Decided on December 14,1970

Mohammed Nirulla Badsha Appellant
Nawab Ghulam Mohideen Khan Bahadur, Muthavalli, Prince Of Arcot Endowments, Represented By Agent Ahamed Mohideen Sahib Bahadur And Anr. Respondents


M.M.Ismail, J. - (1.) AS the matter has come before this Court the question involved in. this Second Appeal is one of limitation only. The first respondent herein instituted the suit for declaration of his title to the suit property and for recovery of the same from the appellant and the second respondent herein, with past and future profits. Among other defences, one of the defences put forward by the appellant and the second respondent was one of limitation. The question of limitation arises in the following circumstances:
(2.) ON 5th December, 1944, the first respondent caused a notice, Exhibit B -17 to issue to the second respondent alleging that he was in occupation of the property on a monthly rental of Rs. 5 from 1st June, 1944 and calling on him to vacate and hand over possession. The second respondent sent a reply Exhibit B -18 dated 12th January, 1945, stating that he has executed a rental agreement to the appellant herein and that he has been paying rent to him. Immediately thereafter, the first respondent caused a notice Exhibit B -2 dated 14th February, 1945 to be sent to both the appellant and the second respondent alleging that the appellant is wrongfully collecting rents of the1 room in question from 1st June, 1944 and calling on the appellant to pay the amounts so far Collected by him to the first respondent and asking the second respondent to pay the rent thereafter direct to the endowment. Exhibit B -3 dated 21st March, 1945 is the reply notice by the appellant under which he claimed title to this property through his father. The matter stood there. Because of some litigation in the family of the Prince of Arcot, no further proceedings were taken in the matter. Subsequently in November, 1957, the first respondent caused a notice Exhibit A -4 to be sent to the appellant calling on him to deliver possession. That was followed by the reply notice Exhibit A -5 dated 20th December, 1957. Thereafter the suit was instituted for the reliefs referred to above. With reference to these facts, both the Courts came to the conclusion that the suit is not barred by limitation by virtue of Section 3 of the Public Wakfs (Extension of Limitation) Act (XXXI of 1959) and decreed the suit. Hence the present second appeal.
(3.) NO doubt, the appellant herein claimed title to the property itself. But before me, the second appeal was argued solely on the question of limitation. According to the learned Counsel for the appellant Section 3 of Central Act XXIX of 1959 does not save the suit from the bar of limitation with reference to the facts of the case. The learned First Additional City Civil Judge, Madras, who disposed of the appeal stated as follows in paragraphs 9 and 10 of his judgment: 9. In the circumstances it is clear that the first defendant should have been in occupation of this property only from 1944 onwards. By the time the Act XXIX of 1959 came into force, the first defendant has not perfected title to the property by adverse possession. As such, the present suit filed in June, 1963 is clearly in time. 10. The contention of the first defendant that he can tack on the possession of his father so as to complete the statutory period of 12 years before the Act XXIX of 1959 came into force is not available to him, since the first defendant has failed to establish that his father at anytime was in possession of this property and in continuation of his father's possession, he (the first defendant) has been in possession.;

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