Lingaraja Rath, J.
1. These LPAs arise out of the common judgment delivered in A.S.Nos. 1472 and 1473 of 1981 respectively arising out of O.S.No.37 of 1978 re-numbered as O.S.No. 56 of 1980 and O.S.No. 12 of 1978 re-numbered as O.S.No. 55 of 1980.
2. While LPA No. 371 of 1988 has been filed by the defendants to the two suits, LPA Nos. 139 and 142 of 1990 have been filed by the plaintiffs. These LPAs are hence disposed of by this common judgment and for convenience the defendants are referred as the appellants and the plaintiffs as the respondents.
3. The respondents brought both the suits O.S.No. 56 of 1980, having been filed for declaration that the plaintiff No. 1-respondent No. 1 is the Sajjada Inamdar, Mutawalli and Saheb Munthakab of Darga Shareef Azrath Syed Shah Ahmad, Khatal Hussaini situate at village Kollampally, Taluk Makthal, District Mahaboobnagar and plaintiff No.2-respondent No.2 as the brother of the respondent No. 1 as also for perpetual injunction against the appellants not to interfere in the managements of the said Darga.
4. O.S. No. 55 of 1980 was filed only against the appellant Nos. 1 and 5 and one Azmathbi for recovery of possession of Ac. 17-06 guntas of dry land and Ac. 3-17guntas of wet land situate at Kollampally village. It was the case of the respondents in the suits that their father Qutubuddin Hussaini, son of Syed Nadeemuliah Hussaini was the Sajjada Inamdar and Saheb Munthakab of the Darga and that after the death of their father on 16 Teer Fasli 1358 succession was granted in the name of respondent No. 1 with shikmi of respondent No.2 and as such they are the sole descendents and successors to perform the services of inamdar, Sajjada and Mutawaili and to manage all the affairs viz., performing Fateha, arranging for Nazar, Niyaz etc., including the managements of Urs and Sandal of Dargah Shareef. The appellants are not Mutawallis and not Sajjada nor in any way concerned with the management of the Dargah and that they had no right over the said institution and that the suit was brought as they started interference. The cause of action of the suit was pleaded as 9-4-1978 when the appellants started interfering in the management of Dargah Shareef as also in the management of Urs and Sandal.
5. The second suit, O.S.No. 55 of 1980 was brought on the pleadings that the appellants are interfering with the possession and enjoyment of the land and service and income of the Dargah. The defendants were claiming interest on the suit land from which the respondents are entitled to eject them. The cause of action of the suit, for the purpose of eviction of the appellants was stated as 14th August, 1947 and 7th May, 1954 when the respondents were dispossessed from the suit lands but it was claimed that as per the Public Wakfs Extension of Limitation Act No.29 of 1959 as amended by Act No.15 of 1978 on 25-4-1978 the suit is within limitation. The appellants also stated the geneology in the written statement.
6. The suits were resisted with written statements filled stating that in the Munthakab issued Syed Nizamuddin and Gulam Dastagir, of the appellants family, were shown as Hissedars. The appellants are 50% shareholders in the management, income and the properties. There were litigations between respondent No. 1 and late Ahmad Hussaini, father of the 1st appellant and late Chanda Hussaini, husband of the 5th appellant. The Deputy Collector, who had been approached under the A.F. (Telangana Area) Atiyat Enquiries Act, 1952 (Act No. X of 1952), by judgment dated 24-11-1955 in file No.D/561/51 held both Chanda Hussaini and Ahmad Hussaini as having half share in the management of the affairs of the Dargah and in the income received by way of offerings. The appeal carried against the order of the Deputy Collector to the District Collector was dismissed on 22-3-1956. The judgment operates as res judicata, and that the suits were also barred by time.
7. The trial Court dismissed both the suits holding, on issues 2 and 4 in O.S.No. 55 of 1980 and on issue No. 1 in O.S.No.56 of 1980 that the succession had been granted in the beginning in the name of the respondents father and the rights of Syed Nizamuddin and Syed Gulam Dastagir were also recognised. The lands belonging to the Darga had been divided long ago and the suit schedule lands were in enjoyment of the appellants' fore-fathers and has continued in their family and that eversince their fore-fathers the appellants have participated in the management and in offering of the Darga. So far as issue No.l in O.S.No. 55 of 1980, relating to geneology filed by the appellants was concerned, the Court held in paragraph 22 of the judgment that the geneology was correct.
