Skip to content

Sowcar Sahanada Govinda Doss, and ors. Vs. Rajah Venkata Perumal Rajah, Minor by His Next Friend Mr. W.A. Varadachariar - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1915Mad145; (1914)27MLJ195
AppellantSowcar Sahanada Govinda Doss, and ors.
RespondentRajah Venkata Perumal Rajah, Minor by His Next Friend Mr. W.A. Varadachariar
Cases ReferredKenwar Rey v. Ram Chundr Sen I.L.R.
- - 250 in october or november, if it was made then and not before (the date is not shown) may well have been made towards the arrears. equally well connote a temporary order allotting or assigning in the non-technical meaning of that word, certain income to a certain purpose for convenience and for such as convenience may support the arrangement. perhaps indeed the very fact that he was dharmakarta as well as zemindar renders it less probable, because less necessary, that he would make permanent grants out of the zemindari land. them for that purpose-and if the collection of rusums failed, it may be that he would not have been at all bound to supplement the income of the institution from his own revenues. [his lordship then discusses the other evidence in the case, and proceeds as.....miller, j.1. the suit was instituted in 1903 by the rajah of karvetnagar through a next friend, an officer of the court of wards to recover possession, on behalf of the temple of sri venugopalasami in karvetnagar, of the village of konasa-mudram which according to the plaint, was given to the temple on the 29th of august 1808 by a sanad of that date. the present rajah has after the institution of the suit taken over the zamindari from the court of wards and continues the suit himself. in 1881 a lease of the village for a term of 10 years terminating on the last day of june 1891, was given by the then rajah to two persons whom we may call the lessees, at a rental of rs. 4000 a year which was to be credited in payment of sums due to them on mortgages executed by the rajah. the rajah is.....

Miller, J.

1. The suit was instituted in 1903 by the Rajah of Karvetnagar through a next friend, an officer of the Court of Wards to recover possession, on behalf of the temple of Sri Venugopalasami in Karvetnagar, of the village of Konasa-mudram which according to the plaint, was given to the temple on the 29th of August 1808 by a sanad of that date. The present Rajah has after the institution of the suit taken over the Zamindari from the Court of Wards and continues the suit himself. In 1881 a lease of the village for a term of 10 years terminating on the last day of June 1891, was given by the then Rajah to two persons whom we may call the lessees, at a rental of Rs. 4000 a year which was to be credited in payment of sums due to them on mortgages executed by the Rajah. The Rajah is admittedly hereditary Dharmakartha of the temple of Sri Venugopalasami, but the money borrowed on the mortgages was not for the purposes of the temple but for his own private use.

2. In 1885 Konasamu dram and another village were mortgaged by a simple mortgage to the father of the defendants-I may call him the purchaser-and in 1887 he sued on the mortgage and obtained an ex parte decree on the 1st of April of that year.

3. The property was attached in execution of the decree, and was brought to sale in August 1889 and purchased by the mortgagee; the judgment-debtor attempted to get the sale set aside alleging inter alia that the property sold, the Konasamudram village, was ' Tanakha ' of the Sri Venugopalasami Temple and some other temples. The District Judge in March 1890 dismissed the application, and the High Court dismissed the appeal from his order, observing as regards the allegation that the property was temple property, that that point ought to have been raised in the suit. The judgment of the High Court was on the 16th April 1891, but the sale was confirmed in April 1890 after the District Judge's order, and possession was delivered by proclamation on the 7th of May 1890 to the purchaser who as I have said was the mortgagee himself.

4. In 1891 the Rajah's mother sued the purchaser to recover the village from him on behalf of the temple, but her suit O.S. No. 9 of 1891 was dismissed by the District Judge who held that on the facts stated in the plaint she had no cause of action. From this decision no appeal was preferred, and the purchaser and after him his sons remained in possession of the village until this suit was filed on the 30th of June 1903.

