G.K. Misra, J.
1. Defendants 1 and 4 are the appellants against the judgment of the District Judge of Cuttack partly decreeing the plaintiffs' suit.
2. The plaintiffs' case is as follows : --Defendant No. 1 Bakreswar Mahadeb is the deity; defendants 2 and 3 are the deity's hereditary marfatdars and defendant No. 4 was appointed as the trustee by the Endowment Commissioner (defendant 5) under section 27 of the Orissa Hindu Religious Endowments Act, sometime in 1950, and since then defendants 2 and 3 ceased to be the hereditary marfatdars of defendant No. 1. For the legal necessities of the deity. Shiva Raul and Panu Raul, the father of defendant No. 3, the then marfatdars of defendant No. 1, sold a portion of the land comprised in lots 1 and 3 of the schedule attached to the plaint. Lot No. 1 consists of plot No. 1438 with an area of 1.13 acres and plot No. 1900 with an area of 1.02 acres in the village Tulang in Bajiapty Madhyaswatwadhikari Khata No. 432, lot 3 consists of Plot No. 86 with an area of 0.40 decimals in mouza Natasinghpur in Bajiapti Sthitiban Khata No. 18.
The sale was for Rs. 400/- under a registered sale deed dated 19-9-1921 (Ext. 3) in favour of plaintiff No. 1 and Ramkrushna Biswal, the deceased father of plaintiffs 2 and 3. The plaintiffs' case is that they acquired exclusive title to the property in suit by adverse possession. As per terms of Ex. 3 the vendees were to pay rent to the landlord direct and were also to spend eight annas annually for the Jagar Amabasya ceremony of defendant 1. It is to be made clear here that the admitted case of the parties is that the transfer under Ex. 3 was not by all the marfatdars or by any of the managing marfatdars but by some of the marfatdars of the deity.
By another registered sale-deed dated 23-2-1933 (Ext. 3/a) for Rs. 22/- defendant No. 2 Chemi Roul, another hereditary marfardar of defendant 1, sold another portion of Lot 1 to the plaintiff 1 and Ramkrushna Biswal, the deceased father of plaintiffs 2 and 3. Under the terms of Ex. 3/a the vendees were to pay rent to the landlord direct and were to spend one anna annually for the Makar Sankrant offerings of the deity. In the settlement of the year 1931 the plaintiffs were recorded in respect of the lands covered by Ex. 3 as co-marfatdars of the deity with one of the previous hereditary marfatdars, Chemi Roul (vide Ex. 2/b). The plaintiffs claim that they are in possession of the lands in dispute in their own right and that they are discharging their obligations on the basis of the sale deeds by defraying the expenses of Jagar Amabasya and Makar Sankranti.
Sometime in 1951 defendant No. 4, after becoming the trustee, made an application under Section 59 of the Orissa Endowments Act, 1939 for taking possession of the lands recorded in the name of the deity, defendant No. 1, and delivery of possession was effected despite objections of the plaintiffs on a finding by the Endowments Commissioner that the plaintiffs merely purchased the marfatdari interests of the hereditary marfatdars and not the interests of the deity in the suit lands. The plaintiffs accordingly filed the present suit on 14-11-1952 for declaration of their title with confirmation of possession, or in the alternative for recovery of possession, if they are found to have been dispossessed.
3. Defendants 2 and 3, the original marfatdars, were set ex parte. Defendants 1, 5 and 4 filed written statements traversing identical grounds. The essence of the defence contention is that the transfers were not for legal necessity and the plaintiffs purchased the marfatdari rights and were so recorded in the settlement and the lands continued in the name of the deity with the plaintiffs as the marfatdars; and as Marfatdars the plaintiffs cannot set up any hostile title against the deity.
4. The learned additional subordinate Judge held that the alienations were for legal necessity and the alienations were not binding on the deity as the alienating marfatdars transferred the property in their personal capacity and not on behalf of the deity. He negatived the plea of the adverse possession and accordingly dismissed the suit against the contesting defendants with costs.
