ANANDA CHANDRA CHAKRAVARTI Vs. BROJA LAL SINGH

JUDGEMENT

(1.) The subject-matter of the litigation which has culminated in this appeal is a parcel of land in the town of Dacca temple erected thereon, two idols installed therein, together with ornaments and other articles appurtenant there to. The first plaintiff is Ananda Chandra Chakravarti, a member of the legal profession, practising at Dacca, and he has commenced this litigation, on his own behalf and also as shebait of the two idols, Rudra Nath and Mahamaya, images of god Siva and goddess Durga espectively) who are joined as co- plaintiffs. The first defendant, Brajananda Saraswati claims to be the mohant of the Bura Siva temple and Asthan, an ancient religious foundation situated in the town of Dacca n the immediate neighbourhood of the disputed temple. The second defendant Rudra Tridandi Trijuralinga Swami is alleged by the plaintiff to be the real mohunt of the Bura Siva temple) who resides at Swamibag in the town of Dacca. The third and fourth defendants are epresentatives of the estate of the late Iswar Chandra Ghosh, sometime Government Pleader at Dacca. The fifth defendant, Birendra Chandra Chaudhuri, is said to be a priest acting tinder the direction of the first defendant. The case for the plaintiff is that the disputed temple, known as the Anandamayi temple, was erected by him on land obtained by way of gift from Iswar Chandra Ghosh, that the idols were established by him, and that he peacefully exercised his rights as founder shebait till the time of the Durga Puja of 1914 when the first defendant raised a dispute and obstructed him. He was, however, able to perform the Puja, as an order under Section 144 of the Criminal Procedure Code was made by the authority. out proceedings were instituted shortly afterwards under Section 145 of the Criminal Procedure Code, which resulted infonly, having been merged in a decree. an order made on the 2 March, 1915, in favour of the first defendant. The plaintiff accordingly institute d the present suit on the 18th September 1916 to establish and enforce his rights in respect of the Anandamayi temple and the idols Rudra Nath and Mahamaya. The first defendant alone contested the claim the second defendant, so far as can be gathered from the record, lent his support to the plaintiff. The contesting defendant urged that the site of the temple was land comprised within the ambit of the Bura Siva temple arid Asthan and was at no time the property of Iswar Chandra Ghose, the donor of the plaintiff. He further alleged that the plaintiff had no right in respect of the disputed temple and the idols installed therein, except such as is possessed by every member of the public. The Subordinate Judge has come to the conclusion that the site of the temple did not belong to Iswar Chandra Ghose, but was comprised in the Bura Siva temple and Asthan. He has also disbelieved the story of verbal gift by Iswar Chandra Ghose in favour of the plaintiff. He has found, however, that the Anandamayi temple was in fact erected by the plaintiff and that the idols were established by him. But in the opinion of the Subordinate Judge, this Goes not confer on the plaintiff any special rights distinct from those enjoyed by the members of the public in general. In this view, the Subordinate Judge has dismissed the suit. This is the decision assailed in the present appeal.

(2.) As regards the original title to the site whereon the Anandamayi temple stands, we have scrutinised the entire evidence, which has been minutely discussed before us. On this part of the case, we are not prepared to dissent from the conclusion or the Subordinate Judge which is based on an accurate and exhaustive review of the evidence. The conveyances relied upon by the plaintiff contain boundaries which cannot be identified with precision, and these documents do not prove that the disputed land was owned by the predecessors-in-interest of Iswar Chandra Ghose. We cannot further overlook that there are difficulties in connection with the alleged gift by Iswar Chandra Ghose in favour of the plaintiff, which have not been satisfactorily removed. Even if it be assumed that the disputed land is covered by the conveyances, Iswar Chandra Ghose never acquired title to the entire property, whatever interest he acquired did not, so far as can be made out, exceed 17-24ths share. It is difficult to believe that the plaintiff, admittedly an orthodox Hindu, should have erected a temple on a. site the title whereof was in part at least involved in uncertainty. It is well settled that dedication vests the property in the idol, only when the founder has title. The ceremony divests the proprietorship of the temple from the builder and vests that the image which by process of notification has acquired existence as a juridical personage; for, as Vijnaneswara juts it, gift consists in the relinquishment of one's own right and the creation of the right of another. This is feasible only when tae dedicator has himself title, apart from this, the Subordinate Judge has rightly emphasised that a person in the position of the plaintiff was not likely to accept a gift without a deed or to erect a temple on land obtained by way of gift. On the other hand, we have the undoubted fact that the lands towards the west as also towards the east of the disputed temple site, belong to the Bura Siva temple and Asthan. This again renders it highly improbable that the intermediate parcel should have been the property of private idividuals. We must, consequently, accept the finding of the Subordinate Judge that the site of the Anandamayi temple forms part of the Bura Siva temple and Asthan. We have next to consider how and when the Anandamayi temple was erected and the idols installed therein.

