Madhava Reddy, J.
1. This appeal is by the defendant an ex-trustee of Sri Chenna Kesava Swamy temple, Uppalapadu against the judgment and decree in O. s. No. 25/61 on the file of the Subordinate Judge, Bapatla decreeing the temple's suit for recovery of possession of the plain Schedule land measuring about Ac. 8-88 cents in D. No. 351 out of Ac. 37-38 cents and for past and future profits with interest.
2. The plaint schedule land was endowed to the Deity and is covered by title-deed No. 599 which stands in the name of the Deity. The right, title and interest in the suit land therefore vests in the plaintiff. The defendant appellant was the trustee of the temple who was ordered to be removed by the Board of Commissioner, Hindu Religious Endowments by an Order dated 25-1-1936 (Ex. B-1). The subsequent Trustees of the temple filed O. P. No. 102/30 in the District Court, Guntur under Section 78 of the Madras Hindu Religious Endowments Act 2 of 1927 for recovery of possession of the temple lands including the plaintiff schedule land against the appellant herein. That petition was ordered on 17-9-1941 which is marked as Ex. B-11. It is alleged that the subsequent trustees were negligent in taking possession of the land from the defendant which necessitated the filing of the present suit.
3. The defendant-trustee does not dispute the title of the temple to suit land but claims to be in adverse possession of the same ever since he was removed from the Trusteeship of the plaintiff-temple. Although O. P. No. 102/39 on the file of the District Judge was allowed, he has been in open, continuous and hostile possession of the plaint schedule land, as such of the plaint schedule land, as such the title of the temple to the properties was extinguished and he acquired title by adverse possession. He also contends that the only remedy of the temple was to execute the order in O. P. 102/39 and a suit for the same relief is barred by time. He also assets that the Managing Trustees filed Miscellaneous Petition No. 19 of 1956 on the file of the First Class Magistrate, Bapatla for the recovery of the Plaint schedule property from the defendant under Section 87 of the Hindu Religious and Charitable Endowments Act which after being opposed by the appellant was dismissed for default.
4. The trail Court found that the defendant-appellant who was the extrustee did not raise any plea of adverse possession before 1959 and therefore his possession till that date would be on behalf of the temple in the capacity of a de facto Trustee and that therefore Section 10 of the Limitation Act applies to the case and no question of limitation arises in the present case. Accordingly the plea of the adverse possession was repelled. The Court also held that the subsequent Trustees and the Executive Officers of the temple acted in collusion with the defendants. In that view it decreed the suit and also awarded mesne profits with interest from the date of the suit.
5. In this appeal Mr. T. Ramachandra Rao. learned counsel for the defendant appellant argues firstly that having regard to the fact that the defendant was removed from the Trusteeship of the temple under Ex. B-1, dated 25-1-1936 his possession from that date was adverse, but quite apart from that the plaintiff-temple being out of possession of the plaint schedule properties for more than 12 years prior to the institution of the suit the suit is liable to be dismissed as barred by limitation under Article 142 of the Limitation Act; and secondly that the only remedy open to the plaintiff-temple was to execute the order in O. P. 102/39 on the file of the District Judge, Guntur and that has become barred by limitation and no separate suit lies. We would therefore proceed to consider these contentions in the order in which they are referred to above.
6. The defendant-appellant is not a stranger to the temple. He was an ex-trustee. He was no doubt ordered to be removed by the Board of Commissioner. Hindu Religious Endowments, Madras on 25-1-1935. But he continued to be in possession of the suit lands even after his removal from the Office. But with the mere continuance of the Ex Trustee in possession of the temple lands, after the order of removal, in our view, limitation would not begin to run against the temple. From Ex. B-11, the certified copy of the Order in O. P. 102/39 on the file of the District Judge, Guntur, it is abundantly clear that the Ex-trustee did not set up any claim of adverse possession against the temple. In fact in his deposition as D. W. 1 he admits 'I cannot say when I entertained the idea of usurping the land as that of my own in my mind.' Apart from his solitary statement, he has not let in any evidence to show that he has been in adverse possession of the properties of the temple. That apart, he also admits that he had leased out the lands to Dande Brahmayya and Venkatayya when he was a Trustee. Only when the Trustees who succeeded him gave notice to the lessees to pay the rent to them, they handing over possession of the lands to him. There is no other evidence of such handing over of possession. In his deposition he also admits that he had filed an application in 1959 before the Tahsildar under the Andhra Inams (Abolition and Conversion into Ryotwari) Act, 1956 pleading adverse possession but the Tahsildar decided against him. That Order was upheld on appeal by the Revenue Divisional Officer and also by the High Court in a petition filed by him under Article 227 of the Constitution. In that proceeding the High Court also observed that the plaintiff has not proved his adverse possession. He further admits that he does not know whether his brother Lakshmaiah leased out the lands as Trustee of the temple. There is no other evidence to support his plea of adverse possession.
