SUBRAMANIA GURUKKAL Vs. ABHINAVA POORNAPRIYA ASRINIVASA RAO SAHIB

JUDGEMENT

(1.) The appellant who was the defendant in trial Court is an arehaka in possession of lands alleged to belong to a temple in a village situated within the Ami estate. On 27 January 1932 the Court of Wards which was then in charge of the estate dismissed the defendant from his office of arehaka on the ground that he had failed to render service and had failed to give any explanation to the charges connected with his default. After the dismissal the suit was filed by the Jagirdar represented by his next friend the manager of the estate under the Court of Wards as trustee of the temple to recover possession of the lands connected with the arehaka service. Certain dates are of importance. The late jagirdar of Arni died on 25 June 1931. The order of dismissal of the defendant was passed on 27th January 1932. The suit was filed on 22 April, 1932; and on 23 November 1932 after the suit had been filed but before it was decreed there was a notification making the new jagirdar a ward under the Court. It is common ground that in the interim between the death of the old jagirdar and this notification the Court of Wards continued in charge of the estate. In the trial Court the defendant pleaded that the trusteeship did not vest in the jagirdar that the land was not recoverable, that the dismissal was invalid, that the defendant had established adverse possession and that the suit was not maintainable when no fresh arehaka had been appointed.

(2.) The trial Court held that the plaintiff was the trustee of the temple that the dismissal was not valid owing to the absence of evidence of failure to render service, that the inam is the property of the temple, that the plea of adverse possession was bad and that the suit was not maintainable when no new arehaka had been appointed. As a result of these findings the learned District Munsif gave a decree in the interests of the institution declaring that the plaintiff was the trustee of the suit temple, that the suit lands were inam lands dedicated to the temple and that the defendant was an arehaka under the plaintiff; but the suit was dismissed so far as it prayed for possession of the lands. There was an appeal by the plaintiff and no memorandum of cross-objections by the defendant. The lower Appellate Court therefore held that the declarations embodied in the trial Court's decree would hold good in the absence of any memorandum of cross-objections. On the other issues the lower Appellate Court held in favour of the plaintiff and decreed the suit with costs.

(3.) Now the main contentions in appeal relate (1) to the refusal of the lower Appellate Court to re-open the question of the trusteeship in the absence of a memorandum of cross-objections, (2) to the question of limitation, (3) to the validity of the dismissal, and (4) to the effect of the absence of any notification declaring the new jagirdar a ward of the Court (a) on the order of dismissal and (b) on the maintainability of the suit. There is little substance in any of the contentions except the last one. I am of opinion that the lower Appellate Court was quite right in not allowing the correctness of the declarations embodied in the trial Court's decree to be canvassed in the absence of a memorandum of cross- objections. So much follows from the terms of Order 41, Rule 22, Civil P.C. It is not a case in which the dismissal of the suit can be supported with-out traversing the grounds upon which the defendant has failed to convince the trial Court. It is a case of a specific declaration not prayed for by the plaintiff but added to the dismissing decree by the trial Court expressly in order to safeguard the interests of the institution. If the defendant had a grievance against the embodiment of this positive declaration in the decree, he should have taken objection to it in a for. mal way and no such objection having been taken, it must, I think, be inferred that the lower Court's declaration is conclusive.