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TMI Blog2004 (4) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... idence 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 exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt as owner of the suit properties on the ground that they have perfected their title by adverse possession and consequential relief for permanent injunction. There are three sets of properties in each of these three matters. One is CTS No.24 of Ward No.VI, described as "Karimuddin's Mosque", another is CTS No.36 of Ward No.VI, described as "Macca Masjid" and the other is CTS No.35 of Ward No. VI, described as " Water Tower". All of them were situated at Bijapur. The claim made by the first respondent is that they acquired the suit property under the Ancient Monuments Preservation Act, 1904 (Ancient Monuments Act) and a notification has been published in that regard and the suit property had been entered in the Register of Ancient Protected Monuments incharge of the Executive Engineer. Thereafter, the Government of India enacted the Ancient Monuments And Archaeological Sites and Remains Act, 1958 and the suit property came to be under the management of the Department of Archeological Survey, Government of India. It is asserted by the first respondent that in all the relevant records, the name of the Government of India has been shown as the owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve nothing to show that even after the demise of Peer Mahabari Khandyat they remained in the possession of the same. The properties in question were acquired by the Government of India as long back as 1900 and they started preserving them as important historical monuments and they remained in possession and enjoyment of them. This was clear both from oral and documentary evidence and on that basis, the Trial Court held that they are owning and managing the suit properties. The Trial Court also gave a finding that the Wakf Board itself declared these properties as Wakf properties without properly following the relevant provisions of the Wakf Act and without following due procedure prescribed therein and in a case where there is a dispute as to who is a stranger to the Wakf, a mere declaration by the Wakf Board will not bind such person and on that basis the Trial Court decreed the suit. The matter was carried in appeal. A Division Bench of the High Court examined the matter once over again and affirmed the findings of the Trial Court. The Division Bench also noticed that at the end of the arguments the appellant made a submission that as they have not produced some of the important ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Karnataka Gazette Notification page No. 608/Part VI dated 08/07/1976 they became absolute owners and title holders of the suit property; that pursuant to the circulars dated 08/06/1978 and 22/01/1979 the Deputy Commissioner of the Districts were instructed to handover possession of any Wakf Properties that are under the possession of any Government Department; that by virtue of the said circular Assistant Commissioner, Bijapur held enquiry under section 67 of the Karnataka Land Revenue Act, 1964 and arrived at the conclusion that the suit property is a Wakf Property; that the alleged acquisition by the Respondent itself is a concocted story; that the Notification and the Gazette publication itself is a notice to all concerned and the Respondent failed to reply to this notice; that the original suit is bad by limitation; that the original suit itself is not maintainable since there is no notice under section 56 of the Old Wakf Act; that the plea regarding title of the suit property by the Respondent and the plea of adverse possession is mutually exclusive; that therefore the appeal is to be allowed. Pertaining to the ownership claim of Appellants over the suit property there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under section 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. Now we will turn to the aspect of adverse possession in the context of the present case. Appellants averred that the plea of the respondent based on title of the suit property and the plea of adverse possession are mutually exclusive. Thus finding of the High Court that the title of Government of India over the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 that is similar to the case in hand, this Court held: "As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right there under and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant." As we have already found, Respondent obtained title under the provisions of Ancient Monuments Act. The element of Respondent's possession ..... X X X X Extracts X X X X X X X X Extracts X X X X
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