LAW FOR ALL : Wakf Properties - Adverse Possession = (i) Whether the suit properties were originally Wakf Properties or alternatively whether they ceased to be Wakf properties as the defendants/appellants and their predecessors had perfected their title by way of adverse possession ? (ii) Whether the suits filed by the Wakf/respondents were barred by limitation and, if so, whether Section 107 of the Wakf Act could have the effect of reviving a barred claim ? So far as question No.1 is concerned, that is to say, whether the suit properties were Wakf properties or not, we find that the courts below concurrently held that the suit properties were Wakf properties.- On the question of limitation and adverse possession, the trial court held that the suits of the Wakf/respondents were barred by limitation and appellants had perfected the title by adverse possession = whether Section 6 of the General Clauses Act would apply in this case or not. That is to say, it may appear that if we answer this question in the negative thereby holding that Section 112 is self contained, the appeal would fail because then the question of reviving a barred claim would not arise at all because Section 112 does not contemplate or provide for any such provision. However, if we answer this question in the affirmative, the inevitable result would be that the appeal would have to be allowed because on all other points, discussed herein earlier, the arguments of the learned counsel for the appellants have been accepted. However, in our view, the authorities relied upon by the respondents deal only with the question of repeal and savings but do not answer the question raised by the learned counsel for the appellants,;whether Section 107 can revive an extinguished right. We may note that the authority relied upon by the learned counsel for the appellant reported in Yeshwantrao Laxmanrao Ghatge and Another (supra) cannot be ignored. That decision was not a case of repeal and accordingly, there was no reference to Section 6 at all in that Act. Nevertheless, it was held in that case that a right extinguished under Section 28 of the Limitation Act, 1963 cannot be revived by Section 52A. Similarly, in the present case, we are of the opinion that applicability of Section 6 is inconsequential because admittedly, there was an extinguishment of rights under Section 28 and Section 107 cannot revive those extinguished rights. In view of the above discussions, we are, therefore, of the view that Section 107 cannot revive a barred claim or extinguished rights.

Thursday, August 25, 2016

Wakf Properties - Adverse Possession = (i) Whether the suit properties were originally Wakf Properties or alternatively whether they ceased to be Wakf properties as the defendants/appellants and their predecessors had perfected their title by way of adverse possession ? (ii) Whether the suits filed by the Wakf/respondents were barred by limitation and, if so, whether Section 107 of the Wakf Act could have the effect of reviving a barred claim ? So far as question No.1 is concerned, that is to say, whether the suit properties were Wakf properties or not, we find that the courts below concurrently held that the suit properties were Wakf properties.- On the question of limitation and adverse possession, the trial court held that the suits of the Wakf/respondents were barred by limitation and appellants had perfected the title by adverse possession = whether Section 6 of the General Clauses Act would apply in this case or not. That is to say, it may appear that if we answer this question in the negative thereby holding that Section 112 is self contained, the appeal would fail because then the question of reviving a barred claim would not arise at all because Section 112 does not contemplate or provide for any such provision. However, if we answer this question in the affirmative, the inevitable result would be that the appeal would have to be allowed because on all other points, discussed herein earlier, the arguments of the learned counsel for the appellants have been accepted. However, in our view, the authorities relied upon by the respondents deal only with the question of repeal and savings but do not answer the question raised by the learned counsel for the appellants,;whether Section 107 can revive an extinguished right. We may note that the authority relied upon by the learned counsel for the appellant reported in Yeshwantrao Laxmanrao Ghatge and Another (supra) cannot be ignored. That decision was not a case of repeal and accordingly, there was no reference to Section 6 at all in that Act. Nevertheless, it was held in that case that a right extinguished under Section 28 of the Limitation Act, 1963 cannot be revived by Section 52A. Similarly, in the present case, we are of the opinion that applicability of Section 6 is inconsequential because admittedly, there was an extinguishment of rights under Section 28 and Section 107 cannot revive those extinguished rights. In view of the above discussions, we are, therefore, of the view that Section 107 cannot revive a barred claim or extinguished rights.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4988-4991 OF 2000

T. Kaliamurthi & Anr. ...Appellants
Versus
Five Gori Thaikal Wakf & Ors. . .Respondents

JUDGMENT
TARUN CHATTERJEE,J.

1. By judgment and decree dated 19th of November, 1999, the

High Court of Judicature at Madras dismissed SA Nos. 972

and 973 of 1986. Subsequent to the dismissal of the second

appeals, by an order dated 24th of April, 2000, two C.M.P.

Nos. 3200 and 3201 of 2000 filed in S.A.Nos.972 and 973 of

1996 were also rejected.

2. Feeling aggrieved, the appellants have filed the aforesaid four

appeals against the common judgment and decree dated 19th

of November, 1999 of the High Court of Judicature at
2

Madras and also against the order dated 24th of April, 2000

passed in C.M.P. Nos.3200 and 3201 of 2000. By the

aforesaid common judgment, the High Court had dismissed

three second appeals of the defendants/appellants and

affirmed the judgment of the first appellate court which had

set aside the judgment of the trial court dismissing the suit

for recovery of possession and mesne profits filed at the

instance of the plaintiffs/respondents. It may be kept on

record that another Second Appeal No.1242 of 1986 was

also dismissed by the High Court by the same judgment

passed against which no SLP has been filed in this Court

and, therefore, no reference is made to the same in this

judgment.

3. The brief facts leading to the filing of these appeals are

stated here.

4. Iynthukori Thaikkal Wakf (5 Kori Durga Wakf) (in

short "the Wakf") had instituted two suits in the Court of

District Munsif, Vridachalam for a decree for recovery of

possession of the suit properties as fully described in the
3

plaint and for mesne profits. The Wakf/respondents

claimed in their plaint that the suit properties belonged to

them whereas the appellants before us alleged in their

written statement that the suit properties were not Wakf

properties but they were private properties of one Syed

Kasim Saheb and others. After the death of Syed Kasim

Saheb and others, their legal heirs and representatives

had sold the suit properties to the appellants. The

appellants further alleged that the suits were barred by

limitation under Article 134-B of the Limitation Act, 1908.

