Madras High Court
M.Srinivasan vs The Chief Executive Officer on 13 April, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.(MD) Nos.10443 & 10444 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On 25.03.2022
Pronounced On 13.04.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.(MD) Nos.10443 & 10444 of 2010
M.Srinivasan ... Petitioner in
both W.Ps.
Vs.
1.The Chief Executive Officer,
Tamil Nadu Wakf Board,
No.7/4, 9th Cross Street,
Indira Nagar,
Chennai – 600 020.
2.Nagal Nagar Jumma Pallivasal,
(Nagalrayakkanpatti Pallivasal)
Represented by its Executive Officer,
Nagal Nagar Pallivasal,
Nagal Nagar, Dindigul.
3.The Inspector General of Registration,
No.120, Santhome High Road,
Mandaveli, Chennai – 600 028.
4.The Sub Registrar,
Sub – Registrar Office,
Nagal Nagar, Dindigul.
______________
https://www.mhc.tn.gov.in/judis
Page No 1 of 25
W.P.(MD) Nos.10443 & 10444 of 2010
5.The Commissioner,
Dindigul Municipality,
Dindigul. ... Respondents in
both W.Ps.
Prayer in W.P.(MD) No.10443 of 2010:- Writ Petition filed for issuance
of a Writ of Certiorarified Mandamus, to call for the records relating to
proceedings dated 3.10.2007 in Lr.Rc.No.10820/C4/07/DGL on the file
of the first respondent and to quash the same and direct the third
respondent to register the documents as and when presented pertaining to
Survey No.358, Nagal Nagar, Dindigul, in accordance with law and the
procedure under the Registration Act.
Prayer in W.P.(MD) No.10444 of 2010:- Writ Petition filed for issuance
of a Writ of Certiorarified Mandamus, to call for the records relating to
proceedings dated 10.12.2009 in Rc.No.10820/07/DGL/B15 on the file of
the first respondent and to quash the same and direct the third respondent
to register the documents as and when presented pertaining to Survey No.
358, Nagal Nagar, Dindigul, in accordance with law and the procedure
under the Registration Act.
For Petitioner : M/s.Jessi Jeeva Priya
in both W.Ps. for Mr.G.Aravindan
For R1 : Mr.S.A.Ajmalkhan
in both W.Ps.
For R3, R4 & R5 : Mr.S.Shanmugavel
in both W.Ps. Additional Government Pleader
______________
https://www.mhc.tn.gov.in/judis
Page No 2 of 25
W.P.(MD) Nos.10443 & 10444 of 2010
COMMON ORDER
In W.P(MD)No.10443 of 2010, the petitioner has challenged the impugned communication dated 03.10.2007 of the first respondent addressed to the fourth respondent to not to register any sale deed in respect of the subject property.
2. In W.P(MD)No.10444 of 2010, the petitioner has challenged the impugned communication, dated 10.12.2009 of the first respondent directing the fifth respondent to not to give any planning permission to the petitioner to put up any construction.
3. The case of the petitioner is that petitioner purchased the subject property on 20.04.2007. It is further the case of the petitioner that the petitioner is a bonafide purchaser of the property. The property in question was earlier alienated wayback on 25.09.1932 and thereafter, subsequent transfers took place on 10.05.1957 and thereafter on 01.08.1967 and finally to the petitioner's vendor on 04.07.1970. ______________ https://www.mhc.tn.gov.in/judis Page No 3 of 25 W.P.(MD) Nos.10443 & 10444 of 2010
4. It is submitted that the second respondent had filed a suit in O.S.No.1042 of 1967 on 20.11.1967 for a recovery of possession. Subsequently, an E.P. was also filed in E.P.No.22 of 1976. However, only a paper delivery was taken on 22.06.1976. It is submitted that the attempt of the first respondent to stop further alienation and registration by directing the fourth respondent sub-registrar and the fifth respondent Commissioner of Dindigul, to not to register any sale deed and/or not to give planning permission long after the transactions from 1932 up to 2007, covering five different sale deeds as mentioned above is contrary to the law of limitation under the Limitation Act, 1963.
