DHARAMPAL (DEAD) THR. LRS.versusPUNJAB WAKF BOARD & ORS.

                            [2017] 8 S.C.R. 316


A                  DHARAMPAL (DEAD) THR. LRS.
                                    v.
                    PUNJAB WAKF BOARD & ORS.
                      (Civil Appeal No. 2571 of2008)
B                         SEPTEMBER 13, 2017
      [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.)
         Suit - Suit for possession and injunction - Counter claim -
  Title by adverse possession -Appellant's father in unauthorized
C occupation of land belonging to respondent no.1-Wakf Board -
  Suit by respondent No. l against appellant's father for recovery of
  possession of the land - Suit dismissed in default - After two decades
  respondent No.1 filed suit against the appellant for possession and
  injunction as also against respondent no. 2 and 3 - Counter claim
  by appellant claiming ownership over the suit land on the basis of
D perfecting his title by "adverse possession' against the Wakf Board
  - Dismissal of respondent no.1 s suit but counter-claim decreed -
  However, appellate court and High Court decreed respondent no.
  l 's suit declaring Wakf Board to be the owner of the suit land - On
  appeal, held: Respondent no. 1 being a Wakf Board, the period of
E 30 years is applicable to establish the factum of "adverse
  possession" by any person against any Wakf property - Appellant
  could not establish his 30 years' continuous possession qua the
  respondent no. 1 because the continuity was broken twice by the
  positive act on the part of true owner-Walif Board first in 1971 and
   then in 1991 by asserting their ownership over the suit land - Thus,
F the appellant failed to prove adverse possession on facts and law -
   Furthermore, instant suit not barred by virtue of r. 4 of Or. 9 CPC -
   Even otherwise, instant suit could be filed notwithstanding dismissal
   of the earlier suit since the parties and even part of the cause of
   action qua defendants were different in both the suits - Also, the
G plea that since the suit was filed in 1971, it was barred uls. 55-C of
   the amended Wakf Act, cannot be accepted - Adverse possession -
   Code of Civil Procedure, 1908 - Or. 9 r. 9 - Walif (Amendment) Act,
   1984.
           Dismissing the appeal, the Court

H
                                    316
DHARAMPAL (DEAD) THR. LRS. v. PUNJAB WAKF BOARD                         317


        HELD: 1.1 The submission that the suit is barred by virtue      A
of bar contained in Order 9 Rule 9 CPC has no merit for more
than one reason. The appellant did not raise this plea in any of
the Courts below and nor invited finding of any Court on this
pleas. In this view of the matter, the appellant is not permitted to
raise this plea for the first time in the Court. On merits also, it     B
has no substance. It is not clear from the record and nor the
appellant was able to point out as to whether the dismissal of
earlier suit was under Rule 3 or Rule 8 Of Order 9 CPC. If it is
under Rule 3 then filing of fresh suit is permissible as provided
under Rule 4 but if the dismissal is under Rule 8 then fresh suit
may be barred as provided under Rule 9. So far as the instant           C
case is concerned, the dismissal of earlier suit is taken to be
under Rule 3 and, therefore, the instant suit was not barred by
virtue of Rule 4 and was, therefore, rightly entertained by the
Courts below for being tried on merits. Even otherwise, the
instant suit could be filed notwithstanding dismissal of the earlier    D
suit because the earlier suit was filed only against one defendant,
i.e., father of defendant No.1 on a cause of action which accrued
against one defendant at that time whereas the present suit was
filed against three defendants out of which two defendants were
not parties to the earlier suit. So the parties and even part of the
cause of action qua defendants were different in both the suits.        E
 [Paras 25, 26, 28, 29 and 30](324-D-E, F-H; 325-A·BI
       1.2 The submission that the appellant (defendant No.1) was ·
able to establish his 'adverse possession" over the suit land since
1953 through his father and after his death· in 1987 through
defendant No.I, who continued to remain in possession of the F
suit land till the filing of present suit in 1991, has no merit. [Paras
31, 321[325-C]
       1.3 The plea raised by the original appellan~ (defendant
No.l) in his counter-claim filed against the plaintiff wherein he
sought a declaration of his ownership over the suit land only on        G
the plea of "adverse possession" was not permissible. It is for
the reason that a counter-claim is treated as a plaint under Order
8 Rule 6A(4) of the Code. In other words, in counter-claim, the
stat~s of the defendant is that of the plaintiff because he seeks a
relief for passing decree in his favour relating to the suit land and
                                                                        H
318            SUPREME COURT REPORTS                       [2017) 8 S.C.R.


