1. The first contention urged before us is that the Magistrate's order under Section 146, Civil Procedure Code, putting the chattram in the possession of the Tahsildar being set aside by the High Court which directed possession to be given to the defendants, the plaintiff's suit could not be maintained for mere declaration of his right. But we do not think that this contention should prevail. The defendant was not at the date of the suit in possession of the chattram though he was entitled to obtain possession under the order of the High Court. It is true that the possession of the Magistrate would not be deemed to be adverse within the meaning of the law of limitation, but in order that a suit can be held to be unmaintainable by the application of Section 42 of the Specific Relief Act it must be shewn that the defendant was in possession and as against him the plaintiff could have obtained an order for delivery of possession. It is true that the Magistrate, after the order of the High Court, was bound to deliver possession to the defendant, but he had not yet delivered possession to him when the suit was instituted. Supposing that the plaintiff asked for recovery of possession and obtained a decree before the defendant obtained possession from the Magistrate, it is difficult to see how such a decree could be effectively executed against the defendant. There is no authority covering this question and the cases in Raj Narain Das v. Shahu Annado Das Chowdhuri I.L.R. (1899) C. 845 and Narayana Chetti v. Kannmmnai Achi I.L.R. (1905) M. 338 do really throw no light in this connection. As regards the lands, it was found that the plaintiff was in possession of them at the date of the suit and that finding is not open to any legal objection. The next contention is that because the land revenue was not paid punctually on the due date, the plaintiff forfeited his right to manage the charities although, as a matter of fact, no damage was caused thereby to the trust property. We are unable to place such a narrow construction on the agreement Exhibit A. Besides, apart from the agreement of the parties, we have to see whether there is sufficient cause for removing the plaintiff from the trusteeship or the charities, and no such case has been made out. In our opinion the plaintiff has not forfeited his right and is entitled to the management of the charities and the properties belonging thereto, according to the terms of the Exhibit A.
2. We dismiss this second appeal with the costs of the first respondent.