GANGA PROSAD CHOWDHURY Vs. KULADANANDA ROY

JUDGEMENT

(1.) This appeal arises out of a suit in which the plaintiff asked for a declaration that a certain house situated in the town of Burdwan is a part of an estate of which he alleges he is now one of the trustees, and also for recovery of possession thereof.

(2.) The trust was created by one Annada Prosad Ghose by a deed which was called a Niyam- Nirbandhapatra in 1305. He died in the year 1308. Shortly after his death his daughter Katyani instituted a suit being No. 438 of 1901 wherein she prayed for a declaration that the deed executed by her father was void and inoperative and in the alternative she prayed for construction of the deed. In this suit she impleaded as defendant her step-mother Haribhabini, and the trustees named in the deed and also other persons in whose favour certain bequests had been made by the deed. The deed, it may be observed here, purported to dedicate certain properties to the family deity Sri Sri Iswar Sridhar Jieu and creates an endowment for the sheba of the said deity and for meeting the expenses for certain religious observances and the feeding of the guests connected with the worship of the said deity. Certain bequests were also made in favour of others. He appointed himself as trustee to act during his life; and, to act after his death as trustees, nine other persons were named. No provision was made in the deed as regards Haribhabini and she took no active part in the suit. Three of the trustees named in the deed, namely, Sarada Prosad Choudhury, Makhan Lal Choudhury and Kuladananda Roy as well as others with whom we are not concerned at this stage contested the suit. During the trial of the suit Katyani, the plaintiff, withdrew her case as to the validity of the deed. She pressed her case so far as the construction of the deed was concerned and the deed was construed. One of the clauses of the deed which dealt with the house which forms the subject-matter of the present suit was construed and it was held that Annada Prasad Ghose had made an absolute gift of it with the exception of its western room to Makhan Lal Chowdhury one of the trustees named in the deed. Similarly, all the other clauses of the deed were also construed. Subsequently Kulada Prasad and Sarada Prasad Chowdhury, two of the aforesaid trustees, took out Letters of Administration in respect of the properties covered by the deed and administered the properties. The present suit has been instituted by Kulada Prasad Roy as shebait of Sri Sri Sridhar Jieu and as a trustee in respect of the trust properties left as aforesaid by Annada Prasad Ghose for ejecting the defendant-appellant, who is the son of Makhan Lal Choudhury, on a declaration that the house in question is the debutter property of the said deity. -The suit has had a long and chequered career. The decision, which is now under appeal, has been in plaintiffs favour.

(3.) The questions which arise far our consideration, upon the arguments addressed to us, are four in number: 1st, whether the decision in Suit No. 438 of 1901 operates as res judicata; 2nd, what is the true construction of para. 21 of the deed; 3rd, whether the suit is barred by limitation; 4th, whether the defendant has acquired a title by adverse possession.