NARSYA UDPA Vs. VENKATARAMANA BHATTA

JUDGEMENT

(1.) The plaintiff in the suit is the muktasar or trustee of a small temple in South Canara. The object of the suit is to obtain a declaration that the defendant is not entitled to obtain possession of certain land from the plaintiff on the ground of his being purchaser in execution of a decree, which defendant obtained against a third party, to whom he had granted the lease and whose rights he brought to sale for the realisation of the arrears of rent due to him under the lease. The defendant had obtained a mulgeni or permanent lease of the land from a former trustee of the temple in the year 1882, and subsequently granted the lease to the person whose rights he brought to sale and purchased in Court auction. Previous to the defendant s suit against his lessee which was in 1906, the plaintiff had obtained possession of the land from the lessee. The plaintiff s contention was that the permanent lease granted by the previous muktasar was invalid and not binding on the temple. Defendant was admittedly in possession of the land under his permanent lease till 1900, after which time possession was obtained by Phaniappa Vokuda, plaintiff s predecessor-in-office from the defendant s sub- lessee. The defendant? alleged that the permanent lease could not be questioned by the plaintiff after the lapse of so long a time and that he had acquired a permanent lessee s right by prescription. The District Munsif upheld his contention. On appeal, the Subordinate Judge, Mr. Anantan Nair, reversed the Munsif s judgment and held that the defendant could not acquire a permanent lessee s right by prescription as the land was trust property. The defendant preferred a second appeal to this Court When it first came on for hearing, this Court asked the lower Court to record a finding on the question, "Whether the defendant was in possession of the land in question in pursuance of Exhibit II (mulgeni lease) for more than twelve years and whether he acquired a mulgeni right by prescription by such possession assuming that the mulgeni was invalid at its inception." The present Subordinate Judge has returned a finding to the effect that defendant did hold possession for a period of 18 years under the mulgeni, but that he has not acquired by such possession the right of a permanent lessee. He is of opinion that Section 10 would prevent the defendant from acquiring any prescriptive right, that defendant cannot be regarded as an assign for valuable consideration within the meaning of Section 10 of the Limitation Act as he merely agreed to pay a rent of Rs. 18 (eighteen) per year under the lease but paid no consideration for the grant of the lease itself. He observes, further that as the defendant was directed under Exhibit II to pay a sum of Rs. 5 (Rupees five) out of the annual rent of Rs. 18 (Rupees eighteen) towards the expenses of the pooja and other viniyogas of the idol of the temple, it may be said that the defendant s possession was not adverse to the idol to whom the property belongs.

(2.) The appellant contends that the Subordinate Judge s opinion on the question of limitation is wrong and that the defendant acquired a complete prescriptive title to a permanent lease hold interest by his possession under Exhibit II.

(3.) The question for our decision, therefore, is whether the defendant s possession, was adverse to the idol and whether such adverse possession has created a mulgeni right in his favour. Both sides have relied before us on the opinion of the Judicial Committee of the Privy Council expressed in different cases, the appellant relying on Gnanasambanda, Pandara Sannadhi v. Velu Pandaram 23 M. 271 : 27 I.A. 69 : 4 C.W.N. 329 : 10 M.L.J. 29 and Damodar Das v. Adhikari Lakhan Das 37 C. 885 : 7 Ind. Cas. 240 : 14 C.W.N. 889 : (1910) M.W.N. 303 : 12 C.L.J. 110 : 8 M.L.T. 145 : 7 A.L.J. 791 : 12 Bom. L.R. 632 : 20 M.L.J. 624 : 37 I.A. 147 and the respondent on Abhiram Goswami v. Shyama Charan Nandi 36 C. 1003 : 4 Ind. Cas. 449 : 10 C.L.J. 284 : 6 A.L.J. 857 : 11 Bom. L.R. 1234 : 19 M.L.J. 530 : 14 C.W.N. 1 : 36 I.A. 148 and on Ishwar Shyam Chand Jiu v. Ram Kanai Ghose 38 C. 526 : 10 Ind. Cas. 683 : 21 M.L.J. 1145 : 15 C.W.N. 417 : 9 M.L.T. 448 : 8 A.L.J. 528 : 13 Bom. L.R. 421 : 14 C.L.J. 238 : (1911) 2 M.W.N. 281 that followed it. Before refeiring to these cases, we may make a few observations as to how the matter stands under the provisions of the Limitation Act. Both the parties are agreed that the land in dispute is trust property and that the muhtasar for the time being has no beneficial interest in it at all. Section 10 of the Limitation Act enacts that no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration) for the purpose of following in his or their hands such property, or proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time."