9911796707
TMI Blog2008 (8) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... sequent to the dismissal of the second appeals, by an order dated 24th of April, 2000, two C.M.P. Nos. 3200 and 3201 of 2000 filed in S.A.Nos.972 and 973 of 1996 were also rejected. 2. Feeling aggrieved, the appellants have filed the aforesaid four appeals against the common judgment and decree dated 19th of November, 1999 of the High Court of Judicature at Madras and also against the order dated 24th of April, 2000 passed in C.M.P. Nos.3200 and 3201 of 2000. By the aforesaid common judgment, the High Court had dismissed three second appeals of the defendants/appellants and affirmed the judgment of the first appellate court which had set aside the judgment of the trial court dismissing the suit for recovery of possession and mesne profits filed at the instance of the plaintiffs/respondents. It may be kept on record that another Second Appeal No.1242 of 1986 was also dismissed by the High Court by the same judgment passed against which no SLP has been filed in this Court and, therefore, no reference is made to the same in this judgment. 3. The brief facts leading to the filing of these appeals are stated here. 4. Iynthukori Thaikkal Wakf (5 Kori Durga Wakf) (in short the Wakf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants preferred three appeals in the High Court, namely, Second Appeal Nos. 972/86, 973/86, and 1242/86. During the pendency of these second appeals, the Wakf Act, 1995 (in short, Wakf Act ) came into force with effect from 1st of January, 1996. Section 107 of the said Act provides that nothing contained in the Limitation Act, 1963 shall apply to any suit for recovery of possession of immovable property comprised in any Wakf or for possession of any interest in such property. The High Court in second appeals also affirmed the concurrent findings of the two courts below that the suit properties were Wakf properties. However, on the question of limitation, the High Court by the common judgment, which is under challenge in this Court, held that in view of coming into force of Section 107 of the Wakf Act, the bar of limitation no longer existed and also held that in view of Section 112 of the Wakf Act, such provision also applied to the pending proceedings and upon the aforesaid findings as noted herein above, the appeals were dismissed. So far as the plea of adverse possession is concerned, it was held by the High Court in the common judgment that the same was not available to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents were barred by limitation and whether the plea of adverse possession was available to the appellants in the suit filed by the Wakf/respondents. So far as the question of limitation is concerned, we may reiterate, as noted herein earlier, that the trial court on consideration of the evidence and other materials on record, held that in the facts and circumstances of the present case and on the interpretation of Article 134-B of the Limitation Act, 1908 and Article 96 of the Limitation Act, 1963 and also relying on several decisions of this Court, rejected the contention of the Wakf/respondents and held that the suits were barred by limitation under Article 134-B of the Limitation Act, 1908. However, in appeal, the first appellate court had taken a contrary view and held that the suits were filed within 12 years of the appointment of the last Muthavalli and accordingly, relying on Article 96 of the Limitation Act, 1963, it held that the suits were not barred by limitation. It was also held by the first appellate court that the alienations of the Wakf properties were by the persons who were holding them in trust and, therefore, on its understanding of the scope of Section 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 31 of the Limitation Act, 1963. Therefore, the learned counsel for the appellants contended that under Article 134-B of the Limitation Act, 1908, the suits were clearly barred by limitation and, therefore, Section 107 of the Wakf Act could not have the effect of reviving the barred claim as it is settled law that the right to sue is barred under the law of limitation in force before the new provision comes into operation and the vested right accrued thereon, the new provision could not revive the barred claim or alternatively shall take away the accrued vested right, if any. In support of this contention, the learned counsel for the appellant strongly placed reliance on Section 6(a) of the General Clauses Act, 1897 and Section 112 of the Wakf Act . 9. So far as the plea of adverse possession is concerned, the learned counsel for the appellants further submitted that since the suit properties were accepted by the State Government as the individual properties of the appellants considering them as absolute owners of the same for which the State Government had granted individual pattas to the appellants in respect of the suit properties, the courts below were wrong in decreeing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd section abrogated or destroyed the vested rights, if any, and not that the repealing act made alive past actions. Accordingly, it was submitted that the Wakf Act only kept alive the appurtenant etc. or administrative actions in its negative sense but destroyed that vested rights in positive terms by enacting Sections 107 and 112 of the Act and by Sections 59A and 59B of the Wakf (Tamil Nadu Amendment Act), 1982. The learned counsel for the respondents also submitted the following : 1) An appeal is a continuation of a suit. 2) The court in appeal was bound to take notice of the supervening events and the changes in law 3) All procedures in law are retrospective in operation and ; 4) Section 107 of the Wakf Act must be said to be retrospective in operation. 12. Having heard the learned counsel for the parties and after considering the judgments of the courts below including the materials on record and the statutory provisions, namely, provisions of Wakf Act, Limitation Act, 1908 and 1963, the moot question that needs to be decided in this appeal is whether Section 107 of the Wakf Act is retrospective in operation or whether it can have the effect of reviving barred cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owers conferred by or under this Act as if this Act was in force on the day on which such things were done or action was taken. 