8. In the appeals filed by the respondents A.S.Nos. 1472 and 1473 of 1981, respectively arising out of O.S.Nos. 55 and 56 of 1980, the learned single Judge confirmed the finding that the appellants are the descendants of the persons who were mentioned as co-sharers in Ex.A-1, the Munthakab issued in 1317 Fasli i.e., in the year 1907. The learned Judge accepted the appellants to be the descendants of Nizamuddin and Syed Gulam Dastagir. The conclusions were also reached as flowing from the fact of the geneology being correct, that the appellants are entitled to share the property and also the income of the rituals that are to be performed at the Dargah. While so finding, the learned Judge however held that it is beyond doubt that the respondent Saheb Munthakab was rendering the service, that it is not possible for other sharers to perform service simultaneously and that the right of performing the service simultaneously is not conferred upon the appellants' family and they are recognised as sharers only in respect of the property as also the emoluments arising out of the ceremonies. A.S.No. 1473 of 1981 was thus disposed of on the terms '(i) the 1st plaintiff shall be declared as the sole Mutawalli of the suit Dargah; (ii) the defendants who are the sharers are entitled to enjoy the half of the property which is already in their possession and also entitled to share half of the income that accrue to the suit Dargah during several festivals.' A.S.No. 1472 of 1981 arising out of O.S. No. 55 of 1980 was dismissed. While LPANo.371 of 1988 has been filed by the appellants against the decision in A.S.No. 1473 of 1981, the respondents have respectively filed LPA Nos. 139 of 1990 and 142 of 1990 against the decisions in A.S.Nos. 1472 and 1473 of 1981.
9. Apart from the mentioning in Ex.A-1 that the ancestors of the appellants were mentioned as Hissedars in respect of the inam, the decisions of the authorities under the A.P.(Telangana Area) Atiyat Enquiries Act, 1952 (Act No. X of 1952) were also in favour of the appellants. A dispute regarding succession having arisen after the death of Syed Qutubuddin Hussaini, father of respondent No. 1 on 16 Teer 1358 Fasli corresponding to the year 1948, objections were made by Syed Ahmed Hussaini and Syed Chanda Hussaini and an enquiry was made by the Deputy Collector under the provisions of the Atiyat Enquiries Act wherein the decision Ex.A-2 was given on 30-9-1954, while overruling the objections, that the rights of the objection petitioners i.e., Syed Ahmed Hussaini and Syed Chanda Hussaini which are being enjoyed by them, shall not be affected by the succession of the respondents to Syed Qutub Hussaini and that they shall continue to enjoy the compensation subject to the rendering of services, as per previous practices and in accordance with the traditions. Since the judgment Ex. P-2 (sic. A-2) had been passed exparte, a fresh order Ex.B-18 was passed on 24-11-1995 after hearing the parties. The Deputy Collector decided as follows :
'Now the thing which has to be determined is that what are the rights that are being enjoyed by the parties as per the old traditions. As far as the question of the grant or subject to the rendering the services in the shape of lands Is concerned, the parties are occupied over their respective shares and nobody is having any plea or objection. Now, there remains the question of performing the customs (Rusoom) and the Nazro Niyas which is presented, the argument of the person who is in the enjoyment of the succession in respect of its division is that the objection petitioners never had any share in the same. On our cursory enquiry, we have come to know that Ahmed Hussami and Chanda Hussaini had been the shareholders in the customs of Nazar and Niya to the extent of half share and that the person who is in the enjoyment of the succession had been in the enjoyment of the share to the remaining half extent. Hence, as per the judgment delivered on 30-9-1954, it is ordered that the parties i.e., the person who is in the enjoyment of the succession and objection petitioners, shall continue to enjoy the compensation subject to rendering of services. The same he complied with. The signature of the parties as well was the signatures of their Advocates be obtained and the file be sent to records.'
