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Pandurang Balaji Khandke Vs. Dnyanu Babaji Gurav - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai
Decided On
Case NumberSecond appeal No. 215 of 1910
Judge
Reported in(1911)13BOMLR1169; 12Ind.Cas.926
AppellantPandurang Balaji Khandke
RespondentDnyanu Babaji Gurav
Excerpt:
limitation act (xv of 1877), article 144 -- adverse possession--properly belonging to idol--manager.;under article 144 of the limitation act, 1877, possession derived from a manager of endowed property can become adverse against the idol as represented by the next succeeding manager.;dattagiri v. dattatraya (1902) i.l.r. 27 bom. 363 4 bom. l.r. 743 followed. - - we think, however, that the defendant's contention both in principle and upon authority is good. in considering, therefore, the defendant's plea of limitation we have to look to the quality of the possession, upon which he relies, originating in what upon the face of it he might well have believed to be an out-and-out sale of the property he bought. we think that the plaintiff is not much helped by the language of section 8,..........therefore, clearly of opinion that the defendant's possession since 1870 has been adverse to the idol and, therefore, of course to the plaintiff, who now seeks to recover the plaint land as manager of the idol's property. we must, therefore, reverse the decree of the court below and dismiss this suit with all costs.
Judgment:

Beaman, J.

1. This was a suit to recover possession of property dedicated to an idol. The defendant relied upon adverse possession, but the finding of the lower appellate Court was against him. His contention here is that the plaint property was sold so far back as the year 1870 in execution of a decree obtained against the then manager of the endowed property. Since then the defendant contends that the possession of the purchaser at the Court sale has been adverse to the idol. The plaintiff, on the other hand, presses the view that each successive manager, except where the office is hereditary, takes in virtue of his appointment, and that, therefore, no limitation begins to run against him, in respect of the alienations of the endowed property, made by his predecessor in the office. We think, however, that the defendant's contention both in principle and upon authority is good. We have considered the terms of the sale-certificate and we find that it was there stated, in the preamble so to speak, that the property belonged to the judgment-debtor. Then it goes on to say that his right, title and interest in that property was put to sale. No express qualification is to be found giving the purchaser notice that that right, title and interest was limited to a life-interest as from a manager. In considering, therefore, the defendant's plea of limitation we have to look to the quality of the possession, upon which he relies, originating in what upon the face of it he might well have believed to be an out-and-out sale of the property he bought. There can, we think, be no doubt that from his point of view he intended to hold adversely against all the world. We think that the plaintiff is not much helped by the language of Section 8, Clause (3) of Bombay Act II of 1863. Cases decided both in the Privy Council and in this Court have now too clearly settled the rule that title in such lands may be lost by adverse possession; and all that we have to consider in this case is whether the possession was adverse. We feel unable to accede to the argument of the plaintiff that no possession derived from a manager of endowed property can ever be adverse against the idol, as represented by the next succeeding manager. This principle appears to have been clearly and emphatically recognized in the case of Dattagiri v. Dattatraya ILR (1902) 27 Bom. 363 4 Bom. L. R. 743. No doubt, that case was decided under Article, 134, while this case must admittedly be dealt with under Article 144; but that, in our opinion, makes no difference so far as the principle, we have just mentioned, goes. We are therefore, clearly of opinion that the defendant's possession since 1870 has been adverse to the idol and, therefore, of course to the plaintiff, who now seeks to recover the plaint land as manager of the idol's property. We must, therefore, reverse the decree of the Court below and dismiss this suit with all costs.


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