A     against the plaintiff, who is sued in counter-claim as the defendant
      as provided in Rule 6-A (4) of Order 8 CPPC. [Para 33J[325-El
             1.4 Defendant No.1 only averred in his plaint (counter-claim)
      that he, through his father, was in possession of the suit land
      since 1953. Such averments, do not constitute the plea of
B     "adverse possession". It was not pleaded as to from which date,
      defendant No.1 's possession became adverse to the plaintiff
      (Wakf Board). It was also not pleaded that when his adverse
      possession was completed and ripened into the full ownership in
      his favour. It could not be so for the simple reason that the plaintiff
      (Wakf Board) had filed a suit in the year 1971 against defendant
 C    No.l's father in relation to suit land. Therefore, till the year 1971,
      the question of defendant No.1 perfecting his title by "adverse
      possession" qua the plaintiff (Wakf Board) did not arise. The
      plaintiff then filed present suit in the year 1991 and, therefore,
      again the question of perfecting title upto 1991 qua the plaintiff
 D    did not arise. The reason is that the plaintiff being a Wakf Board,
      the period of 30 years as prescribed under Section 66-G of the
      Wakf (Amendment) Act, 1984 is applicable to establish the factum
       of "adverse possession" by any person against any Wakf property.
      In this case, defendant No.1 could not establish his 30 years'
       continuous possession qua the plaintiff because the continuity
 E     was broken twice by the positive act on the part of true owner-
       Wakf Board (plaintiff) first in 1971 and then in 1991 by asserting
       their ownership over the suit land. In the light of these two
       admitted facts, the appellant (defendant No.1) failed to prove his
       case of "adverse possession" on facts and law. (Paras 39-411(326-
 F     F-H; 327-A-D]
          1.5 Appellant urged that since the suit was filed in 1971, it
   was barred under Section 55-C of the amended Wakf Act. This
   point was neither raised in the written statement nor any issue
   was framed and nor any finding was recorded by any of the courts
 G below. Therefore, the appellant (defendant No.1) cannot be
   permitted to raise such plea for the first time before this Court.
   Yet on examining, there is no merit in it. Since the amendment
   made by Act No. 69 of 1984 in the Wakf Act, 1954 which governs
   the constitution of Tribunal and creation of bar of filing suit in
   civil court was never notified and the main Act of 1954 including
 H
DHARAMPAL (DEAD) THR. LRS. v. PUNJAB WAKF BOARD                            319


the amending Act, 1984 was, in the meantime, repealed by Act of A
1995, the question of maintainability of the civil suit in the light
of such provisions did not arise. When the suit was filed in the
year 1971 and later again in 1991, the Civil Court had the
jurisdiction to try the suit by virtue of Section 6 of the Act of
1954. [Paras 44, 45 and 46) (327-G-H; 328-A-C)
                                                                     B
      Gurdwara Sahib v. Gram Panchayat Village Sirthala & Anr. ·
      (2014) 1 SCC 669; T. Anjanappa & Ors. v. Somalingappa &
      Anr. (2006) 7 SCC 570 : [2006) 5 Suppl. SCR 200; Chatti
      Konati Rao & Ors. v. Pa/le Venkata Subba Rao (2010) 14
      SCC 316 : (2010) 15 SCR 923 - relied on.
                                                                           c
                        Case Law Reference
      (2014) 1 sec 669                   relied on       Para 33
      (2006) 5 Suppl. SCR 200            relied on       Para 38
      [2010) 15 SCR 923                  relied on       Para 38
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2571                   D
of2008.
      From the impugned final Judgment and Order dateCi 17.09.2002
passed by the High Court of Punjab and Haryana at Chandigarh in RSA
No. 4830of1999.
                                                                           E
     Mahabir Singh, Sr. Adv., Ms. Preeti Singh, Gagan Deep Sharma,
Ranbir Singh Yadav, Advs. for the Appellants.
     Salman Khurshid, Sr. Adv., Imtiaz Ahmed, Ms. Naghma Imtiaz,
Ahmed Zargham (for Mis Equity Lex Associates), Advs. for the
Respondents.                                                               F
      The Judgment of the Court was delivered by
       ABHAY MANOHAR SAPRE, J. 1. This appeal is filed by
defendant No.I against the final judgment and order dated 17.09.2002
passed by the High Court of Punjab & Haryana at Chandigarh in RSA
No. 4830of1999 whereby the High Court dismissed the appeal filed by        G
the original appellant (defendant No.1) thereby upholding the judgment
and order dated 28.10.1999 of the Additional District Judgecl, Faridabad
in C.A. No.82 of 1998 which reversed the judgment/decree dated
12.08.1998 passed by the Civil Judge(Jr. Division), Faridabad in Case
No. 419of1991 which had dismissed the plaintiff's suit and decreed         H
320            SUPREME COURT REPORTS                           [2017] 8 S.C.R.


