Darga of Hazrath Ali Shah Chisti through its Sajjada and Mutawalli, Hafiz Yar Khan alias Peer Habibi, died per L.R. vs Syed Yousuf Yar Khan (died) and Others

C.Y. Somayajulu, J.—Plaintiff in O.S.No. 2329 of 1979 on the file of the Court of the IV assistant Judge, City Civil Court, Hyderabad, is the appellant in this second appeal. This said suit is a second suit for declaration of the title of the appellant to the properties mentioned in the plaint and for recovery of possession thereof after ejecting the respondents therefrom and for past and future mesne profits.

The earlier suit in which the suit property was held to be a wakf property, relief of recovery of possession sought therein was dismissed by the trial Court on the ground that it is barred by limitation and that judgment was ultimately upheld by the Supreme Court in Syed Yousuf Yarkhan and Others Vs. Syed Mohammed Yarkhan and Others, on the ground that the suit is governed by the provisions of Limitation Act 1908. On the ground that as per Limitation Act 1963 the owner of immovable property can institute a suit for recovery of possession and it is for the defendant establish extinguishment of the light of the owner by adverse possession, appellant filed the present suit contending that the dismissal of the earlier suit is not bar for claiming the relief of possession afresh, on the ground of change in the position of law.

Both the Courts below concurrently found that the suit is barred by res judicata and so appellant is not entitled to any relief and dismissed the suit. Hence, the second appeal.

The main contention of the learned counsel for the appellant is that since the suit property is held to be a wakf property, appellant who is managing the same has a right to recover possession of the suit property, title to which cannot be prescribed by adverse possession. It is also contended that both the Courts below failed to keep in view the fact that appellant was in possession of the suit property during the pendency of the earlier proceedings before the Supreme Court, and after disposal of the appeal by the Supreme Court only respondents recovered possession thereof by filing the petition for restitution and so respondents cannot, in any event, raise the defence of limitation. It is also his contention that since respondents did not plead acquisition of title by adverse possession both the Courts below were in error in holding that the appellant lost title to the suit property by virtue of adverse possession of the respondents.

In the earlier round of litigation the Supreme Court clearly held that the suit for recovery of possession of wakf property, in the erstwhile state of Hyderabad, ought to be filed within two years from coming into force of Part B State (Law) Act, which came into force on 1-5-1951 and since that suit filed on 3-2-1956 it was barred by time and that the provisions of Hyderabad Limitation Act do not apply to the suit for recovery of possession of the suit property, and that suit is governed by Article 142, but not Article 149 of the Limitation Act 1908.

In view of the specific finding of the Supreme Court that the earlier suit for recovery of possession was barred by time, irrespective of the fact that Article 65 Limitation Act 1963, which came into force on 1-1-1964, is couched in a language different from Article 142 of the Limitation Act 1908, appellant does not acquire any fresh right because Section 28 of the Limitation Act 1908 clearly laid down that on the determination of the period of Limitation for instituting a suit for possession of any property, the right of the person to such property shall be extinguished. Since the Supreme Court in the earlier suit held that the suit for recovery of possession of the suit property was barred under the provisions of the Limitation Act 1908, in view of Section 28 of Limitation Act 1908 the right of the owner of the suit property stood extinguished even by 3-2-1956, the date on which the earlier suit was instituted. So by 1-1-1964, the date of which Limitation Act 1963 came into force, plaintiff cannot be said to have title to the suit property, for him to file the present suit relying on Article 65 of the Limitation Act, 1963, which relates to suit for recovery of possession of immovable property based on title.

In view thereof the other contentions raised by the learned counsel for appellants including the contention that since respondent did not raise the plea of adverse possession, Courts below were in error in returning a finding that appellant lost his title by virtue of the adverse possession of respondents, even if upheld would not be of any help to the appellant who lost his title to the suit property even before 1-1-1964.

In view thereof, I find no merits in this second appeal and so the same is dismissed. No costs.