P.K. Mohanti, Ag. C.J.
1. The unsuccessful plaintiff is the appellant in both the Appeals which arise out of two confirming decrees passed by the learned Additional District Judge, Cuttack.
2. Plot No. 145 comprising an area of 2.135 acres was the nijdakhali land of the deity Sri Laxminarayan Jew instiled at Mastaram Math in the city Cuttack. Defendant No. 3 who was the Mahant of the Math executed three permanent lease deeds dt. 8-1-44. 26-7-43 and 15-7-44 (Exts. 5, 6 and 7) in respect of 0.110 acre out of the said plot in favour of the plaintiff without the sanction of the Commissioner of Endowments. The plaintiff possessed the land from the respective dates of the leases and constructed house on the same. On 9-4-52, he sold away 0.025 acre out of the land to one Bidei Jethi and delivered possession to him. The Mahant was dismissed in the year 1965. In 1967, the Executive Officer of the Math appointed by the Commissioner of Endowments instituted a proceeding under Section 68 of the Orissa Hindu Religious Endowments Act for recovery of possession, which was allowed on 19-9-68 and the plaintiff was directed to deliver vacant possession of the suit land. Aggrieved by this decision, the plaintiff preferred a revisional application before the Commissioner of Endowments. The Executive Officer had also instituted a proceeding under Section 25 of the Orissa Hindu Religious Endowments Act, 1951 before the Commissioner of Endowments for recovery of possession. Both the matters were heard together by the Commissioner of Endowments, who by his order Dt. 30-10-1969 allowed the revisional application of the plaintiff holding that the provisions of S. 68 of the Act were not applicable to the case. He also allowed the proceeding under Section 25 and directed issue of a requisition to the Collector of Cuttak for eviction of the plaintiff from the suit land. The Collector by his order dated 24-8-70 directed the Tahasildar to cause delivery of possession of the suit land to the Executive Officer in accordance with the provisions of Order 21, Rule 36, C. P. C. The Additional Tahasildar of Cuttack gave symbolical delivery of possession of the suit land to the Executive Officer on 27-9-70.
Aggrieved by the Collector's order, the plaintiff brought a Title Suit No. 131 of 1970 for a declaration that he had acquired an indefeasible right of tenancy in respect of the suit land by his long uninterrupted possession for more than 12 years and was not liable to be evicted, for a permanent injunction restraining the defendants from disturbing his possession and for some other consequential reliefs.
3. The Executive Officer of the Math, after taking symbolical delivery of possession, issued notice to the tenants (defendants 5 to 8 in T. S. No. 131 of 1970 and defendants 4 to 8 in T. S. No. 62 of 1971) demanding house rent from them, This led the plaintiff to file T. S. No. 62 of 1971 for a permanent injunction directing the tenants-defendants to pay rent to him and restraining them from paying rent to anybody else.
4. The Executive Officer of the Math resisted both the suits contending, inter alia, that the leases were invalid and inoperative and were neither for legal necessity nor for the benefit of the deity. The Commissioner of Endowments who was impleaded as defendant No. 1 in T. S. No. 62 of 1971 filed a written statement supporting the stand taken by defendant No. 2, the Executive Officer.
5. The trial court, on a consideration of the evidence led by both the parties, held that the leases were neither for legal necessity nor for the benefit of the deity and were voidable but not void, The plaintiff was found to be in possession of the suit land from the respective dates of execution of the leases; but his claim of acquisition of title by adverse possession was negatived.
6. The lower appellate court maintained the findings of the trial court that the permanent leases granted in favour of the plaintiff were neither for legal necessity nor for the benefit of the deity and held that they were hit by Section 58 of the Orissa Hindu Religious Endowments Act, 2939. On the question of adverse possession, it came to hold that Article 134-B of the old Limitation Act was applicable and since the lessor was removed from the office in the year 1965 and the suits were filed within 12 years from the date of removal of the lessor, the statutory period of 12 years for prescribing title by adverse possession had not been completed. Upon such findings, the appeals preferred by the plaintiff were dismissed.