5. It is submitted that an identical issue came up consideration before the Hon'ble Supreme Court in T.Kaliamurthi and another Vs. Five Gori Thaikal Wakf and others, 2008 (9) SCC, 306. A specific reference was made to Paragraph Nos.20, 21 and 22 from the said decision. It is therefore submitted that the impugned notices, dated 03.10.2007 and 10.12.2007 of the first respondent restraining the petitioner from indirectly selling the property or developing the property are liable to be quashed.
______________ https://www.mhc.tn.gov.in/judis Page No 4 of 25 W.P.(MD) Nos.10443 & 10444 of 2010
6. The learned Counsel for the petitioner further submits that the petitioner has been in continuous enjoyment and possession of the property since 2007 and therefore the attempt of the first respondent in terms of the impugned notices, dated 03.10.2007 and 10.12.2009 deserves to be interfered.
7. Opposing the prayer, the learned counsel for the first respondent submits that not only the subject property was recovered pursuant to a judgment and decree, dated 20.11.1967 in O.S.No.1042 of 1967 but also the recovery of the property was recorded on 22.06.1976 in E.P.No.22 of 1976. It is submitted that the subject property forms part of the Wakf Register right from the inception at the time when the Wakf Act, 1954 was in force and before 1954 under the old Mussalman Wakf Act, 1923.
8. The learned counsel for the first respondent has drawn attention to Gazette Notification, dated 16.07.1959 to show the property in Survey No.358 was included in the Property Register of the Wakf. It is submitted that the property belongs to the second respondent Wakf as per the Wakf Register. It is therefore submitted that it is clear that once the ______________ https://www.mhc.tn.gov.in/judis Page No 5 of 25 W.P.(MD) Nos.10443 & 10444 of 2010 property belongs to a Wakf, it will always remain as a property of the Wakf unless transferred by the Wakf.
9. The learned counsel for the first respondent submits that Section 53 of the Wakf Act, 1954 prohibited alienation of property without sanction of the Board and that all alienations were void. It is submitted that a similar provision existed in the later Act. It is therefore submitted that the sale in favour of the petitioner by the petitioner's vendor on 20.04.2007 was void. It is submitted that the Board can also send a requisition to the collector to take re-delivery of the Wakf property.
10. The learned counsel for the first respondent further submits that if the petitioner wants to establish rights over the property, the petitioner has an alternate remedy under Section 83 of the Wakf Act.
11. The learned counsel for the first respondent has placed reliance on the following decisions:-
i. The Board of Muslim Wakfs, Rajasthan Vs. Radha Kishan and others, AIR 1979 SC 289. ii. Sayyed Ali and Others Vs. A.P.Wakf Board, ______________ https://www.mhc.tn.gov.in/judis Page No 6 of 25 W.P.(MD) Nos.10443 & 10444 of 2010 Hyderabad and others, (1998) 2 SCC 642. iii. Tamil Nadu Wakf Board Vs. Hathija Ammal (Dead) represented by Lrs. and etc., 2001 Supp (2) SCR 428, iv. Board of Wakf, West Bengal and another Vs. Anis Fatma Begum and another, 2011 (1) CTC 636. v. Madanuri Sri Rama Chandra Murthy Vs. reported, (2017) 13 SCC 174.
vi. Sudha Ravi Kumar and another Vs. The Special Commissioner and Commissioner, H.R. & C.E. Department, Chennai – 34 and others, 2017 (3) CTC 135.
vii.T.A.Hassain Basha Vs. The Tamil Nadu Wakf Board and others, 2020 (2) CWC 286.
viii.Rajah Company Vs. The Inspector General of Registration, Santhome, Chennai and others, order dated 30.09.2020 of this Court in W.P. (MD) No.10998 of 2020.
12. I have considered the arguments advanced by the learned counsel for the petitioner, the learned counsel for the first respondent and the learned Special Government Pleader for the third to fifth respondents. There is no representation on behalf of the second respondent. I have ______________ https://www.mhc.tn.gov.in/judis Page No 7 of 25 W.P.(MD) Nos.10443 & 10444 of 2010 perused the impugned orders/notices, dated 03.10.2007 and 10.12.2009 of the first respondent addressed to the fourth respondent sub-registrar and the fifth respondent Commissioner, Dindigul Municipal, Dindigul.