5. The Subordinate Judge has decreed the Plaintiffs claim holding that the village was granted to the temple and is in possession of the Rajah in his capacity of hereditary Dharmakartha, and consequently that its alienation was unlawful and the Rajah as Dharmakarta can recover possession of it.

6. He also dealt with several pleas in bar of the claim, deciding them all against the defendant. Of these pleas the only ones argued before us are those which raise questions of Limitation Res Judicata and bona fide purchase with notice.

7. I, will deal first with the plea of Limitation. For the appellants it is claimed that Article 142 of the first Schedule of the Limitation Act applies and that the plaintiff is bound to show that he was not dispossessed twelve years before the institution of the suit, while the respondent contends that the defendants must show adverse possession for 12 years if they want to bar the suit. In the Court below some other provisions of the Limitation Act were relied on, but before us no argument was based on them.

8. As the evidence stands it is not very important to decide which of the two Articles 142 or 144 is applicable to the case, but I am unable to see any reason why Article 142 should not be applied if it is necessary to apply it.

9. For the appellant it was contended as in the Lower Court that the Dharmakarta lost possession at the date of the lease, i.e, in 1881; the lease was given by the Rajah not as Dharmakarta but as Zemindar, and the lessees did not therefore hold under the Dharmakarta but adversely to him. The Subordinate Judge has rejected this contention and, I think, has rightly rejected it. As Dharmakarta the Rajah could lawfully grant a lease for a term of years, and though he did not grant the lease as Dharmakarta and put the proceeds into his own pocket and not into the temple chest, that makes no difference; the grant of the lease was lawful and the possession of the lessees was lawful: their right to possession may be referred to the right of the Dharmakarta to give them possession and his misappropriation of the rent does not affect their possession.

10. The real question is, it seems to me, a question of fact. Possession was transferred, by proclamation after the Court sale and from the date of the proclamation the purchaser it is contended, obtained possession of the reversion, the term of the lease being then unexpired. The proclamation of possession was made, it will be remembered, on the 7th of May 1890, and the term continued until the 30th of June 1891. The suit was instituted on the 30th of June 1903. It is not denied by Mr. Srinivasa Iyengar that, although possession of the reversion was transferred on the 7th of May 1890 to the purchaser, still if the Rajah continues to receive the rent from the lessees he must be held to have retaken possession, in spite of the Court, and if he continued to receive all the rent due up to the end of the term he must be said to have been in possession on the 30th of June 1891 and therefore within twelve years of the suit. Mr Govindaraghava Iyer contended that though the proclamation of the 7th of May 1890 transferred the possession of the Rajah to the purchaser, it did not transfer that of the Dharmakarta. As Dharmakarta the Rajah continued in possession. The fallacy in the argument seems to lie in the claim that a man can be in and out or partly in and partly out of possession at the same time: though turned out by the Court as Rajah, the plaintiff may no doubt still have had a right to remain in possession as Dharmakarta, but the right to possession is not possession.

11. Mr. Govindaraghava Iyer also contended that inasmuch as the lessee could not by any act of his own make his possession adverse to his lessor the. payment of rent if any to the purchaser cannot make any difference. This is really irrelevant because the lessee's possession is not in question: the question is whether the possession of the Rajah ceased before the expiry of the term : the court certainly took it from him by its proclamation and unless he reacquired it by receipt of rent, he has lost it.

12. The lessees had undertaken to pay to the temple a sum of Rs. 1,500 annually out of the rent of Rs. 4,000, for the last four years of the term, and the accounts now produced by the Rajah from his Devastanam office are intended to prove that rents were received up to July l891.