An additional plea was also taken by the appellants that

they had also perfected the title in respect of the suit

properties by way of adverse possession. On the basis of

the aforesaid pleadings by the parties, the trial court, by a

common judgment, held that the suit properties belonged

to the Wakf/respondents. On the question of limitation

and adverse possession, the trial court held that the suits

of the Wakf/respondents were barred by limitation and

appellants had perfected the title by adverse possession
4

and on such findings, the trial court dismissed the suits

filed by the Wakf/respondent. While dismissing the suit

on limitation, the trial court held that in view of Section 31

of the Limitation Act, 1963, the claim could not be revived

under the provisions of the Limitation Act, 1963. Feeling

aggrieved by the common judgment of the trial court,

appeals were filed before the first appellate court, which

confirmed the findings of the trial court on the question

whether the suit properties were Wakf properties or not.

Therefore, two concurrent findings of the two courts below

were arrived at on the question of the suit properties being

Wakf properties. But on the question of limitation and

adverse possession, the first appellate court had set aside

the findings of the trial court holding that the suits were

not barred by limitation under Article 96 of the Limitation

Act, 1963 and also that the appellants had failed to prove

that they had acquired title to the suit properties by way of

adverse possession. On the aforesaid findings, the first

appeals were allowed and both the suits were decreed.
5

Against the decisions of the first appellate court, the

appellants preferred three appeals in the High Court,

namely, Second Appeal Nos. 972/86, 973/86, and

1242/86. During the pendency of these second appeals,

the Wakf Act, 1995 (in short, "Wakf Act") came into force

with effect from 1st of January, 1996. Section 107 of the

said Act provides that nothing contained in the Limitation

Act, 1963 shall apply to any suit for recovery of possession

of immovable property comprised in any Wakf or for

possession of any interest in such property. The High

Court in second appeals also affirmed the concurrent

findings of the two courts below that the suit properties

were Wakf properties. However, on the question of

limitation, the High Court by the common judgment,

which is under challenge in this Court, held that in view of

coming into force of Section 107 of the Wakf Act, the bar

of limitation no longer existed and also held that in view of

Section 112 of the Wakf Act, such provision also applied to

the pending proceedings and upon the aforesaid findings
6

as noted herein above, the appeals were dismissed. So far

as the plea of adverse possession is concerned, it was held

by the High Court in the common judgment that the same

was not available to the appellants. After the

pronouncement of the judgment in SA Nos. 972 and 973

of 1996, two applications being CMP Nos. 3200 and 3201

of 2000 were filed before the High Court for bringing on

record the legal heirs and representatives of one of the

appellants V.T. Duraiswami, who had passed away during

the pendency of the second appeals. The applications for

bringing on record the legal heirs and representatives of

the deceased, V.T.Duraiswami, one of the appellants, were

rejected by the High Court. As noted herein earlier,

against the common judgment and decree dated 19th of

November, 1999 of the High Court passed in the aforesaid

second appeals and the order dated 24th of April, 2000

passed in CMP Nos. 3200 and 3201/2000 rejecting the

applications for setting aside the abatement, Special Leave
7

Petitions, which after grant of leave, were heard by us in

presence of learned counsel for the parties.

Before the High Court, the following two questions were

raised -

(i) Whether the suit properties were originally

Wakf Properties or alternatively whether they

ceased to be Wakf properties as the

defendants/appellants and their predecessors

had perfected their title by way of adverse

possession ?

(ii) Whether the suits filed by the

Wakf/respondents were barred by limitation

and, if so, whether Section 107 of the Wakf Act

could have the effect of reviving a barred claim ?

So far as question No.1 is concerned, that is to say,

whether the suit properties were Wakf properties or not,

we find that the courts below concurrently held that the

suit properties were Wakf properties. Accordingly, we need

not dilate on question No.1 as the said findings of fact
8

were concurrently found by three courts below and

nothing has been brought before us to show that the said

findings of fact were either perverse or arbitrary. Apart

from that, the learned counsel appearing on behalf of the

appellants did not raise any serious submission

questioning the aforesaid findings of fact arrived at by the

courts below.

5. In view of our observations made herein above and in

the absence of any serious challenge to the aforesaid

findings of fact, we do not see any ground to interfere with

such concurrent findings of fact of the courts below.

6. Let us now come back to the important question that

was raised in the form of question No.2, that is to say,

whether the suits filed by the Wakf/respondents were

barred by limitation and whether the plea of adverse

possession was available to the appellants in the suit filed

by the Wakf/respondents. So far as the question of

limitation is concerned, we may reiterate, as noted herein

earlier, that the trial court on consideration of the
9

evidence and other materials on record, held that in the

facts and circumstances of the present case and on the

interpretation of Article 134-B of the Limitation Act, 1908

and Article 96 of the Limitation Act, 1963 and also relying

on several decisions of this Court, rejected the contention

of the Wakf/respondents and held that the suits were

barred by limitation under Article 134-B of the Limitation

Act, 1908. However, in appeal, the first appellate court

had taken a contrary view and held that the suits were

filed within 12 years of the appointment of the last

Muthavalli and accordingly, relying on Article 96 of the

Limitation Act, 1963, it held that the suits were not barred

by limitation. It was also held by the first appellate court

that the alienations of the Wakf properties were by the

persons who were holding them in trust and, therefore, on

its understanding of the scope of Section 10 of the

Limitation Act, 1963 held that the alienations did not meet

the legal requirements for a plea of adverse possession

against the trust. Keeping in mind the findings of the trial
10

court and the appellate courts, we may note that the High

court, in the impugned judgment, has not given its

opinion whether Article 96 of the Limitation Act, 1963

would apply or Article 134-B of the Limitation Act, 1908

would apply in the present case. Without going into this,

the High Court instead held that in view of the coming into

force of the Wakf Act, the bar of limitation no longer exists

and has held that the provision to that effect viz., Section

107 of the Wakf Act would also apply to pending

proceedings.

7. In the backdrop of these findings arrived at by the

courts below, let us now deal with the submissions made

by the learned counsel for the parties before us.