13. Facts are not in dispute. The subject property is mentioned in the Wakf Register as is evident from Sl.No.15 to the Gazette Notification, dated 16.07.1959. Sl.No.15 makes it clear that the subject property was mentioned in the Wakf register. Prima facie, it indicates that the property all along belonged to the second respondent Wakf and it is in between the intermediate sales deeds have been registered.
14. At the time when the first alienation took place on 25.09.1932, the Mussalman Wakf Act. 1923 was in force. When the second and third alienations took place on 10.05.1957 and on 01.08.1967 respectively, the Wakf Act, 1954 was in force. Thereafter, the last alienation took place on 04.07.2007 in favour of the petitioner's vendor after the Wakf Act, 1995 was in force.
15. When alienations took place on 10.05.1957 and on 01.08.1967, Wakf Act, 1954 was in force. Wakf Act 1954 was amended vide ______________ https://www.mhc.tn.gov.in/judis Page No 8 of 25 W.P.(MD) Nos.10443 & 10444 of 2010 Amending Act 69 of 1984. Section 66G was inserted. The said Section reads as under:-
66G. 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.
16. As per Section 66G of the said Act, the period of limitation to file a suit to recover the possession of any interest in any immovable property was thirty (30) years. The period of limitation was to be begun when the possession of the defendant becomes adverse to the plaintiff. Under the Wakf Act, 1995, there is no limitation.
17. The Hon'ble Supreme Court in Wakf Board, A.P Vs. Biradavolu Ramana Reddy, AIR 1999 SC 3374, dealt with a case where the suit was filed in 1973. The said suit was filed long after 1966 but was within 12 years from the date when the new Mutawalli was appointed. In fact, the alienation took place in 1927. Sections 66D to ______________ https://www.mhc.tn.gov.in/judis Page No 9 of 25 W.P.(MD) Nos.10443 & 10444 of 2010 66H were brought the statute of Wakf Act, 1954 by Amending Act 69 of 1984 in 1984. It was therefore held the said provisions was not available to the appellant Wakf for getting the extension of period of limitation extended.
18. The Privy Council in Gunga Govind Mundul & Ors. Vs. The Collector of the Twenty Four Pergunnahs & Ors, 11 M.I.A. 212, observed that there is an extinguishment of title by the law of limitation. The practical effect is the extinction of the title of the owner in favour of the party in possession and this right is an absolute interest. The Privy Council has observed thus:
“4.The title to sue for dispossession of the lands belongs, in such a case, to the owner whose property is encroached upon ; and if he suffers his right to be barred by the Law of Limitation, the practical effect is the extinction of his title in favour of the party in possession; see Sel. Rep., vol. vi., p. 139, cited in Macpherson, Civil Procedure, p. 81 (3rd ed.). Now, in this case, the family represented by the Appellants is proved to have been upwards of thirty years in possession. The High Court has decided that the Prince's title is barred, and the effect of that bar must operate in favour of the party in possession.
Supposing that, on the extinction of the title of a ______________ https://www.mhc.tn.gov.in/judis Page No 10 of 25 W.P.(MD) Nos.10443 & 10444 of 2010 person having a limited interest, a right to enter might arise in favour of a remainderman or a reversioner, the present case has no resemblance to that.”
19. In Sk. Mukbool Ali Vs. Sk. Wajed Hossein, (1876) 25 WR 249 the High Court held as follows:-
"Whatever the decree might have been, the defendant's possession could not be considered as having ceased in consequences of that decree, unless he were actually dispossessed. The fact that there is a decree against him does not prevent the statute of limitation from running."
