Bombay High Court

Pandit Bala Adhane vs Shaikh Ahmed Shaikh Shamshoddin And ... on 3 February, 2025

2025:BHC-AUG:3037
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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD

                     CIVIL REVISION APPLICATION NO.115 OF 2018

               Pandit Bala Adhane (Died)
               Through Legal Representavit

               1.    Shivaji s/o Panditrao Adhane,
                     Age: 55 years, Occu. Agri.

               2.    Dattu s/o Panditrao Adhane,
                     Age: 48 years, Occu. Agri,

               3.    Kamlabai wd/o Bandu Adhane,
                     Age: 50 years, Occu. Agri.

               4.    Santosh s/o Bandu Adhane,
                     Age: 34 years, Occu. Agri.

               5.    Rajesh s/o Bandu Adhane,
                     Age: 32 years, Occu. Agri,
                     All R/o Post Garden, Tq. Khultabad,
                     Dist. Aurangabad.

               6.    Ashabai w/o Jagannath Gawande,
                     Age: 65 years, Occu. Agri.

               7.    Usha w/o Ganpat Gawande,
                     Age: 50 years, Occu. Agri.

               8.    Sangeeta w/o Yogesh Gawande,
                     Age: 40 years, Occu. Agri.
                     All R/o Post Aavhana, Tq. Bhokardan,
                     Dist. Jalna                                    ..Applicants
                          Versus
               1.    Shaikh Ahmed Shaikh Shamshoddin,
                     Age: 56 years, Occu: Business

               2.    Shaikh Asad Shaikh Ishaque,
                     Age: 40 years, Occu: Business,
                     R/o. Gadana, Tq. Khultabad,
                     Dist. Aurangabad.      ..Respondents/Original Plaintiffs.

               3.    Prakash Suppad Adhane,
                     Age: 63 years, Occu: Agri.
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     Both R/o. Gadana,
     Tq. Khultabad, Dist. Aurangabad

4.   The Maharashtra State Board of Waqf,
     Through its Chief Executive Officer,
     Having office at Panchakki, Aurangabad.
                             ..Respondents/Ori. Deft. Nos.2 and 3.
                          ...
Mr. A. R. Vaiday, Advocate for Applicants.
Mr. S. S. Bora h/f Mr. Shaikh Naseer, Advocate for Respondent
Nos.1 and 2.
Mr. N. E. Deshmukh, Advocate for Respondent No.4.
                             ...
                        CORAM : S. G. CHAPALGAONKAR, J.
                        DATED : 03rd FEBRUARY, 2025.

JUDGMENT:

1. Rule. Rule made returnable forthwith. With the consent of

parties, matter is taken up for final hearing at the stage of

admission.

2. The applicant/original defendant no.1 impugns judgment and

order dated 26.04.2018 passed by Maharashtra State Waqf

Tribunal at Aurangabad in Waqf Suit No.71/2012. (Hereinafter,

parties are referred to by their original status for the sake of

convenience and brevity).

3. The respondent nos.1 and 2 instituted Waqf Suit No.71/2012

contending that Masjid Gadana in Taluka Khultabad is registered

Waqf Institution. The plaintiffs are members of Masjid Committee.

The land Survey No.180 (Gut No.312) is Waqf property as per list

published in Maharashtra Government Gazette dated 15.11.1973

and the same is only source of income of Masjid. The defendant (3) cra-115-2018.odt

nos.1 and 2 unlawfully possessed property and managed to enter

their names in the mutation record as Maruti Inam instead of

Masjid Inam. In the year 1997, mischief was surfaced. The

Tahsildar, Khultabad certified that entry as Maruti Inam is wrong

and that has been corrected as Masjit Inam. On 02.06.2012,

plaintiffs asked defendant nos.1 and 2 to hand over possession of

the property, but they refused to do so. Hence, cause of action

arose to file suit seeking recovery of possession.

4. The pleadings in the suit were refuted by defendants

contending that they are in possession of property since long. The

Waqf Institution has lost its title in respect of suit property in

terms of Section 27 of the Limitation Act. The suit is hopelessly

barred by limitation. The defendant no.3 filed written statement

admitting contentions in the plaint. The Tribunal framed the

issue, recorded evidence and accepted claim of plaintiffs while

rejecting defence of limitation as raised by defendants.