7. When these two appeals came up for hearing' before one of us (P. K. Mohanti, J., as he then was) it was contended on behalf of the plaintiff-appellant fhat Article 134-B of the old Limitation Act corresponding to Article 96 of the new Limitation Act is not applicable to the case and that Article 144 of the old Act corresponding to Article 65 of the new Act is the relevant Article to govern this case. It was urged that the permanent leases being void ab initio, the plaintiffs possession became adverse to the institution from the respective dates of the leases. Reliance was placed on a single Judge decision of this Court in the case of Naba Kishore Panda v. Bulendra, (1974) 46 Cut LT 1152. The learned counsel appearing for the defendants-respondents having challenged the correctness of that decision the appeals were referred to a Division Bench for disposal. That is how the appeals have come up before us.
8. The main question in controversy is as regards limitation and adverse possession. The finding of fact is that the plaintiff was in possession of the lands from the respective dates of the leases, namely, 26-7-1943, 8-1-1944 and 15-7-1944. The proceeding under Section 25 of the Orissa Hindu Religious Endowments Act, 1951 was allowed on 30-10-69 and direction was issued to the Collector for delivery of possession. The right to evict the plaintiff would be barred by limitation after expiry of 12 years which comes to 1956 if the starting point would be the dates of the respective leases. If, however, it is held that adverse possession of the plaintiff would start only after the dismissal of the Mahant, the right to recover in 1969 would be in time. It is contended on behalf of the respondents that the correct Article to apply is Article 96 of the new Limitation Act. On the other hand, it is contended on behalf of the appellant that Article 65 of the new Limitation Act is the governing Article. The applicability of either Article 65 or Article 96 would depend on whether the transfer was void ab initio or only voidable.
9. Section 58 of the Orissa Hindu Religious Endowments Act, 1939, runs as follows:
'58. Alienation, of immovable trust property.-- (1) No exchange, sale or mortgage and no lease for a term exceeding five years of any immovable property belonging to any math or temple or of any specific endowment attached to a math or temple shall be valid or operative unless it is necessary or beneficial to the math or temple and is sanctioned by the commissioner and two persons, who shall be officers in the service of the Crown, appointed by the Provincial Government in this behalf.
(2) The trustee of the math or temple or any person having interest may, within one year of the date of the order under Sub-section (1), apply to the District Court within whose jurisdiction the math or temple is situated for modifying or cancelling such order.
(3) The order under Sub-section (I) when no application is made under Subsection (2) and the order of the District Court within, whose jurisdiction the math or temple is situated when such application is made shall be final.'
10. An alienation made in contravention of a statutory provision which is enacted in public interest is void. Admittedly the permanent leases were granted in violation of Section 58 (1) which prohibits grant of lease for more than five years without prior sanction. The transfer by permanent leases is, therefore, void. We are fortified in this view by the earlier decisions of this Court. In the case of Naba Kishore Panda v. Bulendra, (1974-40 Cut LT 1152), referred to above, Hon'ble S. K. Ray, J. (as he then was) held that a permanent lease created in express breach of the mandatory provisions of Section 58 (1) is void. In a subsequent Single Bench decision in the case of Arjuna Jena v. Chaitanya Thalrar (1978) 45 Cut LT 461, Hon'ble B. K. Bay, J. also held that a lease created in violation of the provisions of Section 58 (1) of the old Act is a void one. For this proposition, his Lordship relied on an earlier Division Bench decision of this Court in the case of Sh'ri Chiranjilal Patwari v. Commr., Hindu Religious Endowments, Orissa, Bhubaneswar (1974) 40 Cut LT 41. In another Single Bench decision of this Court in the case of Gulam AH Sana v. Sultan Khan; (1966) 32 Cut LT 510: (AIR 1967 Orissa 55), decided by Hon'ble G. K. Misra, J. (as he then was) the question of validity of an alienation of wakf property without permission of the Court came up for consideration and it was held that the alienation, even though for consideration, was void ab initio. It was further held, relying on the principles laid down by the Privy 'Council in Masjid Shahid Ganj v. S. G. P. Committee, Amritsar AIR 1940 PC 116, that Article 144 of the old Limitation Act applies to such a case for acquisition of title by adverse possession. In an unreported decision of this Court in Second Appeal No. 361 of 1966 disposed of on 3rd August, 1970 (Sambari Bewa v. Orissa Board of Wakfs) Hon'ble R. N. Misra, J. (as he then was) considered the validity of an alienation made by a Mutwalli in violation of the provisions of Section 36-A of the Wakf Act and came to hold that a permanent lease granted, in violation of the provisions of the Wakf Act is ab initio void (vide para. 8).