20. In Padminibai Vs. Tangavva & Ors., AIR 1979 SC 1142, a suit was filed by the plaintiff for recovery of possession on the basis that her husband was in exclusive and open possession of the suit lands adversely to the defendant for a period exceeding 12 years and his possession was never interrupted or disturbed. It was held that he acquired ownership by prescription. The suit filed within 12 years of his death was within limitation. Thus, the plaintiff was given the right to recover possession based on adverse possession as Tatya had acquired ownership by adverse possession. The Court observed as under:
______________ https://www.mhc.tn.gov.in/judis Page No 11 of 25 W.P.(MD) Nos.10443 & 10444 of 2010 “1. Tatya died on February 2, 1955. The respondents, Tangava and Sundra Bai are the co widows of Tatya. They were co-plaintiffs in the original suit.
11. We have, therefore, no hesitation in holding in agreement with the courts below that Tatya had acquired title by remaining in exclusive and open possession of the suit lands adversely to Padmini Bai for a period far exceeding 12 years, and this possession was never interrupted or disturbed. He had thus acquired ownership by prescriptions.” (emphasis supplied)
21. In Balkrishan vs. Satyaprakash & Ors., 2001 (2) SCC 498, decided by a Coordinate Bench, the plaintiff filed a suit for declaration of title on the ground of adverse possession and a permanent injunction. This Court considered the question, whether the plaintiff had perfected his title by adverse possession. The Court laid down the law concerning adverse possession is well settled and observed that a person claiming adverse possession has to prove three classic requirements i.e. nec vi, nec clam and nec precario. The trial court, as well as the First Appellate Court, decreed the suit while the High Court dismissed it. The Hon'ble Supreme Court restored the decree passed by the trial court decreeing suit based on adverse possession and observed as under:-
______________ https://www.mhc.tn.gov.in/judis Page No 12 of 25 W.P.(MD) Nos.10443 & 10444 of 2010 “6. The short question that arises for consideration in this appeal is: whether the High Court erred in holding that the appellant had not perfected his title by adverse possession on the ground that there was an order of a Tahsildar against him to deliver possession of the suit land to the auction purchasers.
7. The law with regard to perfecting title by adverse possession is well settled. A person claiming title by adverse possession has to prove three "neck" - nec vi, nec clam and nec precario.
In other words, he must show that his possession is adequate in continuity in publicity and in extent. In S.M. Karim vs. Bibi Sakina [1964] 6 SCR 780 speaking for this Court Hidayatullah, J. (as he then was) observed thus:
"Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found."
22. In Ravinder Kaur Grewel & Ors Vs. Manjit Kaur & Ors (2019) 8 SCC 729, the Hon'ble Supreme Court accepted the above views of the Hon'ble Court in Sk. Mukbool Ali vs. Sk. Wajed Hossein, (1876) 25 WR 249. It observed that the High Court has correctly laid down the law. In Ravinder Kaur Grewal case [cited supra], the Court accepted ______________ https://www.mhc.tn.gov.in/judis Page No 13 of 25 W.P.(MD) Nos.10443 & 10444 of 2010 the respondents' contention that under Article 144 of the Indian Limitation Act, 1908, limitation for a suit by a math or by any person representing it for possession of immovable properties belonging to it runs from the time when the possession of the defendant becomes adverse to the plaintiff. If the math while in possession of its property is dispossessed or if the possession of a stranger becomes adverse, it suffers an injury and has the right to sue for the recovery of the property. If the petitioner is in possession of the property, the 2nd respondent can file a suit for recovery of possession.
23. In Ravinder Kaur Grewal case [cited supra], the Court further observed as under:-
''Given the aforesaid, a question to ponder is when a person having no title, merely on the strength of possessory title can obtain an injunction and can maintain a suit for ejectment of a trespasser. Why a person who has perfected his title by way of adverse possession cannot file a suit for obtaining an injunction protecting possession and for recovery of possession in case his dispossession is by a third person or by an owner after the extinguishment of his title. In case a person in adverse possession has perfected his title by adverse possession and after the extinguishment of the title of the true owner, he cannot be successfully dispossessed by a true owner as the owner has lost his right, title and interest.''