Consequently, decree for possession has been passed in favour of

Waqf with further direction against defendants to not to alienate or

create third party interest in any manner in respect of suit

property.

5. Mr. Vaidya, learned Advocate appearing for the applicants

submits that taking pleadings of the plaintiffs, apparently suit is

hopelessly barred by limitation. He submits that certified copy of (4) cra-115-2018.odt

the Gazette itself shows long standing possession of defendants

over the suit property. This fact is not disputed. Referring to

Section 66(G) of old Waqf Act, 1954, he submits that it has been

inserted w.e.f. 23.06.1986 vide G.S.R. No.897 (E). The limitation

provided under Section 66(G) would not apply to the present case,

since defendants are in possession of the property since before

15.11.1973 and limitation period of 12 years as prescribed under

Article 65 of the Limitation Act was expired much prior to insertion

of Section 66(G) providing limitation of 30 years for any suit for

possession of immovable property comprised in any Waqf. He

would, therefore, submit that learned Tribunal failed in grave error

while applying provisions of Section 107 of the Waqf Act, 1995 to

the present Suit, which has been inserted by Act of 2013. In

support of his contentions Mr. Vaidya would place reliance on

judgment of Supreme Court of India in case of T. Kaliamurthi

and Another Vs. Five Gori Thaikal Waqf and Ors. 1 contending

that limitation being procedural law would apply only to the

pending proceeding at the time of enactment. However, with

exception that where right of suit is barred under law of limitation

in force before new provision came into operation and the vested

rights has accrued to another, the new provision cannot revive

stale claim or take away accrued vested right. He would further

rely upon judgment in case of Sabir Ali Khan Vs. Syed Mohd.

1 AIR 2009 SC 840.

(5) cra-115-2018.odt

Ahmad Ali Khan and Others2 contending that Waqf property

can be subject matter of acquisition of title by adverse possession.

6. Per contra, Mr. Bora, learned Advocate appearing for

respondent nos.1 and 2 seeks to rely upon judgment of Supreme

Court of India in case of T. Anjanappa and Ors. Vs.

Somalingappa and Ors.3 to contend that it is burden of

defendants to prove affirmatively the case of adverse possession,

which contemplates hostile possession, expressly or impliedly in

denial of title of true owner. Mr. Bora would further rely upon

judgment of Delhi High Court in case of Tirath Singh and Ors.

Vs. Delhi Waqf Board in RFA No.359/1996 dated 18.02.2011 to

contend that even if it is assumed that Article 65 of the Limitation

Act providing for a limitation period of 12 years applies to present

case, the period would be counted from the date when possession

became adverse and matured into ownership rights. Unless the

defendants, through specific pleadings and material evidence,

establish the acquisition of title by way of adverse possession, they

cannot defend their possession by citing the bar of limitation.

7. Having considered submissions advanced and perusal of

reasoning adopted by Waqf Tribunal, issue that falls consideration

before this Court is as to the application of law of limitation for

bringing action for recovery of possession in respect of Waqf 2 2023 3 MLJ 353.

3 (2006) 7 SCC 570.

(6) cra-115-2018.odt

properties and particularly in facts of present case if suit is within

period of limitation.

8. Before delving into legal aspects of the matter, certain

foundational facts can be referred as under:

The Masjid Gadana is Waqf Institution. The land Survey

No.180 (Gut No.312) admeasuring 3 Acres 19 Gunthas situated at

village Gadana has been listed as Waqf in Maharashtra

Government Gazette dated 15.11.1973. The title of the immovable

property, as listed in the Gazette, indicates that the Inam land is

under the illegal possession of Pandit Bala Adhane and Suppad

Rama. The defendants are claiming rights through them. Relying

on the contents of the Government Gazette dated 15.11.1973, the

defendants argued that since their illegal possession was

acknowledged prior to 1973, the suit filed in 2012 is hopelessly

barred by limitation. They further contended that the rights

accrued in their favor under the prevailing law cannot be revived,

even by subsequent legislation withdrawing the applicability of the

provisions of the Limitation Act. At this stage, a glance to the

legislative history as to applicability of the provisions of the

Limitation Act in Waqf Suit is required. The Waqf Act of 1954

remained in effect until it was repealed and replaced by the Waqf

Act of 1995. Section 66(G) was introduced in Waqf Act, 1954 w.e.f.