To hold adverse possession by a person who had entered into possession as a Trustee of the temple proved, it must be established that such person renounced his possession as a trustee and openly making a hostile claim to be in possession in denial of the right of the temple and continue to be in possession for over the period of twelve years. The animus of the person holding the property who when he entered into possession was a Trustee and could never claim to be in adverse possession, in view of his position as a Trustee assumes great importance. When the defendant admits that he cannot say 'when he entertained the idea of usurping the suit land as that of his own in his mind.' he could not be deemed to hold the land adversely at any time. It is however, argued on behalf of the appellant that from the date of his appellant that from the date of his removal i.e., 25-1-1936 he should be deemed to be in adverse possession. But that cannot be accepted in view of Ex. A-3, the registered lease dated 20-1-1941. Ex. A-3 is a registered lease executed by the defendant's brother Lakshmaiah as Managing Trustee of the temple in favour of certain other lessees on 29-6-1941 for a period of five years. Even quite apart from that lease deed, a Trustee by being merely removed from the office of Trusteeship, is not discharged of his obligations towards the trust. When as a Trustee, he was in possession of the temple property, his fiduciary capacity as that of a Trustee could be discharged only by handing over possession of the Trust property to the successor trustee. The Privy Council in Srinivasa Moorthy v. Venkata Varada Aiyangar, (1911) ILR 34 Mad 257 (PC) laid down:
'No person who has accepted the position of a trustee and has acquired property in that capacity can be permitted to assert an adverse title on his own behalf, until he has obtained a proper discharge from the trust with which he has clothed himself.'
The defendant appellant has not obtained such discharge. His possession even after the removal would be in the fiduciary capacity of a de facto trustee. Therefore, his possession would still be the possession of the temple. Therefore, neither the question of temple being out of possession, nor of the defendant, an ex-trustee, being in adverse possession arises.
7. The plea of adverse possession must also fail on another ground also. Admittedly these lands wee leased out by the defendant appellant as a Trustee under Exs. B-8 and B-9 on 12th July, 1935. The lessees executed these lease-deeds in favour of the Deity when the appellant was the trustee thereof. Though an order removing him from the office of the Trusteeship was made on 25-1-1936, he did not set up any plea of adverse possession, as already observed, even in O. P. No. 102/39 in which a final order was made on 17-9-1941. Even if it is assumed that no sooner the order was made, he was bound to vacate and no longer be deemed to be continued in possession in any fiduciary capacity for and on behalf of the temple, the temple would be deemed to be out of possession from that date i.e., 17-9-1941 and not from any date earlier to that. Section 94 of the Madras Hindu Religious and Charitable Endowments Act lays down that 'nothing contained in any law of limitation for the time being in force shall be deemed to vest in any person the property or funds of any religious institution which had not vested in such person or his predecessor-in-title before the commencement of this Act.' Having regard to the above, the possession of the lessees who took the plaint schedule lands on lease on 12th July, 1935 for a period of five years continued till July, 1940. The defendant-appellant did not set up any adverse possession in O. P. No. 102/39, which concluded in September, 1941. Section 94 of the Madras Hindu Religious and Charitable Endowments Act came into force on 28th August, 1951 i.e., before the Plaintiff could be deemed to be out of possession for more than twelve years. Notwithstanding any law for the time being in force, as laid down in Section 94 of the Act, from 21st August, 1951 onwards if the defendant had not already by then acquired title to had not already by then acquired title to the properties, he would not acquire any title thereto. Nor could the plaintiff temple by deemed to be out of possession and to have lost its right to recover possession of the same.
8. That apart as already held since the defendant who was a Trustee never obtained his discharge by handing over the Trust property but continued to be in possession of the temple property the temple cannot be deemed to be out of possession of the same. His possession would be temple's possession. IN Venkatrama Naidu, v. Jayammal, : AIR1963Mad353 with reference to the decision of the Privy Council in (1911) ILR 34 Mad 257 (PC) it was held:
'The principle of Article 142 of the Limitation Act will not have any application. A person in such possession which had its foundation in a fiduciary obligation, without discharge of it by redelivery to the trust or its representative cannot plead that it is for the representative to show that within 12 years of the suit, he was in possession.'
We find ourselves in entire agreement with this, view. The possession of an ex-trustee, till he discharges his obligation to hand over all trust properties to the Trust or the subsequent trustees, would be deemed to be that of the Trust itself. Hence in our opinion neither the plaintiff's suit is barred by limitation under Article 142 of the Limitation Act nor has the defendant acquired title by adverse possession thereto.
