1. This is an appeal preferred against the decree and judgment of the learned Subordinate Judge of Eluru in O. S. No. 11 of 1945.
2. The facts are: In Iragavaran village there is a temple known as Sri Kesavaswami. The plaintiff is the manager appointed by the Hindu Religious Endowments Board for this temple under a scheme prepared by the said Board. Defendants 1 to 6 are the Archakas of the said Kesavaswami temple and defendants 7 to 11 are stated to be the tenants of the lands of the temple under defendants 1 to 6. The temple of Sri Kesavaswami being a public temple, the Hindu Religious Endowments Board sought to levy contribution from defendants 1 and 4 to 6. Thereupon these Archakas filed O. S. No. 329 of 1936 on the file of the District Munsif's Court, Tanuku, questioning the right of the Board to levy contribution on the foot that the lands on the income of which contribution was fixed belonged to them the Archakas, exclusively and did not belong to the deity. The claim put for-ward by the Archakas was negatived and their suit O. S. 329 of 1936 was dismissed. The plaintiff as authorised by the Hindu Religious Endowments Board to file a suit and get possession of the properties, filed this suit O. S. 11 of 1945 in the pauper form for the reliefs of possession of the schedule-mentioned lands from the defendants and for recovery of Rs. 5756 from the defendants as and for mesne profits for 1942 and 1943 and for recovery of future mesne profits at a rate to be fixed by the Court and for costs.
The main contentions raised by defendants 1 to 6 were: The scheme framed for the administration of the suit temple is 'ultra vires' and is not binding on these defendants. The properties mentioned in schedule A are not properties endowed to the temple of Sri Kesavaswami. As a matter of fact they are only Archa-katwam service inams granted to the ancestors of these defendants and the only liability imposed on the Archakas is to perform the service regularly in the temple and no more. The Archakas have been regularly performing the service and are therefore not liable to be evicted from the properties. The temple of Kesavaswami is an excepted temple and the Board has no power to appoint any trustee or manager therefor. Plaintiff is not entitled to maintain this suit. Even otherwise these defendants have perfected a title to the properties by reason of adverse possession. . It was not necessary to decide the question of title to these properties O. S. 329 of 1936 on the file of the District Munsif's Court, Tanuku, and any finding re-corded therein on the question of title would not therefore be 'res judicata'. In any event these defendants are entitled to the kudiwaram right and the temple is entitled only to the melwaram. For this reason also, these defendants are not liable to be evicted from the properties. The mesne profits claimed are excessive. Plaintiff is not entitled to either possession or mesne profits or any other relief. Defendants 7 to 10 filed a memo adopting the written statement of defendants 1 to 6 and defendant 11 allowed the suit to proceed 'ex parte'. Though all the Archakas that is to say defendants 1 to 6 contested the suit at the beginning and claimed the suit properties as belonging to them in the subsequent stages of the trial defendants 1 to 5 dropped out at the time of the hearing and allowed themselves to be set 'ex parte'. It was only defendant 6 who contested the suit.
3. We have just mentioned that this suit was filed in the pauper form. The learned Subordinate Judge was moved in C. M. P. No. 768 of 1945 to dispauper the plaintiff. The applicants were the archakas defendants 1 to 6. The learned Subordinate Judge of Eluru passed the following order:
'This is a petition to dispauper the plaintiff. Admittedly he gave an undertaking to the Hindu Religious Endowments Board, Madras, to advance funds for litigation from his own pocket and this was the very reason for his appointment. By another order of the Board he was directed to collect funds from people interested in the administration of the temples. The plaintiff admitted that he did not care to collect funds. According to the plain-tiff's undertaking he is bound to advance funds for the litigation from out of his pocket. It is not his case that he is a pauper. I therefore dispauper the plaintiff and call on him to pay court-fee in two weeks failing which the suit will stand dismissed.'
Then time was extended for payment of court-fee and on the court-fee not being paid the suit was dismissed.
