S. Nainar Sundaram, J.
1. The second defendant in the suit is the appellant in this second appeal. The respondent is the plaintiff. The plaintiff would claim the property was a wakf property belonging to a wakf known as Pulichapallam Thaika Wakf. The plaintiff claimed the reliefs of declaration, possession and mesne profits. The second defendant claims title under a sale deed, dated 6.10.1949 from one Khader Baig Sahib as per Ex.B-1. The second defendant denied that the property is a wakf property as claimed by the plaintiff, and he also contested the suit on the ground of limitation. The contest of the second defendant was upheld by the first Court. The plaintiff appealed and the lower appellate Court took a different view. At the time of the admission of this second appeal directed against the judgment and decree of the Lower Appellate Court, the following substantial questions of law were mooted out for consideration:
1. Whether the finding of the Subordinate Judge that the suit property is wakf property is a correct one?
2. Whether the Sub Judge has acted correctly in holding that the suit is within time and that the defendants have not perfected title by adverse possession?
2. The primary submissions of Mr. R.S. Venkatachari, learned Counsel for the second defendant/appellant herein, centered around the question of limitation. Of course he made submissions also on the question as to whether the property is a wakf property. The question of limitation was argued on the assumption that the property is a wakf property, but without making concession therefor. Since I am inclined to sustain the submissions of the learned Counsel for the second defendant/appellant herein on the question of limitation, I do not feel obliged to go into the other question as to whether the property is wakf property or not. If the plaintiff must fail on the ground of limitation, assuming that the property is wakf property, then it will be unnecessary to go into the question of the character of the property. Reliance was placed by the plaintiff before the lower Appellate Court on Article 96 of the Limitation Act, 1963. The said Article stands extracted as follows:
Description of suit Period of Time from which periodLimitation begins to run.96. By the The date of death,Manager resignation, or removalof a Hindu, of the transferor orMuslim the date of appointmentor Buddhist of the plaintiff asreligious or Twelve manager of the endowment,charitable years. whichever is later.endowmentto recoverpossession ofmovable orim-movableproperty comprisedin the endowmentwhich has beentransferredby a previousmanager forvaluableconsideration.
In the present case, it is not a case of date of death, resignation or removal of the transferor. Such was also not the case of the plaintiff. To commence limitation under this part of the Article, it is not the cessation of trusteeship in a general way that matters. The trusteeship of the prior trustee should cease by means of the three specified modes, namely, death or resignation of removal of the prior trustee. If there is lack of proof that any of these events occurred within twelve years anterior to the filing of the suit, it will be inappropriate to invoke this part of the Article. Then the question is as to whether, for the suit, the latter part of this Article when it contemplates that time would run from 'the date of appointment of the plaintiff as manager of the endowment' could be invoked. The lower Appellate Court has expressed a stand that the concerned Wakf Board having got constituted in the year 1971, time would ran from the date of such constitution, obviously keeping in mind the set of expressions 'the date of appointment of the plaintiff as manager of the endowment'. It would be a misnomer to equate the constitution or reconstitution of any Wakf Board to an appointment as Manager of an endowment. Under the Wakfs Act, 1954, there could be assumption of a direct management by the Wakf Board under Section 43-A thereof. The other powers of the Wakf Board under the Act are supervisory in character and certainly they cannot be equated to direct management so as to bring the matter within the ambit of the set of expressions a'ppointment of the plaintiff as manager of the endowment' occurring in this Article. Though the management contemplated under this Article need not necessarily be a de jure one, and it could be a de facto one, the supervisory powers of the Wakf Board under the statute are not synonymous with the powers of a person put in charge of management of the endowment. There must be assumption of a direct management by the Wakf Board by any manner known to law. Varadarajan, J., as he then was, in Kaadar Batcha Sahib v. Tamil Nadu State Wakf Board S.A. Nos. 19, 534, 626, 1661 and 1662 of 1973, Judgment dt. 12.1.1976 concisely reported in (1976) 89 L.W. 53, has taken note of the distinction between the powers of the Wakf Board for supervising the functions of the Manager of Wakfs and the application of the properties and funds of the wakfs for legitimate purposes, on the one hand and the direct management of the wakfs on the other. In that case, the learned Judge, found that there was no evidence to show that the Wakf Board itself had assumed direct management of the wakf under Section 43-A of the Wakfs Act, 1954. Here in the instant case, such was not the stand put forth at all. What was claimed was only power of superintendence under the statute. Hence the reliance placed on Article 96 of the Limitation Act, 1963 is a total misconception.
3. It was also the attempt of the plaintiff to maintain that the suit was within time by placing reliance on Section 3 of the Public Wakfs (Extension of Limitation) Act, 1959 (Act 29 of 1959), hereinafter referred to as 'Act 29 of 1959'. The said provisions, with the relevant amendments, contemplates that a suit for possession of any immovable property, forming part of a public wakf or any interest therein can be instituted before 31.12.1972, if the person entitled to institute a suit has been dispossessed or has discontinued the possession at any time after the 14th day of August, 1947 and before the 7th day of May, 1954. The plaintiff has no consistent case of dispossession. In the plaint, in paragraph 6 it is stated that the second defendant is in possession of the suit property from 195? or thereabouts. In paragraph 7 of the plaint, it is stated that the plaintiff came to know of the defendant's possession of the suit property in 1972. These two years apparently do not fall within the two outer limits contemplated in Section 3 of the Act 29 of 1959, namely, 14.8.1947 and 7.5.1954. The evidence placed on behalf of the second defendant would show that even prior to the year 1949 the vendor under Ex.B-1 and his predecessors-in-title were in possession and enjoyment of the property. The witness P.W.I examined on behalf of the plaintiff has categorically admitted that the property was not at all enjoyed at any time by the wakif. The evidence placed in the case has disclosed that the concerned wakf, namely Pulichapallam Wakf was not in possession of the property at any time. Hence it could not be a case of dispossession or discontinuance of possession within the meaning of Section 3 of Act 29 of 1959, The lower appellate Court has assumed that dispossession must have taken place only on the date of Ex.B-1. It assumed, without any evidence to that effect, that the wakif ought to have been in possession through the manager or muta--walli. Such is not the factual position which has emerged from the evidence placed in the case. How the lower appellate Court proceeded to act only on assumptions is clear from the following passage occurring in paragraph 11 of its judgment:
The evidence P.W.I appears to be that the Wakif was not at all in possession of the property. This evidence must be taken to mean that so far as the knowledge of this witness went, the wakif was not in possession of the property. At any rate, prior to 6.10,1949 the wakif ought to have been in possession through the Manager or Muthawalli. Therefore, the evidence of P.W.I should not be taken to have nullifying the case of the appellant to any extent.
It is clear that the suit laid by the plaintiff on 2.1.1973 for recovery of possession was obviously barred by limitation from any angle. Hence I have to sustain the submissions of the learned Counsel for the second defendant/appellant herein on the question of limitation. Accordingly, the second appeal is allowed the judgment and decree of the lower appellate Court are set aside and the suit of the plaintiff will stand dismissed. I direct the parties to bear their costs throughout.