Supreme Court Upholds Adverse Possession over Waqf Property: Sabir Ali Khan vs. Syed Mohd. Ahmad Ali Khan (2023)

Introduction

Date of the Judgment: 13 April 2023

Citation: (2023) INSC 338

Judges: K.M. Joseph, J. and Hrishikesh Roy, J.

Can a person who benefits from a religious endowment, known as a Waqf, claim ownership of that property simply by possessing it for a long time? This question was at the heart of a recent Supreme Court case. The court had to decide if the principle of ‘adverse possession’ could apply to Waqf properties, potentially allowing a beneficiary to become the owner, even though the property is meant for religious or charitable purposes. The Supreme Court of India, in this case, examined the interplay between Waqf law, property law, and the law of limitations, ultimately deciding in favor of the possessors.

Case Background

The case revolves around a Waqf-alal-aulad (a family Waqf) created by Syed Mohd. Akbar Ali Khan on 26th July 1934. He appointed himself as the first Mutawalli (manager). The dispute began when Akbar Ali Khan sold a portion of the Waqf property in 1948, which was challenged in court by his son, Qasim Ali Khan. The court upheld the validity of the Waqf in 1962. After Akbar Ali Khan’s death in 1958, his sons Qasim Ali Khan, Kazim Ali Khan, and Raza Ali Khan were involved in further disputes regarding the property. Despite Qasim Ali Khan being recognized as the Mutawalli, his brothers got their names entered in revenue records as owners. This led to further litigation, including a compromise in 1974, which was later contested. The core issue is whether the respondents, who are the sons of Raza Ali Khan, could claim ownership of the Waqf property based on adverse possession, despite the property being designated for religious purposes.

Timeline

Course of Proceedings

The Collector of Bulandshahar ordered the respondents to deliver possession of the property to the Waqf Board, acting on a requisition from the Controller of the Waqf Board under Section 52(1) of the Waqf Act, 1995. The respondents challenged this order before the Additional District Judge, Bulandshahar, who allowed their appeals. The High Court then set aside the Additional District Judge’s order, stating that the Waqf Tribunal had jurisdiction. The respondents subsequently filed appeals before the Waqf Tribunal, which were allowed, and the Collector’s order was set aside. The High Court affirmed the Tribunal’s order, but on the ground that the respondents had perfected title by adverse possession.

Legal Framework

The case involves several key legal provisions:

• Section 52 of the Waqf Act, 1995: This section allows the Waqf Board to request the Collector to recover possession of Waqf property that has been illegally transferred. It states that,
  “if the Board is satisfied, after making any inquiry as may be prescribed, that any immovable property of a waqf entered as such in the Register of Waqfs maintained under Section 36, has been transferred without previous sanction of the Board in contravention of Sections 51 or 56 of the Act, it may send a requisition to the Collector of the place within which the property is situated to obtain and deliver possession.”
• Section 51 of the Waqf Act, 1995: Before its substitution by Act 27 of 2013, it stated that any sale of waqf property without the prior sanction of the Board is void.
  “Notwithstanding anything contained in the wakf deed, any gift, sale, exchange or mortgage of any immovable property which is waqf property, shall be void, unless such gift, sale, exchange or mortgage is effected with the prior sanction of the Board”
• Section 49A of the Uttar Pradesh Muslim Waqf Act, 1960: Similar to Section 51, this provision prohibits the transfer of waqf property without prior sanction from the Board.
  “Notwithstanding anything contained in the deed or instrument, if any, by which the waqf has been created, no transfer by way of – (i) sale, gift, mortgage or exchange; or (ii) lease for a period exceeding three years in the case of agricultural land, or for a period exceeding one year in the case of non -agricultural and or building of any immovable property of the waqf shall be valid without the previous sanction of the Board.”
• Section 49B of the Uttar Pradesh Muslim Waqf Act, 1960: Allows the Board to send a requisition to the Collector for recovery of possession of waqf property transferred in contravention of Section 49A.
  “If the Board is satisfied after making an inquiry in such manner as may be prescribed that any immovable property entered as property of a waqf in the register of waqfs maintained under Section 30, has been transferred without the previous sanction of the Board in contravention of the provisions of Section 49 -A, it may send a requisition to the Collector within whose jurisdiction the property is situate to obtain and deliver possession of the property to it.”
• Section 69 of the Uttar Pradesh Muslim Waqf Act, 1960: Prohibits the compromise of suits related to waqf property without the Board’s sanction.
  “No suit or proceeding pending in any court by or against the mutawalli of a wakf relating to title to wakf property or the rights of the mutawallis shall be compromised without the sanction of the Board.”
• Article 65 of the Limitation Act, 1963: Deals with the limitation period for suits for possession of immovable property based on title, setting a 12-year limit from when the possession becomes adverse.
• Article 96 of the Limitation Act, 1963: This article specifies the limitation period for a suit by a manager of a religious or charitable endowment to recover possession of property transferred by a previous manager for valuable consideration. The period is 12 years from the date of death, resignation, or removal of the transferor, or the date of appointment of the plaintiff as manager, whichever is later.
• Section 27 of the Limitation Act, 1963: States that at the determination of the period limited to any person for instituting a suit for possession of any property, “his right” to such property would stand extinguished.
• Section 107 of the Waqf Act, 1995: States that the Limitation Act, 1963 does not apply to suits for possession of immovable property comprised in any waqf.