4. In the meanwhile, the Manager appointed by the Hindu Religious Endowments Board filed a Revision Petition in the High Court in --'C. R. P. 41 of 1946 (A)'. This petition was heard by Yahya Ali J., who passed the following order:
'The ground on which the temple was dis-paupered after having once been permitted to sue in 'forma pauperis' is that the Archaka has means to pay the court-fee. I fail to see how the possession of means by the Manager or the Archaka can operate as a ground to dispauper the temple itself which admittedly is not possessed of sufficient means to pay the court-fee of Rs. 1612-7-0 that is payable on the plaint. The Hindu Religious Endowments Board itself at one stage permitted the Archaka to file the suit in 'forma pauperis' and for the purpose of finding the necessary finances, the Board advised the Archaka to collect public subscriptions. In these circumstances I am not satisfied that there was a valid ground for dispaupering the plaintiff temple. The Civil Revision Petition is allowed and the order of the Subordinate Judge in I. A. No. 768 of 1945 is set aside.
It has been brought to my notice by Mr. Satyanarayana Rao that as result of the petitioner's inability to pay the court-fee within the extended time fixed by the lower Court, the suit was dismissed. Acting on the prin-ciple of the decision of Wallace J. in --'Manickam Pillai v. Mahudam Bathummal' : AIR1925Mad209 , I must set aside the decree of dismissal of the suit also and direct that the suit be restored to file and disposed of according to law.'
5. Defendant 6 filed an application in the Eluru Sub Court I. A. No. 778 of 1946 praying for an order declaring that the suit was not legally subsisting & the same could not be tried on merits. This was on the ground that the suit having once been dismissed the Court became 'functus officio' and had no jurisdiction to try the suit. The learned Subordinate Judge rejected the application pointing put that this aspect of the matter has been considered by the High Court in passing the order in -- 'C. R. P. 41 of 1946 (A)' set out above and the dismissal of the suit has been set aside and the suit has been restored to file for disposal according to law.
6. Against that order of the Subordinate Judge defendant 6 filed C. R. P. 1029 of 1946 and the same contention was advanced in the High Court as was advanced in the lower Court. This petition was also dismissed by Yahya Ali, J. and he passed the following order:
'This objection was taken into account at the time of the disposal of the previous civil revision petition and it may be mentioned here that this view of the matter has since been acted upon by a Bench of this Court in -- 'Ku-maraswamiah v. Krishna Reddi', AIR 1947 Mad 84 (B) which reaffirmed the principle that when an order has been passed on a review application setting aside the order rejecting the application to extend the time, it would follow that the consequential order rejecting the plaint would be automatically set aside by the setting aside of the prior order. That decision went a stage further than I have done and has held that when setting aside an earlier order it is not even necessary to formally set aside the consequential order.'
7. The learned Subordinate Judge proceeded with the trial and found that the plaint A schedule properties are the endowments to the temple of Sri Kesavaswami and that what was granted to the temple was both the warams and that the Archakas had not perfected their title by adverse possession and limitation as claimed by them, that the Archakas had not acquired occupancy rights and that their claims were barred by the principle of 'res judicata' by reason of the decision in O. S. 329 of 1936. On the question of mesne profits the learned Subordinate Judge came to the conclusion that the temple, that is the plaintiff, would be entitled to mesne profits of Rs. 3116 for 1942-43 and 1943-44. The Archakas requested the learned Subordinate Judge to go into the question of their remuneration as they had been performing the services, in fixing the quantum of mesne profits due from them. The learned pleader for the plaintiff in the lower Court stated that this was a matter that should be considered by the Endowments Board itself and that it was not open to the Court to fix any remuneration. On the other hand, the learned Subordinate Judge held that he did not see any sufficient reason to leave this matter to be determined by the Board and that in two other similar cases the trustees expressed their willingness to have the remuneration of the Archakas fixed at 60 bags per year. The learned Subordinate Judge cal- culating that the total income from the 35 acres of land of the temple would be 210 bags, fixed the remuneration of the Archakas at 60 bags per year and which in terms of cash was worth Rs. 540 in 1942-43 and Rs. 600/- in 1943-44. These amounts were directed to be deducted from out of the amounts claimed in the plaint and the decree for mesne profits was given only for the balance.
