KAMRUDDIN HAJI ABDUL HAMID Vs. HUSENSHAH JAMALSHAH

JUDGEMENT

(1.) This is an appeal against the judgment and decree passed by the learned District Judge Surat in Regular Civil Suit No. 24 of 1954 filed by the present appellant (plaintiff No. 4) and four other plaintiffs (plaintiffs Nos. 1 2 3 and 5) who have died during the pendency of the suit as realtors after obtaining the necessary permission of the Charity Commissioner under sec. 50 of the Bombay Public Trusts Act 1950 (Which will be hereinafter referred to as the Act). [His Lordship after narrating the facts of the case and holding that the appeal does not abate further observed.]

(2.) the interesting question of law that arises in this appeal is whether the present suit is time barred as has been held by the learned trial Judge. The second interesting question that arises is whether deceased defendant No. 3 had become an owner by adverse possession.

(3.) The learned trial Judge has decided these two points in favour of defendant No. 3 and against the plaintiff. According to the learned trial Judge the Mujawars or the Vahivatdars of the said Wakf property viz. father of defendants Nos. 1 and 2 and defendants Nos. 1 and 2 who are managing these properties had no right to alienate these properties by sale or mortgage and therefore the sale deeds passed by them are void and inoperative and defendant No. 3 cannot acquire any interest in the suit properties by these sale deeds. According to the learned trial Judge these sale transactions being void from their inception adverse possession of defendant No. 3 the aliened started from the very date of the alienation and after completion of twelve years from that date defendant No. 3 obtained prescriptive title. Defendant No. 3 had therefore become an owner by adversely possessing the suit properties for a period over twelve years the adverse possession having commenced from the respective dates of alienations in question. The learned trial Judge further found that the suit is at any rate time barred as on the evidence he recorded a finding that the plaintiffs to the suit (realtors) came to know about these transfers more than twelve years prior to the date of the suit. The suit having not been filed within twelve years from the date of their knowledge of these transfers in view of the provisions of Article 134A of the Indian Limitation Act 1908 which governed the period of limitation for the suit in question the suit was time barred.