A the counter-claim of defendant No. I in relation to suit lands.
            2. In order to appreciate the controversy raised in the appeal, it is
      necessary to state the relevant facts hereinbelow.
         3. Dharampal-the original appellant herein (since dead and
   represented now by the present appellants as his legal representatives)
 B was defendant No. I whereas respondent No. I herein is the plaintiff and
   respondent Nos.2 and 3 are defendant Nos. 2 and 3 in the suit out of
   which this appeal arises.
          4. Respondent No. I (plaintiff) is the Wakf Board registered under
   the Wakf Act, 1954 (hereinafter referred to as "the Act) having its office
 C at Ambala Cantt. (Haryana) and a Branch at Faridabad. Respondent
   No.I is the owner of huge parcel ofland around total 14 fields measuring
   54 Kanals 13 marlas situated in village Uncha Gaon, Tahsil Ballabgarh,
   District Faridabad (hereinafter referred to as "suit land"). The details
   of the suit land are set out hereinbelow:
 D           "i) Comprising in Khewat No.713, Khatoni No.974, rect.
                No.38, Kita Nos.20(2-18), 21(7-9), 22/1(1-4), rect.No.47,
                Kila Nos.5 min (0-18), rect.39, Kila Nos.25(5-4),
                rect.No.48, Kila Nos.I min(3-4), 2/1 min(l-2) and
                Khatoni No. 975, rect. No.48, Kita No.1 min(2-13), 2/1
 E               min (4-5) fields 9, measuring 28 kanals 17 marlas, and
             ii) Khewat No.713, Khatoni No.970, rect.No. 39, Kita
                No.16(5-10), rect. No.47, Kita No.5(6-5) fields 2,
                measuring 11 kanals 15 marlas, and
             iii) Khewat No. 713, Khatoni No.971, rect.No.88 min(ll-5)
 F              rect. No.89(2-15) and rect. No.133(0-1), fields 3,
                measuring 14 kanals 1 maria, and
             thus total fields 14 measuring 54 kanals 13 marlas situated
             within the revenue estate of village Uncha Gaon, Tehsil
             Ballabhgarh, District Faridabad. The copy of jamabandi for
 G           the year 1985-86 is attached herewith the plaint."
            5. Long back, respondent No.I had let out the land specified in
      clause (i) to respondent Nos.2 and 3 for one year. However, on the
      expiry of period of one year, the lease was not renewed. Respondent
      Nos.2 and 3, however, continued to remain in occupation of the suit
 H
 DHARAMPAL (DEAD) THR. LRS. v. PUNJAB WAKF BOARD                             321
           [ABHAY MANOHAR SAPRE, J.]

