1. It is the unsuccessful plaintiff in both the Courts below who has filed this appeal against the judgment and decree dated 11-8-48, of Sri T.V. Rao, First Addl. Subordinate Judge of Cuttack, confirming the decision of the trial Court after remand. The plaintiff has brought the suit for declaration of his right, title and interest in respect of three mouzas Ahmedpur, Gokulpur and Rangidaspur, as proprietor and for confirmation of his possession. The plaintiff's case is that Raja Raghunath Raj, who owned nine annas sis pies interest in all such villages, executed a mortgage transaction (Ext. 5a) on 14-8-1880 in respect of his interest in the said mouzas for a sum of Rs. 1400/-in favour of the plaintiff's ancestor who obtained a final decree on the basis of the said mortgage on 1-3-1887 and in. execution of the said mortgage decree the properties were purchased on 17-6-1895 by the mortgagee-decree-holder, that is the plaintiff's ancestor; he had also taken delivery of possession through Court near about the year 1901; the balance six annas six pies, according to the plaintiff, belonged to Raja Suberaj and Sunder Nalia.
They had mortgaged their interest in the said mouzas also in favour of the same ancestor of the plaintiff in the year 1884 for Rs. 1200/- on the basis of which a final decree was obtained on 15-9-1890 and in execution of the said mortgage decree the mortgagee-decree-holder purchased them in two instalments on 15-7-1895 and 15-7-1898; the mortgagee-decree-holder had taken possession through the Court also in the year 1901; the plaintiff's further case is that ever since the delivery of possession in favour of his ancestor he was in possession of the entire mouzas in question ever since the year 1901 and collecting rents in his own rights and on his own behalf; the plaintiff's grandfather, that is, the mortgagee-decree-holder, died near about the year 1901 and he was succeeded by his son Hariharnath Pandit who also-died a short time thereafter leaving his widow Rani Luxmi Rani as the legal heir; as she was a young widow, the estate was managed by a committee of executors and subsequently it came under the management of the Court of Wards till the present plaintiff Pandit Shymasundar Suthoo who, in the meantime was adopted by Luxmi Rani, took possession in 1924.
In the year 1936 when the plaintiff started certificate proceedings for the purpose of realisation of rents against the tenants, the tenants raised an objection that the plaintiff had no right to realise rent inasmuch as the properties belonged to deity Raghunath Jiew Thakur represented by Marfatdar Rani Venkataramaniya; these certificate proceedings having been cancelled, the plaintiff filed the suit on 21-9-38 for the relief of declaration of plaintiff's absolute right over the properties and for confirmation of possession on the allegation that the properties in dispute never belonged to deity Sri Raghunath Jiew Thakur but were all along the secular properties of the mortgagors named above; an alternative case also was alleged in the plaint that even though the properties belonged to the deity, the plaintiff had acquired absolute right over the same by virtue of adverse possession against the deity,
2. The defence, in short, was that the properties were really the debuttar properties belonging to the celebrated deity Shri Raghunath Jiew Thakur situate in the town of Cuttack at Telenga bazar and the mortgagors, namely, Raja Raghunath Raj & Raja Suberj and Sunder Nalia had only marfatdari rights in respect thereof; the mortgage transactions, if any, were only in respect of the said marfatdari rights and the plaintiff's ancestor, Baidyanath Pandit, purchased nothing else than the marfatdari rights of the mortgagors in execution of the mortgage decrees. It is further contended on behalf of the defendants that the plaintiff's ancestor, or, as a matter of that, the plaintiff himself has never asserted any adverse right against the deity and the plaintiff has not acquired any absolute right over the properties even by virtue of adverse possession. We may refer here to Section 30, Cuttack Land-Revenue Regulation, 1805, published in Orissa Code Vol. I, at p. 96, where there is a mention of the deity Sitaram Thakur who is otherwise known as Sri Raghunath Jiew;
'Provided also that nothing herein contained shall be construed to authorise the resumption of the established donation for the support of the temple of Jagannath, the charitable donation to the officers of certain Hindu temples, called Anuchatri, and the allowance granted for the support of the Hindu temple at Cuttack, called Sitaram Thakur Bari.'
3. Both the Courts below have concurrently found plaintiff's possession for a long time ever since the year 1901 through his ancestor and by himself, but they have categorically found that possession by the ancestor of the plaintiff, or his mother or by the plaintiff himself was only on behalf of the Thakur and as Marfatdar of the Thakur. The Courts below on a very careful examination of all the documents in question have come to an equally definite finding that the properties in dispute are really the Debottur properties belonging to the Thakur Raghunath Jiew and were never the secular properties of the mortgagors; and what was mortgaged by virtue of the transactions of the year 1880 and 1884 were only the marfatdari rights and not the deity's interest.
4. We have heard the advocates for the parties at length and have examined carefully all the important documents on record and we find no reason to interfere with the findings arrived at by the Courts below. (After considering the documents the judgment proceeds:)
We, therefore, agree with the view taken by the learned lower Courts that the possession of the plaintiff & his predecessor even though long is only on 'behalf of the Thakur & that the plaintiff's predecessor purchased only the marfatdari rights of the deity Raghunath Jiew in execution of the mortgage decrees. This finding confirming the concurrent findings of the Courts below is sufficient for the purpose of disposing of this appeal and dismissing the plaintiff's suit for declaring his absolute right in respect of the property in dispute.
