HUBLI PANJARAPOLE Vs. SARASWATEVVA BAYAPPA KALA GHATKI

JUDGEMENT

(1.) This is an appeal by defendants 1 and 9 to 12 against the decree passed by the Civil Judge (S.D.), Hubli, directing them to deliver possession of the properties in suit to the plaintiff. The plaintiff is the daughter of Rayappa and her case was that after the death of her mother Chandawa she was entitled to the properties in suit. These properties are two fields Section Nos. 42 and 43 situated at Agrahar Timasagar and a house. These properties belonged to Rayappa who died leaving behind him three sons and four daughters. The last surviving son was Chandrappa. He died a minor. During his minority Rayappa's widow Chandawa alienated these properties as guardian of her minor son. On 25-9-1900, she mortgaged, all the three properties to Tejappa for Rs. 1,000. The interest agreed to be paid was 18 per cent, per annum & the period stipulated for repayment was six months. On 18-5-1904, Chandawa sold the two lands to Tejappa for Rs. 1,000 and in consequence the house which had been mortgaged by her along with the lands was released from mortgage. It appears that some time before the sale-deed was executed Chandrappa had died by plague. On 29-7-1905, Tejappa made a gift of these two lands to the Hubli Panjarapole, In the present suit Saraswatevva the last surviving daughter of Rayappa claims to be the reversioner of the properties of her brother Chandrappa and she alleges that the alienations effected by Chandrawa were not binding on her and so she claims to recover the possession of the three properties in suit. Chandrawa died on 4-3-1932, and the present suit has been filed on 3-3-1944. Her claim with regard to the house has been dismissed. But she has succeeded in regard to the two lands, and it is with these two lands that we are concerned in the present appeal.

(2.) The principal point which has been urged before us by Mr. Kalagate on behalf of the appellants is one of limitation. Mr. Kalagate contends that the suit is barred by limitation, because at the time when leave was obtained by the plaintiff under Order 1, Rule 8, to sue the Hubli Panjarapole by its members in a representative capacity, more than 12 years had elapsed alter the opening of reversion. When the suit was originally filed, Hubli Panjarapole was defendant No. 1 by its Chairman Sangappa Nurusavirappa Korvi. This suit was filed in the Court of the Second Class Subordinate Judge at Hubli, but when it was registered the jurisdiction of the learned Sub-ordinate Judge had been enlarged. Even so on 21-2-1947, the plaintiff moved the learned judge to transfer the suit to the Civil Judge (S. D.) on the ground that the real valuation of the property was more than Rs. 5,000 and the learned Judge made an order returning the plaint to the plaintiff for presentation to the proper Court on the same day. This order is obviously wrong; because when the suit was registered, the learned Judge had pecuniary jurisdiction to try the suit. However, that very day the plaint was presented before the Civil Judge (S.D.). An application was made before him on 2-12-1947, by exh. 37 in which the plaintiff alleged that it was necessary to sue the Panjarapole in a representative capacity under Order 1, Rule 8, Civil P. C. She, therefore, asked for leave to convert her suit into a representative one under Order 1, Rule 8. The learned Judge granted the application and ordered notices to be issued to the persons interested in the Panjarapole. After the notices were thus issued, defendants Nos. 9 to 12 offered to come on the record and they were added on 8-1-1948. Now, Mr. Kalagate's contention is that this is a very stale claim and it may be technically within time on 3-3-1944, but he argues that as it was filed on this day, the suit was defective and would have been dismissed as incompetent. The defect was cured by the application made by the plaintiff on 2-12-1947. But this application cannot help the plaintiff to overcome the difficulty of limitation, because on this date the suit was clearly barred by time.

(3.) The Hubli Panjarapole is an unregistered association with numerous members. Now, there can be no doubt that such an institution can ba sued and can sue only under Order 1, Rule 8. In -' Atmaram Babaji v. Narayan Arjun', AIR 1922 Bom 109 (A), the plaintiff had sued in ejectment in his own name and the claim was made by him on the authority of a resolution passed by the managing committee of the caste authorising him as the president of the managing committee to file such a suit. A plea was raised that the suit was incompetent since it had not been filed under Order 1, Rule 8, and it was upheld by this Court and the suit was dismissed. Macleod C. J. rejected the contention of the plaintiff based upon the resolution passed by the managing committee on the ground that the said resolution would not entitle the plaintiff to sue in his own name (p. 136) :