It was next argued on behalf of the Archakas that they had divided the properties as between themselves and that each of them was in possession of 5_ acres and odd and that they should be made liable for their respective amounts separately and not for the whole amount jointly. The learned Subordinate Judge rejected this contention on the ground that this could not be done in this suit. In this connection we may point out that subsequently this rejection of the claim was the subject matter of revision in the High Court and was disposed of by Panchapa-gesa Sastri, J. in A. S. No. 379/48. The prayer of the Archakas was granted. In other words, the joint decree was split up into a several liability.
8. In appeal the learned Advocate for the appellant confined himself only to two points viz., questioning the propriety, legality and correctness of the order of Yahya Ali, J. in the two Civil Revision Petitions referred to above and secondly into pressing that this Court should' fix remuneration of the Archakas as l/3rd of the net income of the lands on the foot that certain decisions of this Court have sanctioned such a course. These upreported decisions are: (1) 'C. R. P. 1204 of 1947 (Mad) (C)' Krishnaswami Nayudu, J.; (2) 'A. A. O. 8 of 49 (Mad) (D)' Govinda Menon & Basheer Ahmed JJ.; (3) 'Appeal No. 677 of 1947 (Mad) (E)' Govinda Menon and Mack, JJ.; (4) 'C. R. P. Nos. 29 and 275 of 1949 (Mad) (P)' Mack J.; (5) Appeal No. 322 of 1948 (Mad) (G)' Chief Justice and Venkatarama Iyer J.; (6) 'Satya-narayana y. Butchayya' : (1954)ILLJ301Mad Chief Justice and Venkatarama Iyer, J.: (7) Appeal No. 285 of 1945 (Mad) (I)' Chief Justice and Panchapakesa Iyer, J.; (8) 'Appeal No. 218 of 1946 (Mad) (J)' Satyanarayana Rao & Chan-dra Reddy JJ.
9. The learned advocate for the appellant was fully justified in not canvassing the findings of the learned Subordinate Judge regarding (a) the suit lands being Archakatwam service inams burdened with liability to perform the service; (b) only melwaram being granted to the deity; (c) acquisition of title by adverse possession and limitation; and (d) acquisition of occupancy rights. In regard to point (a) that the lands were granted to the temple and not Archaka service inams burdened only with liability to perform service, the learned Subordinate Judge has fully analysed the evidence and come to the correct conclusion that the grant of these lands was to the deity only. This conclusion is established by the entries in Ex. A-4 the extract from the Inam Register, Ex. A-5, copy of the Inam Statement made by the Archakas that the grant was in favour the Swami, Ex. A-6, the extract from the Inam B Register where in the suit property is registered as Devadayar and the grantee as Sri Kesavaswami, Ex. A-7 extract from the Re-survey and Settlement Register with similar entries and Exs. B-2 and B-3, extracts from the Pancharatnam accounts relating to the village of Iragavaram. In any event, such a claim in the present suit is clearly barred by 'res judicata' by reason of the decision in O. S. 329 of 1936 wherein the Archakas specifically set up absolute title to the properties and claimed exemption from payment of contribution on that ground and the learned District Munsif on invitation of these Archakas went into the question and decided that the properties belonged to the deity and not to these Archakas. No appeal was filed against this decision and it has become final.
In regard to point (b) there was no evidence to show that the original grant was only of the melwaram and that the kudiwaram vested in the Archakas and that on the other hand the documents filed on behalf of the plaintiff showed that the grant was of both the warams. The defendants who asserted that kudiwaram was vested in them adduced no evidence and did not discharge the burden that lay on them: 'Venkateswarlu v. Lakshmanna' : AIR1944Mad365 and -- 'Brahmayya v. Bala Tripura Sundaramma', AIR 1948 Mad 275 (L). Turning to point (c) inasmuch as the Archakas were in enjoyment of the lands in a fiduciary capacity as trustees, they could not acquire title by adverse possession against the deity. It is well established that a trustee cannot by setting up his own title to the trust property, acquire by adverse possession a title to the property. In -- 'Srinivasa Moorthy v. Venkatavarada Iyengar', 34 Mad 257 (PC) (M) their Lordships of the Privy Council observed as follows:
'No person who has accepted the position of a trustee and has acquired property in that capacity can be permitted to assert an adverse title on his own behalf until he has obtained a proper discharge from the trust with which he has clothed himself.'