24. In Para 50, it was further held as follows:-
Law of adverse possession does not qualify only ______________ https://www.mhc.tn.gov.in/judis Page No 14 of 25 W.P.(MD) Nos.10443 & 10444 of 2010 a defendant for the acquisition of title by way of adverse possession, it may be perfected by a person who is filing a suit. It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once right is extinguished another person acquires prescriptive right which cannot be defeated by re-entry by the owner or subsequent acknowledgment of his rights. In such a case suit can be filed by a person whose right is sought to be defeated
25. In Para 53, it was further observed as follows:-
''There is the acquisition of title in favour of plaintiff though it is negative conferral of right on extinguishment of the right of an owner of the property. The right ripened by prescription by his adverse possession is absolute and on dispossession, he can sue based on ‘title' as envisaged in the opening part under Article 65 of Act. Under Article 65, the suit can be filed based on the title for recovery of possession within 12 years of the start of adverse possession, if any, set up by the defendant. Otherwise right to recover possession based on the title is absolute irrespective of limitation in the absence of adverse possession by the defendant for 12 years. The possession as trespasser is not adverse nor long possession is synonym with adverse possession.''
26. The Hon'ble Supreme Court in T.Kaliamurthi and another Vs. Five Gori Thaikal Wakf and others, 2008 9 SCC 306, dealt with ______________ https://www.mhc.tn.gov.in/judis Page No 15 of 25 W.P.(MD) Nos.10443 & 10444 of 2010 Section 107 of the Wakf Act, 1995 and the provisions of the Limitation Act. The Hon'ble Supreme Court compared the provisions of the Limitation Act, 1914 and the Limitation Act of 1963 and made a following observations:
"36. Section 31 of the Limitation Act, 1963 provides that nothing in the Limitation Act, 1963 shall enable any suit, appeal or application to be instituted, provided or made, for which the period of limitation prescribed by the Limitation Act, 1908 expired before the commencement of this Act. Section 31 of the 1963 Act assumes great importance which was completely overlooked by the first appellate court. Admittedly, in the present case, the suits were filed long after the death of the muthavalli and the suit properties were transferred as far back as in 1927, therefore, the suits were barred under the Limitation Act, 1908. In other words, in the present case, the period of limitation prescribed under the 1908 Act had already expired before the commencement of the 1963 Act and, therefore, in view of the clear mandate of Section 31 of the Limitation Act, 1963, suits could not have been instituted by taking the plea that the same was within the limitation under the 1963 Act.
37. Such being the view, we have already expressed on the question of limitation, let us now examine whether Section 107 of the Wakf Act can have the effect of reviving a barred claim.
38.The Limitation Act, 1908 was amended ______________ https://www.mhc.tn.gov.in/judis Page No 16 of 25 W.P.(MD) Nos.10443 & 10444 of 2010 on the basis of the third report of the Law Commission and Limitation Act 36 of 1963 was enacted. The Wakf Act, 1954 as originally enacted did not touch the question of limitation. Suits to recover immovable properties comprised in a Wakf were governed by Articles 134A and 134B of the Limitation Act, 1908 inserted by Act I of 1929 and the residuary Articles 142 and 144 of the said Act. Articles 94 and 96 of the Limitation Act, 1963 correspond to Articles 134A and 134B of the Limitation Act, 1908, while Articles 64 and 65 of the Limitation Act, 1963 correspond to Articles 142 and 144 of the Limitation Act, 1908. The corresponding old law was Section 66G of the Wakf Act, 1954 inserted by the Amendment Act 69 of 1984.
39.Section 107 lays down that nothing contained in the Limitation Act, 1963 shall apply to any suit for possession of immovable property comprised in any Wakf or for possession of any interest in such property. Thus it can be said that this section virtually repeals the Limitation Act, 1963 so far as the Wakf properties are concerned. Therefore, it can be concluded without any hesitation in mind that there is now no bar of limitation for recovery of possession of any immovable property comprised in a Wakf or any interest therein.
40. In this background, let us now see whether this section has any retrospective effect. It is well settled that no statute shall be construed to have a retrospective operation until its language is such that would require such conclusion. The exception to this rule is enactments dealing with procedure. This would mean that the law of limitation, being a ______________ https://www.mhc.tn.gov.in/judis Page No 17 of 25 W.P.(MD) Nos.10443 & 10444 of 2010 procedural law, is retrospective in operation in the sense that it will also apply to proceedings pending at the time of the enactment as also to proceedings commenced thereafter, notwithstanding that the cause of action may have arisen before the new provisions came into force. However, it must be noted that there is an important exception to this rule also. Where the right of suit is barred under the law of limitation in force before the new provision came into operation and a vested right has accrued to another, the new provision cannot revive the barred right or take away the accrued vested right.
