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TMI Blog2008 (8) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... nstance 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") had instituted two suits in the Court of District Munsif, Vridachalam for a decree for recovery of possession of the suit properties as fully described in the plaint and for mesne profits. The Wakf/respondents claimed in their plaint that the suit properties belonged to them whereas the appellants before us alleged in their written statement that the suit properties were not Wakf properties but they were private properties of one Syed Kasim Saheb and others. After the death of Syed Kasim Saheb and others, their legal heirs and representatives had sold the suit properties to the appellants. The appellants further alleged that the suits were barred by limitation under Article 134-B of the Limitation Act, 1908. An additional plea was also taken by the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the appellants. After the pronouncement of the judgment in SA Nos. 972 and 973 of 1996, two applications being CMP Nos. 3200 and 3201 of 2000 were filed before the High Court for bringing on record the legal heirs and representatives of one of the appellants V.T. Duraiswami, who had passed away during the pendency of the second appeals. The applications for bringing on record the legal heirs and representatives of the deceased, V.T.Duraiswami, one of the appellants, were rejected by the High Court. As noted herein earlier, against the common judgment and decree dated 19th of November, 1999 of the High Court passed in the aforesaid second appeals and the order dated 24th of April, 2000 passed in CMP Nos. 3200 and 3201/2000 rejecting the applications for sett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 of the Limitation Act, 1963 held that the alienations did not meet the legal requirements for a plea of adverse possession against the trust. Keeping in mind the findings of the trial court and the appellate courts, we may note that the High court, in the impugned judgment, has not given its opinion whether Article 96 of the Limitation Act, 1963 would apply or Article 134-B of the Limitation Act, 1908 would apply in the present case. Without going into this, the High Court instead held that in view of the coming into force of the Wakf Act, the bar of limitation no longer exists and has held that the provision to that effect viz., Section 107 of the Wakf Act would also apply to pending proceedings. 7. In the backdrop of these findings arrived at by the courts be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the suit on the ground that the suit properties were Wakf properties and that plea of adverse possession of the appellants in respect of the same could not be accepted. It was further contended that since the suit properties were the subject matter of alienation as early as in 1927 and there had been successive alienations upto 1975, it must be accepted that the original Inamdars and their legal heirs had perfected the title in respect of the suit properties by adverse possession even prior to 1927. It was also argued by the learned counsel for the appellants before us that the High Court went wrong in declining to allow the application for impleadment of the legal representatives of the deceased V.T.Doraiswami when there were genuine reasons for the delay. 10. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 claims. Section 107 of the Wakf Act was made inapplicable to any suit for recovery of Wakf properties under the Limitation Act, 1963. As noted herein earlier, the Wakf Act was enacted at the time when the second appeals of the appellants were pending. Before we decide the question as posed, we may note the relevant provisions of the different Acts which are as follows :- Since Section 107 of the Wakf Act is the bone of contention of both the parties, we may first reproduce the said section which is as under :- "107. Act 36 of 1963 not to apply for recovery of wakf properties.--- 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." Section 6 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ror. 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 transferor or the date of appointment of the plaintiff as manager of the endowment, whichever is later. Section 31 of the Limitation Act, 1963- "31. Provision as to barred or pending suits, etc. -Nothing in this Act shall, a) enable any suit, appeal or application to be instituted, preferred or made, for which the period of limitation prescribed by the Indian Limitation Act, 1908 expired before the commencement of this Act; or b) affect any suit, appeal or application instituted, preferred or made before, and pending at, such commencement." 14. Although we have already briefly noted the findings of the courts below, we feel it proper to undertake a more extensive examination. The trial court, while dismissing the suits for recovery of possession and mesne profits arrived at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 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 recitals found in Article 96 of the Limitation Act, 1963 had to follow absolutely and straining the language would not be permissible since it would cause hardship to others later. Therefore under Article 96 of the Limitation Act, 1963, since the suit had been filed within 12 years from the date of appointment of muthavalli, the suit was not barred by limitation. 4. No right of adverse possession existed because the suit properties were wakf properties and, therefore, the Inamdars were trustees of the same. 5. Even if the defendants/appellants had been in possession of the properties and paying patta for many years or transferred the patta in their own name, they could not get the right of adverse possession in view of Section 10 of the Limitation Act, 1963. 