Arguments

Appellant’s Arguments:

• The appellant argued that Article 96 of the Limitation Act, 1963, applies, and the limitation period should commence from the date of appointment of the current Mutawalli (manager), which would make the action within the limitation period. They contended that Article 65 does not apply in this case.
• They argued that the High Court erred in finding that the right of the Waqf was extinguished by Section 27 of the Limitation Act, 1963, as the possession became adverse from the date of resignation of the earlier Mutawalli.
• The appellant further contended that the respondents, being beneficiaries, could not acquire title by adverse possession of the Waqf property.
• The appellant relied on several judgments, including Chhedi Lal Misra (Dead) Through Lrs. v. Civil Judge, Lucknow and others [ (2007) 4 SCC 632 ], K.S. Viswam Iyer (Dead) Through Lrs. v. State Wakf Board, Madras [ 1994 Suppl. (2) SCC 109 ], and Wali Mohammed (Dead) by Lrs. v. Rahmat Bee (Smt) and others [ AIR 1999 SC 1136 ].

Respondent’s Arguments:

• The respondents argued that no valid Waqf was created as the Waqif (creator of the Waqf) never acted upon it, and there was no change in the character of possession of the property.
• They contended that the Waqf was not registered under the relevant Acts and therefore, the summary procedure under the Waqf Act was not applicable.
• The respondents argued that the compromise of 1974 was valid, and the appellant was estopped from challenging it. They also argued that the respondents had been in continuous possession of the property, and the Limitation Act was applicable to Waqf properties till the Waqf Act came into force.
• They contended that the appointment of a new Mutawalli did not lead to a fresh starting point of limitation.
• The respondents argued that they were not beneficiaries and even if they were, there was no bar in law preventing a beneficiary from claiming adverse possession. They relied on M. Siddiq (Dead)Through Legal Representatives (Ram Janmabhumi Temple Case) v. Mahant Suresh Das and others [ (2020) 1 SCC 1 ] and Karnataka Board of Wakf v. Govt. of India and others [ (2004) 10 SCC 779 ].

Arguments of Respondent Nos. 2 and 4:

• They argued that the compromise was not valid without the prior approval of the Board.
• They contended that the two sales were void under Section 51(1) and Section 51(A) of the Waqf Act.
• They argued that Article 65 of the Limitation Act did not apply to the proceedings of the Waqf Act and that Section 27 of the Limitation Act did not apply to Waqf property.
• They also contended that the respondent no.1 in both the Appeals could not be said to have perfected their title by adverse possession against the State for which the period is 30 years.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues:

1. Whether there was a valid Shia Waqf and whether it was registered?
2. Whether the compromise dated 13.02.1974 and the Order dated 12.09.1974 are valid or are they void?
3. Whether the two sales, one on 14.10.1960 and the second on 26.09.1974, in favor of the first respondent in the two Appeals before us, are void?
4. Whether the action is barred by limitation?
5. Whether the High Court was correct in finding that the action was barred as it is not Article 96 of the Limitation Act, which applied but Article 65? What is the interplay between the said Articles in the facts?
6. What is the impact of Section 27 of the Limitation Act, 1963 in the facts?
7. Whether Section 107 of the Act removes the bar of limitation at any rate?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The court considered various authorities to reach its decision:

Judgment

How each submission made by the Parties was treated by the Court?

