Lallubhai Shah, Acting C.J.
1. These two appeals arise out of a suit filed by the plaintiff as representing Gaukars of the village of Khanoli entitled to the management of the temple against the defendants who were the Devlis and the Bhavnis connected with the temple as servants and defendants Nos. 29 and 30 who were alienees from defendant No. 1. The plaintiff's case was that the lands in suit were really Devasthan lands given to the defendants Devlis and Bhavnis for the services which they rendered to the temple, and that the alienation of these lands was invalid. He sued for a declaration that the property was Devasthan property and prayed for possession of the lands.
2. The defendants in substance pleaded that these lands were Jat-inam property of the Devlis and that they were entitled to alienate the lands. It was apparently common ground in the lower Court that if it was found that these lands were Devasthan property, the alienation would be clearly invalid. The trial Court found in favour of the plaintiff and passed a decree making the necessary declaration and ordering that the land in the possession of defendants Nos. 29 and 30 should be restored to the plaintiff.
3. In the appeals to the District Court, the same points were in controversy between the parties, and the result of the decision of that Court was that the decree of the trial Court was confirmed.
4. Two appeals are now preferred to this Court one by defendants Nos. 29 and 30 and the other by defendant No. 27. The contentions urged in support of these appeals are that the finding of the lower appellate Court that the property was not the Jat-inam property of the defendant but the Devasthan property is wrong, and that it was not open to the lower appellate Court to come to that conclusion in view of the fact that a Sanad under the Summary Settlement Act (VII of 1863) was granted to the defendants in which the property was described as the private property of the holders. Further it is urged that the plaintiff's claim is time-barred and that the amendment as to the claim for possession should not have been allowed.
5. As regards the first point, which is clearly the only point of importance in the case, it is no doubt true that the Sanad granted to the defendants in respect of the lands in suit under Act VII of 1863 describes the property as the private property of the holders. But it is clear from the proviso to Section 7 of that Act that 'the rightful owners of the property shall not by this Act or anything therein contained be deprived of any right or remedy to which they may be entitled against the holders and their heirs and assigns for the recovery of the said lands dealt with under the Act'. It follows that the Sanad granted to the defendants does not negative the right of the present plaintiff to establish, if he can, in this suit that the lands are really the Devasthan lands and not the private property of the defendants.
6. Mr. Desai has not been able to suggest any answer to the effect of this proviso to Section 7 to which I have referred, and his argument on this point when analysed really comes to this that the evidence upon which the lower appellate Court has relied in coming to the conclusion that the property is Devasthan property and not the Jat-inam property does not really justify that inference. It is also suggested in the course of the argument that a part of the evidence referred to by the lower appellate Court was not admissible in evidence It does not appear that any point as to the admissibility of evidence was taken either in the trial Court or in the lower appellate Court. Mr. Desai has not been able to point out how any particular statement is in admissible in evidence. Treating the statements referred to by the lower appellate Court as evidence in the case, it is really a question of appreciation of the evidence on the point. Both the Courts have decided in favour of the plaintiff and against the defendants and I do not think that in second appeal any valid reason is shown for disturbing that finding. But I may add that there is one broad consideration which strongly supports the finding and that is that the defendants who are servants of the temple have been rendering service to the temple; and it is not shown in the course of argument before us by Mr. Desai as to what other remuneration these persons have been receiving for this service. The plaintiff's case is that the remuneration they receive is the income of the land which they hold on behalf of the Devasthan. That is the inference which the lower appellate Court has drawn, and it seems to me almost inevitable under the circumstances. In the absence of any explanation on the part of the defendants as to how they are otherwise remunerated for their services, is a circumstance which tells against their contention.
7. As regards the point of limitation, the only article relied upon is article 120 of the Indian Limitation Act. But I do not see how it could be said that the fact of the Sanad having been granted to the defendant constitutes a cause of action upon which the plaintiff could sue the defendants. They performed their services and rightfully enjoyed the profits of the land during all this time, and it was only when they attempted to alienate the land wrongfully to strangers, that the occasion for filing the present suit arose. It could not be said that the right to sue accrued within the meaning of Article 120 at the time when the Sanad was issued. No authority has been cited in support of this contention raised, and on general ground I am quite unable to accept the view that the mere fact that the Sanad has been issued is sufficient to give rise to the cause of action to which the suit relates, It may be that he might have been able to institute a suit for a declaration that it was not Jat-inam property but Devasthan property soon after the Sanad was granted; as to that I express no opinion, But I do not think that the fact that the Sanad was granted rendered it necessary for him to institute the present suit. The Article 120 does not apply to the case, as there is a claim for possession. It is also clear that the amendment of the plaint was very properly allowed. It would be quite wrong to allow the strangers who are alienees to continue to hold possession of the Devasthan land, and if the Court came to the conclusion that it was Devasthan property, it was quite proper to order defendants Nos. 29 and 30 to restore the possession to the plaintiff. It is not necessary for us to consider in these appeals whether the plaintiff is entitled to possession in preference to defendant No. 1, who held the lands originally and alienated the same to defendants Nos. 29 and 30. Defendant No. 1 has not appealed and he has not appeared either before the lower appellate Court or before us.
8. It is urged, however, by the plaintiff by way of cross-objections against defendant No. 27 that though he has been rendering services to the temple, the fact that he contended that the lands in suit were not Devasthan land but the private property of the Devlis was sufficient to entitle him to the possession of the lands from the temple servants. Both the lower Courts have declined to give effect to this plea in the exercise of their discretion. In my opinion they were perfectly justified in declining to give possession to the plaintiff and in not depriving the defendants of their possession of these lands which have been in their possession for many years as remuneration for their services which they have been rendering to the temple, and which they are still ready to render. On these grounds, I am of opinion that the appeals must fail.
9. The result is that the decree of the lower appellate Court is confirmed and the appeals and cross-objections are dismissed with costs.
10. I agree.