Research › Browse › Judgment

Allahabad High Court · body

1971 DIGILAW 253 (ALL)

U. P. Sunni Central Board v. Khursheed Haider

1971-05-05

K.B.ASTHANA

body1971
JUDGMENT K.B. Asthana, J. - The U.P. Sunni Central Board of Waqf (hereinafter called the Board) constituted under the U.P. Muslim Waqf Act No. XVI of 1960 (hereinafter called the Act) has come up in revision under Section 76 of the Act from an award of the Tribunal dismissing the application of the Board filed under Section 63 (5) of the Act. 2. Khursheed Haider, the opposite party, admittedly is in possession of the properties of the Waqf Basheerunnisa and is managing the same claiming to be a Mutwalli under the terms of the waqf-deed executed by Smt. Basheerunnisa on 6-5-1916. It appears that Smt. Basheerunnisa constituted herself as the first Mutwalli. After her, her brother Syed Ahmad succeeded as Mutwalli. On the death of Syed Ahmad his eldest son Muzaffar Ahsan became the Mutwalli. He was a bachelor and had no son. Muzaffar Ahsan was twice punish. ed under Section 60 of the Act and then removed from the office of the Mutwalli in August, 1949 by the Board. In the end of August, 1949 Muzaffar Ahsan migrated to Pakistan. Thereupon the Custodian took over the management of the Waqf holding the Waqf property as evacuee property vesting in him. While the Board alleges that after the removal of Muzaffar Ahsan the Board itself took up the management, appointed a Committee of Management, and took possession of the Waqf properties through their Inspector Rafiq Ahmad, Khursheed Haider alleges that he had succeeded as Mutwalli according to the Waqf deed, took effective part in the control and management being always in possession of the Waqf property. However, before the Custodian it seems the Board as well as Khursheed Haider took up a united stand and they ultimately succeeded. The Custodian in appeal finally held that before his migration to Pakistan Muzaffar Ahsan having been divested of his office of Mutwalli, the Waqf property could not have been declared as evacuee property. The Custodian eventually by his order dated 11-9-1957 released the property in favour of the Board. But Khursheed Haider appeared on the scene in effective possession of the Waqf property. Despite demands and notices to Khursheed Haider by the Board and the Managing Committee appointed by it, he appeared to have stuck to his office and possession. The Custodian eventually by his order dated 11-9-1957 released the property in favour of the Board. But Khursheed Haider appeared on the scene in effective possession of the Waqf property. Despite demands and notices to Khursheed Haider by the Board and the Managing Committee appointed by it, he appeared to have stuck to his office and possession. On 22-12-1966 the Board filed an application under Section 63 (5) of the Act for the delivery of possession of the property of the Waqf and documents relating thereto against Khursheed Haider. Inter alia, the defence of Khursheed Haider was that the application of the Board was time-barred and that he was in possession as a rightful Mutwalli and in any case being a duly constituted Mutwalli. The Board had no right to ask for delivery of possession of the Waqf property and the documents relating thereto from him. 3. The Tribunal constituted by the learned Civil Judge of Bijnor, on the evidence, oral and documentary on record. found that Khursheed Haider had come into effective possession of the properties of the Waqf as soon as Muzaffar Ahsan was removed from the Mutwalliship by the Board, that according to the terms of the waqf-deed Khursheed Haider was the rightful Mutwalli and that in any view he was a defecto Mutwalli. The learned Civil Judge further found that Article 137 of the Schedule of the Limitation Act 1963 applied to an application under Section 63 (5) of the Act and the period for such application having started running from the date the Custodian released the properties, the application having been filed more than three years thereafter was barred. On these findings the learned Civil Judge dismissed the application of the Board. 4. In this revision I need not examine the question as to the legal status or the factual status of Khursheed Haider though arguments have been advanced before me at the Bar, as I think the view taken by the court below that the application of the Board was time barred is legally correct and it would be conclusive. It will always remain open to the Board in appropriate proceedings to question the status or capacity of Khursheed Haider. Likewise it would be open to Khursheed Haider to establish his status or capacity by appropriate proceedings, if need be. I am deciding this revision solely on the question of limitation. 5. It will always remain open to the Board in appropriate proceedings to question the status or capacity of Khursheed Haider. Likewise it would be open to Khursheed Haider to establish his status or capacity by appropriate proceedings, if need be. I am deciding this revision solely on the question of limitation. 5. Learned counsel for the Board strenuously contended that the finding of the court below that Khursheed Haider came into possession of the Waqf properties in August, 1949 when Muzaffar Ahsan was removed from the office of the Mutwalliship and thereafter remained in effective possession, is erroneous. I do not think the learned Judge has given any such finding. What he has said is that Khursheed Haider in assertion of his right as the rightful Mutwalli took the management in his hand and was in effective control and possession of the agricultural land, the attempt of Rafiq Ahmad, the Inspector of the Board, to take possession of the agricultural lands and the management thereof having failed. But as the facts show soon thereafter the Custodian came upon the scene and took possession of the waqf properties treating it as evacuee properties. What transpired in the interval between the removal of Muzaffar Ahsan and taking over by the Custodian would hardly be material as that interval was very short. The real question that arises in as to who came into possession when the Custodian released for Waqf properties in September, 1957. It is the own case of the Board in its objection that Khursheed Haider wrongfully took possession of the waqf properties. Thus the finding of the court below that the right to obtain possession accrued to the Board with effect from September, 1957 when on the own showing of the Board Khursheed Haider took wrongful possession of the waqf properties cannot be doubted. 