S.B.MAJMUDAR - (1.) WAKF Board Andhra Pradesh, the appellant before us has brought in challenge the decision rendered by a Division Bench of the High Court of Andhra Pradesh allowing the appeal of the respondent-defendant and dismissing the suit of the appellant-WAKF Board for possession of the suit property.
(2.) THE suit property consists of 481/2 cents of land situated in Nellore Town in Nellore District of Andhra Pradesh. THE appellant-Board as plaintiff filed in suit on 17-1-1973 in the Court of learned District Judge, Nellore. THE appellant's case in brief was that the suit property is wakf and is an Imam land granted to the then Paish Imam for rendering prayers at the Mosque commonly known as Abbas Ali Khan Mosque or Badruddin Ali Khan Mosque or Mustafa Ali Khan Mosque located in Big Bazar of Nellore Town. That the said land was sold by the then Paish Imam of the Mosque one Ghous Saheb to one Noor Mohammed on 24-4-1952. Obviously, Noor Mohammed came in possession of the land in question from that date. THE said Noor Mohammed sold the very same land to one Mathew on 4-7-1962. Mathew in his turn sold the property to his son, Jacob on 29-3-1966 and Jacob then sold the said property to the present respondent-defendant for a consideration of Rs. 15,000.00 on 20-8-1971. THE appellant Board challenged the said alienations by filing the aforesaid suit. Amongst others, one of the defences put forward by the respondent was that the suit was barred by limitation. Learned trial Judge took the view that the suit land was service Imam land alienated by Ghous Saheb who was Paish Imam of the Mosque. He could be treated to be a person who had illegally disposed of the Wakf property. Suit filed by the plaintiff Board for possession from the hands of his latest successor in interest could be said to be within time in the light of Article 96 of the Limitation Act, 1963 as well as Section 3 of the Public Wakfs (Extension of Limitation) Act, 1959 (hereinafter to be referred to as the 'Extension Act'). Consequently, the solitary defence of the defendant that the suit was barred by limitation and the defendant was in adverse possession was negatived and the decree for possession was passed against the respondent. The respondent carried the matter in appeal. The Division Bench of the High Court by its impugned judgment took the view that the suit was barred by limitation and consequently, the appeal was allowed and the suit was dismissed. That is how the appellant-Board is before us in the present appeal on obtaining special leave to appeal under Article 136 of the Constitution of India. In support of this appeal, learned counsel for the appellant submitted that the High Court was in error in taking the view that the suit was barred by limitation. In support of his contention, he in the first instance invited our attention to the Extension Act. Section 3 of the said Act reads as under. "3. Extension of period of limitation in certain cases for suits to recover possession of immovable property forming part of public wakfs- Where a person entitled to institute a suit of the description referred to in Art. 142 or Art. 144 of the First Schedule to the Indian Limitation Act, 1963, for possession of any immovable property forming part of a public wakf or any interest therein has been dispossessed, or as discontinued the possession, at any time after the 14th day of August, 1947 and before the 7th day of May, 1954, or, as the case may be, the possession of the defendant in such a suit has become adverse to such person at any time during the said period, then notwithstanding anything contained in the said Act, the period of limitation in respect of such a suit shall extend up to the 31st day of December, 1970."
(3.) IN its application in the State of Andhra Pradesh, by the State amendment, the period was extended from time to time and by A.P. Act 10 of 1980, S. 2 the said period was further extended with effect from 31-12-1979 to 31-12-1981. It is not in dispute between the parties that at the relevant time when the suit was filed in 1973, the said period stood extended up to 31-12-1972. A mere look at Section 3 of the Extension Act shows that it would be of any help if it is found that the possession of the land which was sought from the defendant belonged to a public wakf. The term 'public wakf' is defined in Section 2 of the said Act to mean permanent dedication by a person professing Islam of any immovable property for any purpose recognised by Muslim Law as a public purpose of a pious, religious or charitable nature. It cannot be disputed that the land in question which was sold by the then Paish Imam, Ghous Saheb in 1952 was a service Imam land granted to him for performing services as Paish Imam at the Mosque. It was not directly dedicated to the Mosque. Therefore as per the definition of Public Wakf the suit land being a service grant cannot be treated to be a public wakf. In this connection it is profitable to refer to the definition of 'wakf' as found in the Wakf Act, 1954. As per Section 3(1) of the said Act, the definition of 'wakf' is as under. "3(1). "wakf" means the permanent dedication by a person professing Islam or any other person of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes- (i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser; (ii) grants (including mashrut-ul-khidmat, muafies, Khairati, qazi services, madadmash for any purpose recognised by the Muslim law as pious, religious or charitable; and (iii) a wakf-alal-aulad; . . . . . . . . . . . . ." ;