13. The last payment admitted by the deiendainrts is that found in Exhibit X 2 as made on the 16th July 1890. Exhibit X 2 is an account of the payments made to the temple by the lessees from 1887 to September 1890 and is dated the 28th September 1890. The entry in question is under a heading for the year 'Vikruti' and it is accepted by both sides that the year in the zemindari accounts run from July to June and not as ordinarily from the beginning of Chittrai month. Now the payment on 16th July cannot be on account of rent for the last, year of the term: the 1st instalment of the rent for that year did not fall due till Kartigai of Vikruti under exhibit I, i. e., about November 1890. The payment must therefore have been for an arrear due before or about the time of the delivery of the possession in May, the last instalment of the annual rent being payable in Vaigasi which will not be much later than the 7th of May. The heading for the year Vikruti probably therefore mean 'payments made in. the year Vikruti 'as beginning about July. Exhibit X 2 does not therefore help the plaintiff on this question.

14. On the other hand it shows that up to the 28th of September 1890 the lessees had paid only Rs. 4,000 out of Rs. 4,500 payable to the temple for the period ending with June 1890.

15. Exhibit Z is an account of payment made up to 12th February 1891, and contains two entries of payments of Rs. 250 each as made by the lessees of Konasamudram, the dates of payments are not given but the accounts include payments from Adi of Vikruti and therefore include the payment of 16th July 1890 with which I have already dealt. Taking this to be the payment described as having been made 'on account of debt, ' the other payment is described as having been made for ' Puvvasa of this year, i.e., as explained to us, for the 1st instalment of the rent of the year Vikruti (1890-1891). Plaintiff's 4th witness who proves all these accounts does not himself explain this payment except as to the writing of the account, and the evidence of plaintiff's 6th witness is altogether too uncertain to be of any use. There is therefore nothing to show that the lessees actually paid this sum as part of the rent for Vikruti, except the fact which is of no great value, that it was so appropriated in the Zemindar's accounts. On the other hand in July 1890 including the payment of the 16th they had paid only Rs. 4,000 out of Rs. 4500 due till then, and the payment of Rs. 250 in October or November, if it was made then and not before (the date is not shown) may well have been made towards the arrears. Exhibit Z does not materially assist the plaintiff.

16. Then we have Exhibit Y 2 an office copy of an account never completed but which is to have been sent up to the Rajah's office from the Devastanam office : it contains an entry, dated 31st of Ani of Khara, i.e., the 14th of July 1891 which runs 'Rs. 100 pertaining to Konasamudram according to takid No. 101 got written by Varti Seshacharlu.' The plaintiff's 4th witness does not explain the nature of the payment in his examination-in-chief, and in cross-examination he says the sum represented money which has been paid to the Devastanam Sheristadar on some date unknown' to the witness and which was entered in the account as of the date of the order received from the Sheristadar. There is therefore nothing to show 6n what account this was paid, and nothing indeed to show that it was paid by the lessees at all so that even if Y 2 can be relied on as a regularly kept account, it does not further the plaintiff's cause.

17. I have dealt with all the evidence to which our attention was called on behalf of the plaintiff and it cannot be said to prove satisfactorily that anything was paid to the Rajah by the lessees for rent falling due after the date of transfer of possession. The defendants do not show that their father received rent before June 1891: they do not produce their father's accounts, but, it is perhaps unfair to any inference against them from this fact, as the matter was over 12 years old at the date of the trial and so far as the lessees were concerned had been entirely closed. There was no debt due to the Sowcar which would require the preservation of the account relating to it, or its being brought up into the accounts of succeeding years.

18. There is evidence of defendant's 2nd witness who swears that the lessees were asked by him to pay the rent for the last year of their term to the Sowcar, i.e., the purchaser, and that they agreed to settle with the Sowcar directly; he does not personally know if they actually paid anything. This evidence is supported by the prima facie probability that the sowcar having obtained possession would demand the rent, and that the lessees after the court's proclamation would not have paid the Rajah anything. They might have withheld the payment from both sides, but there is no evidence as to that; the Rajah's mother sued in March 1891 to recover the village for the temple, but before that time there is no apparent reason why the lessees should have refused, payment to the purchaser. I think then there is sufficient evidence to show that the Rajah lost possession before the 30th of June 1891; and that is sufficient to bar the suit for possession.