8. According to the learned counsel for the appellants,

the suits were clearly barred under the Limitation Act,

1908 and once it has been found that the suits already

stood barred under the Limitation Act, 1908, Section 107

of the Wakf Act, which came into force w.e.f. 1.1.1996,

could not have the effect of reviving the barred claim.
11

Relying on Section 6 of the General Clauses Act, 1897

the learned counsel for the appellants argued that when

Section 6(a) clearly spells out that a repeal shall not

revive anything not in force or existing at the time at

which the repeal takes effect, the barred claim could not

have been revived. He had drawn our attention to Section

112 of the Wakf Act and submitted that when Section

112 of the Act also lays down the provision similar to the

one laid down under Section 6(a) of the General Clauses

Act, the barred claim could not have been revived. The

learned counsel for the appellants further contended that

the High Court erred in merely adverting to Section 107

of the Wakf Act holding that it applied to pending

proceedings as well. On the other hand, he submitted

that the High Court ought to have examined whether

Section 107 had the effect of reviving a claim already

barred under the Limitation Act, 1908. He also

contended that the trial court was fully justified in

holding that the claim was barred under Article 134-B of
12

the Limitation Act, 1908 and that the reliance placed by

the appellate court on Article 96 of the Limitation Act,

1963 was totally wrong in view of Section 31 of the

Limitation Act, 1963. Therefore, the learned counsel for

the appellants contended that under Article 134-B of the

Limitation Act, 1908, the suits were clearly barred by

limitation and, therefore, Section 107 of the Wakf Act

could not have the effect of reviving the barred claim as it

is settled law that the right to sue is barred under the

law of limitation in force before the new provision comes

into operation and the vested right accrued thereon, the

new provision could not revive the barred claim or

alternatively shall take away the accrued vested right, if

any. In support of this contention, the learned counsel

for the appellant strongly placed reliance on Section 6(a)

of the General Clauses Act, 1897 and Section 112 of the

Wakf Act .

9. So far as the plea of adverse possession is

concerned, the learned counsel for the appellants further
13

submitted that since the suit properties were accepted by

the State Government as the individual properties of the

appellants considering them as absolute owners of the

same for which the State Government had granted

individual pattas to the appellants in respect of the suit

properties, the courts below were wrong in decreeing the

suit on the ground that the suit properties were Wakf

properties and that plea of adverse possession of the

appellants in respect of the same could not be accepted.

It was further contended that since the suit properties

were the subject matter of alienation as early as in 1927

and there had been successive alienations upto 1975, it

must be accepted that the original Inamdars and their

legal heirs had perfected the title in respect of the suit

properties by adverse possession even prior to 1927. It

was also argued by the learned counsel for the

appellants before us that the High Court went wrong in

declining to allow the application for impleadment of the
14

legal representatives of the deceased V.T.Doraiswami

when there were genuine reasons for the delay.

10. Relying on the aforesaid submissions, the learned

counsel for the appellants submitted that the judgment

of the High Court in the second appeals should be set

aside and the suits should be dismissed.

11. The submissions made by the learned counsel for

the appellants were seriously contested by the learned

counsel for the respondents. The learned counsel for the

respondents had seriously relied on the findings of all the

courts below that the suit properties were Wakf

properties. It was further argued by the learned counsel

for the respondents that the appeals had abated against

V.T. Duraiswami and Kaliammal and, therefore, the

judgment of the High Court in second appeals had

become final. According to him, the vested rights could

be taken away by the repealing act expressly or by

necessary implication. In this connection, attention was

drawn to Sections 59A and 59B of the Wakf (Tamil Nadu
15

Amendment) Act, 1982 (Act 34 of 1982) which

safeguards the right to recover property of the Wakf and

overrides the Limitation Act from 15th of August, 1947.

The learned counsel further contended that if Section

107 of the Wakf Act was not given a retrospective effect,

ambiguity and contrary results would follow. He

submitted that Section 6 of the General Clauses Act,

1897 cannot come to the aid of the appellants in the

present case because a different intention is manifested

in Sections 107 and 112 of the Wakf Act. Elaborating

this submission before us, the learned counsel for the

respondents submitted that the test as enumerated by

this court was whether the scheme of the repealing act

and its aims and objects and section abrogated or

destroyed the vested rights, if any, and not that the

repealing act made alive past actions. Accordingly, it was

submitted that the Wakf Act only kept alive the

appurtenant etc. or administrative actions in its negative

sense but destroyed that vested rights in positive terms
16

by enacting Sections 107 and 112 of the Act and by

Sections 59A and 59B of the Wakf (Tamil Nadu

Amendment Act), 1982.

The learned counsel for the respondents also

submitted the following :

1) An appeal is a continuation of a suit.

2) The court in appeal was bound to take notice of the
supervening events and the changes in law

3) All procedures in law are retrospective in operation and ;

4) Section 107 of the Wakf Act must be said to be

retrospective in operation.

12. Having heard the learned counsel for the parties

and after considering the judgments of the courts below

including the materials on record and the statutory

provisions, namely, provisions of Wakf Act, Limitation

Act, 1908 and 1963, the moot question that needs to be

decided in this appeal is whether Section 107 of the Wakf

Act is retrospective in operation or whether it can have
17

the effect of reviving barred claims. Section 107 of the

Wakf Act was made inapplicable to any suit for recovery

of Wakf properties under the Limitation Act, 1963. As

noted herein earlier, the Wakf Act was enacted at the

time when the second appeals of the appellants were

pending. Before we decide the question as posed, we may

note the relevant provisions of the different Acts which

are as follows :-

Since Section 107 of the Wakf Act is the bone of

contention of both the parties, we may first reproduce

the said section which is as under :-

"107. Act 36 of 1963 not to apply for
recovery of wakf properties.--- Nothing
contained in the Limitation Act, 1963 shall
apply to any suit for possession of
immovable property comprised in any
wakf or for possession of any interest in
such property."

Section 6 of the General Clauses Act is also crucial

and relevant for rendering a proper decision in this

appeal and the same is reproduced as under: -
18

"6. Effect of repeal. Where this Act or any
[Central Act] or Regulation made after the
commencement of this Act, repeals any
enactment hitherto made or hereafter to be
made, then, unless a different intention
appears, the repeal shall not-
a) revive anything not in force or existing
at the time at which the repeal takes
effect, or
b) affect the previous operation of any
enactment so repealed or anything duly
done or suffered thereunder ; or
c) affect any right, privilege, obligation or
liability acquired, accrued, or incurred
under any enactment so repealed, or
d) ........
e) ........

Section 112 of the Wakf Act is another important

provision and is reproduced as under: -

"112. Repeal and savings. (1) The Wakf
Act, 1954 (29 of 1954) and the Wakf
(Amendment) Act, 1984 (69 of 1984) are
hereby repealed.

