1. The subject matter of this suit is a Mutt in the town of Berhampore and the immoveable properties attached thereto.
2. The said mutt was founded in the year 1789 by one Kodra Kusannu Subuddhi, a man of the Kodra caste and of the Chaitanya sect and the idol Brindavana Chandraswami set up therein is worshipped by Uriya people according to the principles of Gowdiya.
3. The mutt is at present in the possession of the 1st defendant Srinivasacharyulu, a Tamil Brahmin from Mysore and a follower of the principles of Ramanuja. He has been in possession Since 1873 when he obtained from 2nd defendant Balabhadra Doss, the then Pujari or Adhikari or Archaka of the mutt, a deed of sale conveying all his (Balabhadra's) rights to 1st Defendant.
4. The plaintiffs claim to be entitled to eject 1st Defendant and to obtain possession of the mutt and its properties in order that they may appoint a proper Adhikari and Pujari to manage the affairs and conduct the worship of the mutt accprding to Gowdiya principle. They base their claim on three grounds (1) on their being the heirs or representatives of the founder of the mutt (2) on their having always exercised the power of appointing the Adhikari and (3) on their being worshippers in the mutt. They impeach the alleged sale by 2nd Defendant to 1st Defendant as fraudulent and invalid and state that 1st Defendant is totally unfit to be the Pujari or Archaka of the mutt.
5. The 1st Defendant relied on his purchase from 2nd Defendant, denied that plaintiffs had ever been Dharmakartas or managers of the mutt and asserted that he was according to Hindu Law perfectly competent to hold the office of Pujari, but offered, if the court thought otherwise, to appoint a person to officiate as such.
6. The 2nd defendant sided with the plaintiffs.
7. The District Judge found that the plaintiffs are the descendants of Kusannu Subuddhi the founder of the mutt but held that there was no reliable evidence to show that the family of the founder ever took any active part in the management of the institution, or in the appointment of the Pujari, which office had descended from Guru to Chela without interference on their part until 1868, that at the instigation of the plaintiffs the newly appointed temple committee then called 2nd Defendant who was in charge to account and on his refusing to give an account dismissed him, that thereupon 2nd defendant in January 1871 attorned to the plaintiffs and executed a deed of submission (Exhibit N); that in May of the same year the actual Adhikari or Archaka Nandi Keswara Doss returned from Nowgada and resigned his post to his chela 2nd Defendant, that thereupon 2nd Defendant executed or purported to execute a deed of sale in favour of 1st defendant conveying to him the mutt and its properties. The Judge held that this sale was invalid and that 1st defendant was unfit to hold the post of Archaka or Pujari of the mutt and was incompetent to appoint an archaka on the ground that plaintiffs have a general interest in the institution as members of the Chaitanya sect as well as a special interest as descendants of the founder. The Judge therefore directed them with the assistance of the Guru of the principal Chaitanya mutt at Puri to nominate a duly qualified Bairagi and accepting their nominee (who has been made 6th Respondent) ordered the 1st defendant to make over the mutt and its properties to him.
8. The 1st defendant appeals.
9. The first ground of appeal is that the plaintiffs having failed to establish the title upon which the suit was based, the court was bound, without going into the appellant's title, to have dismissed the suit. Admittedly the suit was not one brought under the provisions of Section 539 of the Civil Procedure Code. The plaintiffs did obtain the necessary permission (Exhibits J. & K.) to bring a suit under that section, but appear to have subsequently changed their mind. It is not contended, nor could it, we think, be successfully contended, that Section 539 repeals or affects the right of a private individual to institute a suit to enforce the proper observance of a religious endowment. But it is argued that the District Judge having found that plaintiffs have no direct interest in the trust, the decree which to all interests and purposes is such a decree as might have been passed had the suit been brought under Section 539, is bad. The argument might be valid if the decree could not be supported on other grounds. The suit was not brought under Section 539 and the decree therefore was not passed under that section.
10. It is next urged that the suit has not, with reference to the provisions of Section 30 of Civil Procedure Code been instituted on behalf of all the worshippers of the Mutt. That is conceded. It is then pointed out that in 1876 plaintiffs 1--3 and Ors. applied to the District Court (Exhibit L) for permission to institute a suit under Act XX of 1863 against the present defendants and that sanction was refused. The suit therefore not having been brought under any of the above enactments, but as a mere suit in ejectment on title and title having been negatived, the suit must it is argued, fail. Respondents' counsel argues that plaintiffs as banefioiaries of the Mutt which is a public institution, are entitled to maintain the suit, even if this Court should refuse to uphold their right as trustees (see memorandum of objections). The first question therefore for determination is whether the suit is maintainable.