5. The learned District Judge dismissed the plaintiffs' suit so far as Lot 2 consisting of plot No. 344 in khata No. 96 covering an area of Order 82 in village Baisnillor recorded in the name of the deity as per Khatian (Ex. 2/a) is concerned. Regarding lots 1 and 3 he held that the plaintiffs were entitled to possession and enjoyment of usufructs of those land subject to their paying annually eight annas for Jagar Amabasya and one anna for Makar Sankranti. He came to the conclusion that the plaintiffs had acquired no title by prescription but they were recorded as marfatdars on account of the fact that they undertook to discharge an obligation under the terms of the two deeds of transfer. There is no appeal filed by the plaintiffs against the concurrent finding of both the courts dismissing the plaintiffs' claim in respect of lot No. 2. It therefore stands concluded.
6. Mr. Madhabananda Das for the appellants challenges the concurrent finding that the alienations were for legal necessities of the deity. His main contention is that the lands are recorded in the name of the deity with the plaintiffs as marfatdars and the plaintiffs therefore cannot set up any hostile title against the deity. According to him, the plaintiffs are recorded as marfatdars of the deity in 1931 settlement in respect of the disputed lands under Ex. 3 and they continue as such even till now and the record-of-rights have never been challenged in course of 22 years prior to the institution of the suit. So as they are continuing as marfatdars it was open to the Endowments Commissioner under the provisions of the Endowments Act to appoint new trustees after removing them who are admittedly transferees and not hereditary marfatdars.
7. It is necessary to examine the facts somewhat closely as the question of law arising in this case has not been canvassed in the Courts below. Admittedly in 1921 some of the marfatdars and not all transferred portions of the land covered by lots 1 and 3. Assuming for the sake of argument that the alienation (Ex. 3) was for legal necessity (which I do not decide in this appeal), still the alienation is not binding on the deity as some of the marfatdars cannot make any valid transfer so as to bind the deity. The law on the point has been clearly discussed in the case of Official Receiver v. Jogamaya Dassi, 50 Cal WN 272 that all the sebaits, like trustees, must act together.
Although the sebaits can for the proper administration of the debottar estate make arrangements or schemes for separate management, they cannot while retaining their office of trust, abdicate altogether their duties and functions and delegate all their authority including that of sale, 1 gift or mortgage or the like to a co-sebait. Arrangement for separate management by sebaits can authorise the doing of routine administration work but cannot authorise an alienation of debottar property without the concurrence of all the sebaits. This view of law received approval in Hindu Law of Religious and Charitable Trust by Mr. Justice B.K. Mukherjee at p. 276. On this legal position the alienation by some of the marfatdars as per Ex. 3 is not binding on the deity or the other non-alienating marfatdars even assuming that it was for legal necessity. The transferees do not get any hostile title against the co-marfatdar by such transfer as the alienation was. in respect of the interest of some of the marfatdars in a particular item of property, and by such arrangement the alienating co-marfatdars had no independent title and the non-alienating co-marfatdar does not cease to have his title or right of management in respect of the lands alienated. The enjoyment is only by mutual arrangement.
Though the terms of the sale-deed indicate that it was not the transfer of the marfatdari right but a transfer of particular item of property, the transferees merely stepped into the shoes of the alienating marfatdars in respect of that item of the property by the very conception of law. The question of adverse possession therefore does not arise. Consistent with this legal concept, the alienees did not exercise any hostile animus and were accordingly recorded in 1931 settlement as joint marfatdars with the non-alienating marfatdar Chemoi Roul without claiming independent title to themselves. Even if any hostile animus was expressed by the transfer, it ceased to be manifest by the date of settlement. The lands continued to be so recorded till the date of the suit and there is no material on record to indicate that subsequent to the settlement of 1931 the plaintiffs exercised any hostile animus against the deity. As marfatdars they could not have so exercised. In fact they were partly in charge of the right of management on payment of certain dues towards the ceremonies of the deity.
Both the Courts below were therefore right in coming to the conclusion that there was no acquisition of title by adverse possession and the teamed District Judge introduced some confusion in the case by granting a decree that the plaintiffs should continue in possession of the disputed lands on payment of certain dues.