(2) Notwithstanding such repeal, anything
done or any action taken under the said
Acts shall be deemed to have been done or
taken under the corresponding provisions
of this Act.
19

(3) If immediately before the
commencement of this Act, in any State,
there is in force in that State, any law
which corresponds to this Act that
corresponding law shall stand repealed:

Provided that such repeal shall not affect
the previous operation of that
corresponding law, and subject thereto,
anything done or any action taken in the
exercise of any power conferred by or
under the corresponding law shall be
deemed to have been done or taken in the
exercise of the powers conferred by or
under this Act as if this Act was in force on
the day on which such things were done
or action was taken."

13. Some provisions of the Limitation Act, viz., Article

134-B of the Limitation Act, 1908, Article 96 of the

Limitation Act, 1963 and Section 31 of the Limitation

Act, 1963 are also very relevant for our purpose and

therefore the said provisions are reproduced as under: -

Article 134 -B of the Limitation Act, 1908 -

By the manager of a Hindu, Muhammadan or

Budhist religious or charitable endowment to recover

possession of immovable property comprised in the
20

endowment which has been transferred by a previous

manager for a valuable consideration---- the Limitation is

12 years----The period shall run from the death,

resignation or removal of the transferor.

Article 96 of the Limitation Act, 1963-

By the manager of a Hindu, Muhammadan or

Budhist religious or charitable endowment to recover

possession of movable or immovable property comprised

in the endowment which has been transferred by a

previous manager for a valuable consideration. ----The

period of limitation is 12 years---The period shall run

from the date of death, resignation or removal of the

transferor or the date of appointment of the plaintiff as

manager of the endowment, whichever is later.

Section 31 of the Limitation Act, 1963-

"31. Provision as to barred or pending suits,
etc. -Nothing in this Act shall,
a) enable any suit, appeal or application to be
instituted, preferred or made, for which the
period of limitation prescribed by the Indian
Limitation Act, 1908 expired before the
commencement of this Act; or
21

b) affect any suit, appeal or application
instituted, preferred or made before, and
pending at, such commencement."

14. Although we have already briefly noted the findings

of the courts below, we feel it proper to undertake a more

extensive examination.

The trial court, while dismissing the suits for

recovery of possession and mesne profits arrived at the

following findings :-

"1.Since Syed Nabi and Syed Mahdoom had sold the suit

properties by virtue of Ex. B.13, B.16, B.6 and B.42

dated 2.4.1927, 3.4.1927, 27.4.1927 and since this case

was not filed within 12 years after their death, the suit

was barred by limitation.

2.The argument that the sale deeds were executed by the

then muthavallis not only for self but also on behalf of

their minor children viz., Syed Kasim, Syed Kulu and

Syed Tipu and since the case was filed within 12 years of
22

the death of such children, the suit was not barred by

limitation but could still not be accepted because it could

neither be assumed nor was it pointed out by the

plaintiffs that these children were also muthavallis with

their fathers.

3. The argument that after the death of the muthavalli

in 1922, no muthavalli was appointed till 12.6.1966 on

which date the plaintiff was appointed as the muthavalli

and the suit was filed within 12 years of such

appointment and since the High Court in a decision had

stated that a case would not be affected by limitation if

no muthavalli was appointed in place of the former

muthavalli, these suits would not be barred by

limitation, could not also be accepted.

4. It was evident from the exhibits that the defendant

purchased the suit properties in the years 1927 and

1930 respectively and paid the kist etc. to some who

enjoyed that property absolutely. Since the suit was
23

barred by limitation and the defendants and their

forefathers enjoyed the same for more than 12 years, the

plea of adverse possession had to be accepted."

15. In contradistinction to the above findings of the trial

court, the first appellate court, while decreeing the suits,

arrived at the following findings: -

1. The judgment in C.V.Purushotham vs. Chinna

Jeevangar Mutt Tirupati [AIR 1975 AP 153] could not

be relied upon because it was delivered by a different

High Court and reliance had to be placed in the case of

The Special Officer for Wakfs, Madras Vs.

Subramanyam & Ors. [1976 Vol.89 Law Weekly 467]

and S.A. 800/72 and S.A. 452/72 which stated that

suits could be filed within 12 years from the date of

appointment of Muthavalli.

2. The Public Property (Extension of the Limitation)

Act 1959 had extended the time limit in cases like this so

that these cases could be filed until 31.12.1970 if the

transfers were made between 14.8.1947 and 7.5.1954.
24

3. As per section 31 of the Limitation Act, 1963, it was

evident that if the plaintiff's right had not been affected,

he could file the suit. It had been stated that the expiry

date which was made like that under the Limitation Act,

1908 could not be renewed as per the new act and that if

the time limit had been reduced as per the Limitation

Act, 1963, it would not be applicable to the pending

suits. The recitals found in Article 96 of the Limitation

Act, 1963 had to follow absolutely and straining the

language would not be permissible since it would cause

hardship to others later. Therefore under Article 96 of

the Limitation Act, 1963, since the suit had been filed

within 12 years from the date of appointment of

muthavalli, the suit was not barred by limitation.

4. No right of adverse possession existed because the suit

properties were wakf properties and, therefore, the

Inamdars were trustees of the same.
25

5. Even if the defendants/appellants had been in possession

of the properties and paying patta for many years or

transferred the patta in their own name, they could not get

the right of adverse possession in view of Section 10 of the

Limitation Act, 1963.

16. The High Court, while affirming the decisions of the

first appellate court, except the finding no. 5, arrived at

the following findings: -

1. Section 112 of the Wakf Act shows that the provisions of

the Act were intended to apply to pending proceedings also

because under Section 112, any action taken under the

repealed act would be deemed to have been done or taken

under the corresponding provisions of the present act.

2. Under Section 6 of the General clauses act, the repeal of an

enactment can not affect any right, privilege, obligation or

liability acquired or incurred under the repealed enactment,

but this provision can not be resorted to if a different

intention appeared and therefore, Section 6 could not be
26

applied to every repealed provision or enactment regardless

of the intention of the legislature and the language used in

the repealing provision, the object of the repeal and the

existence of a savings clause.

3. By enacting Section 107, the intention to destroy the plea of

limitation was made very clear. Reliance in this regard was

placed on the observations made in State of Punjab Vs.