19. It is not so clear that the purchaser, received any rent before the end of June 1891 but he had the possession given him by the Court in 1890, and that will I think the possession adverse to the Rajah, it not being shown that rent falling due subsequent to that date was paid to the Rajah or anyone else. The fact if it be a fact that the lessees did not pay their rent until after the end of June 1891 will not make the purchaser's possession any the less adverse to the Rajah.

20. The suit is therefore in my opinion barred by limitation.

21. It is however desirable in view of the probability that the case may be taken to a higher Court that we should decide also the principal issues in the suit, that it is to say, those dealing with the question whether the village was granted to the temple and so became trust property in the Rajah's hands and the mortgage and sale were therefore inoperative as against the trust.

22. The plaint alleges that the grant of the village was made by a sannad, dated the 16th Avani of Vibhava, corresponding to the 29th of August 1808. No sannad of this or any other date has been produced in this suit; in a suit instituted by the mother of the then Rajah in 1891 a list of documents was put in (Exhibit LL in the present suit) which contained the following entry.

Date and Year Particular of the record Remarks.16th Avani Sannad written by Rajah Venkataperumal Rajah Thoseof Bahadur Varu to Garnapudi Venkaayya, Parpat- records areVibhava. yadar of Attimanjeri Payakat, that his share herewithin the village of Konasamudram should be field.utilised for the daily allowance and lightsof Sri Venugopalasami Varu.This may probably represent the copy of a letter which the Subordinate Judge has rejected as inadmissible in evidence and which we were not asked to admit, but assuming that its contents have been correctly abstracted in Exhibit LL and that we are entitled to take them from that abstract, it would seem that all was filed in the former suit was a letter (probably only an office copy) from the Rajah to one of his officers appropriating part of the revenue of Konasamudram village to the use of the temple. That may or may not have been in pursuance of a grant to the temple, but it is not in itself a grant, for the person to whom it is written was not described as a Dharmakarta of the temple; indeed the abstract rather suggests that there had been no grant. The Subordinate Judge has arrived at the conclusion that there was no grant in writing and I think he is very probably right. It has therefore to be seen whether in the absence of a sannad the plaintiff has adduced sufficient evidence to prove a grant aliunde.

23. The defendants relied on Exhibit VIII as showing that the village was not granted but this document purports to have been written in the year Nala and the evidence of Defendant's 1st witness shows that it is probable that that year is 1796 and not the more recent Nala of sixty years later; and as the alleged grant was after 1796 Exhibit VIII does not really affect the matter.

24. The earliest document of value is Exhibit C.C., and upon this both sides place reliance. It does not suggest that there was a grant in writing of the village to the devastanam. It is of the year 1814, and is headed an extract from the register Brahmadayam of Inam, etc., villages which are utilized for Devadayam (i.e., temples), i.e., rewards to Brahmans and Chattram and Rajah's relations, etc., in the Karvetnagar Samstanam.

The extract relates to the village of Punyam and Konasamu-dram which are utlilised for Sri Venugopalasami Devastanam in Karvetnagar; Punyam is said to have been 'continued from before,' and Konasamudram to have been 'Tanakha' in Prabhava year (1807-1809). There are four Schelat-(included or attached) temples which are named and the revenue and usual expenditure are set out with the remark that excess income is used for devastanam repairs. The Tanakha of Konasamudram income is made instead of rusums or sums collected from the ryots for temple purposes. That is to say according to this document the Rajah in 1807 instead of appropriating the rusums to the temple made a tanakha of the estimated revenue of the village of Konasamudram, and we may suppose pocketed the rusums, or Ceased to collect them. '

24. Now there is no evidence as to what is the accepted signification of the word Tanakha in the registers and accounts of the Karvetnagar Zemindari, if I except the statement of plaintiffs 7th witness that in tha zemindari it generally means 'giving away' a statement on which I do not think much reliance can be placed, and which Mr. Govindarghava Iyer did not ask us to accept as of great value. From Wilson's Glossary and other dictionaries which have been shown to us I gather that the word might be used to indicate a permanent assignment of the revenue of the village to a particular purpose, but that is not its necessary signification, and it may. equally well connote a temporary order allotting or assigning in the non-technical meaning of that word, certain income to a certain purpose for convenience and for such as convenience may support the arrangement. It certainly does not necessarily import a permanent grant.