Reasoning of the Court:

The Supreme Court, while agreeing with the High Court’s decision, provided a detailed analysis of the issues. The court found that:

• A valid Waqf was created, and it was compulsorily registerable under the 1936 Act.
• The compromise of 1974 and the order based on it were void as they were in violation of Section 69 of the 1960 Act.
• The sale of 1960 was not by the Mutawalli, and the sale of 1974 was void for being in violation of Section 49A of the 1960 Act.
• The action was barred by limitation. The Court held that Article 65 of the Limitation Act, 1963, applied and not Article 96, as the sales were void.
• The court held that Section 27 of the Limitation Act, 1963, extinguished the title of the Waqf as the respondents had been in adverse possession for more than 12 years.
• Section 107 of the Waqf Act, 1995, does not revive an extinguished title.

The Court emphasized that the law of limitation, as it stood on the date of the suit, was applicable. The Court also noted that even if the respondents were beneficiaries, there was no legal bar preventing them from claiming adverse possession. The Court further clarified that the appointment of a new Mutawalli did not lead to a fresh starting point of limitation.

Ratio Decidendi:

The Court’s decision is based on the following key principles:

1. Adverse Possession of Waqf Property: A beneficiary can acquire title to Waqf property through adverse possession, provided the possession is continuous, hostile, and for the statutory period.
2. Applicability of Article 65: In cases of void transfers of Waqf property, Article 65 of the Limitation Act, 1963, applies, and the limitation period begins from the date of the void transfer.
3. Extinguishment of Title: Section 27 of the Limitation Act, 1963, extinguishes the title of the property if the suit for possession is not filed within the prescribed period.
4. Section 107 of the Waqf Act: Section 107 of the Waqf Act, 1995, does not revive an extinguished title.

Flowchart of the Case

Ratio Table

Critical Analysis and Implications

The Supreme Court’s judgment in Sabir Ali Khan vs. Syed Mohd. Ahmad Ali Khan has significant implications for Waqf law and property law in India. The ruling clarifies that the principle of adverse possession applies to Waqf properties and that a beneficiary can claim ownership through adverse possession if they have been in continuous and hostile possession for the statutory period. This decision is likely to have the following impacts:

• Potential Loss of Waqf Properties: The judgment may lead to the loss of Waqf properties to individuals who have been in adverse possession, even if they are beneficiaries. This could undermine the purpose of Waqfs, which are meant for religious and charitable purposes.
• Increased Litigation: The ruling may encourage more litigation over Waqf properties, as individuals may seek to claim ownership through adverse possession.
• Need for Better Waqf Management: The judgment highlights the need for better management and oversight of Waqf properties to prevent adverse possession claims. Waqf Boards need to be more proactive in safeguarding their properties.
• Clarification on Limitation: The ruling provides clarity on the application of the Limitation Act to Waqf properties, specifically clarifying that Article 65 applies to void transfers.
• Balancing Act: The Court has attempted to balance the rights of the Waqf with the legal principle of adverse possession, which is a well-established principle of law.
• Impact on Beneficiaries: The Court’s ruling that a beneficiary can claim adverse possession, though legally sound, may raise ethical and moral concerns about the intent of the Waqf.

In conclusion, the Supreme Court’s judgment in this case is a significant one, with far-reaching implications. While it upholds the principle of adverse possession, it also highlights the need for better management and protection of Waqf properties. The decision underscores the complex interplay between Waqf law, property law, and the law of limitations. It is imperative for Waqf Boards and other stakeholders to take note of this judgment and implement measures to safeguard Waqf properties from adverse possession claims.