Mohar Singh Pratap Singh (AIR 1955 SC 84).

4. In procedural matters, there was no vested right and hence

any amendment to the procedural matters would apply to

pending proceedings.

5. In view of the principles laid down in various authorities

and considering the objects behind the Wakf Act, Section

107 would apply to pending proceedings also for the

following reasons:

(a) Section 2 of the act holds that the act shall apply to

all Wakfs created either before or after the

commencement of the act.
27

b) A separate tribunal is constituted for determining

disputes regarding Wakfs under Section 83.

c) The jurisdiction of civil courts are barred under section 85

of the act, in respect of disputes determinable by the

tribunal.

d) Section 112(2) specifically mandates that anything done or

action taken thereon shall be deemed to be taken under the

corresponding provision of the act. In this context, the

expression, `anything done or any action taken in the

exercise of the powers' had been held not to mean or

include an act done by a person in contravention of the

provisions of the act but as intended only to keep alive the

official actions, rules and notifications issued and done in

the exercise of the powers conferred under the repealed

provisions vide judgment of this Court in State of Punjab

vs. Mohar Singh Pratap Singh's case (supra). Therefore,

in the absence of a specific provision expressly saving or

protecting the pending legal proceedings, it would be
28

incumbent on the courts to give full effect to the provisions

of the act.

e) The act, being a welfare legislation, passed with the

intention of protecting trust properties, ought to be

considered in a manner consistent with upholding the said

objective. The objective of the legislature was to destroy the

rights of trespassers and imperfect the alienees claiming

adverse title against the trust properties and as such, no

distinction can be made between the pending proceedings

and proceedings to be commenced afresh. The various

provisions of the Act are self contained code intended to

affect pending proceedings also.

f) In the suits filed by the occupants or the wakfs prior to the

coming into force of the act, the wakfs will not be entitled to

raise the defence under Section 107 whereas any suits filed

or to be filed belatedly after coming into force of the Act, the

wakf would be entitled to raise the said defence and the

occupants would be deprived of their right to raise the plea
29

of adverse possession. The legislature could not have

intended such a fortuitous circumstances to be the

determinative factor to decide the rights of parties.

g) It is also possible that in a pending suit, the wakf

withdraws the suit with liberty to file it afresh on the same

cause of action and thereby in the fresh suit, confer upon

itself the advantages of Section 107 of the Act. Therefore,

the interpretation to be placed should be purposeful

meaningful and reasonable not giving rise to anomalies and

unintended situations.

h) The issue of limitation in reference to disputes between the

parties under the Wakfs Act, 1954 is also dependant upon

a consideration of the Public Works(Extension of Limitation)

Act, Central Act 29 of 1959 and the subsequent Wakf

(Tamil Nadu Amendment) Act, 1982 in and by which

Section 59-A and 59-B were inserted in the Central Act of

1954. As a result of Section 112(3) of the Wakf Act, all the

State Acts corresponding to the present act stand repealed
30

which would add to the complexity of interpreting the rights

of the parties, if no retrospective effect is given.

17. The decision of the appellate court was based on an

erroneous application under Section 10 of the Limitation

Act, 1963 which was not applicable or relevant to the

issues involved in the case and therefore to that extent,

the finding of first appellate court was liable to be set

aside.

18. We have already noted the conclusions of the

findings arrived at by the three courts below including

the High Court, as noted herein earlier. From the

findings arrived at by the High Court, it is clear that in

view of the coming into force of the Wakf Act, the said Act

did not advert to the question of applicability of the

Limitation Act, 1908 or the Limitation Act, 1963 on a

peculiar facts of this case because according to the High

Court, the question of limitation ceased to exist after

Section 107 of the Act as it applied to pending
31

proceedings also. As noted herein earlier, the High Court

did not decide whether the suits were barred by

Limitation. However, in the present case, it would be

expedient that before we determine whether or not

Section 107 applies to pending proceedings also thereby

making the bar of limitation non est, we should decide

whether Article 96 of the Limitation Act, 1963 would

apply or Article 134B of the Limitation Act, 1908 would

apply in order to ascertain whether the suits actually

stood barred by limitation. It was the findings of the first

appellate court that the suits were filed within the

limitation period as prescribed under Article 96 of the

First Schedule to the Limitation Act, 1963 whereas the

Trial Court had held that the suits were barred by

limitation in view of Article 134B of the Limitation Act,

1908.

19. From a careful consideration of the above aspect of

the matter, in our view, the first appellate court was not

justified in holding that the suits were filed within the
32

period of limitation as prescribed under Article 96 of the

Limitation Act, 1963. In our view, the view taken by the

trial court was the correct one and Article 134B of the

Limitation Act, 1908 would apply. We have carefully

noted two articles viz. Article 96 of the Limitation Act,

1963 and Article 134B of the Limitation Act, 1908 and

we find that they are different from each other in so far

as while under the 1908 Act, 12 years was to run from

the death, resignation or removal of the transferor, under

the 1963 Act, the said period of 12 years was to run from

the date of death, resignation or removal of the transferor

or the date of appointment of the plaintiff as manager of

the endowment, whichever was later. Section 31 of the

Limitation Act, 1963 provides that nothing in the

Limitation Act, 1963 shall enable any suit, appeal or

application to be instituted, provided or made, for which

the period of limitation prescribed by the Limitation Act,

1908 expired before the commencement of this Act.

Section 31 of the 1963 Act assumes great importance
33

which was completely overlooked by the first appellate

court. Admittedly, in the present case, the suits were

filed long after the death of the Muthavalli and the suit

properties were transferred as far back as in 1927,

therefore, the suits were barred under the Limitation Act,

1908. In other words, in the present case, the period of

limitation prescribed under the 1908 Act had already

expired before the commencement of the 1963 Act and,

therefore, in view of the clear mandate of Section 31 of

the Limitation Act, 1963, suits could not have been

instituted by taking the plea that the same was within

the limitation under the 1963 Act.

20. Such being the view, we have already expressed on

the question of limitation, let us now examine whether

Section 107 of the Wakf Act can have the effect of

reviving a barred claim.

