ANDHRA PRADESH WAKF BOARD HYDERABAD Vs. MOPARTI SOMAIAH

JUDGEMENT

(1.) The Andhra Pradesh Wakf Board, the plaintiff in the suit is the appellant. The defendants thirty in number are in possession and enjoyment of small parcels of land of a total extent of Ac. 25-55 cents in S. Nos. 462 and 463 of Tadikonda village, more fully described in the plaint schedule. The plaintiff Board filed the suit for possession of the plaint schedule properties with profits by way of damages alleging that the plaint schedule properties with profits by way of damages alleging that the plaint schedule properties are the Wakf properties. It is the plaintiffs case that the suit schedule properties were granted to the Darga of Hazarat Niamatulla at Tadikonda village for its maintenance and upkeep and to perform services of Darga along with some other properties, that the 13th defendant is the heir of the original grantee, that the predecessors in interest of the 13th defendant leased out items 1 and 2 of the plaint schedule properties to the predecessors in interest of defendant 1 to 12 in S. Nos. 462 and 463 of Tadikonda village, that the said predecessors in interest of defendants 1 to 12 and continued as lessees till 1936 and that they were now claiming adverse possession by virtue of their long possession. It is further the case of the plaintiff that the plaint schedule properties were surveyed by the Assistant Commissioner of Wakfs, who held that the said properties are wakf properties attached to the Darga of Hazarat Naimatulla and that the said report has become final. It is also averred that the 13th defendant is not the mutawalli of the Darga of Hazarat Niamatulla and, therefore, he has no right to represent the same and that the suit O. S. No. 74 of 1954 on the file of the Subordinate Judge, Guntur, and the subsequent proceedings were collusive in nature between the 13th defendant and the predecessor in interest of defendant 1 to 12 and that the said decree was not binding either on the Darga or on the plaintiff Board. It is, therefore, averred that the decision in O. S. No. 74 of 1954 on the file of the Subordinate judge, Guntur, and the appeal thereon in A. A. No. 635 of 1959 on the file of the High Court are not a bar to file the suit. Therefore, the plaintiff filed the suit for delivery of possession of the suit schedule properties, since the defendants failed to hand over possession.

(2.) The main defence in the suit was that the suit schedule properties are not wakf properties and that neither the plaintiff nor the Darga of Hazarat Niamatulla at Tadikonda Village had either title or possession and enjoyment of the said properties at any time and much less within the statutory period and, therefore, suit the was barred by limitation. It was also pleaded that the suit was barred by res judicata by virtue of the decision in O. S. NO. 74 of 1954 on the file of the court of the Principal Subordinate Judge, Guntur.

(3.) The learned Principal Subordinate Judge, Guntur on a consideration of the entire evidence adduced by the parties, held that the plaintiff Board failed to establish that the suit properties are Wakf properties within the meaning of S. 3 (1) of the Wakf Act, 1954 (hereinafter referred to as the Act). He also held that either the Darga or the plaintiff Board was never in possession of the suit properties within twelve years prior to the filing of the suit and that the defendants perfected their title to the suit properties by adverse possession. The Court below further held that the decision in O. S. No. 74 of 1954 operated as res judicata. Consequently the suit was dismissed.