SOPANRAO & Anr. v. SYED MEHMOOD & Ors.

HELD: 1.1 Issue of title is a finding of fact arrived at by the District Judge and confirmed by the High Court. This finding cannot be disturbed in Supreme Court. However, through the record it is found that the possession of land in question was handed over to the Trust only on 19.08.1978. Nothing has been brought on record to show that prior to 29.01.1973 the land was entered in the name of the Trust. As per the pleadings of the defendants a change report had been filed before the Assistant Charity Commissioner, Latur and the said authority, without issuing notices to the Inamdars/Mutawalis, allowed the said application on 29.01.1973. The plaintiffs had no knowledge of this application but on the basis of this order the Government handed over the possession of the land to the Trust. It was only after the Trust came into the possession of the land that the mutation entry (Exhibit No.115) was made in favour of the Trust. According to the plaintiffs, they came to know about this fact only in 1986 when some publication in this regard was made by the Assistant Charity Commissioner in terms of Section 50A of the Bombay Public Trusts Act, 1950 and, thereafter, they filed the suit. It was the plaintiffs, as observed by the District Judge as well as the High Court, who had proved that the suit land belonged to the Dargah. According to the High Court, the plaintiffs were not actually Inamdars and were manning the affairs of the Dargah in the nature of Mutawalis. Evidence was led by the plaintiffs to show that they had been held to be the successors of one Nizamuddin, the original Mutawali of the Dargah by the competent authority under the Hyderabad Atiyat Inquiries Act, SOPANRAO & ANR. v. SYED MEHMOOD & ORS.

#1952. The High Court made reference to a large number of documentary records proved by the plaintiffs from the year 1915 onwards, which showed that the land had been granted to the Dargah as far back in 1915. Therefore, the Dargah was shown to be the owner as far back in 1325 Fasli (1915 A.D.) in the official records. Similar entries were made in 1342 Fasli (1932 A.D.), 1943 and 1951, all of which showed that the lands were shown as lands belonging to Dargah. The judgments of the District Court and the High Court are based on evidence. No question of law arises as far as ownership of land is concerned. Therefore, this finding of fact calls for no interference. Admittedly, the possession of the land was handed over to the Trust only in the year 1978. The suit was filed in the year 1987. The appellants’ contention that the limitation for the suit is three years as the suit is one for declaration has to be rejected. The main prayers made in the suit hereinabove which clearly indicate that it is a suit not only for declaration but the plaintiffs also prayed for possession of the suit land. The limitation for filing a suit for possession on the basis of title is 12 years and, therefore, the suit is within limitation. Merely because one of the reliefs sought is of declaration that will not mean that the outer limitation of 12 years is lost. In a suit filed for possession based on title, the plaintiff is bound to prove his title and pray for a declaration that he is the owner of the suit land because his suit on the basis of title cannot succeed unless he is held to have some title over the land. However, the main relief is of possession and, therefore, the suit will be governed by Article 65 of the Limitation Act, 1963. This Article deals with a suit for possession of immovable property or any interest therein based on title and the limitation is 12 years from the date when possession of the land becomes adverse to the plaintiff. In the instant case, even if the case of the defendants is taken at the highest, the possession of the defendants became adverse to the plaintiffs only on 19.08.1978 when possession was handed over to the defendants. Therefore, there is no merit in this contention of the appellants. [Paras 8, 9] [[42-H; 43-A-H; 44-A-D]

1.2 The lesser relief or smaller version of the relief claimed or prayed for can be granted. The plaintiffs claimed the status of Inamdars which is a higher position than that of Mutawalis. The 39 A B C D E F G H SUPREME COURT REPORTS [2019] 9 S.C.R. High Court has granted a lesser or lower relief and not a higher relief or totally new relief and, therefore, we reject this contention also. [Paras 10, 11] [45-C]

1.3 It was also urged that the civil court had no jurisdiction to decide the suit. No such objection was raised before the trial court. This objection was raised before the High Court but has been rightly rejected. The issue in this case was whether the properties were properties of the Dargah or not and the issue was not whether the properties are wakf properties or not. The High Court rightly held that the plaintiffs were not claiming any personal right in the land but only claiming rights of management over the property of the Dargah. The finding of the High Court that the civil court had the jurisdiction to decide the suit, agreed with. The appellants/defendants, during the course of this appeal, have filed a number of applications to place on record certain documents which were not on the record of the trial court. No explanation has been given in any of these applications as to why these documents were not filed in the trial court. These documents cannot be looked into and entertained at this stage. The defendants did not file these documents before the trial court. No application was filed under Order XLI Rule 27 of the Code of Civil Procedure, 1908 for leading additional evidence before the first appellate court or even before the High Court. Even the applications filed before us do not set out any reasons for not filing these documents earlier and do not meet the requirements of Order XLI Rule 27 of the Code of Civil Procedure. Hence, the applications are rejected and the documents cannot be taken into consideration. [Paras 12, 13] [45-D-H; 46-A]