21. The Limitation Act, 1908 was amended on the basis

of the third report of the Law Commission and Limitation

Act 36 of 1963 was enacted. The Wakf Act, 1954 as
34

originally enacted did not touch the question of

limitation. Suits to recover immovable properties

comprised in a Wakf were governed by Articles 134A and

134B of the Limitation Act, 1908 inserted by Act I of

1929 and the residuary Articles 142 and 144 of the said

Act. Articles 94 and 96 of the Limitation Act, 1963

correspond to Articles 134A and 134B of the Limitation

Act, 1908, while Articles 64 and 65 of the Limitation Act,

1963 correspond to Articles 142 and 144 of the

Limitation Act, 1908. The corresponding old law was

Section 66G of the Wakf Act, 1954 inserted by the

Amendment Act 69 of 1984.

22. Section 107 lays down that nothing contained in

the Limitation Act, 1963 shall apply to any suit for

possession of immovable property comprised in any Wakf

or for possession of any interest in such property. Thus it

can be said that this section virtually repeals the

Limitation Act, 1963 so far as the Wakf properties are

concerned. Therefore, it can be concluded without any
35

hesitation in mind that there is now no bar of limitation

for recovery of possession of any immovable property

comprised in a Wakf or any interest therein. In this

background, let us now see whether this section has any

retrospective effect. It is well settled that no statute shall

be construed to have a retrospective operation until its

language is such that would require such conclusion.

The exception to this rule is enactments dealing with

procedure. This would mean that the law of limitation,

being a procedural law, is retrospective in operation in

the sense that it will also apply to proceedings pending at

the time of the enactment as also to proceedings

commenced thereafter, notwithstanding that the cause of

action may have arisen before the new provisions came

into force. However, it must be noted that there is an

important exception to this rule also. Where the right of

suit is barred under the law of limitation in force before

the new provision came into operation and a vested right

has accrued to another, the new provision cannot revive
36

the barred right or take away the accrued vested right. At

this juncture, we may again note Section 6 of the General

Clauses Act, as reproduced herein earlier. Section 6 of

the General Clauses Act clearly provides that unless a

different intention appears, the repeal shall not revive

anything not in force or existing at the time at which the

repeal takes effect, or affects the previous operation of

any enactment so repealed or anything duly done or

suffered thereunder, or affect any right, privilege,

obligation or liability acquired, accrued, or incurred

under any enactment so repealed.

23. From the above, it is clear that the right of action,

which is barred by limitation at the time when the new

act comes into force, cannot be revived by the change in

the law subsequently. In Ram Murthi & Ors. Vs. Puran

Singh S/o Attra Singh & Anr.[AIR 1963 Punjab 393], it

has been held that Section 107 renders the Limitation

Act, 1963 inapplicable to suits for possession of

immovable properties comprised in any Wakf or any
37

interest therein but the right of a person to institute such

a suit which is already barred at the commencement of

this Act can not revive. It was further held that his title is

extinguished and a good title is acquired by the person in

possession and that where the title of the true owner is

extinguished in favour of the wrong doer, it is not

revived by that person again getting into possession.

There is no remitter to the old title.

24. Let us also see Section 112 of the Wakf Act dealing

with Repeal and Savings. Sub-Section (1) repeals Wakf

Act 1954 and the Wakf Amendment Act 1984. Sub-

Section (2) provides that notwithstanding such repeal,

anything done or any action taken under the said acts

shall be deemed to have been done or taken under the

corresponding provisions of this Act. In the present case,

there is no specific provision which stipulates that

Section 107 has any retrospective effect. If we look at

Section 112, it is clear that Sub-Section (2) is the saving

clause and provides validity to the actions taken under
38

the repealed act. As noted hereinearlier, the High Court

has proceeded on the assumption that a reading of

Section 112 of the act leads to the conclusion that the

provisions of the act are intended to apply to pending

proceedings also. With regard to Section 6 of the General

Clauses Act, it has observed that although it is true that

under that section, the repeal of an enactment will not

affect any right, privilege, obligation or liability acquired

or incurred under the repealed enactment, but this

provision cannot be resorted to if a different intention

appears and therefore, Section 6 cannot be applied to

every repealed provision or enactment regardless of the

intention of the legislature and the language used in the

repealing provision, the object of the repeal and the

existence of a savings clause. We agree with the

observations of the High Court with regard to Section 6

of the General Clauses Act, but we are afraid, we are not

inclined to accept the reasoning of the High Court that

Section 112 shows that the Act had a retrospective effect.
39

Section 112 (2) of the Act is a saving clause and saves

the actions already done or taken under the repealed

enactment. This cannot lead to the conclusion that the

Act has been given a retrospective effect. Rather, if seen

properly, this saving clause in the absence of any specific

provision providing retrospective effect to the Act,

reinforces the suggestion that Act has no retrospective

effect. This is because it saves actions already taken

under the repealed enactment, i.e., it provides that the

new provisions will not affect the validity of the actions

already taken or in other words, it says that there will

not be a retrospective effect. We do not mean to suggest

that from a saving clause, the retrospectivity or no

retrospectivity can be judged but we are of the view that

the reliance placed by the High Court on Section 112,

which is a saving clause, to hold that the act has a

retrospective effect is not proper. In our view, Section

112 is in conformity with Section 6 of the Act which also

provides that a repeal shall not affect any right, privilege,
40

obligation or liability acquired or incurred under the

repealed enactment unless a contrary intention appears.

Thus under Section 6 of the General Clauses Act and

Section 112 of the Wakf Act, prior operation of the

repealed enactment or the legal proceedings or remedies

instituted, continued or enforced etc. are saved. Thus on

this ground, we are of the opinion that the High Court

was not justified in relying on Section 112 of the Wakf

Act to hold that the act has retrospective effect. The High

Court has relied on certain cases and we would advert to

them in the later part of this judgment while answering

the applicability of Section 6 to the present case in

further detail.

25. There is another aspect of the matter. The learned

counsel for the respondents has contended that an

appeal is only a continuation of the suit and the High

Court was bound to consider any change in law affecting

the question involved in the appeal. It was also argued

that Section 107 is retrospective in operation because
41

although there are no express words in the amended

statute that the new provision will apply to the pending

proceedings also, the legislature clearly intended that

even pending proceedings should be affected by such

amendment. We are not inclined to accept this

submission. It is an admitted position that there is no

express provision provided for retrospective effect and

Section 112 clearly saves actions done under the

repealed enactment. Therefore, we are not inclined to

accept the first reasoning given by the High Court to hold

that Section 107 is retrospective in operation.