41. At this juncture, we may again note Section 6 of the General Clauses Act, as reproduced herein earlier. Section 6 of the General Clauses Act clearly provides that unless a different intention appears, the repeal shall not revive anything not in force or existing at the time at which the repeal takes effect, or affects the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or affect any right, privilege, obligation or liability acquired, accrued, or incurred under any enactment so repealed".
27. The Hon'ble Supreme Court in The Board of Muslim Wakfs, Rajasthan Vs. Radha Kishan and others, AIR 1979 SC 289, while dealing with a case arising out of an order passed by the Rajasthan High Court, held that where a stranger who is a Non-Muslim is in possession of a certain property, his right, title and interest therein cannot be put in ______________ https://www.mhc.tn.gov.in/judis Page No 18 of 25 W.P.(MD) Nos.10443 & 10444 of 2010 jeopardy merely because the property is included in the list published under Sub Section (2) of Section 5 of the Act. The failure of such a person to institute a suit in a Civil Court of competent jurisdiction for a decision of such question within a period of one year, as provided for under the Sub Section (1) of Section 6 does not make an inclusion of the such property in the list of Wakfs published by the Board under Sub Section (2) of Section 5 of the Act final and conclusive under Sub Section (4) of the Section 6.
28. In Paragraph No.5 in Tamil Nadu Wakf Board Vs. Hathija Ammal (Dead), Represented by Lrs. and etc., 2001 Supp (2) SCR 428, the Hon'ble Supreme Court held as follows:-
"Let us now examine the provisions of the Act. Under Section 5(2) of the Act after a property is notified to be wakf property, a determination is made by a Civil Court whenever any dispute arises after the notification is published by the Wakf Board as to whether a particular property specified as wakf property in a list published is a wakf property or not. Section 6 further provides that the Civil Court shall not entertain any such suit after the expirty of one year after the date of publication of the list by the Board. Such a suit cannot be at the instance of the Wakf Board. Again, the Board may itself collect information regarding any property as ______________ https://www.mhc.tn.gov.in/judis Page No 19 of 25 W.P.(MD) Nos.10443 & 10444 of 2010 provided under Section 27 of the Act and decide whether a particular property is wakf property or not and that decision is final unless it is revoked or modified by a Civil Court".
29. A Division Bench of this Court in Sudha Ravi Kumar and another Vs. The Special Commissioner and Commissioner, H.R. & C.E. Department, Chennai – 34 and others, 2017 (3) CTC 135 reiterated the above position and held as follows:-
"25. In view of the above discussions, all the writ petitions are allowed and the impugned orders are set aside with the following directions:
(i) The registering authority before whom the document has been presented shall cause service of notice on the parties to the deeds and also to the objector/religious institution, hold summary enquiry, hear the parties and then either register or refuse to register the document by passing an order having regard to the relevant facts as indicated above.
(ii) If the registering authority, refuses to register any document by accepting the objections raised under Section 22-A of the Registration Act, the aggrieved may file a statutory appeal under the Act.
(iii) If the objections raised under Section 22-A of the Act by the religious institution are rejected and the document is registered, the ______________ https://www.mhc.tn.gov.in/judis Page No 20 of 25 W.P.(MD) Nos.10443 & 10444 of 2010 remedy for the religious institution are rejected and the document is registered, the remedy for the religious institution is to either approach this Court by way of a writ petition seeking cancellation of the registration or for any other relief or to approach the civil Court for declaration of the title and for other consequential reliefs.
(iv) If the registering authority refuses to register the document acting on the objections raised by a religious institution under Section 22-A of the Registration Act, the parties to the deed will be at liberty to straightaway approach the Civil Court for declaration of title and other relief without availing the opportunity for filing a statutory appeal.