25. Here we have the fact that the Rajah was himself the hereditary Dharmakarta of the Venugopalasawmi temple and the Shamlat institutions, and there seems nothing unreasonable or improbable in the view that he may have found it more convenient to allot the income of the village of Konasamudram to the temple than to make appropriation from the Rusum collections. Perhaps indeed the very fact that he was Dharmakarta as well as Zemindar renders it less probable, because less necessary, that he would make permanent grants out of the zemindari land. It was his business to keep the temples going but not necessarily to endow. them for that purpose-and if the collection of rusums failed, it may be that he would not have been at all bound to supplement the income of the institution from his own revenues.

I am not prepared in these circumstances to infer from the use of the word Tanakha that there was a grant to the temple, I do not rely on the fact that neither Punyam nor Konasamudram -villages appear as Devadayam grants at the Inam Settlement instituted by the British Government. It may be neither of these villages was allotted to the temples before the Permanent Settlement. Exhibit C.C. is not clear on this point and there is no other evidence.

[His Lordship then discusses the other evidence in the case, and proceeds as follows].

30. There is in this case a good deal more evidence in favour of the plaintiff than was found in Kenwar Rey v. Ram Chundr Sen I.L.R. 2 Cal 341. We have the separate appropriation of rents and the description of the villages over a long period. But even so I doubt having regard to the ambiguity of the word Tanakha and Jari and to the Rajah's position in respect of the temples, whether we can properly be said to have here that very clear and strong evidence which their Lordships in that case held 'ought to exist', to enable the plaintiff to discharge the burden which lies upon him, the burden in the present case of proving that the melvaram of the village of Konasamudram was inalienably conferred upon the temple of Sri Vengopalasami Varu and the connected temples in Karvetnagar to sustain the' worship in these institutions. Upon the whole though not without some doubt I think the evidence insufficient to discharge the burden. In the absence of an express grant there is noting inconsistent with a temporary appropriation of the rents of the village an appropriation which it has been found convenient to allow to continue for a long period, until the money was wanted for other purposes. I would for this reason as well as upon the ground of limitation allow the appeal and dismiss the suit with costs in both Courts.

31. It is unnecessary in this view of the case to decide the other two questions argued. The argument on the plea of res judicata was confined to the effect of the decision of the District Judge in the Suit No. 9 of 1891 instituted on' behalf of the temple by the Raja's mother to recover the same village. The District Judge held that on the facts stated in the plaint the District Judge speaks of the allegations on the pleadings but the earlier part of paragraph 16 of his Judgment shows that he is referring only to the plaint, the plaintiff had no cause of action the temple it appeared to him was in the plaint alleged to be a private institution and the funds provided for its upkeep were at the disposal of the Rajah. It is as I have said unnecessary to decide whether in these circumstances the present suit by the plaintiff is barred or not.

32. The other question is whether the defendant's father as a bona fide purchaser for value without notice of the trust is entitled to retain the village in spite of the trust. The finding that there is no trust renders it unnecessary to decide this question either.

Tyabji, J.

33. I agree in the judgment prepared by my learned colleague which I have had the benefit of reading. The facts leading up to this appeal are set out in that judgment and I need not repeat them.

