Chandra Reddy, J.
1. These appeals are directed against the judgment in O.S. No. 76 of 1952 brought in the Court of the Subordinate Judge. Tenali, for recovery of items 1 to 5 of the plaint Schedule, on the footing that they constituted endowments to the temple of Sri Agas. teswara Swamy at Emani. The plaint recites that defendants 1 to 3 who have been in possession of the properties in question and rendering service for the institution and when called upon to surrender possession to the managing trustee they refused to do so. Defendants 4 to 8 are alienees of some of the suit items from defendants 1 to 3. The 9th defendant was in lawful possession of item 5 of an extent of 22 cents of land.
2. The answer of defendants to the suit was that items 1 to 3 were archakatvam service inams and that item 4 did not belong to the temple but was their private property. It was also pleaded that a decision rendered by the High Court in C.M.A. No. 125 of 1934 to the effect that the temple had no title to this property fell within the mischief of Section 11 of the Code of Civil Procedure and consequently binding on the temple.
3. The defence of the 9th defendant in occupation of item 5 was that this was granted to his ancestors by the Government and the temple had no concern with it.
4. Overruling the above objections, the Subordinate Judge decreed the suit.
5. Impugning the judgment of the trial Court, the archakas, Defendants 1 to 3, have brought A.S. No. 576 of 1953 while the 9th defendant has preferred the other appeal as regards item 5.
6. Taking up A.S. 576/53 first, though the appeal involves four items of property the attack is concentrated on that part of the judgment which deals with item 4 and no attempt was made to canvass the findings regarding the other items. The conclusion of the Subordinate Judge in respect of item 4 is attacked on two grounds :
(1) The order in C.M.A. No. 125/1934 is final having regard to the provisions of Section 11, C. P. C. and cannot he reopened by the trustee; and
(2) In any event the appellants have acquired title to the property by adverse possession. We are not concerned here with the merits of the decision that the title to the property vests in the deity as they are not put in question.
7. The first point relates to the applicability of Section 11 C. P. C. An essential ingredient of Section 11 is that the parties to both the litigations should be the same or those under whom .my of them claimed. We fail to see how that condition is satisfied in the instant case. Admittedly, the deity did not figure in the former proceedings. The judgment in C.M.A . No. 125/34 happened to be rendered in the following circumstances.
The Board of the Hindu Religious Endowments levied contribution on this temple in terms of Section 69 of the Madras Religious Endowments Act and sought to recover it by attaching the properties in possession of tbe appellants as the amounts were not paid by the temple. They intervened with a claim petition setting up title in themselves to item 4 (among others) and the claim of the archakas was negatived by the trial Court. In appeal by them, a Bench of the Madras High Court held that the claim of the appellant that they were entitled to this particular plot could not be dismissed as being unfounded for thd reason that this particular number was not mentioned in the re-settlement register.
8. It is thus manifest that the dispute was only between the archakas and the Hindu Religions Endowments Board and the deity was not before the Court. This difficulty is sought to be got over by the learned Advocate-General by arguing that the Hindu Religious Endowments Board must be deemed to have represented the temple in that litigation. For one thing, in order to come within the ambit of Section 11, C.P.C., the parties in the later litigation must be the same as in the earlier or must claim under them.
So, it is not sufficient to say that one party represented the other unless it be that the prior litigation was in a representative capacity, and that description cannot attach to the Hindu Religious Endowments Board which was fighting in its own right to collect contribution from the temple. The terms of Section 69 provided that 'every math and temple shall pay annually for meeting the expenses of the Board such contribution not exceeding one and a half per centum of its income as the Board may determine' etc. Section 70 also is relevant in this inquiry and it recites :
'The costs, expenses and contribution payable under Sections 68 and 69 shall be assessed on and notified to the trustee of every math and temple in the pre-scribed manner.'
So, after determining the contribution, notice has to be served on the trustee of the institution and it is in that capacity that the present appellants were notified of the amounts due from the institution. It may not therefore be incorrect to state that far from representing the institution the Board was acting against, the institution. Its attempt was to recover the contribution from the properties of the institution. Thus, the temple could not be regarded as a party in C.M.A. No. 125/1934 and so that judgment cannot fall within the scope of Section 11, C.P.C.