26. Let us now look at the other ground taken by the

High Court to hold that Section 107 has a retrospective

effect. The High Court has held that it is a settled

proposition of law that in procedural matters, there is no

vested right and hence any amendment to the procedural

matters would apply to pending proceedings also. The

learned counsel for the respondent relied in the case of

C.Beepathuma & Ors. vs. Velasari
42

Shankaranarayana Kadambolithaya & Ors. [AIR

1965 SC 241] in support of his submission that law of

limitation was only a procedural law and the provisions

existing as on the date of the suit should be applied.

Similarly, in Mst.Rafiquennessa vs. Lal Bahadur

Chetri (since deceased) and his LRs. & Ors. [AIR

1964 SC 1511], it was held that where vested rights are

affected by any statutory provision, the said provision

should normally be construed as prospective unless the

provisions related to a procedural matter. In Mohd. Idris

& Ors. vs. Sat Narain & Ors. [AIR 1966 SC 1499], it

was held that the law affecting procedure was also

retrospective. Similarly in Qudratullah Vs. Municipal

Board, [1974 (1)SCC 202] it was held in respect of a

provision that even if Section 6 of the General Clauses

Act could be held as applicable, the provision was only

procedural and hence applicable to pending proceedings.

The ratios of the above authorities undoubtedly lay down

the correct position of law. Before we express any opinion
43

on the above argument of the learned counsel for the

respondents, the ensuing discussion on some of the

other aspects is very important.

27. Section 107 provides that nothing in the Limitation

Act, 1963 would apply to any suit for possession of

immovable property, comprised in any Wakf or for any

interest in such property. Therefore, for the application of

Section 107, on 1st of January, 1996, the property must

be comprised in the Wakf or the Wakf must have some

interest in such properties. If however, the right to

property stands extinguished, then Section 107 cannot

apply. In the present case, any right which the Wakf had

over the property stood extinguished under the

Limitation Act, 1908. A similar question came up for

consideration of this court in Yeshwantrao Laxmanrao

Ghatge and Anr. Vs. Baburao Bala Yadav (Dead) By

Lrs. [(1978) 1 SCC 669] wherein this court in paragraph

5 observed as under:-

"In our judgment, there is no substance in
any of the points urged on behalf of the
44

appellants. The possession of the
purchasers was adverse in respect of all
the properties at 1A to 1D and 1F to 1H
from the very beginning. By such adverse
possession, those who had come in
possession of those properties had
acquired an indefeasible title under the
Indian Limitation Act, 1908. It is not
necessary to decide in this case as to
which of the articles in the first schedule of
the said Limitation Act applied to this case.
Whether it was Articles 134, 134A, 134B,
142 or 144 the claim had become barred
long, long before the year 1955. The effect
of Section 28 of the Limitation Act was that
the right to the property was extinguished
resulting in conferment of a title by
adverse possession on the person in
possession of the concerned properties. It
is well known that the effect of Section 28
of the Limitation Act is not only to bar the
remedy but also extinguish the right. The
right to the property itself was dead and
gone. It could not be revived by a provision
like the one contained in Section 52A of
the Act.

28. In the present case, as noted herein earlier, the trial

court had held that the suits were barred under Article

134B of the Limitation Act, 1908 and, therefore, since

the suits were barred under the 1908 Act, in view of

Section 31 of the Limitation Act, 1963, Article 96 of the
45

1963 Act could not be applied. Section 31 was

overlooked by the first appellate court. Therefore, in our

view, when the right stood extinguished, Section 107

cannot have the effect of reviving the extinguished

right/claim. This principle has also been followed in

Karnataka Steel & Wire Products and others Vs.

Kohinoor Rolling Shutters & Engg. Works and

others (2003) 1 SCC 76.

29. The learned counsel for the respondents argued

before us that in the present case, only the remedy was

barred but the right was not extinguished and therefore,

no reliance can be placed on the authorities cited above.

We are not inclined to accept this submission of the

learned counsel for the respondents. It is true that there

is a difference between extinguishing a right and barring

a remedy. The difference has been explained by this

court in Prem Singh and others Vs. Birbal and others

(2006) 5 SCC 353 wherein this court at paragraph 11

and 12 observed as under: -
46

"11. Limitation is a statute of repose. It
ordinarily bars a remedy, but, does not
extinguish a right. The only exception to
the said rule is to be found in Section 27 of
the Limitation Act, 1963 which provides
that at the determination of the period
prescribed thereby, limited to any person
for instituting a suit for possession of any
property, his right to such property shall
be extinguished.

12. An extinction of right, as contemplated
by the provisions of the Limitation Act,
prima facie would be attracted in all types
of suits. The Schedule appended to the
Limitation Act, as prescribed by the
articles, provides that upon lapse of the
prescribed period, the institution of a suit
will be barred. Section 3 of the Limitation
Act provides that irrespective of the fact as
to whether any defence is set out or is
raised by the defendant or not, in the
event a suit is found to be barred by
limitation, every suit instituted, appeal
preferred and every application made after
the prescribed period shall be dismissed."

30. The difference between the two aspects viz., barring

of remedy and extinguishment of right can also be seen

in the decision of this court in M/s. Bharat Barrel &

Drum Mfg. Co. Ltd. & Anr. Vs. The Employees State

Insurance Corporation [(1971) 2 SCC 860].
47

In view of the above authorities, we are of the view

that in the present case, once it is held that the suit for

possession of the suit properties filed at the instance of

the Wakf were barred under the Limitation Act, 1908, the

necessary corollary would be to hold that the right of the

Wakf to the suit properties stood extinguished in view of

Section 27 of the Limitation Act, 1963 and therefore,

when Section 107 came into force, it could not revive the

extinguished rights. The authorities relied upon by the

learned counsel for the respondents in this regard in the

case of Sree Bank Ltd. vs. Sarkar Dutt Roy & Co.

[(1965) 3 SCR 708], Dhannalal vs. D.P.Vijayvargiya

& Ors. [(1996) 4 SCC 652], New India Assurance Co.