34. The first question with which I propose to deal is whether the village of Konasamudram appertains to the Sri Venugopalasami temple as alleged by the plaintiff. It is alleged that there was a sannad by which the said village was dedicated to the said temple (no such sannad is produced). The question as to whether there was a sannad and the bearing of Exhibit LL on the question has been dealt with by my learned colleague in. detail and I have nothing to add to what he has said on those points. It has therefore to be decided whether the evidence to which I am going to refer in detail establishes that the village was as a matter of fact dedicated to the temple. I am of opinion that the evidence does not establish any such dedication. There is a great mass of evidence relating to the point, but it may all be grouped under comparatively small number of heads.

35. The earliest piece of evidence on which reliance is placed for this purpose is Exhibit IX dated 10th June 1810. That consists of a ' Manyabhogavata ' (which has been translated' as ' information about the inam',) ' enjoyed by Velamdori Ramabhotlu in Konasamudram village.' With this Exhibit IX must be considered,-in which the village is spoken of as 'of Karvetnagaram Estate.' Each side relied upon the terms in which the village is referred to in these documents, but they do not appear to afford any very clear indication one way or the other.

36. The document which come next in point of time, and on which much reliance was placed, is Exhibit C.C., It purports to be an ' extract from the register showing the inam, etc., villages which have been granted (literally conducted for) for the Devadayam, Brahmadayam and Chatram and royal relations, etc., in the Karvetnagar Samastanam.' The village of Konasamudram is included amongst the villages so ' granted.'

37. Exhibit C.C. is in tabular form. A good deal of argument was addressed to us as to the effect of the various items in it; and I shall deal seriatim with the portions of the Exhibits which were commented upon.

(1) The word which is translated as meaning ' granted ' in the heading to the exhibit, represents the original Marathi word Chalvene which literally means ' continued for ' or continually applied for.

(2) Secondly, it was pointed out that the Brahmins and royal relations are also referred to as being the beneficiaries.

(3) In the 7th column the word ' Rusum' occurs, meaning ' customary payments ' and it was argued that this implied that the payments were voluntarily made.

A great deal of argument was addressed to us on etymological meanings of various words like 'Rusum', 'Tanakha', 'Jari' occurring in the documents forming the evidence in this case. It seems to me that very little help can be obtained from a consideration of the literal or correct meaning that these words have in some cases, it may even be misleading to rely on the etymology of the words, as they have been corrupted beyond recognition and the significance attached to them popularly by those who use them without any knowledge of their original significance is almost independent of the sense in which the words would be used by scholars familiar with the languages from which the words are originally derived. In spite of this feeling in my mind, however, it is not possible altogether, to ignore the arguments that were addressed to us on the exact meanings of these words.

(4) In the 8th and 9th columns the words Tanakha occurs. The word was the subject of much comment. It seems that it is a corruption of the Arabic word Tanakhwah, the original meaning of which as given in Johnson's Arabic Dictionary is 'an assignment of lands or an order of the Treasury for the payment of a stipend, salary, and the like.' But the word seems to be used in very different senses as will appear from Wilson's ' Glossary of Revenue terms ' and it seems to me that the fact that the word occurs in Exhibit C. C does not show that the village of Konasamudrarn was absolutely granted away for the purposes of the temple: It may indicate that at the time when Exhibit C. C was written the village was in some way associated with the temple. There is nothing to indicate what the nature of the connection was. The words Tanakhd' and 'Rusum', (if my argument is to be based on the fact that they occur in the. documents), indicate, it seems to me, that there was a temporary arrangement by which the owner of the village for the time being applied the income of the village for the temple. The owner of the village was the Zemindar, who as the hereditary Dharmakarta of the temple and from his similar position also would be expected to support the temple. These documents do not indicate (though they are consistent with) an absence of the Zemindar's private ownership in the villages.

