LAKSHMIDHAR GOSWAMI Vs. UPENDRA NATH SEN

JUDGEMENT

(1.) This is a second appeal from the judgment and decree of the learned District Judge, A. V. D., dated 6th May 1944, by which ha affirmed the judgment and decree of the trial Court which had decreed the plaintiffs' suit with costs.

(2.) The facts material to the appeal are these. There is a temple at Gauhati known as the Baneswar Temple which, according to the plaintiffs, was established as a family temple by one Gangadhar Goswami, ancestor of the defendant, Jibadhar Goswami, in the present suit. The temple stood on Plot No. 979 comprising an area of 3K-16L. To the west of this plot (No. 979) are the old dags Nos. 1774 and 1775 re-numbered as new dags NOS. 978, 1174 and 977 comprising an area of 2B-1K-3L, duly entered in the Lakhiraj Register. This property (2B.1K-3L) was for many years in possession of one Topodhar Goswami who acquired it by exchanging his share in the paternal property situated in North Gauhati with an ancestor of the defendant. Topodhar died in the year 1292 B.S. (about 1885). Topodhar made a will of this property in favour of his grandsons, Umanath and Ratnanath. On the death of Umanath and Ratnanath, the property was inherited by their heir, one Kanakeswar. On the death of Kanakeswar, it was inherited by his heir Praneswar. Praneswar settled some tenants on the land and transferred 1/4th of the area to one Joydev Goswami, retaining the balance in his exclusive possession. The 1/4th share transferred to Joydev Goswami is not comprised in the new dag NO. 977, which is not the subject-matter of the present suit. The property which is the subject-matter of the present suit is comprised in the new dags Nos. 978 and 1174.

(3.) Shortly before 1899, one Gopal Goswami, an older brother of the defendant in the present suit, alleging himself to be the manager of the property in suit, made attempts to recover rents from the tenants settled by Praneswar and Joydev without success. In 1899, he brought a suit (Suit NO. 792 of 1899) as manager of the temple against Praneswar and Joydev for a declaration of the temple's title-to the property in suit, and khas possession, but failed. The defendants--Praneswar and Joydev--in that suit denied the title of the temple and set up a plea of adverse possession tracing it to Topodhar's possession. Suit No. 792 of 1899 was dismissed on 23rd Dec. 1899. The first and second appeals against the judgment and decree in that suit were also dismissed.