9. The next question that falls for consideration is whether the present suit is barred and whether the only remedy of the plaintiff-temple is to execute the order in O. P. No. 102/39 on the file of the District Court, Guntur.
10. O. P. 102/39 was a petition under Section 78 of the Madras Hindu Religious Endowments Act. Section 78 of the Act reads as follows:
'Where a committee has appointed a person as non-hereditary trustee of a temple or where a Board of Committee has appointed a person to discharge the functions of a hereditary trustee and such person is resisted in, or prevented from obtaining possession of the math or temple or of the endowments connected therewith or of any title-deeds or other documents relating thereto, the Court may, on application by the person so appointed and on production of the order of the Board or Committee appointing him, order the delivery to such person the possession of such property as may be specified therein.'
The object of this Section was to provide a summary process of Court for Ex-Trustees who failed to delivery the same. This order is made by the Civil Court upon production of certificate from the Commissioner about the nature of the property. It is not a substitute for a regular suit. Section 87 of the Hindu Religious and Charitable Endowments Act XIX of 1951 which replaces the earlier Act makes a similar provision for recovering possession of temple properties from Ex-Trustees. Only a remedy was provided for taking possession of the admitted Trust properties. The title to the property as such is not decide therein. Hence the question whether the plaintiff-temple had lost its right to the Trust Property and whether the defendant had acquired title by adverse possession was not gone into. In fact that plea was not taken in that proceeding. In the result only an order for delivery of possession of the property was made in September 1941.
11. Section 78 of the Madras Hindu Religious and Charitable Endowments Act by itself does not bar a suit. All that Section 78 of the Act lays down is that on production of the order of the Board, the Court may order delivery of the property to such person. The Order made under Section 78 and Section 87 may thus be executable as a Decree or Order of the Court. But the provisions of these Acts do not in specific terms bar the institution of a Civil Suit for recovery of possession, nor do they lay down that the only remedy of a person who has obtained an order under these provisions is to execute the order. However, what is argued by the learned counsel for the appellant is that such an order being executable, Article 182 of the Limitation Act applies. Article 182 of the Act provides three year period of limitation for execution of a decree or order of any Civil Court not provided by Article 183 or by Section 48 of the Code of Civil Procedure, 1908. No doubt, if this Article were to apply and the jurisdiction of a Civil Court is barred, the only remedy of the plaintiff would be to execute the order in O. P. No. 102/39 and that it cannot now be executed as it is beyond three years. Article 182 however applies only to decrees or orders made under the Code of Civil Procedure and not to every order of a Civil Court. Though the words 'Under the Code' are not to be every order of a Civil Court. Though the words 'Under the Code' are not to be found in Article 182, the Supreme Court in Sha Mulchand and Co. Ltd. (In Liquidation) v. Jawahar Mills Ltd., : 4SCR351 with reference to Article 181 of the Limitation Act, in which also the words 'under the Code' do not occur, has observed.
'The long catena of decisions may well be said to have as it were, added the words 'under the Code' in the first column of that article (Art. 181').
Their Lordships of the Supreme Court in Bombay Gas Co Ltd. v. Gopal Bhiwa, : (1963)IILLJ608SC also observed:
'It is well settled that Article 181 applies only to applications which are made under the Code of Civil Procedure.'
This was again reiterated by the Supreme Court in Wazir Chand v. Union of India. : 1SCR303 . Dealing with a case arising under Section 20 of the Arbitration Act their Lordships held:
'That Article 181 of the Limitation Act does not apply to a proceeding therein.'
Having regard to the above, we must hold that a proceeding initiated under Section 78 of the Madras Hindu Religious Endowments Act 1863 (1927?) was not a proceeding under the Code. Hence Article 182 of the Limitation Act does not apply. Consequently, it was not an order which should have been executed within a period of three years from the date of the order viz., 17-9-1941. As it is not an order that could be executed as a decree under the Code of Civil Procedure. the bar of a suit laid down is Section 47 of the Code of the Civil Procedure is also not attracted.
12. As already held, the matter in dispute as to the extinguishment of the title of the plaintiff to the suit property or acquisition of title by adverse possession by the defendant could not be adjudicated in a proceeding under be Section 78 of the Madras Hindu Religious Endowments Act. Consequently, the present suit is not barred. Nor is it barred under Section 47 of the Code of Civil Procedure read with Article 182 of the Limitation Act. The contention of the learned counsel for the appellant must therefore fail.
13. In the result this appeal is dismissed with costs throughout.
14. Appeal dismissed.