1. The plaintiff sued in her personal capacity for possession of the property in suit partly as an owner of the property and partly on the basis of landlord and tenant on the allegation that the defendant was her tenant. The suit was resisted on the ground that no tenancy had ever existed and the defendant had been in possession of the property for more than forty years and had acquired an adverse title, but that in any event the title for the property was not with the plaintiff and that it was not open to the plaintiff to sue in her individual capacity in view of the fact that the property was entered in the City Survey Records as belonging to the Bhavani temple. The Courts below held that the tenancy was proved. That being so, it would not be open to the defendant to deny his landlord's title. But the question of title in the plaintiff was considered and it was held that the plaintiff had a title to the property and had been in possession of the land within twelve years of the suit, and that the defendant's user of the property for over twelve years did not constitute adverse possession in the circumstances of the case.
2. On the facts I have no doubt that the Courts were right in holding the tenancy to be proved. It was argued that the finding was based entirely upon entries in the books of the plaintiff's husband; but that does not seem to be the case, as I read the evidence and the judgment of the lower appellate Court. There was a statement by the plaintiff's husband that the defendant was a tenant and had paid his rent to the plaintiff's husband, and in my view that is sufficient evidence to justify a finding that the defendant was a tenant on the land. But it has been argued by the defendant in this second appeal that the plaintiff is not proved to have been the defendant's landlord even if the defendant was a tenant. It is a fact that the municipal records from 1905 onwards and also the City Survey Records from 1917 onwards assigned the land to the Bhavani temple and give the plaintiff's mother as the manager and not as the owner of the land; and it is also a fact that during those years the municipal taxes have been paid by the plaintiff or her mother as manager of the temple and not in any individual capacity. In the absence of clear evidence on the point I am not prepared to hold that the tenancy was with the plaintiff in an individual capacity rather than with the plaintiff as manager of the temple. As there may be a distinction between the plaintiff in her individual capacity and the plaintiff as manager of the temple and it is not proved that the plaintiff in this suit suing in her individual capacity is the landlord of the defendant, the question of estoppel would not arise. I think therefore that it is for the plaintiff to prove her title to the property before she can succeed.
3. This brings me to the principal point urged on behalf of the defendant, namely that the plaintiff having sued in her individual capacity cannot be allowed to recover possession of the property on the basis of title as manager of the temple. Reference was made to Babajirao v. Laxmandas I.L.R. (1903) 28 Bom. 215support of the contention that there is a clear difference between the two kinds of suits. That was a case where the plaintiff had brought a suit in the Mamlatdar's Court in his individual capacity and lost it, but later on brought a second suit as manager on behalf of the math. The question at issue was one of limitation, it being necessary for the math to vindicate its rights within a certain period after the decision of the Mamlatdar if the decision of the Mamlatdar affected the rights of the math. It was held that the suit was in time because the rights of the math were in no way affected by the decision of the Mamlatdar, the suit in the Mamlatdar's Court having been brought in a purely individual capacity and not by some person acting on behalf of the math. On the evidence in the present case all that can be said is that such title as the plaintiff has to the property is derived from her position as manager of the temple. She has, it is true, a sanad in her own name from the City Survey Officer. But such sanads are not documents of title as between the holder and a party other than Government [see Narbheramji v. Vivekramji : AIR1939Bom425 . Moreover there is nothing to show that the City Survey Officer had in his mind any distinction between the plaintiff as an individual and the plaintiff as manager of the temple ; at any rate the records for thirty years show her only as manager and she has paid her taxes only as manager, and that is better evidence than her sanad. It may be that she is an owner in her own right, subject only to a trust in favour of the devasthan ; but the evidence does not go further than showing that she is the manager of the devasthan by right of heirship.
4. From this it follows that for the purposes of the present suit the devasthan must be treated as having its own rights over the property. In the absence of evidence as to the terms and conditions of the foundation, the legal inference would be that the title either to the property or to the management of the property follows the line of inheritance from the founder : see Jagadindra Nath Roy v. Hemanta Kumari Debi I.L.R. (1904) Cal. 129. But whether the inheritance is to the property or to the management must depend on the rights of the devasthan; and if the dedication was in fact a complete dedication in favour of the devasthan rather than a limited dedication of a trust in favour of the devasthan with the right of ownership in the heir, then the inheritance would be to the management only. The evidence in this case, apart from the sanad in the plaintiff's favour, suggests that it is the devasthan rather than the plaintiff that has title to the property.
5. The suit should therefore have been brought in the name of the manager rather than in the name of the plaintiff as an individual; and the question is whether the defect in the frame of the suit is substantial or merely technical. The result of giving the plaintiff a decree in a suit in which the devasthan was not represented would be to leave the right of the devasthan unaffected ; and if in spite of the decree the parties were to be left exposed to the risk of a second suit by or against the devasthan, the defect in the frame of this present suit would clearly be a substantial defect. In this case I do not see how the defendant could be in danger of a second suit; only the manager could bring it (Jagadindra Nath Royv. Hemanta Kumari Debi I.L.R. (1904) Cal. 129 and the manager is the plaintiff herself. But, so far as I can see, there would be nothing to prevent the defendant from suing the manager and reopening the question of his right as between himself and the devasthan. I do not think that the present litigation could operate as res judicata in such a suit. I may also point out that on the question of adverse possession both the Courts below have ignored the allegation of the defendant that he built a wall round the property. If that allegation is true, I am by no means satisfied that it would not constitute adverse possession, even though the property is only an open site; and if the defendant chose to bring a suit, it is not impossible that he would succeed on that point, if not on others also. The suit in its present form must therefore fail. The objection to the frame of the suit was taken at the very beginning, and I should not be prepared at this stage to allow an amendment of the plaint, even if I had been asked to do so.
6. The appeal is allowed and the suit is dismissed with costs throughout. Whether a suit by the plaintiff on behalf of the devasthan is competent or likely to succeed is a matter on which I express no opinion.