(5) The tenth column is headed 'Shamilat Devastanam' and the name of four other temples are mentioned as sharing in the benefit derived from the villages mentioned in Exhibit CC

(6) In the 11th column, it is stated that there is no sanad. The effect of Exhibit C.C., seems to me to be far from being definite. On the whole I think it does not show anything further than this, that the Zemindar of Karvetnagar had given orders that the incomes of certain villages including the village of Konasamudram should for the time being be applied for the benefit of

(a) certain temples including not only the temple in question, but four other temples,

(b) of Brahmans,

(c) of Chatrams which I find translated in Brown's Telugu-English Dictionary as follows ' a choultry as rest house for travellers an inn or hotel,' and

(d) for ' royal relations, etc.,

38. Exhibit G C therefore seems to me to indicate that for the time being the Zemindar of Karvetnagar had ordered that the necessary religious and charitable expenses which would naturally be expected to be incurred by the Zemindar, should be defrayed from the income of the villages which are mentioned in Exhibit C.C. The fact that in the 11th column no sanad is mentioned seems to me to be important.

39. Then the next set of documents which may be grouped together consists of entries from the account, memoranda etc. such as Exhibits E, E 1, E 2, F, F 1, H etc. From which it appears that portions of the income derived from Konasamudram village were remitted to the ' Huzoor Devastanam Cutcherry ', that is, to the office in charge of the temples (See Exhibit H). These accounts and memoranda do not, establish that the village of Konasamudram was totally and absolutely dedicated to the Venugopalasami temple. All they establish is that occasionally the profits derived from the village were sent to an office in charge of the temples and perhaps of other charitable institutions or objects. Thus from Exhibits F, Fl etc., it appears that out of the ' collections ' of Konasamudram certain sums were sent to the Devastanam office, It also appears from these accounts e. g. Exhibit G, and Exhibit H that the income of Konasamu dram was not applied exclusively for the purpose of the Venugopalasami temple but for other temples and perhaps also of other charities. In Ex. H there is an entry showing the expenditure of Rs. 662 for paditharam and Rs. 603 for ayan paditkaram. Frequently where the Venugopalasami temple is named in the heading to the account or memorandum, the word 'Vagaira' (meaning ' etcetera ' or ' and others ') follows the name of that temple.

40. In these accounts and memoranda the expression ' jari village' is occasionally applied to Konasamudram and other villages. The word ' jari ' is Arabic, and its usual significance in Hindustani and other languages allied to Arabic is ' continuous '. As I have already said I do not think that much help can be had by a consideration of the original significance of that word. The accounts seem to me far from having the effect of establishing that the village of Konasamudram was dedicated to the Venugopalaswami temple, because there is nothing to show what the total income of Konasamudram was. Nor is there anything to establish that the whole of the income of Konasamudram was devoted to the purposes of the Venugopalasami temple. There is no attempt at showing what the total income of Konasamudram was and how it was disposed of. The accounts are in the possession of the plaintiff; and the fact that the defendant is able to show even from the items adduced in evidence by the plaintiff that portions of the income of Konasamudram were devoted to objects other than the Venugopalaswami temple seem therefore to me to be important. The learned pleader who appears for the respondent in the course of his argument had to concede that 'there is no evidence to show that every year the village contributed to the expenses of the temple.' If there were years during which the village did not so contribute then it is clear that the argument based on a uniform and long continued practice must fail,

41. [ His Lordship after discussing the further evidence in the case proceeds as follows.]

42. After considering the whole of the evidence adduced in this suit with reference to the dedication of the village I have corns to the conclusion that the village of Konasamudram was not dedicated to the Venugopalasami temple and that therefore the sale to the defendants' predecessors in title was a valid sale,