In -- 'Bitto Kunwar v. Kesho Prasad', 19 All 277 (PC) (N), the Privy Council again expressed a similar view in the following passage:
'Their Lordships can only understand their (the High Court's) thinking thus by supposing they were of opinion that although there might be a trust, Bachcha Tewari and Ram Kishen (the trustees) might acquire a title by having possession of the property and appropriating it to their own use. The learned Judges appear not to have had in their minds the statement of the law in Sections 63 and 64, Indian Trusts Act, 1882.'
The principle above stated, namely, that a trustee cannot acquire title by adverse possession of the trust property, applies equally to 'quasi' or constructive trustees, the managers of religious endowments and in fact to all persons who stand in a fiduciary relation to others:-- 'Asaram v. Ludheshwar', AIR 1933 Nag 335 (O); 'Lachhman Das v. Arya Pritinidhi Sabha, Punjab', AIR 1932 Lah 603 (P); -- Tra-tapa Simha v. Simji. Raja Sahib', AIR 1927 Mad 50 (Q); -- 'Fakhruddin v. Kifayatullah', 8 Ind Cas 578 (All) (R); -- 'Sami Ayyangar v. Venkatramana Ayyanger' : AIR1934Mad381 'Prem Singh v. Mokund Singh', AIR 1914 Lah 373 (T); -- 'Lollubhai Bapubhai v. Man-kuvarbai', 2 Bom 388 (U); -- 'Abdul Ra-him v. Mst. Barira', AIR 1921 Pat 166(2) (V); and -- 'Surendrakrishna Roy v. Ishwar Bhu-baneshwari' : AIR1933Cal295 . The She-bait of a deity cannot acquire title in the deity's property by prescription: -- 'Jagannath Mahaprabhu v. Bhagaban Das' : AIR1951Ori255 'Anath Nath v. Iswar Kali Mata', AIR 1949 Cal 538 (Y). There can be no question of adverse possession between the temple and the Archakas. The possession of the Archakas of the temple property is in a fiduciary capacity and they cannot prescribe against the temple: -- 'Venkatadri v. Seshacharyulu', AIR 1948 Mad 72 (Z). In such a case a trustee cannot by his declaration that he has committed or about to commit breach of trust prejudice the rights of the beneficiaries and claim that as from the date of his declaration he began to hold adversely to the trust. In order to make time run he would have to surrender the property to the proper custodian or mutwalli and then enter upon it as a trespasser. It is only in such circumstances that either he or those claiming under him can justifiably say that their title had become adverse:. -- 'Mahomed Afsal v. Din Mohammad', AIR 1947 Lah 117 (Z1). Finally, these Archakas cannot claim to have acquired occupancy rights either by being let into possession of the property by the landholder or by cultivating it adversely to the trust as of right for over a period of 12 years. Where a person is in possession of trust property and purports to act as trustee in defiance of the rights of the true owner, such a person cannot be deemed to be landholder under the Madras Estates Land Act: -- 'Pattabirama Reddi v. Balarami Reddi' : AIR1945Mad43 . In the instant case the Archakas cannot acquire rights by adverse possession as already adverted to. Therefore, the learned Subordinate Judge has rightly decided all these points.
