1. This Letters Patent Appeal arises out of the Title Suit No. 101 of 1967 of the Court of the learned Munsif at Krishnagore filed by the appellants for a declaration that the premises No. 6 Bansidhar Lane, Calcutta and a property at Nabadwip are de-butter properties of the plaintiff deities and for permanent injunction restraining the respondent No. 1 from interfering with their possession of the said Calcutta property and from exercising any act of possession including the realisation of rents of the said property.
2. These are the main averments made in the plaint. Chintaharan Kundu and his two brothers were members of an undivided joint Hindu family and out of their joint family funds they purchased the aforesaid Calcutta property in the name of Chintaharan and the said Nabadwip property in the name of Krishnakamini Devi, the wife of Chintaharan. They divided all their properties by a Deed of Partition dated January 12, 1922 and these two properties were allotted to Chintaharan who dedicated them to the appellant deities by a Deed of Arpannama dated 12-1-1922. Chintaharan and Krishna Kamini died respectively in the years 1923 and 1940 and before their death they respectively acted as shebaits in terms of the said Deed of Arpannama. Thereafter, those two brothers acted as joint shebaits with Sashimukhi, and after the death of those two brothers their present heirs namely Gopinath, his brother and their cousins acted as joint shebaits with Sashimukhi to whom they left the management of the said estate like their respective fathers. Gopinath came to reside in a portion of the said Calcutta property in 1956 and started realising the rents from the tenants but due to a dispute between him and Sashimukhi he could not go on realising the rents and the said dispute was settled by the execution of a Power of Attorney dated June 18, 1962, by Sashimukhi in favour of Gopinath and his two cousins. Thereafter, Sashimukhi fraudulently sold the Calcutta property to the respondent No. 1 on May 29, 1964 by falsely alleging that the Deed of Arpannama executed by Chintaharan had never been acted upon. It also transpires that in 1930 Krishna Kamini purported to dedicate the Nabadwip property to an alleged deity named Sree Radha Gobinda Jew falsely alleging that she was the owner of the said property and she had installed the said deity. Sashimukhi died intestate on June 27, 1965 leaving the respondents Nos. 2 and 3 as her only son and daughter and thereafter the appellants have filed this suit through their shebaits Gopinath, his brother and cousins for the reliefs mentioned earlier.
3. The respondents Nos. 1 to 3 contested the suit by denying all the allegations made in the plaint and on this main defence. Those two properties were not purchased out of the alleged joint family funds. Chintaharan was the sole owner of the Calcutta property whereas Krishna Kamini was the absolute owner of the Nabadwip property. Chintaharan never acted upon the said Deeds of Partition and Arpannama for they were fraudulently procured from him by his two brothers. Krishna Kamini, as the widow of Chintaharan, had inherited the Calcutta property and it was in her exclusive possession during her lifetime. By a Deed of Arpannama dated September 30, 1930, she dedicated the Nabadwip property to a deity named Sree Sree Radha Gobinda Jew installed and worshipped by her. She and Sashimukhi had acted respectively as the Shebaits of the said deity during their lifetime and the respondent No. 2 is now the sole shebait of the said diety. On 6-7-1962 Sashimukhi revoked the said Power of Attorney which was fraudulently procured from her by Gopinath. The appellants and their alleged shebaits were never been nor are in possession of the suit properties which were in exclusive possession of Krishna Kamini and Sashimukhi during their respective lifetime and they used to realise the rents of the said Calcutta property as its owners until it was lawfully sold by Saghimukhi to the respondent No. 1 who has realised its rents by the execution of the rent-decrees obtained by her against the respondent-tenants and she has also ejected them by executing the ejectment-decrees obtained by her against them. She is in possession of this property excepting the portion which has been wrongfully occupied by Gopinath in the year 1957. They have also pleaded adverse possession and limitation and disputed the maintainability of the suit under Section 34 of the Specific Relief Act, 1963.
4. The learned Munsif decreed the suit on August 31, 1967 on these findings. The suit properties were purchased by those three brothers out of their joint family funds. The defence had failed to substantiate the charge of fraud levelled against those two brothers and Gopinath. The Deeds of Partition and Arpannama executed by Chintaharan were genuine documents and the suit properties were validly dedicated to the appellant deities by Chintaharan who had acted as their sole shebait during his lifetime. Krishna Kamini was not the owner of the Nabadwip property and Sashimukhi had wrongfully sold the Calcutta property to the respondent No. 1. The suit was not time-barred and it was maintainable.
5. The learned Subordinate Judge, on appeal, set aside the said decree and dismissed the suit by his judgment dated August 31, 1968. He accepted these two findings of the Trial Court namely that no fraud was perpetrated on Chintaharan by those two brothers and those two Deeds were validly executed by Chintaharan. He held that Chintaharan did not act upon the said Deed of Arpannama executed by him and therefore the said Calcutta property was not dedicated to the appellant deities and it was inherited by Krishna Kamini who was the absolute owner of the said Nabadwip property and she had dedicated the same to the said idol installed by her. Gopinath never realised the rents of the Calcutta property which was lawfully sold by Sashimukhi to the respondent No. 1 but he did not accent the pleas of limitation and adverse possession and left open the question of maintainability of the suit.