land. In the meantime, one Ram Swamp, who was father of original A
defendant No.l (appellant herein), occupied unauthorizedly some part
of the suit land and later encroached the entire suit land. This he did
somewhere in 1953 and onwards.
       6. This gave rise to filing ofa civil suit (74/1971) by respondent
No. l (Wakf Board) against Ram Swamp for recovery of possession of B
the suit land illegally occupied by him. This suit was filed in the year
1971. It was, however, dismissed in default for 28.03.1972 by the Trial
Court.
       7. On 27 .11.1991, respondent No. l (WakfBoard) filed the present
suit being suit No.419/1991 in the Court of Civil Judge (Junior Division),   c
Faridabad against the original appellant (defendant No.l) - son of Ram
Swamp and also against respondent Nos.2 and 3 (defendant Nos.2 and
3), out of which this appeal arises.
      8. The suit was for possession and injunction restraining the
defendants from changing the nature of the land and from making any D
construction over the suit land, which are open fields.
       9. The suit was founded on the allegations inter alia that,
respondent No. l is the exclusive owner of the suit land, part of the suit
land, as specified in the plaint (Para 3), had been given for a period of
one year on rent to respondent Nos.2 and 3 (defendant Nos.2 and 3) but E
on the expiry of one year, this period was not extended and, therefore,
respondent Nos.2 and 3 continued to remain in its un-authorized
occupation on the expiry of one year, the original appeilant (defendant
No.l) has always remained in an un-authorized occupation of the suit
land and managed to get his name inserted in the revenue records behind
the back ofWakfBoard, showing him to be in occupation of the entire F
suit land without there being any right of any nature in his favour. It was,
therefore, prayed that all the three defendants have rendered themselves
liable to be evicted from the suit land as are un-authorized occupants.
       10. Defendant No.1 (original appellant) filed his written statement
whereas defendant Nos. 2 and 3 (Respondent Nos.2 and 3) filed their          G
written statements. So far as defendant No. l is concerned, his case
was essentially based on the plea of "adverse possession" over the suit
land. He alleged that his late father-Ram Swamp was all along in actual
possession of the suit land since 1953 and onwards and on his death in
1987, he continued to remain in its possession and, therefore, due to his    H
322            SUPREME COURT REPORTS                           [2017] 8 S.C.R.


A father's and then his own continuous possession over the suit land, he
  has acquired title over the suit land on the basis of"adverse possession"
  qua the plaintiff (Wakf Board). He also raised a plea that the present
  suit is barred for the reason that the plaintiff had earlier filed a civil suit
  (74/1971) in the year 1971 against his father (Ram Swarup) in respect
B of the suit land claiming the same relief and the said suit was dismissed
  for default on 28.03.1972. It was, therefore, contended that since no
  application for restoration of the earlier suit was filed under Order 9
  Rule 9 of the Code, the second suit, i.e., (present one) is barred under
  Order 9 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter referred
  to as "the Code").
 c          I I. Defendant No. I also filed counter-claim and claimed therein
      the ownership over the suit land on the basis of perfecting his title by
      "adverse possession" against the plaintiff (Wakf Board).
          I2. So far as other defendants are concerned, they also raised the
   plea of non-maintainability of the suit. They, however, admitted that the
 D land was let out by the plaintiff (respondent No. I) to them for one year.
   Their case was that they continued to pay the rent. They, however,
   blamed defendant No.I to have entered into collusion with State
   Authorities to grab the entire suit land by one or other means.
          13. By judgment/decree dated 12.08.1998, the Trial Court dismissed
 E the plaintiff's suit but at the same time decreed the counter-claim filed
   by defendant No. I. In other words, the Trial Court held that defendant
   No. I has perfected his title over the suit land by virtue of his "adverse
   possession" as against the plaintiff(WakfBoard) and hence declaratory
   decree was passed in favour of defendant No. I and against the plaintiff
 F declaring defendant No. l as owner of the suit land on the strength of his
   "adverse possession" over the suit land. As a consequence, the plaintiff
   suit was dismissed.
          14. The plaintiff (Wakf Board), felt aggrieved, filed first appeal
   before the Additional District Judge. By judgment/decree dated
 G 28.10.1999, the Appellate Court allowed the appeal and while reversing
   the judgment/decree of the Trial Court, dismissed the counter-claim of
   defendant No. I and, in consequence, decreed the plaintiff's suit declaring
   WakfBoard to be the owner of the suit land and accordingly passed the
   decree for recovery of possession of the entire suit land against all the
   defendants.
 H
DHARAMPAL (DEAD) THR. LRS. v. PUNJAB WAKF BOARD                                 323
          [ABHAY MANOHAR SAPRE, J.]

