SHRI SATYADHYANA TIRTH Vs. BHUJANG CHINTAMAN NADGAUDA

JUDGEMENT

(1.) The plaintiff, who is the Swami of the Uttaradhi Math, sued, the defendants to recover possession of some property alleged to belong to the Math stated to have been gifted about forty or fifty years ago by the then Swami of the Math, one Krishnacharya Garlpad, the ancestor of defendants Nos. 8 and 9, the remaining defendants being transferees and tenants of Garlpad. A preliminary issue was framed as to whether the suit is in time. It was found that it was not in time, and it was dismissed. On appeal, the District Judge of Belgaum framed two issues, (1) Has the plaintiff proved that the property in suit is comprised in a Hindu religious or charitable endowment ?, and (2) if so, can a suit for the purpose of following such property be maintained, notwithstanding the lapse of any length of time ?, and found in the negative on both these issues, and dismissed the suit. The plaintiff makes this second appeal.

(2.) It is conceded by the learned advocate for the appellant that Act I of 1929, by which limitation with regard to the recovery of property belonging to a religious or charitable endowment was altered, will not apply to the present suit, which is brought in 1924, but he contends that under the rulings of the Madras High Court there is no limitation for a suit of this character, and that Nilmony Singh V/s. Jagabandhu Roy (1896) I.L.R. 23 Cal. 536, on which the lower Courts have relied, has been overruled by the Privy Council in Vidya Varuthi V/s. Balusami Ayyar, s.c. 24 Bom. L.R. 629, P.C. To this it is replied that there is no necessity to go into the question of limitation, inasmuch as the lower appellate Court has found that it is not proved that this land was part of the property of the Math, which is a finding of fact.

(3.) Taking the first point first, it is argued by the learned advocate for the appellant that there was no issue in the first Court about the property belonging to the Math, and no evidence was led on it, the suit being decided on a preliminary point of limitation. It appears, however, from the judgment of the lower appellate Court that the point as to whether the property in suit was comprised in a Hindu religious or charitable endowment was raised by the appellant, that is, the present appellant, and was decided against him in the absence of evidence. It is not quite correct to say that there is no evidence on this point, as I find in the judgment a reference to several Exhibits, Nos. 68, 75, 74 and 76. Inasmuch as this point was raised by the appellant himself, I do not think that he can now contend that it should not have been considered by the lower Court.