11. The finding of the judge that plaintiffs have failed to establish their right to, or their exercise of the right to manage the affairs of the Mutt and to appoint the Archaka is in accordance with the evidence. But as pointed above the plaintiffs base their claim to succeed on three different grounds. They first set forth their right to interfere as being the hsirs and representatives of the original founder of the Mutt. It has been found that they are so and no objection has been taken to the finding. It has bsen held by the Calcutta High Court in Brojomohun Doss v. Hurrolok Doss I.L.R. (1880) C. 700 that the representatives of the person who endowed the property are the persons who are entitled to institute proceedings for the purpose of having abuses in the trust rectified. We are therefore of opinion that the judge rightly held that as representatives of the founder plaintiffs were entitled to maintain the suit. Another and third ground on which plaintiffs based their claim was that they were worshippers in the Mutt. It was held by this Court in Fakurdin Sahib v. Ackeni Sahib I.L.R. (1880) M. 197 that apart from any pecuniary interest they might have in the income of the institution, the plaintiffs as resident Mahammadans (the suit was for the removal of defendants from the management of a Durga) were sufficiently interested therein to entitle them to maintain the suit. No doubt as mere worshippers the plaintiffs would not be entitled to possession but the object of the suit is not actual possession but the appointment of a proper archaka and the management of the institution according to Gowdiya principles. The plaintiffs in their plaint pray 'for such other relief as the court may think proper having regard to the facts of the case in order to carry out the wishes of the founder'. Now what are the undisputed facts of the case? The Mutt was founded by a Member of the Chaitanya sect and the idol consecrated therein is one worshipped by Urya people according to ' Gowdiya principles. After the institution had been managed for 84 years in accordance with the intention of the founder, a foreigner, a man of a different sect and religious presuasion, who is unable to, perform religious services for the Chaitanya sect suddenly through the illegal act of the Archaka for the time being, obtains possession. As persons interested in the due performance of religious worship by a duly qualified person, the plaintiffs come forward and ask for the ejectment of the intruder. They have made out that part of the case and in our judgment were entitled to maintain the suit and the judge was justified in passing the decree be did.
12. In the second place it is urged that the suit is barred by limitation. If it is said, plaintiffs are, as they represent trustees, the possession of 2nd defendant under whom 1st defendant claims became hostile to plaintiffs on the 16th May 1871 and the suit is out of time. If, it is further argued, plaintiffs are not trustees the suit is barred by Article 47 Schedule II of the Limitation Act.
13. In our judgment the plaintiffs' suit is not barred eicher by adverse possession or by Article 47. The mutt being one founded for the benefit of the Chaitanya sect, the possession or enjoyment of the Pujari for the time being cannot become adverse to the worshipper. The renunciation by Nandikeswar Doss on 16th May 1871, of his office as Pujari in favor of his Chela, 2nd Defendant created in 2nd Defendant no title or possession adverse to the worshippers of Brindavanachandraswami. The deed of relinquishment (Exhibit XVII) itself recognises the fact that the endowment was given, not for the benefit of the manager for the time being, but for the use of the Muttaccepting the principle laid down in Kannan v. Nilakanta I.L.R. (1884) M. 337 to which we have been referred, although the facts are not on all fours, with the present case, the plaintiff's suit is not barred by Article 144 Schedule II of the Limitation Act because the suit was brought within 12 years from the date of the sale deed by 2nd defendant to 1st defendant and from that time alone was possession adverse to a worshipper of the Chaitanya sect or the representative of the founder.
14. Article 47 also is not a bar. Subsequent to the alleged sale by the 2nd defendant, he during the absence of the 1st defendant re-entered and took forcible possession of the Mutt. He was prosecuted, found guilty of house-breaking and etc. and sentenced to imprisonment in January 1874. On the 6th February, 1874 the Magistrate who tried the case ordered possession to be given to 1st defendant. The order was passed under Section 534 Act X of 1872 (corresponding to Section 522 of the present Code). The plaintiffs were no parties to the Criminal Proceedings which terminated in the said order, nor can it be said that they claim under the 2nd defendant so that Article 47 has no application.
15. The appeal fails and is dismissed with costs.