       15. Defendant No.l alone felt aggrieved and filed second appeal A
before the High Court. By impugned judgment, the High Court dismissed
the second appeal and affirmed the judgment of the first Appellate Court
giving rise to filing of this appeal by way of s'pecial leave before this
Court by defendant No. l. In this way, the decree passed by the first
Appellate Court against defendant Nos.2 and 3 had become final because B
they neither filed any second appeal in the High Court nor any special
leave petition in this Court.
       16. We are, therefore, only concerned with the appeal filed by
defendant No. l to find out as to whether the first Appellate Court and
the High Court were justified in decreeing the plaintiff's suit qua defendant
No. l and were further justified in dismissing counter-claim of defendant       C
No. l (original appellant herein) in relation to the suit land.
       17. Heard Mr. Mahabir: Singh, learned senior counsel for the
appellants and Dr. Salman Khurshid, learned senior counsel for respondent
No.l.
                                                                                D
        18. Mr. Mahabir Singh, learned senior counsel appearing for the
appellant (defendant No. I) while assailing the legality and correctness
of the impugned order raised basically two points.
         19. In the first place, learned counsel contended that the present
 suit is barred by virtue of bar contained in Order 9 Rule 9 of the Code. It    E
was pointed out that the plaintiff had earlier filed one civil suit (7 4/71)
'for claiming a relief against defendant No. l, which is now again claimed
 in the present suit and since the earlier suit was dismissed for default on
 28.03.1972, the present suit is barred by virtue of bar contained in Order
 9 Rule 9 of the Code.                                                     ·
                                                                                F
      20. It was pointed out that since the plaintiff did not make any
application seeking restoration of the earlier suit under Order 9 Rule 9 of
the Code, they are now precluded from filing fresh suit to claim the
same relief against defendant No. l by virtue of bar.created under Order
9 Rule 9 read with Section 9 of Code.
                                                                                G
       21. His second submission was on merits. According to learned
counsel, the appellant (defendant No. l) was able to establish his "adverse
possession" over the suit land since 1953 through his father and after his
death in 1987 through defendant No.l, who continued to remain in
possession of the suit land till the filing of present suit in 199 l. It was
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324             SUPREME COURT REPORTS                          [2017] 8 S.C.R.


A urged that taking into consideration his long possession from 1953 to
  199 l, the Trial Court was right in decreeing his counter-claim against
  the plaintiff by granting him a declaration of ownership on the strength
  of his "adverse possession" over the suit land.
         22. Learned counsel lastly contended that the first and second
B Appellate Courts should have, therefore, confirmed the judgment/decree
  of the Trial Court which had dismissed the plaintiff's suit and rightly
  decreed the counter-claim of defendant No. I.
             23. In reply, Dr. Salman Khurshid, learned senior counsel, supported
      the impugned judgment and contended that it does not call for any
c     interference and deserves to be upheld by dismissing the appeal.
             24. Having heard the learned counsel for the parties and on perusal
      of the record of the case, we find no merit in the appeal.
          25. Coming to the first submission, in our opinion, it has no merit
   for more than one reason. First, the appellant did not raise this plea in
 D any of the Courts below and nor invited finding of any Court on this plea.
   In this view of the matter, we cannot now permit the appellant to raise
   this plea for the first time in this Court.
          26. Second, assuming for the sake of argument, we consider this
   plea on merits then also, in our opinion, it has no substance. It is not
 E clear from the record and nor the learned counsel for the appellant was
   able to point out as to whether the dismissal of earlier suit (74171) was
   under Rule 3 or Rule 8 of Order 9 of the Code.
             27. In our opinion, in order to examine such plea, what is relevant
      at the first instance is to find out as to whether dismissal of the suit is
 F    under Rule 3 or Rule 8 of Order 9 of the Code.
            28. If it is under Rule 3 then filing of fresh suit is permissible as
      provided under Rule 4 but if the dismissal is under Rule 8 then fresh suit
      may be barred as provided under Rule 9.
          29. So far as the present case is concerned, we take the dismissal
 G of earlier suit (74171) to be under Rule 3 and, therefore, in our opinion,
   the present suit was not barred by virtue of Rule 4 and was, therefore,
   rightly entertained by the Courts below for being tried on merits.
             30. Apart from what is held above, even otherwise, in our opinion,
      the present suit could be filed notwithstanding dismissal of the earlier
 H
DHARAMPAL (DEAD) THR. LRS. v. PUNJAB WAKF BOARD                                 325
          [ABHAY MANOHAR SAPRE, J.]