11. Now the question arises whether Article 65 or Article 96 of the new Limitation Act is applicable to the case. Article 96 is in the following terms:
Description of Suit.Period of limitation.Time from which period begins to run.
Hindu, Muslim or Buddhist 96: By the manager of a religious or charitable endowment to recover possession of movable or immovable property comprised in the endowments which has been transferred by a previous manager for a valuable consideration.
Twelve years.The date of death, resignation or removal of the transferor or the date of appointment of the plaintiff as manager of the endowment whichever is later.'
12. This Article refers to a transfer for valuable consideration. A transfer which is void ab initio is, in the eye of law, no transfer at all and hence will not cornel within the scope of this Article. This Article obviously applies to cases where the transfer can be avoided or is voidable. But if the transfer is void ab initio then Article 65 of the new Limitation Act would apply. The transferee's possession since the date of the transfer becomes adverse from the date of the transfer inasmuch as the transferee had no right in respect of the property at all and he was a mere trespasser.
13. Before the Orissa Hindu Religious Endowments Act, 1939 was enacted there was no statutory inhibition against transfer of property comprised in an endowment by a Mahant. A Mahant had power (apart from any question of legal necessity) to create an interest in any property belonging to the Math which would continue during the tenure of his office as Mahant of the Math. A suit for setting aside such transfer could be brought by persons interested in the endowment. If the transfer was not set aside, adverse possession of the particular property would only commence when the alienating Mahant ceased to be Mahant by death or otherwise. Adverse possession could not commence from the date of transfer on the principle that possession is not adverse if it can be referred to a lawful title. The insertion of Article 134-B in the old Limitation Act by the Amending Act of 1929 is a statutory recognition of the position existing before the enactment of the Orissa Hindu Religious Endowments Act of 1939. By the Orissa Hindu Religious Endowments Act of 1939, the right to transfer endowed property has been restricted. But there has been no corresponding change in the Limitation Act after the restriction to the right of transfer was introduced by the Act of 1939. We are, therefore, of the view that Article 134-B applies to transfers which are voidable. Article 96 of the new Limitation Act has not effected in this respect any change in principle. The only change brought about by this Article is that the date of appointment of a new . manager is also made the starting point of limitataion.
14. In AIR 1966 SC 859 (Srinivasa Reddiar v. N. Ramaswamy Reddiar), the question for decision before their Lordships was 'Does Article 134-B permit any distinction to be made between transfers effected by a previous manager on the basis that the property transferred belongs to the religious endowment and those made by him on the basis that the said property is his own private property?' Their Lordships held that Article 134-B does not permit any such distinction. It was held that the character of the representations made by the previous manager in regard to his relation with the property which is the subject-matter of transfer is irrelevant for the purpose of Article 134-B. The question whether this Artiocle applies to void or voidable transaction did not arise for consideration in that case.
15. Like an idol, the math is a juristic person having the power of acquiring, owning and possessing propertiesand having the capacity of suing and being sued; Being an ideal person it mustof necessity act in relation to its temporal affairs through human agency. It mayacquire property by prescription andmay likewise lose property by adversepossession. If the math while in possession of its property is dispossessed or ifthe possession of a stranger becomes adverse, it has the right to sue for the recovery of the property. See AIR 1966 SC1603, Sarangadeva Periya Matam v.Ramaswami Gounder. If no suit is filedwithin the statutory period of limitation, the right to recover possession isextinguished by virtue of Section 27 ofthe Limitation Act and the property islost by adverse possession. In the presentcase, the Math did not exercise its rightto re-enter or to recover within theperiod of 12 years from the respectivedates of the leases. So. the right to recover possession was lost afterexpiry of 12 years which comes to1956. The proceeding under Section 25 of the Orissa Hindu ReligiousEndowments Act. 1951 was initiated andallowed in 1969. By the date of initia^-tion of the proceeding, the plaintiff had perfected his title as a lessee by adverse possession. The order of the Commissioner directing delivery of possession is, therefore, bad in law.
