Holding

The suit is barred by limitation because the land is not a public wakf and none of the statutory extensions of limitation are applicable.

Summary

The Andhra Pradesh Wakf Board filed a suit in 1973 to recover possession of a 48½‑cent parcel of land that had been granted as a service Imam plot to the Paish Imam of a mosque and subsequently alienated through several sales. The trial court allowed the suit, but the High Court dismissed it on the ground that the claim was barred by limitation. On appeal, the Supreme Court examined whether the extension of limitation under the Public Wakfs (Extension of Limitation) Act, 1959, Article 96 of the Limitation Act, 1963 (and its counterpart in the 1908 Act), or Section 66G of the Wakf Act, 1954 could be invoked. The Court held that the land was a service grant, not a "public wakf" as defined in the 1959 Act, so the extension provision did not apply; the alienation was not by a previous manager, rendering Article 96 and Article 134B inapplicable; and Section 66G could not help because it was enacted after the suit was filed. Consequently, the suit was barred by limitation and the appeal was dismissed.

Issues considered

Whether the land in question qualifies as a "public wakf" under Section 2 of the Public Wakfs (Extension of Limitation) Act, 1959.
Whether Section 3 of the Public Wakfs (Extension of Limitation) Act, 1959 can extend the limitation period for the possession suit.
Whether Article 96 of the Limitation Act, 1963 (and Article 134B of the Limitation Act, 1908) applies when the alienation was effected by a Paish Imam rather than a previous manager.
Whether Section 66G of the Wakf Act, 1954, providing a thirty‑year limitation, is applicable to a suit filed before its enactment.

Legislation cited

Limitation Act, 1908s. Article 134B
Limitation Act, 1963s. Article 96
Wakf Act, 1954s. 3(1), s. 66G

Subjects

WakfPublic WakfLimitationExtension of Limitation ActArticle 96Section 66GService grantPossession suitIslamic lawAndhra Pradesh

Judgment

A WAKF BOARD ANDHRA PRADESH
REPRESENTED BY ITS SECRETARY
v.
BIRADA VOLU RAMANA REDDY

AUGUST 19, 1999
B
[S.B. MAJMUDAR AND U.C. BANERJEE, JJ.]

Muslim Law-Wakfs-Public Wakfs (Extension of Limitation) Act,
1959-Sections 2; 3-Provision for extension of period of limitation for
C recovery of possession of immovable property-Applicability to-Held, the
extended period of limitation is available where suit property belongs to a
public Wakf-Possession of the land sought by the appellant being a service
Imam land granted to the Paish Imam for performing services as Paish Imam
at the Mosque could not be treated to be a public Waif-Extension of time
D of limitation, held, not available to the appel/ant-Wakf Act, 1954-Section
3 (I).

Limitation:

limitation Act, 1963-Article 96-Limitation Act, 1908-Article 1348
in pari materia with slight modification with Article 96-Period of limitation
E under-Applicability of -Held, applicable where the suit pertains to recovery
of possession of property alienated by the previous manager-Alienation by
the Paish Imam in the present case could not be said to be alienation by
previous manager of the Mosque-Suit filed by the appellant barred by
limitation.
F Wakf Act, 1954-Section 66G-Period of limitation under, held, not
available to the appellant for getting the extension of period of limitation
as the present suit was filed prior to its enactment.

A certain piece of land was granted to the Paish Imam for rendering
G prayers at the Mosque. The said land was sold by the Paish Imam of the
Mosque to Non 22-4-1952 who in turn sold the land to Mon 4-7-1962. M
further sold the land to his son Jon 29-3-1966 who then sold the said land
to the present respondent/defendant for a consideration of Rs. 15,000/- on
20-8-1971.

H The appellant-Board filed a suit for possession of the said land on 17-
630
SECRETARY WAKFBOARDA.P. v. B.R. REDDY 631
1-1973 before District Judge which was allowed. However, in appeal, the A·.
High Court dismissed the said suit. Hence, the present appeal.