suit because the earlier suit was filed only against one defendant, i.e., A
father of defendant No.1 on a cause of action which accrued against
one defendant at that time whereas the present suit was filed against
three defendants out of which two defendants were not parties to the
earlier suit. So the parties and even part of the cause of action qua
defendants were different in both the suits. It is for all these reasons, so B
far as the first submission of learned counsel is concerned, it has no
merit and hence rejected.
      31. Now coming to the second submission, in our opinion, it has
also no merit for more than one reason stated infra.
       32. In the first place, we find that this Court in Gurdwara Sahib        c
vs. Gram Panchayat Village Sirthala & Anr., 2014 (1) SCC 669, has
held in para 8 that a plea of adverse possession cannot be set up by the
plaintiff to claim ownership over the suit property but such plea can be
raised by the defendant by way of defence in his written statement in
answer to the plaintiff's claim. We are bound by this view.
                                                                                D
       33. In the light oflaw laid down in the case ofGurdwara Sahib
(supra), in our view, the plea raised by the original appellant (defendant
No. I) in his counter-claim filed against the plaintiff wherein he sought a
declaration of his ownership over the suit land only on the plea of"adverse
possession" was not permissible. It is for the reason that a counter-
claim is treated as a plaint under Order 8 Rule 6A(4) of the Code. In           E
other words, in counter-claim, the status of the defendant is that of the
plaintiff because he seeks a relief for passing decree in his favour relating
to the suit land and against the plaintiff, who is sued in counter-claim as
the defendant as provided in Rule 6-A (4) of Order 8 of the Code.
      34. That apart, even on merits, we find that the plea of adverse          F
possession raised by defendant No. l (original appellant) in his counter-
claim was wholly misconceived and untenable both on facts and in law.
      35. What is "adverse possession" and on whom the burden of
proof lies and lastly, what should be the approach of the Courts while
dealing with such plea have been the subject matter of large number of G
cases of this Court.
      36. In T. Anjanappa & Ors. vs. Somalingappa & Anr., (2006)
7 SCC 570, this Court held that mere possession, howsoever long it may
be, does not necessarily mean that it is adverse to the true owner and
                                                                                H
326            SUPREME COURT REPORTS                           [2017] 8 S.C.R.


A     the classical requirement of acquisition of title by adverse possession is
      that such possessions are in denial of the true owners' title.
            37. Relying upon the aforesaid decision, this Court again in Chatti
      Konati Rao & Ors. vs. Palle Venkata Sobba Rao, (2010) 14 SCC
      316 in Para 14 held as under:
B           "14. In view of the several authorities of this Court, few
            whereof have been referred above, what can safely be said
            is that mere possession however long does not necessarily
            mean that it is adverse to the true owner. It means hostile
            possession which is expressly or impliedly in denial of the
c           title of the true owner and in order to constitute adverse
            possession the possession must be adequate in continuity,
            in publicity and in extent so as to show that it is adverse to
            the true owner. The possession must be open and hostile
            enough so that it is known by the parties interested in the
            property. The plaintiff is bound to prove his title as also
D           possession within twelve years and once the plaintiff proves
            his title, the burden shifts on the defendant to establish
            that he has perfected his title by adverse possession. Claim
            by adverse possession has two basic elements i.e. the
            possession of the defendant should be adverse to the
 E          plaintiff and the defendant must continue to remain in
            possession for a period of twelve years thereafter".
             38. Applying the aforementioned principle oflaw to the facts of
      the case on hand, we find absolutely no merit in this plea of defendant
      No. I for the following reasons:
 F           39. First, defendant No.I has only averred in his plaint (counter-
      claim) that he, through his father, was in possession of the suit land since
      1953. Such averments, in our opinion, do not constitute the plea of
      "adverse possession" in the light of law laid down by this Court quoted
      supra. Second, it was not pleaded as to from which date, defendant
 G    No. I's possession became adverse to the plaintiff(WakfBoard). Third,
      it was also not pleaded that when his adverse possession was completed
      and ripened into the full ownership in his favour. Fourth, it could not be
      so for the simple reason that the plaintiff(WakfBoard) had filed a suit in
      the year 1971 against defendant No.I's father in relation to suit land.
      Therefore, till the year 1971, the question of defendant No.I perfecting
 H
DHARAMPAL (DEAD) THR. LRS. v. PUNJAB WAKF BOARD                            327
          [ABHAY MANOHAR SAPRE, J .]

