HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.1728 OF 1991 JUDGMENT: The plaintiff in O.S.No.146 of 1968 on the file of the Subordinate Judge at Nellore, is the appellant herein. The suit was one filed for recovery of possession of the schedule properties. 2. According to the case of the plaintiff, the schedule property has been endowed for upkeep and performance of the mosque belonging to the plaintiff and it was declared as Wakf. The plaintiff came to know that persons purporting to be the incumbents of the said mouzzan service, without any right have wrongfully alienated the schedule properties and the defendants are in possession of the same. Such alienations are not valid. The Wakf Board made an enquiry and published in the A.P. Gazette dated 02.05.1963 that the schedule property is Wakf property and declared as wakf but nobody has challenged and it has become final. Therefore, the suit was filed for recovery of possession of the property. 3. The 8th defendant filed a written statement disputing that the property is a Wakf property. The alleged endowment of the property is also disputed. Item No.8 of the schedule was never endowed. There was no enquiry as alleged. He has been in possession since long time and has perfected title by adverse possession. The suit is therefore, liable to be dismissed. The 14th defendant claimed that the land in Sy.Nos.842 and 849 to an extent of Acs.2.68 cents is not wakf property and there is no publication as alleged. The defendants 15 to 17 have purchased the said property from the heirs of Sk. Rasool Bibi W/o. Abdul Khader and they have been in continuous possession and enjoyment and therefore, the suit is liable to be dismissed. 4. Defendants 25 to 28 also disputed that the property is a wakf property. They also further claimed that the 9th defendant and the predecessors in interest purchased the 50 cents in Sy.Nos.842 and 849 from Rahman Bibi Saheb and others and also purchased some other properties from other owners. Subsequently, they have perfected their title. Defendants 15 to 23 filed a memo adopting the written statement of the 14th defendant. Further additional written statement was filed by the 8th defendant contending that he purchased 20 cents of land in Sy.Nos.842 and 849 under a sale deed dated 01.11.1949 and therefore, the suit is not maintainable. 5. On the basis of the above pleadings, the following necessary issues have been framed by the trial Court, for trial: 1) Whether the suit properties are the wakf properties as contended by the plaintiff? 2) Whether the suit claim is barred by time? 3) Whether the defendants perfected their title to the suit properties by adverse possession? 4) To what relief? 6. On behalf of the plaintiff, PW.1 and 2 were examined and marked Exs.A.1 to A.5. On behalf of the defendants, DWs.1 to 3 were examined and got marked Exs.B.1 to B.9. After considering the evidence on record, the learned Subordinate Judge, Nellore dismissed the suit of the plaintiff. Aggrieved by the said judgment, the present appeal is filed. 7. In this appeal, respondents 1 to 4, 6, 10, 13, 29 and 30 were given up. Respondents 5, 7, 9, 11 and 12 died and no steps were taken and consequently, the appeal was abated. As against respondents Nos.8, 14, 18 to 28 the appeal was dismissed for default. Respondents 15 to 17 are only persons, who refused to receive the summons. Therefore, in view of the above circumstances, the arguments of the learned counsel for the appellant are heard. 8. The points that arise for consideration are: 1) Whether the plaintiff is entitled for recovery of possession of the property from defendants 15 to 17? 2) Whether the judgment and decree passed by the learned Subordinate Judge, Nellore, is legal and sustainable? 9. POINTS: The learned counsel for the appellant strongly contends that in view of the certified copy of the inam fair register Ex.A.1, Ex.A.2 the report of the Wakf Commissioner, Ex.A.3 the Gazette notification, and A.4 certified copies of the re-settlement and re-survey register, the plaintiff is the owner of the property and the defendants have no right in the property. It was contended that the notification about the property being wakf has become final. It was also further pleaded that the endowment was made for the service of Mouzzan and the actions of the wakf deed are not fatal. As can be seen from the judgment of the lower Court, the defendants have pleaded certain alienations and continuous possession of the property. The lower Court found that Ex.A.1 does not show the name of the person by whom the grant was made or the year in which the grant was made though it was shown as a service grant for the mosque. It is also noticed that one Syed Sulthan was the original grantee. The lower Court also noticed that there is nothing probablising that it is a heritable service grant. The lower Court has taken into consideration that there is no proof showing the grant or endowment was made by a person professing Inam. The lower Court also did not accept the evidence of PW.1 that the lands were connected with the mosque as reflected in Ex.A.1. Ex.A.4 also does not show the co-related survey numbers shown in Ex.A.1. The lower Court also noticed that the survey number 849 was not at all found in Ex.A.1 and Sy.Nos.598, 601, 602 are only found in Ex.A.4. The plaint schedule consists of 13 items and all these items are not shown in Ex.A.1 or Ex.A.4. There is no proof that when an enquiry was conducted the persons in possession were enquired or any other documents were considered. 10. It is the claim of the defendants that they have been in long possession and enjoyment of the property. The learned counsel for appellant contends that so long as service is performed it is grant to the mosque. He relied on a decision reported in Wakf Board, Hyderabad represented by the Seretary Sri Omer Bin Ahmed Vs. Biradavolu Balarami Reddy[1], which deals with the wakf property at Nellore, relating to Survey Number 461 that does not in any manner advance the case of the plaintiff in this appeal. 11. Further defendant No.17 examined as DW.2. His evidence shows that defendant No.11 is his father, who is no more, and defendant No.14 is his mother and defendants Nos.15 and 16 are the brothers and 18 to 23 are the sisters. According to him, defendant No.5 is his grandmother and she purchased 50 cents of land in Sy.Nos.842 and 849 under Ex.B.5 sale deed dated 19.04.1949 and 38 cents under Ex.B.6 and 25 cents under Ex.B.7 and was in possession of 2.68 cents. According to him, she settled the entire properties in favour of his mother defendant No.14 under Ex.B.8 under the settlement deed dated 22.09.1955. According to him, the said property is not a wakf property. He could not say from whom defendant No.5 has purchased the property. He spoke about the possession since long time. He denied that he has got knowledge that they are inam lands and that it is wakf property. It was suggested to him that the vendors of defendant No.5 belong to the service holders of the suit mosque. This clearly goes to show that the alienation was made by a person, who has given a service grant. The report of PW.1 or the evidence on record does not show as to how such a grant was given and who was the vendor. 12. As can be seen from the material on record, the claim against most of the defendants has not been prosecuted and the possession and enjoyment of defendants 15 to 17, who were said to have refused to receive summons in this appeal, claims purchase of the land in Sy.Nos.842 and 849, which evidently was not shown in Ex.A.4 as found by the lower court. There are absolutely no merits in the appeal and the appeal is liable to be dismissed. Accordingly, the points are answered. In the result, the Appeal Suit is dismissed. There shall be no order as to costs. _________________________ N.R.L. NAGESWARA RAO, J Date:27.08.2011 INL [1] 1977 ALT 463