Case Note & Summary
The appellant, Maratwada Wakf Board, filed a second appeal under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment of the first appellate court dated 16.09.1994, which had set aside the trial court's decree in favor of the Board. The Board had filed Regular Civil Suit No. 4 of 1977 seeking a declaration that a Dargah and graveyard in Survey No. 153 at Rajura, Chandrapur, was wakf property and for possession of an encroached portion. The Board claimed that the property was shown as wakf in the development plan of 1972 and in the Government Gazette dated 06.03.1975. The defendant no.1, Deepak Deshpande, had encroached upon 160 ft. X 170 ft. in May 1974 and sold part of it to defendant no.2. The defendants denied the wakf character and claimed ownership through a court auction in 1923. The trial court decreed the suit, but the first appellate court reversed it, holding that the Board had not proved the wakf character and that the suit was barred by limitation and adverse possession. The High Court framed substantial questions of law regarding the maintainability of the suit without prior notification under Section 6 of the Wakf Act, 1954, and whether the suit was barred by limitation and adverse possession. The High Court held that the Wakf Act does not require prior notification for a suit for declaration and possession, and that wakf property cannot be acquired by adverse possession. The court found that the first appellate court's findings were perverse as it ignored the Gazette notification and other evidence. The High Court allowed the appeal, set aside the first appellate court's judgment, and restored the trial court's decree, directing the defendants to deliver possession of the encroached portion.
Headnote
A) Wakf Law - Suit for Declaration and Possession - Section 6 of Wakf Act, 1954 - Prior Notification - The Wakf Board can file a suit for declaration that a property is wakf and for possession without prior notification under Section 6 of the Wakf Act, 1954, as the section only applies to disputes regarding the list of wakfs published under Section 5. The suit was for declaration of wakf character and possession, not for challenging the list. (Paras 10-12) B) Limitation and Adverse Possession - Wakf Property - Article 65 of Limitation Act, 1963 - Wakf property is not subject to adverse possession as it belongs to God and is held in trust for religious purposes. The defendant cannot claim title by adverse possession against a wakf. The suit for possession filed within 12 years of the encroachment in 1974 was within limitation. (Paras 13-15) C) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court can interfere with concurrent findings of fact if they are perverse or based on no evidence. The first appellate court's finding that the suit property was not wakf was perverse as it ignored the Gazette notification and other evidence. (Paras 16-18)
Issue of Consideration
Whether the Wakf Board can maintain a suit for declaration and possession without prior notification under Section 6 of the Wakf Act, 1954, and whether the suit is barred by limitation and adverse possession.
Final Decision
The High Court allowed the second appeal, set aside the judgment of the first appellate court, and restored the judgment and decree of the trial court. The defendants were directed to deliver possession of the encroached portion to the appellant.
Law Points
- Wakf property is not subject to adverse possession
- Wakf Board can sue for declaration and possession without prior notification under Section 6 of Wakf Act
- 1954
- Section 100 CPC substantial question of law
- burden of proof on defendant to prove title
- concurrent findings of fact can be interfered with if perverse