his title by "adverse possession" qua the plaintiff (WakfBoard) did not A
arise. The plaintiff then filed present suit in the year 1991 and, therefore,
again the question of perfecting title upto 1991 qua the plaintiff did not
anse.
       40. The reason is that the plaintiff being a WakfBoard, the period
of30 years as prescribed under Section 66-G of the Wakf(Amendment) B
Act, 1984 is applicable to establish the factum of"adverse possession"
by any person against any Wakf property. In this case, defendant No. I
could not establish his 30 years' continuous possession qua the plaintiff
because the continuity was broken twice by the positive act on the part
of true owner-WakfBoard (plaintiff) first in 1971 and then in 1991 by
asserting their ownership over the suit land against defendant No.I in C
two suits.
      41. In the light of these two admitted facts emerging from the
record, we are of the view that the appellant (defendant No.I) failed to
prove his case of "adverse possession" on facts and law.
                                                                            D
        42. Lastly, the learned counsel for the appellant argued that the
suit was barred by virtue of bar created under Section 55-C of the Wakf
Act, 1954, which was amended in the Wakf Act, 1954 by Act No. 69 of
1984. According to him, after the amendment made in Section 55 and
further by adding Sections 55-A to 55-F by Act No. 69/1984, the
jurisdiction of the civil court was barred (Section 55-C) to decide the E
suit of this nature and was transferred to the WakfTribunal under Section
 55. It was urged that since the suit was filed in 1971, it was, therefore,
barred under Section 55-C of the amended Wakf Act.
      43. In our view, this point was neither raised in the written statement_
nor any issue was framed and nor any finding was recorded by any of F
the Courts below. We cannot, therefore, permit the appellant( defendant
No.I) to raise such plea for the first time before this Court. Yet on
examining, we find no merit in it.
       44. As rightly pointed out by Dr. Salman Khurshid, learned counsel
for the respondent (plaintiff) that though the amendment in Section 55 G
was introduced in 1984 by Act No. 69 ofl984 in the WakfAct, 1954 but
the date of the amendment was never notified with the result, the
amendment was never brought into force except two provisions with
which we are not concerned here. In the meantime, th.e entire Wakf
Act, 1954 and the Wakf (Amendment) Act, 1984 were repealed by the H
328                SUPREME COURT REPORTS                        [2017) 8 S.C.R.


A Waqf Act, 1995. (See-Introduction of The Waqf Act, 1995).
         45. In other words, since the amendment made by Act No. 69 of
  1984 in the Wakf Act, 1954 which governs the constitution of Tribunal
  and creation of bar of filing suit in civil court was never notified and the
  main Act of 1954 including the amending Act, 1984 was, in the meantime,
B repealed by Act of 1995, the question of maintainability of the civil suit in
  the light of such provisions did not arise.
             46. lt is not in dispute that when the suit was filed in the year 1971
      and later again in 1991, the Civil Court had the jurisdiction to try the suit
      by virtue of Section 6 of the Act of 1954.
c            47. In the light of this, the submission of learned counsel for the
      appellant though raised for the first time, cannot survive and has to be
      rejected. It is accordingly rejected.
             48. In view of foregoing discussion, we find no merit in the appeal.
      It is accordingly dismissed.
D

      Nidhi Jain                                                    Appeal dismissed.