RAJAGOPALA NAIDU Vs. RAMASUBRAMANIA AYYAR

JUDGEMENT

(1.) Appellants as representing the five pattraigars or groups of inhabitants of their village, sued to recover possession of the village temples and the properties stated to be their endowments. The suit was filed in February 1920, and the plaint stated that defendant 1 had been in unlawful managemeut and possession from December 1911, the date of his father's death. It is common ground that the father of the defendants, one Aswatha Ayyar, was in possassion and management from 1890 up to his death in December 1911; but the plaintiffs claim that Aswatha Ayyar was in possession only as their nominees. Defendant 1 denied that the plaintiffs had any right to the management of the suit temples or their properties and set up title in Aswatha Ayyar, either in accordance with the custom of the institution or1 by prescription. In the alternative he also contended that he himself, having been in possession from December 1911 had acquired a title by prescription or that, at any rate, the plaintiffs suit is barred by limitation. On the merits-with reference to the alleged claim of the plaintiffs and the management of the institution by themselves or through) their nominees, the learned Subordinate Judge found in favour of the plaintiffs. But he upheld the defendants claim to prescriptive title and dismissed the suit. Hence this appeal.

(2.) In the view that we take on the question of limitation, it is unnecessary to deal with the questions raised by issues 1 to 3, as to the plaintiffs title to manage the suit temples and properties, by themselves or through their nominees. Mr. Muthiah Mudaliar, on behalf of the appellants, questioned the lower Court s-conclusion on the point of limitation, on three grounds. He argues that the learned Judge was wrong in holding that Aswatha Ayyar's possession of the properties or the office ever became adverse during his1 lifetime. He next contended that the defendant could not tack on the period of Aswatha. Ayyar's possession to his own to make up the period of 12 year's possession. Lastly he contended that the suit was not governed by Art. 124 but only by Art. 144. Taking these arguments in order, it is true that the Subordinate Judge finds that Aswatha Ayyar came into possession as a nominee of the plaintiffs in the year 1890. But he also points out that in 1905 the plaintiffs purported to dismiss Aswatha Ayyar or revoke his appointment. When their new nominee Pavadai Pillai instituted O.S. No. 48 of 1905, Aswatha Ayyar filed a written statement (Ex. 15-A) on 9th September 1905, wherein he set up right in himself and repudiated the claim of the plaintiffs. That suit was no doubt dismissed on the ground that Pavadai Pillai had no right, of action. and that the villagers alone should, if" at all, institute a suit. But we are not in the present litigation, concerned with the frame of that suit; but the learned Juige was right in holding that in view of the purported dismissal of Aswatha Ayyar by the plaintiffs and his definite repudiation of the plaintiff's claim in his written statement the plaintiffs could not maintain that after September 1905, Aswatha Ayyar's possession was one consistent with their claim and title,

(3.) Aswatha Ayyar however died within 12 years of that suit. Mr. Muthiah Mudaliar therefore argues that Aswatha Ayyar could not within hi3 lifetime have acquired a prescriptive title under Art. 124. This is no doubt so but the learned Judge has held that defendant 1 who, according to the plaint case, got into possession and managemont immediately on Aswatha Ayyar's death, was entitled to tack on the period of Aswatha Ayyar's adverse possession to his own. To this Mr. Muthiah Mudaliar raises two objections; first, he suggests that defendant 1 did not really get into possession of the office immediately on Aswatha Ayyar's death but there was an interruption by reason of the period during which Aswatha Ayyar's widow was in management. This is not the case in the plaint and it is also shown by Ex. 3-A that Aswatha Ayyar's widow was managing only as guardian on behalf of Aswatha Ayyar's sons, There was therefore no interruption between Aswatha Ayyar's death and the assumption of management by or on behalf of defendant 1. It is next contended that as Aswatha Ayyar only claimed a tenure of office which gave him a right to appoint a successor and not a mere hereditary right and it is now found by the lower Court that defendant 1 was not appointed by Aswatha Ayyar, thera is really no continuity of title or possession between Aswatha Ayyar and defendant 1 and that the two must be regarded only as independent trespassers in which case defendant 1 will not be entitled to tack on the possession of Aswatha Ayyar with his own. We are not by any means satisfied that this is so. In his written statement; Ex. 15-A Aswatha Ayyar did not commit himself to any particular description of the tenure on which he held the office. No doubt in para. 5 of that written statement he referred to one Subbaraya Naicker having first managed the temple, to his having appointed one Aiya-swami as the trustee after him, who in turn appointed one Velayqdham and to himself as having been appointed by Velayudam. But in para. 8 he went on to say that even if the five groups of the villagers had any right in the management of the suit temples they have forfeited that right by bar of limitation: As the defendant herein has been looking after the management of the temples, for a period of more than 12 years prejudicially to their right and free from their interference they are precluded from removing him from the management by bar of limitation.