16. When a person enters into possession of land under a void transaction and remains in possession for the full statutory period, the only question for determination is as to the nature of the interest that he has acquired by prescription. He cannot acquire by prescription a right higher than the righl which the instrument of lease purported to convey to him. The transaction in the present case was admittedly a transaction of lease and, therefore, when the plaintiff entered into possession under the void leases, he acquired only the right of a lessee by prescription.
17. Respondednt No. 2 filed an application under O. 41, R. 27 of the Civil P. C. and produced the certified copy of an order dt. 24-6-1981 passed by the Tahasildar. Cuttack Sadar, in Vesting Case No. 248 of 1978 in favour of the math for admitting the same as additional evidence. It is contended on behalf of the respondents that by virtue of the settlement, the math has acquired occupancy right in respect of the suit land and this Court has no jurisdiction to entertain the suit in view of the bar under Section 39 of the Orissa Estates Abolition Act. The certified copy of the order would show that it is not one under the Orissa Estates Abolition Act. The application for settlement was made under the Administrative Instructions contained in Government Order No. 14399 D/- 2-3-64. and the settlement was sought to be made by the State as an ordinary landlord owning the land on salami basis. We must, therefore,, hold that the application for settlement; of the land and the order passed on; such application were not under Chap-1 ter II of the Orissa Estates Abolition Act and, therefore, the provisions of Section 39 of the Act are not attracted. Moreover, it appears from the order of the Tahasildar that the application for settlement was made in respect of the entire area of Ac. 2.135 appertaining to the suit plot No. 145, but on the basis of the Amin's report to the effect that the trustee of the math was in ^os-session of an area of Ac. 1.042 only,., the Tahasildar directed settlement of Ac. 1.042 out of the total area of Ac, 2.135. It i& to be borne in mind that the plaintiff took lease of Ac. 0.110 out of the suit plot and he filed the suit in respect of Ac. 0.085 only, an area of Ac. 0.025 having been transferred by him to Bidei Jethy by Kabala dated 9-4-1952. There is nothing to show that the suit land measuring Ac. 0.085 is included in the area of Ac. 1.042 settled with the math out of the suit plot Since the identity of the land settled with the math cannot be ascertained, the certified copy of the order filed by the respondent is not relevant to the present suit. We are, therefore, not inclined to, admit the same as an additional evidence. The application under Order 41, Rule 27, C. P. C. stands rejected.
18. The plaintiff prescribed the right of tenancy against the math from the year 1943-44 and by the end of 1956, the said right had matured. On the abolition of the estates in the year 1974, the suit land is deemed to have been settled with the plaintiff on and from the date of vesting by virtue of Section 8 (1) of the Orissa Estates Abolition Act. Therefore, the settlement, if any, made by the Tahasildar by his order dated 24-6-1981 would not affect the rights of the plaintiff.
19. In view of our foregoing findings the appeals are allowed, the decisions of the Courts below being set aside. Title Suit Nos. 131 of 1970 and 62 of 1971 be decreed. Let it be declared that theplaintiff acquired an indefeasible right of tenancy under the math by adverse possession in respect of the suit land measuring 0.085 acre out of the suit plot No. 45 and he is deemed to be a tenant under the State Government by virtue of Section 8 (1) of the Orissa Estates Abolition Act. The Commissioner of Endowments and the Executive Officer of the Mastaram Math are restrained from disturbing the possession of the plain tiff in any manner whatsoever. The defendants Nos. 4 to 8 in T. S. No. 62/71 and defendants Nos 5 to 8 in T. S. No. 131/70 be restrained from paying house rent to anybody else except the plaintiff.
20. Parties are left to bear their own costs throughout.
I agree. If the alienation is void ab initio, as in the instant case, no title passes, but the possession of the transferee becomes adverse from the beginning. Article 96 of the Limitation Act would apply to a case where the transaction is voidable and Article 65 would come in where the transaction is void. In case of a void alienation, the cause of action arises from the date of the transaction while in the case of a voidable one, adverse possession begins only from the date when the alienor ceases to be the manager of the institution by death or otherwise. The possession of a person acquired under an invalid title deed is adverse from the date of the transaction and if he continues to be in possession for twelve years or more, the title becomes unassailable.