On behalf of the appellant, it was contended that the High Court was
·. in error in taking the view that the suit was barred by limitation. In support
of the said contention, reliance was placed on Section 3 of the Public Wakfs
(Extension of Limitation) Act, 1959, Article 96 of the Limitation Act, 1963 B
and Section 66G of the Wakf Act, 1954.

Dismissing the appeal, the Court

HELD: 1.1. On the express language of definition of Public Wakf as C
found in Section 2 of the Public Wakfs (Extension of Limitation) Act, 1959
read with Section 3 thereof, the conclusion becomes inevitable that extension
of time would not be available to the appellant for challenging the alienations
in question. 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. It is obvious that suit property D
even if a Wakf as per Wakf Act, 1954 was not within the sNeep of the
definition of a "Public Wakf' as per the Extension Act wherein service
grants are not treated to be Public Wakf. (634-C; 635-C, D; 635-B-C)

1.2. Twelve years period under Article 96 of the Limitation Act, 1963 E
may be available for filing suit for possession of movable or immovable
property comprised in the endowment from the date of death, resignation or
removal of the transferor or the date of appointment of the plaintiff as
manager of the endowment, whichever is later provided the plaintiff challenges
alienation by previous manager for valuable consideration. The present
appellant Board got constituted when the Board came into existence on 4- F
3-1961 in the State of Andhra Pradesh. Even ifthat is so, and 12 years period
is counted from that date, the nature of the suit must be such that the
plaintiff therein must seek to recover possession of the property alienated
by the previous manager. Alienation by the Paish Imam in 1952 cannot be
said to be alienation by previous manager of the Mosque for valuable G
consideration. Therefore, neither Article 96 of the Limitation Act, 1963 nor
Article 134B of the earlier Limitation Act, 1908, which is pari materia with
slight modification with Article 96~ can be of any assistance to the appellant.
The requirement of both these Articles is that the impugned alienation must
be effected by the previous manager. The inevitable result is that the suit
filed by the appellant is to be treated to be barred by limitation. H ·
632 SUPREME COURT REPORTS (1999] SUPP. I S.C.R.

A 1.3. The provision regarding the 30 year limitation for recovery of
Wakf properties under Section 66G of the Wakf Act, 1954 is not available
to the appellant for getting the extension of period of limitation since the said
provisions was enacted only in 1984 whereas the present suit was filed in
1973. (637-B-D]

B 2. The term "Public Wakr' is defined in Section 2 of the Public Wakfs
(Extension of Limitation) Act, 1959 to mean permanent dedication by a
person professing Islam, of any immovable property for any purpose recognised
by Muslim Law as a public purpose ofa pious, religious or charitable nature.
It cannot be disputed that the land in question which was sold by the Paish
C Imam 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. (634-C, D, E]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3568of1989.
D
From the Judgment and Order dated 11.3.88 of the Andhra Pradesh High
Court in A.No. 62 of 1979.

Anis Ahmed Khan for the Appellant.

E R. Venugopal Reddy, B. Kanta Rao and Ms. Sudha Gupta for the
Respondent.

The Judgment of the Court was delivered by

S.B. MAJ MUD AR, J. Wakf Board Andhra Pradesh, the appellant before
F 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.

The suit property consists of 48 1/2 cents of land situated in Nellore
G Town in Nellore District of Andhra Pradesh. The appellant-Board as plaintiff
filed a suit on 17. l .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 Ail Khan Mosque of Badruddin Ali
H Khan Mosque or Mustafa Ali Khan Mosque located in Big Bazar ofNellore
SECRETARY WAKF BOARD A.P. v. B.R. REDDY [S.B. MAJMUDAR, J.] 633

- 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
A

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 on 20.8.1971. The appellant Board challenged the B
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 C
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 Limitations) Act, 1959 (hereinafter
to be referred to as the 'Extension Act'). Consequently, the solitary defence D
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
E
us in the present appeal Ol) 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 F
by limitation. In support of his contention, he in the first instance invited our
attention of 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 G
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 has 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 H
634 SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A 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 3 lst day of
December, 1970."