8. Mr. M.S. Rao for the respondents cited Pratap Mull v. Isswar Gopal Jiew, AIR 1944 Cal 211 and Hemantakumari v. Iswar Sridhar Jiu, AIR 1946 Cal 473 in support of the proposition that if the alienation was without legal necessity the transfer is void and the alienee would prescribe title by adverse possession from the date of transfer. In this case this point does not arise and the cases cited have no application. Article 134B read with Section 29 of the Limitation Act does not apply to this case. Under Article 134B a suit is to be filed within 12 years of the death, resignation or removal of the transferor by the manager of a Hindu religious or charitable endowment to recover possession of immovable property comprised in the endowment which has been transferred by a previous manager for valuable consideration. In this case none of the transfers was by a previous manager. Each of the transfers is a partial transfer of the interest of the co-marfatdars. Therefore Article 1346 has no application in terms of prescriptive title. The entire onus is on the plaintiffs to establish that they have acquired prescriptive title by being in possession for more than twelve years prior to the date of dispossession. For reasons discussed already the plaintiffs cannot be said to have exercised any hostile animus against the deity. They exercised right of marfatdars as recorded in the settlement and as evinced by their conduct in making contribution towards the performance of certain ceremonies of the deity as embodied in the sale-deeds. Such act is not in derogation of the deity's title and is inconsistent with the exercise of hostile animus.
9. The case of the plaintiffs, so far as Ex. 3/a is concerned, stands on the worse footing. The learned courts below have also found that this alienation was for legal necessity. On that assumption also on identical reasons the plaintiffs hava acquired no valid title as the purchase is from one of the marfatdars, namely, Chemei Roul. By the sale of certain item of property in 1921 Shiba Koul and Panu Roul or their successors did not cease to be hereditary marfatdars of the deity who had admittedly other properties. So in 1933 the purchase should have been from all the co-marfatdars if the deity was tq be bound by the alienation.
In respect of this portion of the land all the co-marfatdars are to be deemed to be continuing in management of the deity's property. Had it been a transfer by all the marfatdars for the legal necessity of the deity the alienation would hava been binding on the deity. If it had been a transfer by all the marfatdars without legal necessity, then it would not be binding on the deity and Article 134B read with Section 28 of the Limitation Act would apply. In both the cases the plaintiffs hava also not based their suit on Article 134B as the date of death of the transferors in no case has been given. As the transfer is not by the managing marfatdar, Article 134B in terms does not apply. There is no other material on record that by exercise of hostile title the purchaser from one of the marfatdars acquired prescriptive title against the deity.
Plaintiffs' case in respect of this item must also fail. On an analysis it must therefore be held that though in terms of the sale deed the plaintiffs did not purchase the marfatdari rights but acquired partial interest in respect of portions of the land from some of the marfatdars, still they exercised the animus as if they were the marfatdars of the deity in respect of those items of property, and the settlement entry and the subsequent conduct are consistent with this state of affairs, by the date defendant 4 was appointed as a new trustee by the Endowment Commissioner under Section 27 of the Endowments Act. On the appointment of defendant 4 as such a trustee, the plaintiffs ceased to operate as marfatdars. Once therefore defendant 4 was validly appointed by the Endowment Commissioner, Section 59 of the Endowments Act, 1939 directly operates and the Endowment Commissioner was within his jurisdiction to direct delivery of possession of the trust property to defendant-4, and the learned District Judge should not have passed an order that the plaintiffs should continue in possession subject to payment of certain dues.
10. Mr. Rao next relies upon the definition of 'Religious Endowment' as given in Section 3 (xii) of Endowments Act of 1939, as stands amended by Orissa Act XVIII of 1954. The proviso to Explanation II to the said definition is as follows :
'Provided that this Explanation shall not ba deemed to apply in respect of any property which is vested in any person before the commencement of this Act by the operation of the law of Limitation'.
The above proviso would not apply to any property that had vested in any person before the commencement of the Act by the operation of the Law of Limitation. This argument has no force. If prior to the introduction of this section the transferees had already acquired title by adverse possession, the property would undoubtedly cease to be trust property and the Endowments Act would have no application. Even without the proviso the law is to the same effect and it is for this reason that the entire discussion centres round the question whether the plaintiffs had been able to prove that they had acquired a title by prescription.
11. On a careful analysis of the facts of the case it is manifest that the plaintiffs have failed to prove that they had acquired title to the deity's property by the transfers or by adverse possession. The plaintiffs' suit must accordingly fail. In the result, I allow the appeal, set aside the judgment of the learned lower appellate Court and restore that of the trial Court on altogether different reasons. In the circumstances of the case, parties are to bear their own costs throughout.