13. Some provisions of the Limitation Act, viz., Article 134-B of the Limitation Act, 1908, Article 96 of the Limitation Act, 1963 and Section 31 of the Limitation Act, 1963 are also very relevant for our purpose and therefore the said provisions are reproduced as under: - Article 134 -B of the Limitation Act, 1908 - By the manager of a Hindu, Muhammadan or Budhist religious or charitable endowment to recover possession of immovable property comprised in the endowment which has been transferred by a previous manager for a valuable consideration---- the Limitation is 12 years----The period shall run from the death, resignation or removal of the transferor. Article 96 of the Limitation Act, 1963- By the manager of a Hindu, Muhammadan or Budhist religious or charitable endowment to recover possession of movable or immovable property comprised in the endowment which has been transferred by a previous manager for a valuable consideration. ----The period of limitation is 12 years---The period shall run from the date of death, resignation or removal of the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above findings of the trial court, the first appellate court, while decreeing the suits, arrived at the following findings: - 1. The judgment in C.V.Purushotham vs. Chinna Jeevangar Mutt Tirupati [AIR 1975 AP 153] could not be relied upon because it was delivered by a different High Court and reliance had to be placed in the case of The Special Officer for Wakfs, Madras Vs. Subramanyam Ors. [1976 Vol.89 Law Weekly 467] and S.A. 800/72 and S.A. 452/72 which stated that suits could be filed within 12 years from the date of appointment of Muthavalli. 2. The Public Property (Extension of the Limitation) Act 1959 had extended the time limit in cases like this so that these cases could be filed until 31.12.1970 if the transfers were made between 14.8.1947 and 7.5.1954. 3. As per section 31 of the Limitation Act, 1963, it was evident that if the plaintiff s right had not been affected, he could file the suit. It had been stated that the expiry date which was made like that under the Limitation Act, 1908 could not be renewed as per the new act and that if the time limit had been reduced as per the Limitation Act, 1963, it would not be applicable to the pending suits. The recital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) A separate tribunal is constituted for determining disputes regarding Wakfs under Section 83. c) The jurisdiction of civil courts are barred under section 85 of the act, in respect of disputes determinable by the tribunal. d) Section 112(2) specifically mandates that anything done or action taken thereon shall be deemed to be taken under the corresponding provision of the act. In this context, the expression, anything done or any action taken in the exercise of the powers had been held not to mean or include an act done by a person in contravention of the provisions of the act but as intended only to keep alive the official actions, rules and notifications issued and done in the exercise of the powers conferred under the repealed provisions vide judgment of this Court in State of Punjab vs. Mohar Singh Pratap Singh s case (supra). Therefore, in the absence of a specific provision expressly saving or protecting the pending legal proceedings, it would be incumbent on the courts to give full effect to the provisions of the act. e) The act, being a welfare legislation, passed with the intention of protecting trust properties, ought to be considered in a manner consistent with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he coming into force of the Wakf Act, the said Act did not advert to the question of applicability of the Limitation Act, 1908 or the Limitation Act, 1963 on a peculiar facts of this case because according to the High Court, the question of limitation ceased to exist after Section 107 of the Act as it applied to pending proceedings also. As noted herein earlier, the High Court did not decide whether the suits were barred by Limitation. However, in the present case, it would be expedient that before we determine whether or not Section 107 applies to pending proceedings also thereby making the bar of limitation non est, we should decide whether Article 96 of the Limitation Act, 1963 would apply or Article 134B of the Limitation Act, 1908 would apply in order to ascertain whether the suits actually stood barred by limitation. It was the findings of the first appellate court that the suits were filed within the limitation period as prescribed under Article 96 of the First Schedule to the Limitation Act, 1963 whereas the Trial Court had held that the suits were barred by limitation in view of Article 134B of the Limitation Act, 1908. 19. From a careful consideration of the above aspec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary Articles 142 and 144 of the said Act. Articles 94 and 96 of the Limitation Act, 1963 correspond to Articles 134A and 134B of the Limitation Act, 1908, while Articles 64 and 65 of the Limitation Act, 1963 correspond to Articles 142 and 144 of the Limitation Act, 1908. The corresponding old law was Section 66G of the Wakf Act, 1954 inserted by the Amendment Act 69 of 1984. 