5. The above finding will dispose of the point of adverse possession raised by Mr. Rao; taut we should like to add a further note also on the question of adverse possession that once it is found that the plaintiff's predecessor had accepted the position of a shebait of the Thabur, it is not open for him to take the plea of adverse possession against the deity, especially on account of the feature of the present case that it is not clear when he asserted any adverse title against the deity. The position of law that adverse possession in such circumstances is a notion wholly devoid of contents is made clear by reference to the Hindu Law of Religious and Charitable Trust (Tagore Law Lectures delivered by Hon'ble Shri B.K. Mukherjea, M.A.,LL.D., Judge Supreme Court of India) at page 309.
'A shebait who has accepted the office of a she bait or acknowledged himself as such is incapable of asserting any hostile title against the idol or setting up 'jus tertii' in others. This disability is implicit in any person who holds fiduciary position in relation to another. Furthermore, unlike a human beneficiary, an idol cannot act except through a natural person, and normally, the personality of the idol is bound up with that of the shebait. As was pointed out by Rankin C. J. in -- 'Surendra Kristo v. Shree Iswari Bhubaneswari', AIR 1933 Cal 295 (SB) (A), if after a shebait has accepted the trust, there is a change in the intention with which he holds the deity's properties, and he applies the rents and profits of the property to his own purposes, the idol's title cannot be affected thereby. Any change of intention on the part of the shebait can be brought home to the idol by means of the shebait only, and the idol can react to it through the shebait. Adverse possession in such circumstances is a notion wholly devoid of contents.'
6. Before the decision of their Lordships of the Privy Council reported in -- 'Vidya Varuthi Tirtha v. Baluswami Ayyar', AIR 1922 PC 123 (B), it was generally assumed that Section 10, Limitation Act, would render such a contention impossible, but that decision dispelled all previous conceptions by holding that a shetaait is not a person in whom the debut-tar property is vested in trust for a specific purpose as contemplated under Section 10, Limitation Act, which led, in consequence, to the amendment of Section 10, Limitation Act, by Act 1 of 1929 so as to bring the shebait within the meaning of that section. But the case before us has got to be examined apart from the provision of Section 10 and merely on the conception underlying Article 144, Limitation Act. In this connexion we should also quote the passage from the judgment of one of the most eminent Judges of India, that is, Rankin C. J., in the case reported in -- 'AIR 1933 Cal 295 (A), which was very much relied upon by the author of the aforesaid Tagore Law Lectures:
'The fact of their possession is in accordance with the idol's title, and the question is whether the change made by them, in the intention with which they hold, evidenced by an application of the rents and profits to their own purposes and other acts, extinguishes the idol's right. I am quite unable to hold that it does, because such, a change of intention can only be brought home to the idol by means of the shebait's knowledge and the idol can only react to it by the shebaits. Adverse possession, in such circumstances, is a notion almost void of content. True, any heir or perhaps any descendant of the founder can bring a suit against the shebaits on the idol's behalf and, in the present case, it may be said that the act of the shebaits must have been notorious in the family, but such persons have no legal duty to protect the endowment and,, until the shebait is removed or controlled by the Court, he alone can act for the idol.'
In the present case it is crystal clear that the recitals in the mortgage transactions of the year 1880 and 1884 being to the effect that the marfatdari rights were being mortgaged, the mortgagee accepted the position and furthermore Rani Luxmi Rani being recorded in the Provisional and Revisional Settlements records of rights as she bait of Thakur Baghnath Jiew, she accepted the position of a shebait at least till the year 1911 and there is no material when any assertion of absolute right was made adversely to 'that of the deity. Thus the point of adverse possession is also bound to fail. Under these circumstances, therefore, we find that there is no substance in the appeal and it is bound to fail.
7. Mr. Rao has taken up a point that even though his prayer for higher relief, that is, for declaration of his absolute right to the property, be refused, he ought to be granted the relief of declaration of his (plaintiff's) marfatdari right in the present suit. This contention, as it appears, is taken up only for the first time at this stage of the Second Appeal. We are told by the learned advocate appearing on behalf of the respondents that the Endowments Commissioner of Orissa has in the meantime appointed a Committee of Trustees for the proper management of the properties of the Thakur. It is not, therefore, possible for us to grant the aforesaid relief in favour of Mr. Rao's client without hearing the Endowments Commissioner. This prayer, therefore, is refused.
8. A point was also taken up by Mr. B. Mohapatra, appearing on behalf of the respondents, that the suit had long abated inasmuch as Rani Venkataramaniya, who was originally sued as marfatdar of the deity, died during the pendency of the suit and her legal representative was brought on record years after her death. As we have decided the appeal on merits and have found against the plaintiff-appellant that the appeal has no substance and particularly confirming the finding of fact arrived at by the Courts below that the plaintiff's possession was only on behalf of toe deity and that the plaintiff purchased only the marfatdari rights, it is unnecessary to decide this question of abatement.
9. In conclusion, therefore, the appeal fails & is dismissed with costs.
10. I agree.