6. It was urged on behalf of the Board that in September, 1957 there being no question of filing any application as under the old Waqf Act there was no such provision, no question of running of time will arise. The Act under which the application was made came into force in 1960 when the Old Limitation Act was in force. It was urged on behalf of the Board that in September, 1957 there being no question of filing any application as under the old Waqf Act there was no such provision, no question of running of time will arise. The Act under which the application was made came into force in 1960 when the Old Limitation Act was in force. It was urged that Article 181 and for the matter of that any other Article in the Schedule to the Old Limitation Act would not have governed any application under Section 63 (5) of the Act as it was the settled law that Article 181 was applicable only to applications governed by the Civil Procedure Code. But the Board itself is to blame for not filing an application under Section 63 (5) of the Act, though a remedy had been provided by the Act and allowed the time to pass till the Old Limitation Act was replaced by the Limitation Act of 1963. When in December, 1966 the application was filed by the Board the period of Limitation was to be governed by the Limitation Act of 1963. 7. It was then contended by the learned counsel for the Board that Article 137 in the Schedule of the new Act being a substitute for Article 181 of the Schedule of the Old Act will bear the same meaning and the Board's application under Section 63 (5) of the Act not being an application under the Civil Procedure Code would not be governed by Article 137 of the New Limitation Act. It was suggested that there is no period of limitation prescribed by any law for an application under Section 63 (5) of the Act. I am conscious of law as laid down by the Supreme Court relating to Article 181 of the Schedule of the Limitation Act of 1918 that it was not applicable to applications under any other Act and it was limited in its scope and only covered applications under the Civil Procedure Code. The reason being that the schedule to the Old Limitation Act dealt throughout with applications under the Civil Procedure Code and as a residuary Article it would partake of the same colour as if the words "under the Code" were written in it. 8. I do not think in considering the scope of Article 137 of the Limitation Act of 1963. 8. I do not think in considering the scope of Article 137 of the Limitation Act of 1963. I am bound by the interpretation or the meaning put on Article 181 in the schedule of the old Act. It would be found that in the third division of the schedule of the new Limitation Act applications under the Constitution of India, namely, for the fitness of appeal to the Supreme Court and for special leave to appeal directly to the Supreme Court also find a mention at serial Nos. 132 and 133. Such applications are not covered by the Civil Procedure Code. Then there is Article 131 in the Schedule to the New Limitation Act which provides for an application for revision under the Criminal Procedure Code 1898. In the definition clause of the Limitation Act 1963 the word `application' under Section 2 (b) includes a petition. The intention is manifest that motions apart from the Civil Procedure Code were contemplated which required initiation by petitions. Under the Civil Procedure Code motions by petitions are not contemplated. In the statement of Objects and Reasons when introducing the Bill it was stated that: "A new definition of `application' is being inserted so as to include a petition, original or otherwise. The object is to provide a period of limitation for original applications and petitions under special laws as there is no such provision now. Consequential changes have been made in the definition of `appellant'." It appears to me that there is no good reason why should the residuary Article 137 of the Schedule to the Limitation Act, 1963 be not held to cover in its ambit applications and objections under the special laws or any other law and its language ought not to be interpreted narrowly so as to keep it confined to applications under the Civil Procedure Code, there being no warrant for it in the phraseology of that Article or in the scheme of the schedule to the New Limitation Act. Even if it be held that the remedy for the first time was available to the Board when Act of 1960 came into force the application under Section 63 (5) of the Act should have been filed much earlier and there was so justification for the Board not to act for 6 years almost. Even if it be held that the remedy for the first time was available to the Board when Act of 1960 came into force the application under Section 63 (5) of the Act should have been filed much earlier and there was so justification for the Board not to act for 6 years almost. I am in agreement with the finding of the court below that the application of the Board under Section 63 (5) of the Act was time barred. 9. The result is that this revision is dismissed with costs.