10. The learned advocate for the appellant canvassed, as already mentioned by us, the correctness, legality and propriety of the orders passed by Yahya Ali, J. and which it was open to him to canvass in this appeal by reason of the decision in -- 'Satyanarayanacharyulu v. Ramalinga' : AIR1952Mad86 . The facts of that case were as follows. The petitioners filed a suit in the Court of the Subordinate Judge of Guntur for a declaration that they were the hereditary Archakas of the temple. They paid a fixed court-fee of Rs. 100 under Article 17-A of Schedule II, Court-fees Act valuing the suit for the purposes of jurisdiction at Rs. 3,600. On an objection taken to the correctness of the valuation the learned Subordinate Judge on enquiry found that the suit had been grossly undervalued, that the valuation of the property in suit exceeded Rs. 10,000 and directed the petitioners to pay an additional court-fee of Rs. 400. This order was passed on 14-3-1947 and ten days' time was given for payment of the deficit court-fee. The suit stood adjourned to 24-3-1947. On that day the suit was called and as the petitioners had not paid the deficit court-fee, the plaint was rejected. The revision petition to the High Court, which was the subject-matter of the said decision, was against that order dated 24-3-1947 rejecting the plaint. The learned Judges held that where an order directing payment of additional court-fee in a suit is not complied with and is impeached in the High Court, it can be done by means of a revision petition. But where after the order has not been complied with and the consequential order rejecting the plaint has come to be passed, the remedy is only by way of appeal against the decree. The observations of Chandrase-khara Iyer, J. in -- 'Ratnavelu Pillai v. Varada-raja Pillai', AIR 1942 Mad 585 (Z4) were followed. Therefore, we can go into the point raised by the learned advocate for the appellant in this appeal. But we see no reason to hold against the correctness, propriety and legality of the order passed by Yahya Ali, J. apparently under Section 115, Civil P. C. and/or 151, Civil P. C. On the plaintiff being dispaupered and the payment of court-fee which resulted thereunder not being paid, the suit had been dismissed. On this matter being brought to the notice of Yahya Ali, J. he passed the consequential order which in event would have had to be passed by the learned Subordinate Judge on an application being made to him as a result of the order of Yahya Ali, J, and if Yahya Ali, J. had not himself set aside the decree of the dismissal of the suit. It is quite true that in regard to the decree passed by the lower Court an appeal has got to be preferred and it cannot be done in a revision petition as decided in : AIR1952Mad86 referred to above. But this is a case where the decree dismissing the suit was only dependant on and subservient to the order or decree regarding the payment of court-fee. So, when the order or decree regarding the dispaupering and payment of court-fee got vacated, the dependent decre_e of the dismissal of the suit also got automatically vacated. This is what has been pointed out by Yahya Ali, J. in his order reproduced above and what is more was supported by authority : AIR1925Mad209 and -- 'Kumara-swamiah v. Krishna Reddi', AIR 1947 Mad 84 '(B). In fact this is what is happening every day in partition suits and partnership suits. In these suits a preliminary decree as well as a final decree have got to be passed and appeals have to be preferred from both. It is settled law now that if an appeal on the preliminary decree succeeds, the final decree passed in the meanwhile by the lower Court gets automatically vacated. Therefore, there is no substance in this contention raised by the learned advocate for the appellant.
11. In regard to the contention about the remuneration, the learned advocate presses that it should be fixed at 1/3rd of the income from the lands. The lower Court has as a matter of fact fixed 60 bags per year which is equivalent to roughly l/3rd of the income from the temple lands. But the further point which has to be considered is whether it is within the province of this Court to engage itself in that task of fixing this remuneration or whether it is rightly the province of the Commissioner of the Hindu Religious Endowments Board and the concerned trustees. There can be no dispute that except where both the parties invite the Court to fix the remuneration, as has been done in some cases in this Court or where the paramount interests of the temples, archakas, worshipping public necessitate such a course normally this is an administrative matter as pointed out by Happell and Shahabuddin JJ. in -- 'AIR 1948 Mad 72 (Z)', and it ought to be left to be settled by the Commissioner of the Hindu Religious Endowments and trustees with the archakas. Secondly, as has been pointed out by us in -- 'Brahamayya v. Rajeswarswami Temple' : AIR1953Mad580 and -- A. No. 303 of 1950 (Mad (Z7)' and -- 'A. No. 569 of 1948 (Mad) (Z8)' without regard to the circumstances of each case, the fixing of a proportion of 1/3rd as a rule of thumb and as the archakas emoluments may work out arbitrarily and capriciously in several cases. Therefore, we must decline to fix any proportion as invited to do so by the learned advocate for the appellant and further consider that in the circumstances of this case the remuneration fixed by the learned Subordinate Judge seems to be thoroughly reasonable and may be usefully taken as a working basis by the Commissioner and the trustees for fixing a reasonable remuneration of the archakas and it will be for them to decide whether this remuneration should be paid in cash or in kind or by allotting a portion of the lands to the archakas.
12. In the result, the findings of the lower Court are affirmed and confirming the decree and judgment we dismiss this appeal with costs. The appellant should pay the court-fee due on the memorandum of appeal to the Government.