ANANTA DEW ADHIKAR GOSWAMI Vs. JOYDEB SARMA

JUDGEMENT

(1.) This is an appeal by the plaintiff against a decision of the District Judge of the Assam Valley confirming a decision of the Subordinate Judge. The suit was brought for a. declaration that certain property was subject to a religious endowment and that it belonged to an idol and that the temple formed part of the religious endowment of which the plaintiff was adhikar or shebait. The lower appellate Court has found that the plaintiff entirely failed to prove his title and his possession within 12 years of the suit.

(2.) The main attack that has been made in this appeal is with regard to the latter finding. It is stated that on the facts adverse possession for 12 years does not bar the plaintiff's suit having regard to the provisions of Section 10 of the Indian Limitation Act. So far as the question of title is concerned, we think, that the finding is sufficient to dispose of the appeal. The plaintiff sued to recover the land as and adhikar of the parent Satra at Kaliabar of which he says the Satra at Karatipar was a branch. Now the learned Judge has found that the parent Satra at Kalibar was a branch of the Satra at Karatipar and he has accordingly, in my opinion, correctly found that the plaintiff had failed to prove his title. The plaintiff's case was that there was on the land in suit a namghur and an idol, that the original idol and its paraphernalia had disappeared that the namghur had become dilapidated and had been removed under the Magistrate's order and he alleged that the defendants had come on the land, built a new namghur and established a new idol. So far as the question of title is concerned, we agree with the learned Judge and think that this finding disposes of the appeal.

(3.) But so far as the second question is concerned, in my opinion, Section 10 of the Indian Limitation Act has no application to the facts here. The mere fact that a person comes to land, which originally may have been trust property for an idol and places on that land a new namghur and sets up a new idol does not in my opinion, constitute him a trustee de son tort for the original idol that was upon the land. We think that under the circumstances, the ordinary rule of limitation applies. We were referred to the case of Moosabhai V/s. Yacoobhai [1905] 29 Bom. 267 and to a passage in the judgment of Mr. Justice Tyabji at page 280 as authority for the proposition for which the appellant contends. But in that case as Mr. Justice Tyabji points out at page 281 the person who set up limitation was an express trustee and had taken upon himself the administration of the trust and had taken possession of the trust property. Under circumstances like these clearly, it was not open to such person to plead that he was entitled by adverse possession for 12 years to resist the suit; for he himself had acknowledged the existence of the trust; but in the case before us we find that there was no such acknowledgment and that no trust relationship between the defendants and the original idol existed at the time of the suit. Consequently, in my opinion, Section 10 of the Limitation Act has no application to the facts of this case.