(1) The learned counsel for the appellant formulated two question of law for the consideration of this Court. They are: (1) the Courts below misread the evidence in arriving at the conclusion that the plaint temple is the owner of the suit properties and (2) that the suit is barred by limitation or at any rate by adverse-possession.
(2) According to the plaintiff, the plaint temple is the owner of the suit properties and the same were in possession of the Archakas of the temple as service tenure-holders; now that the Archakas have been removed from their service, the plaint temple is entitled to recover possession of the suit properties. According to the defendant, the suit properties were the absolute properties of the family of Ranganna Bhatta and all of them excepting S. No 59/8 were sold in court auction in R.E.P. No. 919 of 1935 on the file of the learned District Munsiff. Udipi, on 21-4-1935 and purchased by one Ramacharya, who took delivery of the same after his purchase.
The said Ramacharya sold those properties to the defendant on 14-10-1941 as per Ex. B-10 and ever since then, she is in possession of the same. Survey No. 59/8 was sold in Court auction in R.E.P. NO. 286/43 on 12-1-1944 in execution of the decree in O. S. 436/41 obtained by one Krishnacharya against Ranganna Bhatta and purchased by the decree-holder Krishnacharya. The said Krishnacharya sold that property to the defendant is in possession of the same ever since her purchase. The defendant contends that even. If the suit properties were the properties of the plaint-temple, the temple was never in possession of the same for over 12 years from the date of the suit and further that she and her predecessors-in-title have perfected their title by adverse possession, as a result of which the plaint-temple has lost its right, title and interest in the same.
(3) Both the courts below have concurrently held that the title to the suit properties vests with the plaint-temple. It is established by evidence that the suit properties were included in GeniWarg No. 1 of Aryadi village which village is now merged in Pangala village. Exhibit A-3 is the certified copy of the Durmuthi Chitta relating to GeniWarg No. 1 of Aryadi village, Exhibit A-4 is the certified copy of the Inam Zabita or Chitta for the year Rowdri. Ex. A-5 is the certified copy of the Azmoish Chitta relating to the GeniWarg No. 1 of Aryadi village. In that document, there is a reference to one Adiga Venkataramana Bhatta who is alleged had refused to do service to the temple as the tactic was too small.
The evidence of P.W. 2 shows that Adiga Venkatarammana Bhatta was a member of the family of the service-holders. Exhibit A-7 is the certified copy of Barthi Kambarthi register of Geni Warg. No. 1. From Ex. A-7, it is seen that GeniWarg No. 1 properties had been divided into 6 kudthalas (shares). From the evidence of P.W. 2, it is clear that the division in question refers to the partition in the family of the service holders. From Exs. A-18 and A-19(certified printed copy of the judgment in OS. No. 195-41 on the file of the Court of the District Munsiff, Udipi and certified copy of the judgment in A.S. No. 88/49 on the file of the Subordinate Judge of South Kanara respectively) it is seen that it was decided in those proceedings that GeniWarg No. 1 properties belonged to the plaint-temple. Documentary as well as the oral evidence in the case fully establish the plaintiff's title. The findings of the courts below are findings of facts and are not open for reconsideration by this Court.
(4) It was next urged that the suit is barred by limitation or at any rate the plaint-temple had lost its right over the suit properties as a result of the adverse possession of the defendant and her predecessors-in-title for more than the statutory period. The possession of a service holder is a permissive possession and it cannot be adverse to the true owner, unless there is a refusal to perform service. See Rajagopal Gownder v. Maruthamuthu Asari reported in : AIR1933Mad668 . The service tenure holder is entitled to be in possession of the property so long as he does not refuse to do the service or assert his own title to the property to the knowledge of the true owner. His position is analogous to that of a tenant. Partitions in his family or for that matter even alienations of the properties concerned to outsiders are by themselves insufficient to destroy the title of the owner.
There is no evidence in this case to show that the trustees of the plaint-temple were aware of the partitions in the family of the service holders or even about the Court auction sales. In Ramalingam v. Veerabhadradu, reported in : AIR1935Mad914 , Varadachariar J. (As he then was) held that a person remaining in possession of the lands adversely to an office holder of a service inam cannot thereby acquire a right to remain in possession even as against succeeding office-holders.
(5) The learned counsel for the appellant invited my attention to the decision of the Privy Council in Sudarsan Das v. Ram Kirpal Das, reported in 1950-1 Mad LJ 243: (AIR 1950 PC 44): wherein their Lordships held:
'The words used in Art. 134-B are incapable of applying to an execution sale of debutter property and where land devoted to charitable purposes is so sold under an execution decree against the trustee of the charity, the ensuing possession of the purchaser is adverse from the date of sale. Adverse possession against the charity starts under Art. 144, from whatever date of sale the purchaser obtained effective possession of the disputed property and not from the date of the death of the trustee. Article 144 extends the conceptions of adverse possession to include an interest in immovable property as well as the property itself and there could be adverse possession of an undivided share, given the appropriate circumstances.' (As summarised in the Head Note).
This decision has no application to the facts of the present case. In that case their Lordships had to consider the case of a Court sale held in execution of a decree obtained against the trustee. The question for decision was, which of trustee. The question for decision was, which of the two Articles i. E., Article 134-B or Article 144 of the Limitation Act applied to the facts of that case. In the present case Art. 134-B is wholly inapplicable. The position of the service holder is not akin to that of a trustee. The trustee represented the temple whereas the service holder is an office bearer of the temple--a servant of the temple. On the facts proved, the appellant had not succeeded in establishing that the plaintiff's title to the suit properties is barred by adverse possession.
(6) In the result, the appeal fails and the same is dismissed with costs.
(7) Appeal dismissed