(v) We further direct that if the deed has already been registered without there being any objection by the religious institution under Section 22-A of the Act, the document shall be returned to the parties concerned leaving it open for the religious institution to approach either the High Court under Article 226 of the Constitution of Indian or the Civil Court for appropriate relief as indicated above. At any rate, the registering authority shall not withhold the deed which has already been registered".
30. In the present case, the facts on record indicate that earlier a suit was filed in O.S.No.1042 of 1967 before the District Munsif, Dindigul for possession of the property by the 2nd Respondent Waqf. The said suit was decreed ex parte and delivery was ordered in E.P.No.22 of ______________ https://www.mhc.tn.gov.in/judis Page No 21 of 25 W.P.(MD) Nos.10443 & 10444 of 2010 1976 on 22.06.1976. Thus, on the date when the petitioner purchased the property from his vendor vide registered Sale Deed dated 20.04.2007 registered as Document No.1529/2007, the title to the property stood confirmed in favour of the 2nd Respondent Waqf.
31. The law of limitation as it stood prior to amendment to 1954 Act cannot be applied where there is a subsequent attempt to alienate the property. Once the alienation is made, the right of the Waqf would revive. In this case, right from 1984, the limitations to sue the recover possession was protected. Even if the petitioner purchased the property in 1976, a specific period of limitation under Section 66G of the Wakf Act, 1954 protected the rights of the second respondent to recover possession. If the petitioner wants to perfect the title to the property, the petitioner has to file a suit to declare the title.
32. The petitioner should have been cautious before purchasing the Plot Nos.1, 6, 13, 18, 25, 30, 37 and 42 etc. from his vendor in 2007. The petitioner also cannot be said to have been possession of the property by merely having a sale deed executed in favour of him. At best, the plaintiff is entitled to have declaration of title by proving adverse possession in ______________ https://www.mhc.tn.gov.in/judis Page No 22 of 25 W.P.(MD) Nos.10443 & 10444 of 2010 terms of the law laid down in Ravinder Kaur Grewal case [cited supra]. Therefore, the petitioner is not entitled to make further alienation of the second respondent Pallivasal in the light of the provisions of the Wakf Act unless there is proper declaration of title in his favour. Otherwise, any sale of Waqf property is void ab initio under Section 104- A of the Waqf Act, 1995 which reads as under:-
104-A. Prohibition of sale, gift, exchange, mortgage or transfer of waqf property.— (1) Notwithstanding anything contained in this Act or any other law for the time being in force or any waqf deed, no person shall sell, gift, exchange, mortgage or transfer any movable or immovable property which is a waqf property to any other person.
(2) Any sale, gift, exchange, mortgage or transfer of property referred to in subsection (1) shall be void ab initio.
33. Therefore, I do not find any merits in the present Writ Petition. If at all the petitioner wants to perfect the title, it is open for the petitioner to file a suit for declaration of the title over the property and thereafter, approach the respondents to recall the impugned order being an embargo for further transfer / alienation and for putting up a construction.
34. Therefore, these Writ Petitions are dismissed with the above observations. No costs.
______________ https://www.mhc.tn.gov.in/judis Page No 23 of 25 W.P.(MD) Nos.10443 & 10444 of 2010 13.04.2022 Internet : Yes/No jen / btr To
1.The Chief Executive Officer, Tamil Nadu Wakf Board, No.7/4, 9th Cross Street, Indira Nagar, Chennai – 600 020.
2.The Inspector General of Registration, No.120, Santhome High Road, Mandaveli, Chennai – 600 028.
3.The Sub Registrar, Sub – Registrar Office, Nagal Nagar, Dindigul.
4.The Commissioner, Dindigul Municipality, Dindigul.
______________ https://www.mhc.tn.gov.in/judis Page No 24 of 25 W.P.(MD) Nos.10443 & 10444 of 2010 C.SARAVANAN, J.
jen / btr / smn2 Pre-Delivery Common Order made in W.P.(MD) Nos.10443 & 10444 of 2010 13.04.2022 ______________ https://www.mhc.tn.gov.in/judis Page No 25 of 25