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2004 (4) TMI 613 - SC - Indian LawsOwnership and title of the suit properties - Validity of the Wakf Board s declaration of the suit properties as Wakf properties - Admissibility of additional evidence by the appellant - Claim of adverse possession by the respondent - HELD THAT - 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 could be of assistance to prove this. On the other hand Respondent produced the relevant copy of the Register of Ancient Protected Monuments maintained by the Executive Engineer in charge of the Ancient Monuments (Exb P1) wherein the suit property is mentioned and the Government is referred to as the owner. Since the manner of acquisition is not under challenge the entry in the Register of Ancient Protected Monuments could be treated as a valid proof for their case regarding 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 has been declared as a protected monument and there is a signboard to this effect in the suit property. He also deposed that the Government is in possession of the suit property and the Government at its expenditure constructed present building in the suit property. On a conjoint analysis of Exb P1 P2 and deposition of Syed Abdul Nabi it could be safely concluded that the Respondent is in absolute ownership and continuous possession of the suit property for the last about one century. Their title 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 Appellant cannot exercise any right over the same. Therefore all the subsequent deeds based on the presumption that the suit property is a Wakf Property are of no consequence in law. The Notification bearing No. KTW/531 ASR/74/7490 dated 21/04/1976 issued by the Appellant and Karnataka Gazette Notification page No. 608/Part VI dated 08/07/1976 is null and void. The same is liable to the deleted. In view of this the aspects relating to treating Gazette Notification as notice and limitation need not be looked into. As regards the compliance of notice u/s 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. As we have already found Respondent obtained title under the provisions of Ancient Monuments Act. The element of Respondent s possession of the suit property to the exclusion of the Appellant with the animus to possess it is not specifically pleaded and proved. So are the aspects of earlier title of Appellant or the point of time of disposition. Consequently the alternative plea of adverse possession by Respondent is unsustainable. High Court ought not have found the case in their favour on this ground. In the result these appeals stand dismissed.
Issues Involved:
1. Ownership and title of the suit properties. 2. Validity of the Wakf Board's declaration of the suit properties as Wakf properties. 3. Admissibility of additional evidence by the appellant. 4. Claim of adverse possession by the respondent. Summary: Ownership and Title of the Suit Properties: The first respondent claimed ownership of the suit properties under the Ancient Monuments Preservation Act, 1904, and later under the Ancient Monuments And Archaeological Sites and Remains Act, 1958. The properties were entered in the Register of Ancient Protected Monuments, and the Government of India was shown as the owner. The trial court found that the Government had taken possession of these properties as ancient monuments since 1900 and had been preserving them. The High Court affirmed this finding, stating that the properties were government-owned and not Wakf properties. Validity of the Wakf Board's Declaration: The Wakf Board declared the suit properties as Wakf properties in a notification dated 21.4.1976, published in the Karnataka Gazette. The trial court found that the Wakf Board did not follow the relevant provisions of the Wakf Act and that a mere declaration by the Wakf Board would not bind a stranger to the Wakf. The High Court upheld this finding, stating that the suit properties were not existing Wakf properties and that the Wakf Board could not exercise any rights over them. The notifications declaring the properties as Wakf were deemed null and void. Admissibility of Additional Evidence: The appellant sought to adduce additional evidence under Order XLI, Rule 27, CPC, claiming that important documents were not produced earlier. The High Court rejected this plea, stating that the appellant had ample opportunity to produce the documents during the trial and appeal. The Supreme Court agreed, noting that the scope of Order XLI, Rule 27, CPC, requires parties to show that they could not produce the documents despite due diligence and that the documents are necessary for a proper judgment. The court found no justification to interfere with the High Court's order. Claim of Adverse Possession: The High Court's finding that the respondent had acquired title by adverse possession was challenged. The Supreme Court clarified that adverse possession requires proof of peaceful, open, and continuous possession with a hostile title. The respondent's possession of the suit properties was based on lawful acquisition under the Ancient Monuments Act, not adverse possession. The court held that the plea of adverse possession was unsustainable and that the High Court should not have found in favor of the respondent on this ground. Conclusion: The appeals were dismissed, affirming the findings of the trial court and the High Court that the suit properties were government-owned and not Wakf properties. The plea of adverse possession by the respondent was rejected.
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