BIJOYCHAND MAHATAB Vs. KALIPADA CHATTERJEE

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit which has been described by the Courts below as a suit of a novel description. The defendant is in possession of land which originally belonged to the predecessor of the plaintiff, the Maharaja of Burdwan. More than half a century ago, the then Maharaja established an image of Shiva and named it Trilokeswar Shiva after himself. The allegation of the plaintiff is that the land in dispute was made over to the predecessor of the defendant in order that the income might be applied for the worship of the image so established. The Maharaja asserts that about 40 years before the commencement of this litigation, the site on which the temple of Shiva stood was washed away by the river Bhagirathi, that the image itself was broken to pieces, that since that time the broken image has been worshipped by the predecessor of the defendant, that the Maharaja has recently established a new image of Shiva in a newly constructed temple in the same village, and that the defendant has refused to perform the worship of this image. The plaintiff, therefore, asks for relief in the alternative in this manner: he prays, in the first place, that the defendant may be compelled to perform the worship of the newly established image; in the second place, that the defendant may be called upon to provide out of the income of the land in his possession the articles necessary for the worship of the image, and finally, that if the defendant refuses to perform the worship or to supply the articles necessary in that behalf, a decree may be made against him for ejectment.

(2.) The defendant repudiated his liability to perform the worship. His case was that the land had been granted to his predecessor for the worship of his family idols and that neither he nor his predecessor was ever under any obligation to perform the worship of the image Trilokeswar Shiva. The suit has been dismissed by all the Courts below.

(3.) On the present appeal it has been contended that, upon the facts found, there is no answer to the claim. The defendant has produced an arpannama executed in his favour by his predecessor in 1882. In so far as this deed of transfer contains an admission by his predecessor, it may be used against him. The arpannama recites that the land had been granted by the Maharaja of Burdwan to the predecessor of the defendant in order that the income thereof might be applied for the worship of his family idols and also of Trilokeswar Shiva.