurikal about adverse possession was negatived, the first plaintiff purchased the property in Sy.No.3/4 from Krishnan Gurikal on 25.02.1975 and then the second plaintiff purchased the very same property from the first plaintiff on 31.03.2008. The defendants do not dispute these sale transactions. The plaintiffs state that possession of suit property was handed over to them along with the possession of property in Sy.No.3/4, as these two properties are situate adjacent to each other. It may be a fact that when Krishnan Gurikal sold Sy.No.3/4 to first plaintiff, the latter was put in possession of suit property also but there is no evidence to hold that the second plaintiff also got possession of suit property. In the plaint itself it is stated that a proceeding under section 54 (3) of the Wakf Act was held and an order of eviction was passed against first plaintiff. Ex.D2 is the certified copy of the order in the said proceeding. Learned counsel for the petitioner argued the said proceeding was not held according to procedure contemplated under the Wakf Act; enquiry was not at all held and there was violation of principles of natural justice. But on perusal of Ex.D2, it can be said that notice was ordered to first plaintiff. He appeared before the Chief Executive Officer of the Wakf Board and filed his written reply admitting that 4 cents of land in Sy.No.3/3 belonged to Maszid-E-Azam, but denied encroachment upon that land. He relied on the findings in O.S.No.42/1965. The Chief Executive officer, examining all the documents passed an order to remove encroachment. The other documents Ex.D5 and D6 show further action taken pursuant to Ex.D2. Ex.D9 evidences handing of possession by the first Plaintiff to the president of Maszid-E- Azam. Ex.D7 dated 7.11.2007 and Ex.D8 dated 01.01.2008 evidence the shops situated in Sy.No.3/3 being let out to tenants by the President of Maszid-E-Azam. Therefore on the day when second plaintiff purchased Sy.No.3/4, the plaintiff was not at all in possession of suit property and he would not have handed over the possession to second plaintiff. A person cannot claim adverse possession having lost possession, and even he cannot claim back possession from the true owner who takes possession according to due process of law. If the first plaintiff had not delivered possession as evidenced by Ex.D9, he should have entered witness box to refute the contents of Ex.D9. He remained away. The findings recorded by the tribunal are sustainable. The plaintiff cannot tack to the possession of first Plaintiff to claim adverse possession against the defendants, nor can he get back possession.
12. The next question is with regard to res judicata.
This point is raised by the counsel for petitioners in the background of dismissal of the suit O.S.No.42/1965. I do not think that res judicata is applicable. In the said suit Krishna Gurikal claimed adverse possession, but his contention was negatived as twelve years period had not elapsed since the date of his taking possession. The subsequent development culminating into eviction of first plaintiff consequent to order in proceeding under Section 54 of the Wakf Act precludes the plaintiffs from contending about adverse possession.
13. In regard to question of limitation, the learned counsel for the petitioners has placed reliance on the judgment of the Supreme Court in the case of The Board of Muslim Wakfs, Rajasthan vs. Radha Kishan and Others (AIR 1979 SC 289). In this case what is held is that if a stranger’s property is included in the list published under Section 5(2) of the Wakf Act, that stranger is not under obligation to file the suit within one year. This judgment is probably urged keeping in mind that Krishnan Gurikal and the first plaintiff are non-Muslims and thereby they cannot be called persons interested in wakf. On the other hand, the learned counsel for the respondents has referred to the same judgment to argue that any person interested in the trust means persons interested in the wakf property and therefore limitation of one year is applicable. Here in this case the evidence concerning survey is not available. But Ex.D15, is the certificate of registration issued under sections 25 and 26 of the Wakf Act 1954 and it bears the date 07.05.1991. At least from this date, the suit should have been filed within one year.
14. The last point of argument pertains to issuance of statutory notice before instituting the suit. The finding of the tribunal in this regard is to be upheld. What is necessary to be mentioned here is that the Chief Executive Officer initiated action exercising power under Section 54 of the Wakf Act, 1954. Under the old Act, the Chief Executive Officer could require the encroacher to remove encroachment. Ex.D2 shows this power being exercised by the Chief Executive Officer. Thereafter the first plaintiff handed over the suit property also. For this reason, the suit instituted by both the plaintiffs, after losing possession, should have been preceded by statutory notice. Admittedly no notice was issued and the suit is therefore bad. I concur with the findings of the tribunal.
15. From the above discussion, I hold that this revision petition is devoid of merits. Therefore revision petition is dismissed.
Sd/- JUDGE ckl