MARUTI RAMRAO CHANDAVARKAR Vs. MALLAPUR SHRI GOPAL KRISHNA

JUDGEMENT

(1.) These two appeals are cross-appeals arising out of the judgment and decree of the District Judge of Kanara in Appeal No. 19 of 1927 from the decree in Suit No. 488 of 1924 of the Subordinate Judge's Court at Kumta. The arguments in these appeals have occupied a considerable time, but the main points are comparatively restricted. The facts are that the suit was brought in the name of the idol of Shri Gopalkrishna Dev of Mallapur by its vahivatdar Shesbgiri against the defendants, who are members of the same family to which the plaintiff before his adoption originally belonged, and the suit prayed for two reliefs. The plaintiff alleged that certain property, which is described in Schedule A of the plaint, situated at Konali in taluka Kumta and consisting of a considerable number of survey numbers, was purchased by the defendants predecessor Annappa for the God, and that its produce was to be devoted to the upkeep of the idol and its service. As regards the property mentioned in schedule B, which consists of one or two survey numbers, that property was burdened with a charge of three khandis of rice for the performance of certain ceremonies of the idol. The defendants denied that the purchase of the lands in schedule A by Annappa was for the benefit of the idol, although they appear to have admitted in the first part of their written statement that certain payments were made out of the produce of these lands to the idol, but as a matter of grace and not as a matter of right. With regard to the property mentioned in schedule B, it has been admitted in the written statement that originally that property was burdened with the payment of three khandis of rice annually for the purposes of the ceremony mentioned in the plaint, but that a great many years ago that custom was discontinued when the family bought certain lands at Kekkar and Haldipur for the God, and therefore no liability attached to the property in schedule B. They further contested the right of the plaintiff (by which I mean the human plaintiff) to sue. They also said that the property was not liable to pay anything to the idol, there being no dedication, and that the claim was barred by limitation.

(2.) The first Court, the Subordinate Judge of Kumta, held that the plaintiff had the right to sue, the property in schedule A belonged to the plaintiff, the suit was in time, and the plaintiff was entitled to the declaration sought (as regards property B), and that he was entitled to possession of property A, not in his own capacity but as representing the idol. He, therefore, passed a decree in the plaintiff's favour together with mesne profits and costs.

(3.) On appeal by the defendants to the District Court, the District Judge confirmed the decree as regards property A, which was the decree as to possession with mesne profits, but he set aside the decree as regards the property mentioned in schedule B, holding that it was not proved that this property was burdened with the charge of an annual payment of three khandis of rice to the idol, Both parties have appealed, the main appeal being by the defendants, Second Appeal No. 959 of 1928, and the other appeal by the plaintiff is Second Appeal No. 960 of 1928.