43. The next point with which I shall deal is whether the suit is barred by limitation. I agree that the suit is barred. The defendants' father purchased the village on the 8th August 1889 at a court auction held in execution of his mortgage decree and possession was transferred to him in May 1890. Exhibit VI is the sale certificate dated 24th April 1890, and Exhibit VI (a) is the receipt for possession dated 7th May 1890. At the date of Exhibit VI (a) the village was in the actual possession of ijaradars to whom the property had been leased by the Zemindar. It is contended for the plaintiffs that the purchaser did not obtain possession of the village in May 1890, nor until the lease had expired. As against this, we have the fact that under the decree of the Court the auction purchaser was purported to be put into such possession as could be given to him in May 1890, and strong evidence would be required to show that in spite of the execution proceedings the defendant did not obtain as full and complete a possession as was possible under the circumstances. The plaintiff contends that as a matter of fact after the date of Exhibit VI a rent was paid by the ijaradars to the zemindar as trustee of the temple and not to the defendants or their predecessor in title; and for this contention reliance is mainly placed on Exhibit X2 which is a memorandum of account. The heading of Exhibit X2 is as follows : 'list showing details of amounts received from 1887 to September 1890, on account of Devastanam dues paid by Konduru Venkatraju and others lessees of Konasamudram'. The item in Exhibit H2 relied, upon by the plaintiff is for Rs. 250 bearing date the 16th July 1890. Exhibit X2 is referred to in the evidence of the fourth witness for the plaintiff and Exhibits X and XI show how it came into-being. It seems to me that the item in Exhibit X2 for Rs. 250 is not a genuine one. It is unexplained why this item should be credited to the Vikruti year, 1890 of the Christian era, when as a matter of fact the rent for the previous year 1889 was not fully discharged. That it was not fully discharged is shown by the fact that a total of only Rs. 4000 is shown as haying been received at the foot of the account. The rent being at the rate of Rs. 1,500 per year, the total amount due for the three years 1817, 1888 and 1889 would be Rs. 4500. This fact connected With the facts to which I have alluded before makes it extremely improbable that the sum of Rs. 250 should have been paid and accepted as rent for the Vikruti year, 1890.

44. Similar remarks apply to the entry for Rs. 100 in Exhibit Y2 which entry, however, does not refer to the period in respect of which the sum was received. Exhibit Z might show that as a matter of fact some portion of the rent was recovered after the transfer of possession to the defendants' father but that might well refer to the rent due for the period anterior to the purchase by the defendant's father.

45. It was argued that in spite of these facts the village must be presumed to be in possession of the trustee so long as the ijara continued. But it seems to me that there is nothing to prevent possession of the lands being transferred by the tenants being made to attorn to the transferee, and if as a matter of fact the rent is recovered by the transferee, he has obtained complete possession of the lands. In this connection it should be mentioned that there is no evidence that the rent of Konasamudram was collected immediately after the date of Exhibit VI (a) by the auction purchaser, the present defendant's father. The absence of such evidence was explained by the fact that the person who actually purchased the village in the sanction sale and through whom the present defendant claims it has died and it is difficult to trace the accounts at this time so long after the events. This explanation seems to me to be not unreasonable, and in any exent it must be for the plaintiff to prove in spite of theauction sale and of the formal delivery of possession to him by Exhibit VI A the rent was collected by the plaintiff and not by the auction purchaser. It is admitted that at the present moment the sons of the auction-purchaser are in possession. Their possession can be most reasonably traced to the auction purchaser: no circumstances are proved from which their- possession can be referred except to the auction purchaser : and if their possession is to be referred to the auction purchaser it must prima facie be referred also to Exhibit VI A.

46. I am therefore of opinion that the defendant was in possession of the village adversely to the temple from May 1890. There was some dispute as to the Article of the Limitation Act that must apply. On behalf of the appellant Articles 134, 142 and 144 were suggested as the articles that must apply: the respondent's pleader suggested Article 144. In any case if the defendants or their predecessors in title have been holding the land adversely to the temple since May 1890, the present suit was barred by limitation.

47. The other points were argued before us on behalf of the appellant, namely, that the appellant was a bona fide purchaser for value without notice of any trust, and secondly that the suit was barred by the doctrine of res judicaia. It is unnecessary to deal with these points in view of the opinion that I have formed as regards the two questions with which I have dealt.

48. I agree therefore, that the appeal should be allowed and the suit dismissed with costs throughout.

Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //