1. This is a first appeal by a plaintiff whose suit has been dismissed by the Court below as barred by time. The suit arose out of the following facts. The plaintiff is the surviving daughter of one Munshi Shib Dayal. The latter's father or grandfather built a temple in Bareilly town and installed therein an idol. A priest was presumably appointed to preside at the worship in the temple.
2. By a deed, dated 27th March 1881, Shib Dayal dedicated to the idol one-half of his landed property to meet the expenses of the temple. In the deed he laid it down that he himself should be the sarbarahkar or manager of the property and that after his death, his heir and representative should succeed him as such. He directed that the sarbarahkar should manage the property and out of the profits thereof should supply funds to the pujari or priest. He further laid it down that the pujari should have no right in the property and that his powers were limited to spending the funds supplied to him in decorating the temple and arranging for the ceremonies therein and that he was liable to dismissal by the sarbarahker. Shib Dayal died leaving a widow Musammat Phula and two daughters, Musammat Sundar (the elder) and the plaintiff Musammat Ram Piari.
3. Musammat Phula succeeded him and was in turn succeeded by Musammat Sundar as sarbarahkar. The latter, it is said, delegated her powers as sarbarahkar to one Kuar Sen and also appointed one Nathu Ram as pujari. Shortly before her death Kuar Sen resigned his post.
4. The half of Shib Dayal's property, left after the dedication, descended to his two daughters for their lives in equal shares.
5. On 10th November 1898 Musammat Sundar executed a Will by which she purported to dedicate her half share to the god of the temple and she laid it down that the sarbarahkar of this property should be appointed by the residents and respectable people of the town of Bareilly and that the pujari also should be appointed in the same manner. She did not lay down a rule that her heir or representative or that any member of the family should have a right to be sarbarahkar. She died on November 11th, 1898, the day after she had executed the Will. She was in her lifetime the lambardar of the dedicated villages. As she was only the life-tenant of the property mentioned in her Will, she had no legal power to dispose of it as she did.
5. On November 30th, 1898, Nathu Ram applied to the Revenue Court to be appointed lambardar on the ground that he was both pujari of the temple and sarbarahkar of the dedicated property. He clearly claimed to be sarbarahkar. On 15th January 1899 Musmmmat Ram Piari, who was living in the next district, Moradabad, also applied to be appointed lambardar on the ground that under the Will of Shib Dayal she was entitled to the office of sarbarahkar.
6. On 18th March 1899 a number of the inhabitants of Bareilly town also applied to the Revenue Court asking that Kuar Sen or some honest respectable man should be appointed lambardar and sarbarahkar. They objected to Musammat Ram Piari filling these posts and pointed out that she was contesting the validity of Musammat Sundar's Will and the dedication made by her.
7. On the 6th June 1899 the Revenue Court appointed the idol as lambardar under the sarbarahkar-ship of Pandit Nathu Ram.
8. From that time until his death on September 25th 1914, i. e., for well over twelve years, Nathu Ram held possession of the property of the office of sarbarahkar and apparently also acted as pujari. Early in 1899 four of the respectable inhabitants of Bareilly out of those who applied to the Revenue Court for the appointment of Kuar Sen as sarbarahkar had instituted a suit No. 1 of 1899 in the Court of the District Judge against Nathu Ram for, his removal from the post of trustee under Section 539 of the old Code of Civil Procedure.
8. Musammat Ram Piari applied to the Court to be made a defendant to the suit and she apparently claimed to be legally entitled to be the sarbarahkar. The suit was dismissed, the Court holding that there was no ground for removing Nathu Ram from his post. It refused to decide, as between Ram Piari and Nathu Ram, their conflicting claims to the office and property and referred the lady to a regular suit. This judgment was delivered on 5th February 1901. Then Musammat Ram Piari brought a suit against the idol (No. 513 of 1901) in the Court of the Munsif of Bareilly and she named Nathu Ram as guardian ad litem of the idol. She sought to have the transfer made by Musammat Sundar set aside and demanded possession of that property.
9. In paragraph 6 of her plaint she stated that Nathu Ram had been appointed sarbarahkar and pujari of the idol and she, therefore, impleaded him.
10. This suit she admittedly withdrew on December 23rd, 1901, (vide paragraph 6 of her present plaint) because, as she says, she was persuaded to allow the property to remain and become the property of the idol.
11. Nathu Ram died on 25th September 1914. The present defendant is his son. He applied to the Revenue Court to have his name recorded as sarbarahkar in the revenue papers. The plaintiff objected and claimed to be entitled to the post and possession of the dedicated property.
12. On 26th July 1915 the Revenue Court finally decided in favour of the defendant. Hence the present suit in which the plaintiff seeks for
(1) an injunction restraining the defendant from interfering with the temple in any way and directing him to deliver to the plaintiff all the moveable properties appertaining thereto;
(2) a declaration that she is entitled to be manager of the temple and of the properties appertaining thereto with power to appoint the priest;
(3) possession of the dedicated properties, if the defendant be in possession.
13. Among other defences the defendant pleaded that the plaintiff had lost all right to be manager or sarbarahkar, and to possession as such of the properties by reason of Nathu Ram's adverse possession of both office and properties for over twelve years.
14. He also pleaded that in regard to the property dealt with in the Will of Musammat Sundar, the plaintiff had had at no time any legal right to the post of sarbarahkar, in that by the Will the power of appointment was given to the respectable inhabitants of Bareilly.
15. The lower Court held that Nathu Ram's adverse possession for over twelve years had destroyed the plaintiff's right and dismissed the suit.
16. On appeal before us it is urged
(1) that Nathu Ram's possession was not adverse having been with the plaintiff's permission;
(2) that even if it were adverse, on his death no right accrued to the defendant, his son, but that the plaintiff's right revived. It was urged that Section 28 of the Limitation Act did not apply as the present claim was not a claim to 'property' within the meaning of that word as used in the section.
17.In support of the lower Court's decree the respondent pleads that the adverse nature of Nathu Ram's possession has been clearly established; that this is a claim to 'property' and that in any event the appellant has no title to the one-fourth share dedicated by Musammat Sundar. In regard to the first point we have been referred by the learned Advocate for the appellant to the bold and unconvincing statements of three witnesses who would ask the Court to believe that Nathu Ram throughout the time of his holding rendered accounts to the plaintiff through her husband and father in-law. Neither the husband nor the accounts have been put forward and in view of the litigation which followed the death of Musammat Sundar, we have no hesitation in rejecting this evidence and holding that Nathu Ram held adversely to the present plaintiff.
18. In regard to the second point, the plea that the plaintiff's right revived on the death of Nathu Ram and that Section 28 of the Limitation Act did not destroy her right is one that cannot be upheld in view of the decision of their Lordships of the Privy Council in Gnanasambanda Pandara Sannadhi v. Velu Pandaram 23 M. 271: 2 Bom. L. R. 597, 4 C. W. 329: 27 I. A. 69: 10 M. L. J. 29: 7 Sar. P. C. J. 671: 8 Ind. Dec. (N. S.) 591 (P. C). The Section 28 of the Limitation Act of 1877 was worded exactly as is the section of the present Limitation Act. It is impossible to differentiate between that case and the present one.
19. The plaintiff claims the office of sarbarahkar-ship as being the heir and representative of her father i.e., she claims the possession of an hereditary office. She also claims possession of the property in her capacity as sarbarahkar. Nathu Ram was in adverse possession of both.
20. Similarly in the case quoted the claim was for the office and the property and it was held that there was no distinction between the two claims in regard to the application of Article 124 of the Second Schedule and Section 28 of the Limitation Act and that if there were, then Article 144 would apply to the claim for the property. Both these Articles allow a period of twelve years.
21. It is faintly urged that this is not a claim to an hereditary office. If so then Article 120 would apply, which gives an even shorter period of limitation. In either event Section 28 applies, in view of the ruling quoted. The office and the property cannot be separated.
22. It is urged that Section 28 cannot apply to the office of manager or sarbarahkar, as it is not property. This very plea was repelled by their Lordships of the Privy Council in that part of their judgment in which they discussed on page 279 of the report the extinction of the right of Chockalinga by reason of his failure to sue within three years of his attaining majority and by the operation of Section 28 of the Act. Their Lordships were of opinion that there is no distinction between the office and the property of the endowment.
23. The point is covered by authority binding upon us. There are other decisions to be found reported as Mandlly Chenna Kesavaraya v. Mangadu Vaidelinga 1 M. 343: 2 Ind. Jur. 249: 1 Ind. Dec. (N. S.) 229., Alagirisami Naiakar v. Sundareswara Ayyar 21 M. 278: 7 Ind. Dec. (N. S.) 552., Ramanathan Chetty v. Murugappa Chetty 27 M. 192: 13 M. L. J. 341. and Pydigantam Jagannadha Row v. Rama Doss Patnaik 28 M. 197. which go to support the respondent's case.
24. The appellant has, therefore, lost her right in respect to both sets of property, assuming but not deciding that she was initially entitled as regards the endowment made by Musammat Sundar.
25. The appeal must, therefore, fail and is dismissed with costs.