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Sangapa BIn Baslingapa Vs. Gangapa BIn Niranjapa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1878)ILR2Bom476
AppellantSangapa BIn Baslingapa
RespondentGangapa BIn Niranjapa and ors.
Excerpt:
.....- will was not only unnatural but was surrounded by a large number of suspicious circumstances held, it is a fit case where the high court should have appointed a receiver and/or an administrator with suitable directions. s alone had been given exclusive powers not only to execute documents but also induct tenants. - lord campbell there said that 'in england, although an action may be maintained for the disturbance of an office or a franchise, an action could not be maintained by the grantee of a dignity from the crown against a person who, without a grant, should assume the like dignity; 473, supra). unless we saw strong grounds for believing that decision to be erroneous, we think that we ought to adhere to the principle involved in it, and we do not perceive any such grounds for..........defendants a declaration of his right (which he alleges to be hereditary) to take a cupola to a lingayet temple and to place it upon the car of the idol, and to take a nandicola (bamboo) with tom-toms from his house to the temple, and to offer the first cocoanut to the idol at the annual festival held in honour of gangapaya maha purush, a lingayet saint, a singular circumstance is, that the second defendant is a mussulman, and at the bar has been stated to be a species of trustee of the temple conjointly with the first defendant (who is the lingayet pujari of the idol), and to be associated in the trust, because the temple has been built partly on the grave of mussulman pir or saint. the third defendant alleges the car to have been built at his expense (a disputed fact, not decided in.....
Judgment:

Michael Westropp, C.J.

1. The plaintiff, a Lingayet, by this suit claims as against the three defendants a declaration of his right (which he alleges to be hereditary) to take a cupola to a Lingayet temple and to place it upon the car of the idol, and to take a nandicola (bamboo) with tom-toms from his house to the temple, and to offer the first cocoanut to the idol at the annual festival held in honour of Gangapaya Maha Purush, a Lingayet saint, A singular circumstance is, that the second defendant is a Mussulman, and at the bar has been stated to be a species of trustee of the temple conjointly with the first defendant (who is the Lingayet pujari of the idol), and to be associated in the trust, because the temple has been built partly on the grave of Mussulman pir or saint. The third defendant alleges the car to have been built at his expense (a disputed fact, not decided in the Courts below), and that he has the right to place the cupola upon it and to offer the first cocoanut to the idol. There would appear to have been a dispute between the plaintiff and the first. and second defendants from the years 1860 to 1873 with reference to the plaintiff's alleged rights, and during that time the plaintiff was not permitted by those defendants to exercise those rights. However, on the 31st May 1873, those defendants executed an agreement in which they admitted that the plaintiff had the rights which he claims, and, accordingly, in 1874 he was permitted to exercise them, but was again in 1875 ousted from that enjoyment by the three defendants. The Courts below have held the suit to be barred by the law of limitation (Act IX of 1871, Schedule II, Article 131); but were it necessary for us to decide that point, we doubt that we could concur in their view; for, even if the plaintiff's rights were in 1873 barred by the adverse possession of the first and second defendants and by interruption, yet those defendants by their agreement of 1873 had waived any right which they might have acquired against him by lapse of time and by their own permission he was remitted to his original right in 1874. The third defendant does not appear to have intervened until 1875: so, until then, the plaintiff does not seem to have had any cause of action against him. However, it is unnecessary for us to decide the question of limitation, as we are of opinion that upon another ground this suit is not maintainable. It seems to us to have been brought to vindicate the plaintiff's right, not to an office, but to a mere dignity unconnected with any fees, profits, or emoluments, and that this case, therefore, falls within the scope of the decision of Sri Sunkar Bharti Swami v. Sidha Lingaya Charanti 3 Moor Ind. App. 198, which was a claim by the Swami, or arch-priest of the Smartava caste of Brahmans, to the exclusive right of being carried crosswise on the high road in a palanquin, on ceremonial occasions, in virtue of a grant from the ruling power to a predecessor in office. Lord CAMPBELL there said that 'in England, although an action may be maintained for the disturbance of an office or a franchise, an action could not be maintained by the grantee of a dignity from the Crown against a person who, without a grant, should assume the like dignity; but it does not necessarily follow that such is the law in Bombay'. The Privy Council then remanded that suit to the Sadr Adalat of Bombay, and directed that Court, in the first instance, to consider whether, assuming the case of the plaintiff there, the Swami, to be true, his action would, by the law of this Presidency, be maintainable. The Sadr Adalat, on the 6th February 1845, held that, even upon that assumption, the Swami could not maintain his action; and their decision was acquiesced in, no appeal having been made against it (see note, p. 473, supra). Unless we saw strong grounds for believing that decision to be erroneous, we think that we ought to adhere to the principle involved in it, and we do not perceive any such grounds for disputing the authority of that case. We cannot regard Narayan v. Balkrishna 9 Bom. H.C. Rep. 413 as an authority to the contrary, inasmuch as the question--whether the suit would lie--was not raised either by the pleaders or the Court, and the decision of the Sadr Adalat in the other case was not so much as mentioned by either.

2. Upon these grounds we affirm the decree so far as it dismisses the suit. The first and second defendants must bear their own costs throughout, the plaintiff must pay to the third defendant his costs of the suit and of the regular appeal as directed by the Courts below, but the parties, respectively, must bear their own costs of this special appeal.


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