Wakf property and adverse possession: unamended limitation protection did not apply, and hostile occupation was not proved.

Under the unamended Section 10 of the Indian Limitation Act, 1908, Mahommedan wakf property did not fall within the exemption because the property was not vested in a trustee in the English law sense; the mutawalli or sajjadanashin was only an administrator. The 1929 deeming amendment could not apply retrospectively to a suit filed earlier, so limitation protection was unavailable. The defendants also failed to establish adverse possession, since they did not prove clear, continuous, public and hostile occupation for the full statutory period, and their earlier conduct was consistent with permissive possession rather than hostile title.

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Issues: (i) Whether the suit for recovery of possession of wakf lands was barred by limitation under Section 10 of the Indian Limitation Act, 1908. (ii) Whether the defendants had proved adverse possession for more than twelve years so as to defeat the suit under Article 144 of the Indian Limitation Act, 1908.

Issue (i): Whether the suit for recovery of possession of wakf lands was barred by limitation under Section 10 of the Indian Limitation Act, 1908.

Analysis: The unamended Section 10 applied only where property had become vested in trust for a specific purpose, or in the hands of legal representatives or assigns of such a trustee. The earlier authority on Mahommedan wakf established that, under Mahommedan law, the property of a wakf does not vest in the mutawalli or sajjadanashin as trustee in the English sense; the manager merely administers the endowment. As the suit was instituted before the 1929 amendment, the deeming provision inserted by that amendment could not apply retrospectively. The wakf lands therefore did not fall within the unamended section.

Conclusion: The suit was not protected by Section 10 of the Indian Limitation Act, 1908, and the defendants could not defeat the claim on that ground.

Issue (ii): Whether the defendants had proved adverse possession for more than twelve years so as to defeat the suit under Article 144 of the Indian Limitation Act, 1908.

Analysis: The defendants bore the burden of proving adverse possession by clear, continuous, public, and hostile possession. Their earlier litigation showed only assertions of service rights or office at the shrines, not a persistent hostile title to the lands. After their dismissal from shrine service, their continued occupation was consistent with permissive possession by leave of the sajjadanashin, especially in light of their continuing connection with other shrines in the village. The evidence did not establish the requisite hostile possession for the full statutory period. Article 139 was also inconsistent with their case.

Conclusion: Adverse possession was not proved, and the suit was not barred under Article 144.

Final Conclusion: The plaintiff's claim to possession succeeded, the limitation defence failed, and the appeal was dismissed with costs.

Ratio Decidendi: Under the unamended Section 10 of the Indian Limitation Act, 1908, a Mahommedan wakf property not vested in the English law sense of trust does not attract the exemption from limitation, and a plea of adverse possession must be proved by clear hostile occupation for the full statutory period.

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