23.06.1986, which reads thus:

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      "66-G.      Period of limitation for recovery of wakf

properties to be thirty years- Notwithstanding anything contained in the Limitation Act, 1963, the period of limitation for any suit for possession of immovable property comprised in any wakf or possession of any interest in such property shall be a period of thirty years and such period shall begin to run when the possession of the defendant becomes adverse to the plaintiff."

9. By this provision application of Limitation Act, 1963 was

removed for bringing suit for possession in respect of immovable

property comprised in any Waqf. As such, instead of limitation

period of 12 years prescribed under Article 65 of the Limitation

Act, the said period of 30 years has been introduced for bringing

action in respect of Waqf properties. Later on, by amendment of

2013 in Waqf Act, 1995, Section 107 has been introduced w.e.f.

01.11.2013, which reads thus:

"107. Act 36 of 1963 not to apply for recovery of waqf properties -

Nothing contained in Limitation Act, 1963 (36 of 1963) shall apply to any suit for possession of immovable property comprised in any waqf or for possession of any interest in such property."

10. By this amendment, application of limitation for bringing

action against Waqf Institution has been withdrawn. As such, for

any such suit instituted after 2013, limitation period would not be

applicable.

11. In light of admitted facts, defendants are in possession of suit

properties since before 1973. According to Mr. Vaidya, applying (8) cra-115-2018.odt

Section 65 of the Limitation Act, right of plaintiffs to recover

property from defendants has been lost in the year 1985.

Therefore, Section 66(G) of the Waqf Act, 1954 or Section 107 of the

Waqf Act, 1995 would not aid plaintiffs to bring their action within

limitation.

12. It is true that if any right is accrued in favour of defendants

by operation of law as it stands, it cannot be taken away by

subsequent amendment in Waqf Act. Therefore, it will have to be

examined if defendants have acquired any right or defendants can

establish that plaintiffs lost their rights to seek recovery of

possession of the property from them. It is not disputed before this

Court that in absence of specific provisions as regards to the

limitation for filing suit for possession of immovable property in

Waqf Act, the general provision under Limitation Act would apply.

Section 65 of the Limitation Act would govern rights of the parties

prior to introduction of Section 66(G) of the Waqf Act, 1954. Article

65 of the Limitation Act reads thus:

Description of                      Period of      Time from which
    Suit                           Limitation    period begins to run
    65         For possession of Twelve years    When             the
               immovable property                possession of the
               or     any interest               defendant becomes
               therein based on                  adverse    to    the
               title.                            plaintiff.

13. Bare reading of aforesaid provision would show that

limitation of 12 years is prescribed for recovery of possession of (9) cra-115-2018.odt

immovable property based on title. The limitation period will begin

from the date when possession of defendants became adverse to the

plaintiffs. Undisputedly, defendants have not denied title of Waqf

over the suit property. Hence, they would acquire title by way of

adverse possession only from the date when their possession

became adverse to the plaintiffs. Turning back to the pleadings in

the written statement, it can be observed that defendants have not

pleaded that they acquired title by way of possession. They are

simply coming with a case that suit of the plaintiffs is hopelessly

barred by limitation, since limitation period of 12 years expired

much before 1985. Therefore, even applying law laid down by

Supreme Court of India in case of T. Kaliamurthi and Another

(supra), particularly observations in paragraph no.40 to find out

vested right accrued in favour of defendants, there is nothing to

show that defendants' possession became adverse to the title of

plaintiffs. The law on the point of adverse possession can be better

understood through the observations of the Supreme Court of India

in case of T. Anjanappa and Ors. (supra), which reads thus:

"13. It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, (10) cra-115-2018.odt

open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."

14. In light of aforesaid factual and legal position, even accepting

that provisions of Section 66(G) of the Waqf Act, 1954 introduced

w.e.f. 23.06.1986 would have no application to the rights of

defendants. In the absence of specific pleadings and evidence

regarding defendants possession, open, continuous and hostile

enough to be known by the parties concerned; adverse possession

cannot be presumed. Notably, the written statement filed by the

defendants makes no mention of acquiring title through adverse

possession. Even to hold suit being barred under Section 27 of the

Limitation Act, determination of period of limitation will have to be

reckoned to the specific provision contained in Article 65. It is not

disputed before this Court that present suit is based on title and