An appeal was carried by the respondents against the order of the Deputy-Collector before the Collector who decided the appeal on 22-3-1956 observing that the appeal is decided according to the work of the ancestors of both the parties. He noted that the Deputy Collector had decided that keeping in view of their ancestors' work it should be continued with their shares half and half in all respects regarding landed property as well as urs etc. As lawyers objected that there should be a proper enquiry and not an ordinary one, the file was sent back to the Divisional Officer for proper enquiry. After the enquiry the Collector came to know that half and half share basis was going on for a long time and many witnesses had been produced by the parties. Taking such facts into consideration he decided half and half share to be continued in the light of the statements given by the witnesses and proved by the lawyers and that so all the share holders should get their shares as usual. The decision is Ex.B-2. It is thus seen that the competent authorities functioning under the statute decided the matter of the appellants having been entitled to half share not only in respect of the properties but also in respect of the ceremonies. Enquiries relating to succession in respect of Atiyat grant are to be held under Section 3-A of the Act by the Atiyat Courts with appeal provided for under Section 10 of the Act. Section 12 of the Act provides the decision of the Atiyat Court to be subject to the decision of the Civil Court in matters relating to succession, legitimacy/ divorce or other questions of personal law. Section 13 provides that except as provided in the act, the decision of an Atiyat Court shall be final and shall not be questioned in any Court of Law. The original Act shows Inams to be also Atiyat grants. Thus the decision of the Atiyat Court and the Atiyat Appellate Court rendered in favour of the appellants had become final. The learned single Judge however took the view that the decision of such Atiyat Court being made subject to the decision of the Civil Court, the view could be taken to vary the orders to the extent that the services to be rendered by the Sajjada Inamdar, Mutawalii and Saheb Munthakab could not be performed simultaneously by the appellants and the respondents and that to that extent the respondent No. 1 would have the so!e right to do it. With respect, we are unable to agree as such a suit to set aside or vary the decision of the Atiyat Court must be brought within the period of limitation. The learned counsel for the appellants submits the periods of limitation for the suit to be either under Articles 58, 100, 107 or 113 of the Limitation Act, 1963 of which Article 107 has the maximum limitation period of twelve years. Without going into the question of the suit being liable to be brought under which Article, yet taking the maximum period of limitation as twelve years, O.S.No. 56 of 1980 was clearly time barred. The appellate order Ex.B-2 was passed on 22-3-1956, but the suits were brought only in the year 1978. Even the suit so far as recovery of possession of lands is concerned admittedly as the very order in Exs. A-2, B-18 and B-2 shows the appellants are in possession of the lands much beyond 12 years of the suit asserting their own right and hence the suit cannot be said to be within limitation, either if the suit is one based on title or even if it is a suit under Article 65 of the Limitation Act. In that view of the matter LPA No. 371/88 is allowed with costs throughout and the LPA Nos. 139 and 142 of 1990 are dismissed with costs throughout, and the judgment of the trial Court is restored and the suits are dismissed.
Note:-Last sentence of this Judgment is corrected as per Court order dt. 22-3-96 and made herein on being mentioned.
This Appeal having been set down for being mentioned on 22-3-1996 as per the Office note and upon perusing the said office note and the Judgment of the High Court dated 19-12-1995 and upon hearing the arguments of the learned Counsel appearing on both sides, the Court on 22-3-1996 made the following
ORDER
(on being mentioned)
Heard the learned counsel for the parties. An inadvertent mistake has crept in the judgment in page 14 that all the L.P.As. are allowed even though, as the text of the judgment shows, only the appeal preferredby the appellants, i.e., the defendants in the suits is allowed and the L.P.As, by the respondents, i.e., the plaintiffs are dismissed.
In view of the fact that a clerical and typographical mistake has crept in, this Judgment is directed to be corrected and to be read so far as the last sentence is concerned as 'In that view of the matter L.P.A. No. 371 /88 is allowed with costs throughout and the L.P.A.Nos. 139 and 142 of 1990 are dismissed with costs throughout, the judgment of the trial court is restored and the suits are dismissed.'
This order would form part of the Judgment.