B In its application in the State of Andhra Pradesh, by the State amendment,
the period was extended from time to time and by AP.Act IO 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 upto 31.12.1972.
c 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
D 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 Paish
Imam, Ghous Saheb in 1952 was a service Imam land granted to him for

E
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( l ). "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
F 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;
G (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; ...."
H The aforesaid definition shows that at least from 1964 when sub-clause
SECRETARY WAKF BOARD A.P. v. B.R. REDDY [S.B. MAJMUDAR, J.J 635
-. (ii) was added to the definition in Section 3(1) thereof, grants including A
mashrut-ul-khidmat were also to be treated as part of wakf. Apart from the
question whether 1954 Act definition of wakf can be read with the definition

- of public wakf under the Extension Act, in 1952 when the first alienation by
the Paish Imam took place even this definition was not available to cover the
said transaction. But even proceeding on the basis that on the date of the
suit, the definition of Wakf as per Wakf Act, 1954 was available for being B
pressed into service, it only treated mashrut-ul-khidmat, i.e. grant for rendering
service to be Wakf. The Extension Act required the property to be of a public
wakf and not a mere wakf before Section 3 thP.reof can be pressed in service
for extending the period of limitation. Consequently, on the express language
of definition of public wakf as found in Section 2 of the Extension Act read C
with Section 3 thereof, the conclusion become inevitable that the extension
of time would not be available to the appellant for challenging the alienations
in question. It is obvious that suit property even if a wakf as per Wakf Act,
1954 was not within the sweep of the definition of a 'public wakf as per the
Extension Act wherein service grants are not treated to be public wakf. In
view of our aforesaid conclusion it is not necessary for us to examine the D
other question whether the Extension Act could have been of any assistance
to the learned counsel for the appellant for treating the suit to have been filed
within limitation on account of Pongal holidays during which the Civil Courts
were closed in Andhra Pradesh and after holidays the Courts reopened on
17.1.1973. It is also not necessary for us to examine the other question E
whether there was any practice in the Civil Courts of Andhra Pradesh about
reopening of the registry for filing of cases on a day previous to the date on
which the Courts reopen after Pongal holidays. We keep this question open.

The second plank of submission of learned counsel for the appellant is
Article 96 of the Limitation Act, 1963. The said provision reads as under. F
Description of suit Period of Time from which period
begins to run
96. By the manager of a Hindu Twelve The date of death, resignation
Muslim or Buddhist religious or years or removal of the transferor or G
charitable endowment to recover the date of appointment of the
.·· posseession of movable or plaintiff as manager of the
immovable property comprised in endowment, whichever is later.
the endowment which has been
transferred by a previous manager
for a valuable consideration. H
636 SUPREME COURT REPORTS [1999] SUPP. 1 S.C.R.

A It becomes at once clear that 12 years period may be available from the
date of death. resignation or removal of the transferor or the date of appointment
of the plaintiff as manager of the endowment, whichever is later prov'lded the

B
plaintiff challenges alienation by previous manager for valuable consideration.
Learned counsel for the appellant was right when he contended that the
present appellant Board got constituted when the Board came into existence
-
on 4.3.1961 in the State ofAndhra Pradesh. Even ifthat is so, and 12 years
period is counted from that date, the nature of the suit must be such that the
plaintiff therein must seek to recover possession of the property alienated by
the previous manager such as Mutuwalli or Sajjada Nashin. So far as Ghous
Saheb was concerned, he was never the previous manager of the Mosque.
C He was merely a Paish Imam who could not be considered to be the previous
manager. Hence alienation by him in 1952 cannot be said to be alienation by
previous manager of the Mosque for valuable consideration. Therefore, Article
96 of the Limitation Act, 1963 also cannot be of any assistance to learned
counsel for the appellant. In this connection our attention was drawn by
I
learned senior counsel for the respondent to Article 134-B of the earlier
D Limitation Act, 1908, which reads as under.