(3.) The evidence, which has been accepted by the Subordinate Judge, establishes beyond dispute that in or about the year 1897 the plaintiff cleared the disputed site and commenced the construction of what is now known as the Anandamayi temple. The images of Siva and Durga were installed and consecrated by the plaintiff on the 1 May 1900 and were named Rudra Nath and Mahamaya after his father and mother, respectively. In the year following, the plaintiff constructed a raised pavement towards the north of the temple so that the ceremony known as prudakihin (circumambulation), might be conveniently performed by the worshippers. In 1902 the plaintiff acquired a strip of land towards the south and dedicated the same to the idols established by him. The evidence makes it abundantly clear that from 1900 to 1914 the plaintiff had free access to the temple and regularly took parte in the worship. There is also evidence to show that other structures were erected by friends of the plaintiff, for instance, the gate rooms were constructed by Krishna Kishore Basak, while the front corridor was built at the cost of Is war Chandra Ghose. We have thus the cardinal fact that on land comprised within the As than of Bura Siva, the plaintiff has erected a temple, wherein he has ii stalled and consecrated two idols and has had, for a period of more than fourteen years, free access and opportunity for regular participation in the worship. This could have happened in either of two ways. The plaintiff may have by force obtained possession of the land and erected the temple thereon; or the plaintiff may have erected the temple with the concurrence, tacit or express, of the Mohunt of Bura Siva temple and Asthan for the time being. In either view, the first defendant--if he be assumed to be the present mohunt--is not competent to treat the plaintiff as a trespasser and to exclude him from the Anandamayi temple. If the first alternative be adopted, as the temple has been in existence for over twelve years, the idols to whom it is dedicated have acquired an indefeasible title to the site by adverse possession Balwant Rao V/s. Puran Mal 10 I.A. 90 : 6 A.I. : 13 C.L.R. 39 : 4 Sar. P.C.J. 435 : 3 Ind. Dec. (N.s.) 352 (P.C.); Ram Parkash V/s. Anand Das 33 Ind. Cas. 583 : 43 I.A. 73 : 20 C.W.N. 802 : 14 A.L.J. 621 : (1916) 1 M.W.N. 406 : 31 M.L.J. 1 : 18 Bom. L.R. 490 : 3 L.W. 556 : 24 C.L.J. 116 : 43 C. 107 : 20 M.L.T. 267 (P.C.); Vidya Varuthi Thirtha V/s. Balusami Aiyar 65 Ind. Cas. 161 : 48 I.A. 302 : (1921) M.W.N. 449 : 41 M.L.J. 346 : 44 M. 831 : 3 U.P.L.R. (P.C.) 62 : 15 L.W. 78 : 30 M.L.T. 66 : 3 P.L.T. 245 : 26 C.W.N. 537 : 24 Bom. L.R. 619 : 20 A.L.J. 497 : (1922) A.L.R. (P.C.) 123 (P.C.); Khaw Sim Tek V/s. Chuah Hoori Gnoh Neoh (1922) 1 A.C. 120 : 120 (sic) 203 : 91 L.J.P.C. 36; Damodar Das V/s. Lakhan Das 7 Ind. Cas. 240 : 37 C. 885 : 14 C.W.N. 889 : 12 C.L.J. 110 : (1910) M.W.N. 303 : 7 A.L.J. 791 : 8 M.L.T. 145 : 20 M.L.J. 624 : 12 Bom. L.R. 632 : 37 I.A. 147 (P.C.). If the second alternative, which seems the more probable, be adopted the present mohunt is not competent to revoke the arrangement sanctioned by his predecessor, which resulted in the erection of the temple and the installation of the idols. It is thus plain that even if the conclusion of the Subordinate Judge that the disputed site formed part of the Bura Siva Asthan be affirmed, it does not necessarily follow that the plaintiff has no rights on the facts admitted and proved.