22. Section 107 lays down that nothing contained in the Limitation Act, 1963 shall apply to any suit for possession of immovable property comprised in any Wakf or for possession of any interest in such property. Thus it can be said that this section virtually repeals the Limitation Act, 1963 so far as the Wakf properties are concerned. Therefore, it can be concluded without any hesitation in mind that there is now no bar of limitation for recovery of possession of any immovable property comprised in a Wakf or any interest therein. In this background, let us now see whether this section has any retrospective effect. It is well settled that no statute shall be construed to have a retrospective operation until its language is such that would require such conclusion. The exception to this rule is enactments deali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under the corresponding provisions of this Act. In the present case, there is no specific provision which stipulates that Section 107 has any retrospective effect. If we look at Section 112, it is clear that Sub-Section (2) is the saving clause and provides validity to the actions taken under the repealed act. As noted hereinearlier, the High Court has proceeded on the assumption that a reading of Section 112 of the act leads to the conclusion that the provisions of the act are intended to apply to pending proceedings also. With regard to Section 6 of the General Clauses Act, it has observed that although it is true that under that section, the repeal of an enactment will not affect any right, privilege, obligation or liability acquired or incurred under the repealed enactment, but this provision cannot be resorted to if a different intention appears and therefore, Section 6 cannot be applied to every repealed provision or enactment regardless of the intention of the legislature and the language used in the repealing provision, the object of the repeal and the existence of a savings clause. We agree with the observations of the High Court with regard to Section 6 of the General C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that even pending proceedings should be affected by such amendment. We are not inclined to accept this submission. It is an admitted position that there is no express provision provided for retrospective effect and Section 112 clearly saves actions done under the repealed enactment. Therefore, we are not inclined to accept the first reasoning given by the High Court to hold that Section 107 is retrospective in operation. 26. Let us now look at the other ground taken by the High Court to hold that Section 107 has a retrospective effect. The High Court has held that it is a settled proposition of law that in procedural matters, there is no vested right and hence any amendment to the procedural matters would apply to pending proceedings also. The learned counsel for the respondent relied in the case of C.Beepathuma Ors. vs. Velasari Shankaranarayana Kadambolithaya Ors. [AIR 1965 SC 241] in support of his submission that law of limitation was only a procedural law and the provisions existing as on the date of the suit should be applied. Similarly, in Mst.Rafiquennessa vs. Lal Bahadur Chetri (since deceased) and his LRs. Ors. [AIR 1964 SC 1511], it was held that where vested rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the concerned properties. It is well known that the effect of Section 28 of the Limitation Act is not only to bar the remedy but also extinguish the right. The right to the property itself was dead and gone. It could not be revived by a provision like the one contained in Section 52A of the Act. 28. In the present case, as noted herein earlier, the trial court had held that the suits were barred under Article 134B of the Limitation Act, 1908 and, therefore, since the suits were barred under the 1908 Act, in view of Section 31 of the Limitation Act, 1963, Article 96 of the 1963 Act could not be applied. Section 31 was overlooked by the first appellate court. Therefore, in our view, when the right stood extinguished, Section 107 cannot have the effect of reviving the extinguished right/claim. This principle has also been followed in Karnataka Steel Wire Products and others Vs. Kohinoor Rolling Shutters Engg. Works and others (2003) 1 SCC 76. 29. The learned counsel for the respondents argued before us that in the present case, only the remedy was barred but the right was not extinguished and therefore, no reliance can be placed on the authorities cited above. We are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 713] and S.Gopal Reddy vs. State of A.P. [(1996) 4 SCC 596] have no application to the facts of the case because in these cases, unlike the present case, there was no extinguishment of the rights. 31. Let us now answer the submissions on behalf of the learned counsel for the respondents. The learned counsel for the respondents relied on a decision of this court in Smt.Dayawati Anr. V s. Inderjit Ors. [(1966) 3 SCR 275] to suggest that the law affecting procedure is always retrospective and therefore, Section 107 should be given retrospective effect. In Dayawati s case (supra), this court observed as under: - Now as a general proposition, it may be admitted that ordinarily a court of appeal cannot take into account a new law, brought into existence after the judgment appealed from has been rendered, because the rights of the litigants in an appeal are determined under the law in force at the date of the suit Matters of procedure are, however, different and the law affecting procedure is always retrospective. But it does not mean that there is an absolute rule of inviolability of substantive rights. If the new law speaks in language, which, expressly or by clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposition that Section 6, General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the Section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law Thus where the repealing section of the fresh enactment which purports to indicate the effect of repeal on previous matters, provides for the operation of the previous law in part and in negative terms as also for the operation of the new law in the other part and in positive terms, the said provision may well be taken to be self contained and indicative of the intention to exclude the application of Section 6 of the General Clauses Act .. Subsection 3 of section 58, Administration of Evacuee property Act, 1950 purports to indicate the effect of the repeal, both in negative and in positive terms. The negative portion of it relating to the previous operation of the prior Ordinance appears to have been taken from Section 6 (b) General Clauses Act while the positive po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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