9. There is also another ground upon which this contention should be negatived. As already pointed out, the judgment arose in claim proceedings and as such we think it cannot be invested with any finality, within the purview of Section 11. An order passed under Order 21, Rule 58, C.P.C. or under Order 21, Rule 63 does not extend beyond the execution of the decree giving rise to those proceedings.
There is an authoritative ruling to that effect in Narasimha Chariar v. Ragbava Padayachi, AIR 1945 Mad 333 (FB) that the order in C.M.A. 125/34 has not the effect that is attributed to it by the learned Advocate-General and hence his submission in that regard has to be rejected. It is not disputed that the settlement register now filed before the trial Court conclusively establishes the claim of the temple.
10. We will now turn our attention to the plea of adverse possession. The argument pressed upon us by the learned Advocate-General is that whatever might have been the position prior to the order of the High Court in the said proceedings subsequent to them, the appellant must be said to have been in possession of this property in their own right and as such prescribed title to this by adverse possession. The principle is well settled that a person who enters into possession of the property belonging to the charity as a trustee cannot change the character of that possession by asserting that he was in possession as a beneficial owner.
This is beyond controversy and if authority is needed, it is found in the pronouncement of the Privy Council in Mohammed Fateh Nasib v. Swamp Chand Hnkurn Chand a Firm, 1948-2 Mad LJ 70 : (AIR 1948 PC 76). The learned Advocate-General while not disputing this proposition urges that the judgment of the Court recognising tile title of the archakas makes all the difference. It is said that when the Court pronounces or adjudicates upon the claim of the trustee to be the beneficial owner, there is no question of the trustee asserting his own title against the cestui que trust.
We are unable to give effect to this submission. Tbe decision of the Court does not put the trustee in a better position than if his act or assertion stood by itself. If a person is precluded from doing a particular act the fact that he managed to get a recognition to it from a Court would not put him in a more advantageous position. Therefore, so long as the trustee does not renounce his position as such, he is under an obligation to protect the interests of the institution and any hostile claim by him to the trust property would not enure to his benefit and to the detriment of the institution.
Indisputably, in this case, the archakas took possession of the property and conducted themselves for all practical purposes as if they were trustees, as appears from the judgment of the High Court in Hindu Religious Endowments Board, Madras v. Ko-teswara Rao, AIR 1937 Mad 852 on which reliance is placed by the appellants. Further, this fact is not controverted by the learned Advocate-General and it is only on this basis that arguments were advanced by him. For these reasons, we feel that this contention also is unsubstantial and has to he rejected. In the result, the appeal fails and is dismissed with costs.
This would not preclude the Commissioner for the H. R. E. Board to make the allocation of tha properties between the institution and the archakas in the manner indicated by the concerned order of the Government in G. O. Ms. No. 2450 (EaN) 7-12-1955. In assessing the mesne profits, the remuneration payable to the archakas would be taken into account. It was urged by the learned Advocate-General that a portion of Court fee be directed to be refunded in view of the G. O. 5791 (Home) dated . 17-5-1943. We cannot now determine whether that G. O. is applicable to the case or not. This will be considered only when an application for refund of the Court-fee is filed by the appellants.
11. Coming next to A. S. No. 977/1953, we do not think that this stands on a better footing than the one we have just now disposed of. As already stated, the suit item consists only 0-24 cents. In the settlement register, this property is shown as belonging to the institution. There is no document which has the effect of negativing the claim of the institution. The defence of the 9th defendant the appellant herein is unsupported by any documentary evidence. His case depends upon his ipse dixit. The only question is whether he obtained any title to the property by adverse possession.
We do not think the fact that he can produce Exhibits B-10 and B-11 would make anv difference for the decision of this case. The learned Judge has pointed out relying on the admission of the apprllsnt that this bit of land adjoins the temple and there is a gate of the temple opening into thid land. It is also seen from the evidence of the plaintiff that this was being used as flower garden for the temple. As remarked by the learned Judge, if this defendant had paid a few annas bv way of tax. it must have been because he was performing the Kalyanotsavam of the temple and must have been using the flowers for this.
In this context, we cannot ignore the statementof D.W. 2 the appellant that the appellant was awayat Sattenappalle for ten years and he came only fouryears before he gave evidence. That being the case,it is difficult to believe that he could have been inpossession of the suit property adversely to the institution. The Subordinate Judge has considered all theaspects of the case and we see no reason to differfrom him. This appeal also fails and we direct theparties to bear their costs here.