16. The High Court, while affirming the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 upholding the said objective. The objective of the legislature was to destroy the rights of trespassers and imperfect the alienees claiming adverse title against the trust properties and as such, no distinction can be made between the pending proceedings and proceedings to be commenced afresh. The various provisions of the Act are self contained code intended to affect pending proceedings also. f) In the suits filed by the occupants or the wakfs prior to the coming into force of the act, the wakfs will not be entitled to raise the defence under Section 107 whereas any suits filed or to be filed belatedly after coming into force of the Act, the wakf would be entitled to raise the said defence and the occupants would be deprived of their right to raise the plea of adverse possession. The legislature could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 aspect of the matter, in our view, the first appellate court was not justified in holding that the suits were filed within the period of limitation as prescribed under Article 96 of the Limitation Act, 1963. In our view, the view taken by the trial court was the correct one and Article 134B of the Limitation Act, 1908 would apply. We have carefully noted two articles viz. Article 96 of the Limitation Act, 1963 and Article 134B of the Limitation Act, 1908 and we find that they are different from each other in so far as while under the 1908 Act, 12 years was to run from the death, resignation or removal of the transferor, under the 1963 Act, the said period of 12 years was to run from the date of death, resignation or removal of the transferor or the date of appointment of the plaintiff as manager of the endowment, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overy 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 dealing with procedure. This would mean that the law of limitation, being a procedural law, is retrospective in operation in the sense that it will also apply to proceedings pending at the time of the enactment as also to proceedings commenced thereafter, notwithstanding that the cause of action may have arisen before the new provisions came into force. However, it must be noted that there is an important exception to this rule also. Where the right of suit is barred under the law of limitation in force before the new provision came into operation and a vested right has accrued to another, the new provision cannot revive the barred right or take away the accrued vested right. At this juncture, we may again note Section 6 of the General Clauses Act, as reproduced herein earlier. Section 6 of the General Clauses Act clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Clauses Act, but we are afraid, we are not inclined to accept the reasoning of the High Court that Section 112 shows that the Act had a retrospective effect. Section 112 (2) of the Act is a saving clause and saves the actions already done or taken under the repealed enactment. This cannot lead to the conclusion that the Act has been given a retrospective effect. Rather, if seen properly, this saving clause in the absence of any specific provision providing retrospective effect to the Act, reinforces the suggestion that Act has no retrospective effect. This is because it saves actions already taken under the repealed enactment, i.e., it provides that the new provisions will not affect the validity of the actions already taken or in other words, it says that there will not be a retrospective effect. We do not mean to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 rights are affected by any statutory provision, the said provision should normally be construed as prospective unless the provisions related to a procedural matter. In Mohd. Idris & Ors. vs. Sat Narain & Ors. [AIR 1966 SC 1499], it was held that the law affecting procedure was also retrospective. Similarly in Qudratullah Vs. Municipal Board, [1974 (1)SCC 202] it was held in respect of a provision that even if Section 6 of the General Clauses Act could be held as applicable, the provision was only procedural and hence applicable to pending proceedings. The ratios of the above authorities undoubtedly lay down the correct position of law. Before we express any opinion on the above argument of the learned counsel for the respondents, the ensuing discussion on some of the other aspects is very important. 27. Section 107 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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 not inclined to accept this submission of the learned counsel for the respondents. It is true that there is a difference between extinguishing a right and barring a remedy. The difference has been explained by this court in Prem Singh and others Vs. Birbal and others (2006) 5 SCC 353 wherein this court at paragraph 11 and 12 observed as under: - "11. Limitation is a statute of repose. It ordinarily bars a remedy, but, does not extinguish a right. The only exception to the said rule is to be found in Section 27 of the Limitation Act, 1963 which provides that at the determination of the period prescribed thereby, limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. 12. An extinction of right, as contemplated by the provisions of the Limitation Act, pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 intendment, takes in even pending matters, the court of trial as well as the court of appeal must have regard to an intention so expressed, and the court of appeal may give effect to such a law even after the judgment of the court of first instance. The distinction between laws affecting procedure and those affecting vested rights does not matter when the court is invited by law to take away from a successful plaintiff, what he has obtained under judgment." 32. We have to agree that the decision relied upon by the learned counsel for the respondents which lays down the correct position of law but we are afraid that it is distinguishable on facts and cannot be of any help to the respondents. First, Dayawati's case (Supra) was not a case of extinguishment of right in property. Moreover, in that case, there was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication 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 portion adopts a" deeming" provision quite contrary to what is contemplated under that section. Under the General Clauses Act, the position in respect of matters covered by it would have to be determined as if the repealing Act had not been passed, while under section 58 of Central Act 31 of 1950, the position so far as positive portion is concerned has to be judged as if the repealing Act were in force at the earlier relevant date. Section 6 of the General Clauses Act cannot therefore be called in aid in a case governed by Section 58(3) of the Act......." 33. After considering this submission of the learned counsel for the respondents, it may appear that the controversy has narrowed down to the point whether Section 6 of the General Clauses Act would apply in this case or not. That is to sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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