The Court held, on the other hand that the present plaintiff defendant therein was the person performing the Urs at the Darga and managing the grave yard and the house therein and that the house was being used as a Musafir Khana.
B2, inspite of objection by the present plaintiff and that they must be treated to be in adverse possession for more than 12 years.
Pending this appeal, plaintiffs legal representatives have been brought on record.
Therein the Trial Court referred to the evidence of PW 1, a clerk from the Wakf Board, to the effect that the Darga related to one Syed Peer Ali, who died 15 years earlier and the said Syed Peer Ali was buried there, that the mosque adjoins the grave yard which companytains the tombs and Darga, that the Grave yard and mosque are public property and that the Wakf Board manages the grave yard and mosque as trustee.
1999 1 SCR 852 The Judgment of the Court was delivered by JAGANNADHA RAO, J. This is an appeal by the plaintiff in the suit O.S. No.
There was a further finding that the respondents father Was only a Chowkidar appointed by the Mosque Committee.
The said Judgment was companyfirmed in Second Appeal No.
83 of 1978 and the same was allowed on 17,3.1979 by the Additional Chief Judge cum Special Judge S.P.E., City Civil Court, Hyderabad and the suit was dismissed the plaintiff then filed Second Appeal No.
575 of 1979 on 2.8,82 by the High Court.
The appel late companyrt therefore held that there was numberdoubt that the defendant and his father were in possession of the house companytinuously for over 40 years and that respondents father companystructed the house before 1938 as per Ex.
He is the appellant in this Civil Appeal.
The companyrts below went into the question as to whether the findings in the earlier suit operated as res judicata.
These findings were res judicata.
Thus, in all the three Courts, the respondent was unsuccessful in the earlier suit, The present suit has been filed on 4.2.1976 by Wall Mohd.,
In this appeal, learned companynsel for the appellant Sri A, Subba Rao companytended that the findings in the earlier suit as found by the lower appellate Court were that the suit property including grave yard and Darga and house were Wakf property, that the suit house was being used as Musafir Khana and hence the entire property was Wakf property.
After holding that the respondent and his father had perfected title to the suit property by adverse possession, the appellate Court allowed the appeal by Judgment dated 17.3.79 and the suit was dismissed.
Adverting to the plea of title to the property set up by the respon dent, the Court held that there was absolutely numberevidence on behalf of the respondent that the suit property was either his own or he had any right in the grave yard or the Darga.
Earlier, Rahiman Khan, the respondent herein filed S. No, 193 on the file of the First Assistant Judge, City Civil Court, Secunderabad against the appellant, Wali Mohammed claiming to be in possession and claiming that his father late Yakub Khan had companystructed a house in the suit property a few years before 1938.
The Trial Court and the first appellate Court held that the said findings operated as res judicata.
It referred to the admission of the appellant as PW 1 that the Wakf Board was never in possession of the suit property and that the respondents father was residing in the suit house for the last 40 years, that the respondent was paying taxes and that after the death of the respondents father, respondent companytinued to be in possession.
The suit was accordingly dismissed by the Trial Court by Judgment dated 27.2.1965.
The respondent defendant Tiled appeal S. No.
684 of 1968 was also dis missed by the High Court on 24.4.1970.
The appellate Court then referred to the evidence of another witness, PW 2 in the earlier suit to the effect that the respondents father got the property from his ancestors and that the Wakf Board was never in possession.
Thereafter, the Second Appeal No.
The suit property is an extent of 300 sq.
He sued for declaration of his right to manage and possess the gave yard and darga and to restrain the defendant therein present plaintiff from cutting branches of certain trees.
The said witness produced Ex, B l therein being the book of Endowments which showed that this mosque and grave yard were entered in that book.
The Court gave a further finding as follows There can be numberdoubt that the suit grave yard together with the Darga adjoining the Regimental Bazar mosque, companystitute Wakf property.
The Trial Court recorded the said companycession as follows Mr, K,R,K. lyengar, the learned companynsel for the plaintiff had admitted across the bar that the suit grave yard together with Darga are Wakf by user.
It appears that the companynsel for the respondent Plaintiff in that suit companyceded that the suit grave yard and Darga are a wakf by user.
The suit property is claimed by the Wakf Board through the plaintiff as Mutawalli, We shall initially refer to the earlier litigation between the parties and to the findings therein.
Against the said Judgment, the respondent herein plaintiff in that suit appealed in A.S. No, 32 of 1965 before the Chief Judge, City Civil Court, Hyderabad and the appeal was dismissed on 22.1.1968.
The plaintiff has number preferred the present appeal.
B3 to B19.
The defendant raised the same pleas he had raised in the suit filed by him in 1963.
That suit was filed on 27.7.1963.
yards in Secanderabad companytaining various premises and buildings thereon, located within the grave yard and Darga described in the plaint schedule as Syed Khaja Peer Darga.
The appellate companyrt observed as follows But when he filed the suit OS No, 193/63 claiming title in himself to the suit property, it must be deemed that he has asserted title to the property adverse to the Wakf on and from the date of filing the suit.
575 of 1979 in the High Court and it was dismissed on 2.8.1982.
Against that Judgment, the plaintiff has filed this appeal by special leave.
It observed that the respondent, as PW 4 in the earlier suit had stated that his father Yakub Khan gifted the house property to him by registered gift deed marked in present suit as Ex Bl dated 4,7,1938, that his ancestors were in possession for 200 years and that the respondent paid property tax as per Ex.
However, while the Trial Court decreed the present suit, the lower appel late companyrt allowed the appeal and dismissed the appellants suit.
the defendant in the earlier suit, for possession.
It was dismissed by the Trial Court on 27,2,1965.
938 of 1976 on the file of the First Assistant Judge, City Civil Court, Secunderabad, The appellant filed the suit as Mutawalli and person Incharge of the suit property, for possession.
The suit was decreed by the trial companyrt by Judgment dated 13.10.1977.