Description of suit Period of Time from which period
begins to run
134. B-By the manager of Hindu, Twelve The death, resignation or
E Mohammadan or Buddhist years removal of the transferor.
religious or charita~le endowment
to recover possession of
immovable property comprised in
the endowment which has been
tranferred by a previous manager
F for a valuable consideration.

The said provision is also in pari materia with slight modification with
Article 96 of the present Act, the difference being that the limitation may also
start from the date of appointment of a new Manager in the place of old one
G but still the requirement of both these Articles is that the impugned alienation
must be effected by the previous manager. As we have already held that
Ghous Saheb was not· the previous Manager and he was only a Paish Imam
neither Article 134-B of the old Act nor Article 96 of the Limitation Act, 1963 .
can be of any assistance to learned counsel for the appellant. These were the
two provisions on which reliance was placed by the trial court in holding the
H suit to be within the period of limitation. Both these provisions were not.
SECRETARY WAKF BOARD A.P. v. B.R. REDDY [S.B. MAJMUDAR, J.) 637

found by the High Court to be applicable. That view of the High Court is well A
sustained as we have already discussed. The inevitable result is that the suit
filed by the appellant is to be treated to be barred by limitation.

Learned counsel for the appellani tried to salvage the situation by
inviting our attention to Section 66-G of the Wakf Act, 1954. The said provisions
read as under. B
"66-G. Period of limitiation for recovery of Wakf properties to be
thirty years-Notwithstanding anything contained in the Limitation
Act, 1963 (36 of 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 C
such period shall begin to run when the possession of the defendant
becomes adverse to the plaintiff."

A mere look at the said Act indicates that Sections 66-D to 66-H were
brought on the statute of Wakf Act, 1954 by amending Act 69 of 1984. Since D
the present suit was filed in 1973 the said provision was not available to the
appellant for getting the extension of period of limitation. Consequently, even
this section can be of no avail to learned counsel for the appellant.

However, one aspect of the matter is required to be noted. Years back
this Court tried to see that the parties amicably settled the dispute. By order E
dated 30.9.1993 a Bench of this Court consisting of Justice Kuldip Singh and
Justice S.P. Bharucha noted that there was possibilty of settlement of the
dispute. Though efforts were made, the matter could not be settled and that
is how it reached final hearing before us today. However, it may be noted that
by letter dated 14.10.1993 addressed by the President of the Abbas-Ali-Khan
Mosque, Nellore, to learned counsel for the appellant, it was brought to his F
notice that a sum of Rs. 3 lack was being offered by the respondent to settle
the matter but the settlement did not take place. We therefore, suggested to
learned senior counsel for the respondent that even if the suit is to be
dismissed on the technical ground of limitation, the respondent may be
graceful enough to donate at least Rs. 3 lacs to the Mosque in question to G
show his goodwill. Learned senior counsel for the respondent was good
enough to accept our suggestion and gracefully agreed on behalf of the
respondent that irrespective of the result of this appeal by way of having
goodwill in the town, the respondent will pay to the Mosque Rs. 3 lacs by
three equal instalments of Rs.1 lac each payable at the end of six months each.
He has been good enough to suggest that the respondent shall pay Rs. I lac H
638 SUPREME COURT REPORTS (1999) SUPP. l S.C.R.

A to the Mosque in question on or before 31.12.1999 and the other two
instalments ofRs. l lakh each on or before 30.6.2000 and 31.12.2000 respectively.
Thus by the end of next year the Mosque in question will receive the total
amount of Rs.3 lacs as a goodwill gesture on the part of the respondent. We
appreciate this gesture of goodwill shown by learned senior counsel on ..
behalf of the respondent even when the respondent succeeds in this appeal.
B It is ordered accordingly. This direction will form part of the decree to be
drawn. The appeal will stand dismissed subject to the aforesaid direction to
the respondent. There will be no order.as to costs.

M.P. Appeal dismissed.

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