WAKF BOARD HYD Vs. BALARAMI REDDY

JUDGEMENT

(1.) The Appellant herein is the Wakf Board. Andhra Pradesh who was the plaintiff in O.S, No. 50 of 1968 Sub-Court, Nellore which was later numbered as O.S. 6 of 1972 of District Court, Nellore. The suit was filed for recovery of possession of an extent of 161 ankanams out of 0-63 cents situate in Survey No. 461 in Nellore village. The case of the plaintiff was that this formed part of certain property which was endowed in favour of a mosque called Badruddin AH Khan Mosque for the performance of Pesh Imam service. In 1950 the properties were in the enjoyment of two brothers Mohd. Ghouse and Abdul Hafees in whose favour a release deed was executed on 25-10 1937 by other family members. The brothers partitioned their properties on 7-5-1948 and agreed to perform the services in turn of six months duration On 10-8-1950 thsy sold item 1 of the plaint schedule property to the defendant. On the same day, they sold a part of item 2 to one Sundarram Reddy who in turn sold it to the defendant's brother under sale deed dt. 9-5-1952, The remaining part of item 2 was sold by one Rahamatunnisa Begum on 1-1-1959 under ao agreement of sale to one Eswaramna, the sistei of the defendants. Subsequently, this part of item 2 also came into possession of the defendant By reason of these transactions the defendant was in possession of both the the items 1 and 2 of the plaint schedule. The property endowed to the mosque including the plaint schedule property was notified as Wakf Property under Sec. 5 of the Wakf Act by a notification dt. 2-5-1963. The plaintiff filed the above suit for recovery of possession claiming that the property was wakf property, that it was inalienable and the alienations hi favour of the defendant or his predecessor-in-title were void and the plaintiff was therefore, entitled to recover possession of the property from the defendant.

(2.) The defendant resisted the suit. He denied that the property was Wakf Property. He contended that the properties belonged to the two brothers. Mohd. Ghouse and Abdul Hafees in their personal capacity and they were entitled to sell the property to the defendant or his predeces- sors-in-interest. He also contended that they acquired title by adverse possession and the suit was barred by limitation. The plaintiff had the plaint amended subsequently by substituting the name "Abbas AH Khan Mosque" for the name 'Badruddin AH Khan Mosque which was used in the original plaint.

(3.) The learned District Judge framed the necessary issues. He came to the conclusion that Abbas AH Khan Mosque was a public mosque or a public wakf. The plaint schedule property was endowed for performing Pesh Imam service in Mustafa All Khan Mosque and was therefore wakf property and inalienable. He therefore came to the conclusion that the that the defendant who was an alienee under a void alienation was in wrongful possession of the property. He further held that the defendant did not acquire title by adverse possession and the suit was not barred by limitation. Regarding the identity of the property, the District Court found that the suit property was identical with the property which was endowed in favour of Mustafa Ali Khan mosque. Having held all these issues in favour of ths piaintiff, the learned District Judge dismissed the suit holding that the plaintiff, had filed the suit on the allegation that the suit properties were endowed for the purpose of service in Abbas Ali Khan Mosque, but as it was found that it bad been endowed in favour of another mosque called Mustafa Ali Khan mosque, the suit could not be decreed. The plaintiff has preferred this appeal against the said judgment and decree