HARIPADA ROY Vs. GOPINATH ROY

JUDGEMENT

(1.) THIS appeal arises out of a suit for declaration of the plaintiff's title to a certain share in the pala or turn of worship of an idol Sri Iswar Krishna Rai Jiu. The plaintiff's case briefly stated is as follows: One Rajjadhar Ray founded this deity. The shebaitship of the deity devolved upon his six grandsons, Nabani Ghanashyam, Lakshman, Eranballa V/s. Rasikram and Dukhuram. There had been a partition of these palas between these six persons. Six of these palas out of Lakshman's 60 palas devolved on Ramgopal by gradual succession. After his death, three of these have devolved upon the plaintiffs and the remaining three upon defendants 2 and 3. Defendant 1 who is the direct descendant of Lakshman's brother Nabani in the male line dispossessed the plaintiff from these three palas on the basis of a gift from Ramgopal. The pala of the deity is not transferable to any person other than the next heir. The material defences of defendant 1 are these: (1) that there is a custom of transfer of palas among the male descendants of the founder, Rajjadhar Ray, for more than hundred years, (2) that defendant 1 being the male descendant of the founder the transfer by Ramgopal of his share in the pala to him is valid and (3) that the plaintiff's claim is barred by limitation. The trial Court dismissed the suit. On appeal by the plaintiff to the lower appellate Court the learned Judge has reversed the decision of the trial Court and has decreed the suit. Hence this second appeal by defendant 1.

(2.) THE first point urged by the learned advocate for the appellant is that the plaintiff's claim is barred by limitation. It is clear from the finding of the trial Court that defendant 1 is in possession of the office of the Shebait which was held by Ramgopal for more than 12 years before the institution of the present suit. THE learned Judge has not reversed this finding of the trial Court. THE evidence in this case also indicates that defendant 1 is in possession of the office held by Ramgopal at least from the year 1915, adversely to Ramgopal and the plaintiff who claims the shebaitship held by Ramgopal by hereditary right in accordance with the Dayabhaga law of succession. THEre cannot be any doubt therefore that Art. 124, Lim. Act, applies to this case. THE plaintiff's claim to the office of the Shebait is therefore barred by limitation (see the case of Gnanasambanda Pandra Sannadhi V/s. Velu Pandaram (1900) 23 Mad 271 at p. 76). THE right to the pala is attached to the office of the Shebait. As the right to the office was extinguished by adverse possession of the defendants the right to claim the pala must share the same fate. Plaintiff's suit is therefore barred by limitation. THE result therefore is that this appeal is allowed. THE judgment and the decree of the lower appellate Court are set aside and the decree of the trial Court is restored. Parties will bear their own costs throughout.