Ltd. vs. C.Padma & Anr. [(2003) 7 SCC 713] and

S.Gopal Reddy vs. State of A.P. [(1996) 4 SCC 596]

have no application to the facts of the case because in

these cases, unlike the present case, there was no

extinguishment of the rights.
48

31. Let us now answer the submissions on behalf of the

learned counsel for the respondents. The learned counsel

for the respondents relied on a decision of this court in

Smt.Dayawati & Anr. Vs. Inderjit & Ors. [(1966) 3

SCR 275] to suggest that the law affecting procedure is

always retrospective and therefore, Section 107 should

be given retrospective effect. In Dayawati's case (supra),

this court observed as under: -

"Now as a general proposition, it may be
admitted that ordinarily a court of appeal
cannot take into account a new law,
brought into existence after the judgment
appealed from has been rendered,
because the rights of the litigants in an
appeal are determined under the law in
force at the date of the suit.....................
......Matters of procedure are, however,
different and the law affecting procedure
is always retrospective. But it does not
mean that there is an absolute rule of
inviolability of substantive rights. If the
new law speaks in language, which,
expressly or by clear intendment, takes in
even pending matters, the court of trial as
well as the court of appeal must have
regard to an intention so expressed, and
the court of appeal may give effect to such
a law even after the judgment of the court
of first instance. The distinction between
laws affecting procedure and those
49

affecting vested rights does not matter
when the court is invited by law to take
away from a successful plaintiff, what he
has obtained under judgment."

32. We have to agree that the decision relied upon by

the learned counsel for the respondents which lays down

the correct position of law but we are afraid that it is

distinguishable on facts and cannot be of any help to the

respondents. First, Dayawati's case (Supra) was not a

case of extinguishment of right in property. Moreover, in

that case, there was a specific provision viz., Section 6

which gave retrospective effect to the provisions in that

case. Also, the decision in that case dealt with certain

rights, which the judgment of the courts below had given.

In the present case, however, the right to property flows

not from any judgment but by the application of the

principle of extinguishment of rights. The learned

counsel for the respondents also relied upon a decision

of this court in Indira Sohan Lal Vs. Custodian of
50

Evacuee Property, Delhi and others [AIR 1956 SC 77]

to argue that in the present case, Section 6 of the

General Clauses Act would not apply at all because a

different intention appears from Section 112 of the Wakf

Act and, therefore, the very question of reviving the

barred claim does not arise. In Indira Sohan Lal's

case, this court observed as under:-

"10.................... Whenever there is a
repeal of an enactment, the consequences
laid down in Section 6 of the General
Clauses Act will follow unless, as the
section itself says, a different intention
appears. In the case of a simple repeal,
there is scarcely any room for expression
of a contrary opinion. But when the repeal
is followed by a fresh legislation on the
same subject, we would undoubtedly have
to look to the provision of the new Act, but
only for the purpose or determining
whether they indicate a different intention.

The line of enquiry would be, not whether
the new Act expressly keeps alive old
rights and liabilities but whether it
manifests an intention to destroy them. We
cannot therefore subscribe to the broad
proposition that Section 6, General Clauses
Act is ruled out when there is repeal of an
enactment followed by a fresh legislation.
Section 6 would be applicable in such
cases also unless the new legislation
51

manifests an intention incompatible with or
contrary to the provisions of the Section.
Such incompatibility would have to be
ascertained from a consideration of all the
relevant provisions of the new law............
............Thus where the repealing section
of the fresh enactment which purports to
indicate the effect of repeal on previous
matters, provides for the operation of the
previous law in part and in negative terms
as also for the operation of the new law in
the other part and in positive terms, the
said provision may well be taken to be self
contained and indicative of the intention to
exclude the application of Section 6 of the
General Clauses Act.............. Subsection
3 of section 58, Administration of Evacuee
property Act, 1950 purports to indicate the
effect of the repeal, both in negative and in
positive terms. The negative portion of it
relating to "the previous operation" of the
prior Ordinance appears to have been
taken from Section 6 (b) General Clauses
Act while the positive portion adopts a"
deeming" provision quite contrary to what
is contemplated under that section. Under
the General Clauses Act, the position in
respect of matters covered by it would
have to be determined as if the repealing
Act had not been passed, while under
section 58 of Central Act 31 of 1950, the
position so far as positive portion is
concerned has to be judged as if the
repealing Act were in force at the earlier
relevant date. Section 6 of the General
Clauses Act cannot therefore be called in
aid in a case governed by Section 58(3) of
the Act......."
52

33. After considering this submission of the learned

counsel for the respondents, it may appear that the

controversy has narrowed down to the point whether

Section 6 of the General Clauses Act would apply in this

case or not. That is to say, it may appear that if we

answer this question in the negative thereby holding that

Section 112 is self contained, the appeal would fail

because then the question of reviving a barred claim

would not arise at all because Section 112 does not

contemplate or provide for any such provision. However,

if we answer this question in the affirmative, the

inevitable result would be that the appeal would have to

be allowed because on all other points, discussed herein

earlier, the arguments of the learned counsel for the

appellants have been accepted. However, in our view, the

authorities relied upon by the respondents deal only with

the question of repeal and savings but do not answer the

question raised by the learned counsel for the appellants,
53

i.e., whether Section 107 can revive an extinguished

right. We may note that the authority relied upon by the

learned counsel for the appellant reported in

Yeshwantrao Laxmanrao Ghatge and Another (supra)

cannot be ignored. That decision was not a case of repeal

and accordingly, there was no reference to Section 6 at

all in that Act. Nevertheless, it was held in that case that

a right extinguished under Section 28 of the Limitation

Act, 1963 cannot be revived by Section 52A. Similarly, in

the present case, we are of the opinion that applicability

of Section 6 is inconsequential because admittedly, there

was an extinguishment of rights under Section 28 and

Section 107 cannot revive those extinguished rights.

34. In view of the above discussions, we are, therefore,

of the view that Section 107 cannot revive a barred claim

or extinguished rights.

35. For the reasons aforesaid, the judgment and decree

of the High Court passed in the aforesaid second appeals

are set aside and the suits filed by the respondents are
54

dismissed. In view of the dismissal of the second appeals,

we do no find any reason to interfere with the order

passed in CMP Nos.3200 and 3201 of 2000 and

accordingly the Civil Misc. Petitions are also dismissed.

36. The appeals are thus allowed. There will be no order

as to costs.

.....................
....J.
[A.K.Mathur]

New Delhi; ..........................J.

August 1, 2008. [Tarun Chatterjee]

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