6. The Second Appeal No. 2 of 1970 filed in this Court by the appellants against the above decision of the learned Subordinate Judge was dismissed on September 9, 1972 by Mr. Justice Murari Mohan Dutt who accepted the above findings and the reasons given by the Appellate Court below. His Lordship, however, expressed no opinion on the question of limitation and adverse possession including the plea as to the maintainability of the suit. The above decision of Dutta, J. is now under challenge before us in this Letters Patent Appeal.
7. Here we propose to dispose of an alternative contention made before us by the learned Advocate Mr. Manindra Nath Ghose appearing for the appellants. It is based on Section 35 of the Transfer of Property Act and was not urged in the Courts below. On the assumption that Krishna Kamini and not Chintaharan was the owner of Nabadwip property it was argued by Mr. Ghose that Krishna Kamini had lost her right title and interest in this property in these circumstances. This property was dedicated to the appellants by Chintaharan who had appointed Krishna Kamini as their shebait by the same instrument. Shebaiti right is a property and therefore it is a 'benefit' within the meaning of that expression used in this section and this 'benefit' was conferred on her by Chintaharan. She was enjoined by this section to elect either to confirm or to dissent from this 'benefit' within two years from her knowledge of the execution of the said Deed of Arpannama by Chintaharan. She came to know of this Deed before the death of Chintaharan and yet she did not dissent from it within two years from her knowledge and therefore she having waived her right to elect was precluded from asserting any right of ownership on this property which was lost to her for ever due to her own inaction.
8. But, this question is a mixed question of fact and law. No fact has been pleaded in the plaint nor any evidence has been adduced by the appellants to bring home the above contention of Mr. Ghose. No issue was raised on it and the parties did not apply their mind to it at any stage of the proceedings. Therefore, it will be miscarriage of justice to allow Mr. Ghose to agitate this question. This objection apart, in our opinion, a shebaiti right is not a 'benefit' within the meaning of that section. No doubt the shebaitship is a property, but a property in the shebaiti itself as said by Sir George Rankin in the case of Bhabatarini Debi v. Ashalata Debi, reported in 70 Ind App 57 at p. 65 = (AIR 1943 PC 89) of the report and as fully explained in my judgment dated 11-4-1973 in Appeal No. 52 of 1972 = (Reported in : AIR1974Cal126 ) of the Original Side of this Court in the case of Sm. Panna Banerjee v. Kalikinkar Ganguly. Further, in any event this alleged shebaiti right conferred on Krishna Kamini by Chintaharan cannot be a 'benefit' within the meaning of this section for had Krishna Kamini disclaimed this shebaiti right it would have reverted to Chintaharan on whose death it would have devolved upon her under the Hindu Law and therefore the contention of Mr. Ghose has no merits.
9. Then, it was argued by Mr. Ghose that the respondents Nos. 1 to 3 adduced no evidence to establish that Nabadwip property was purchased by Krishna Kamini out of her Stridhan money and therefore the finding of the Appellate Courts namely that she was the owner of this property cannot be sustained. He contended that Kobala of 1913 of this property was not signed by her and therefore the statement made in this kobala that she had paid the price out of her stridhan money is not admissible in evidence on the ground of hearsay. Chintaharan has validly executed the Deeds of Partition and Arpannama is the finding of the Courts below and in these two Deeds Chintaharan has said that he had purchased this property. Therefore, Krishna Kamini was bound by this statement of Chintaharan on the principles laid down by the Supreme Court in the case of Ram Charan Das v. Girja Nandini Devi, reported in : 3SCR841 . But, the case pleaded in the plaint is that this property was purchased by those three brothers out of their joint family funds in the name of Krishna Kamini and the appellants adduced no evidence to prove it except the Deeds of Partition and Arpannama executed by Chintaharan but these two Deeds cannot be used as evidence against the respondents for Krishna Kamini was not a party to these Deeds nor she had ever claimed this property through Chintaharan and therefore the decision of the Supreme Court has no application so far as this property is concerned.
10. Further, the Deed of Arpannama of 1930 was executed by Krishna Kamini as the absolute owner of this property. Kobala of 1913 supports her title to this property. The rate bills and the records of the Municipality of Nabadwip show that ' her name was recorded as the owner of this property and after her death this property stood in the name of Sashimukhi as its owner. The Appellate Courts have found on evidence that Krishna Kamini and Sashimukhi during their respective lifetime were in exclusive possession of this property and had acted as the shebaits of the said deity installed by Krishna Kamini. The appellant deities through their alleged shebaits took no steps to assert their alleged ownership in this property against Krishna Kamini who set up a hostile title against them by her Deed of Arpannama. These commissions and omissions lead to an irresistible conclusion that this property was not purchased by those three brothers as alleged in the plaint and, furthermore, the appellants cannot succeed on the weakness, if any, of the case of the respondents and therefore the contention of Mr. Ghose must fail.
11. The case, as said earlier pleaded in the plaint, is that Chintaharan and his two brothers were members of an undivided joint Hindu Family and out of their joint family funds they had purchased the Calcutta property in the name of Chintaharan to whom this property was allotted by the said Deed of Partition and he had dedicated this property to the appellants by this Deed of Arpannama. The appellants have failed to prove this case is the contention of Mr. A.N. Banerjee, the learned Advocate for the respondents Nos. 2 and 3. He argued that the Deed of Partition shows that Chintaharan and his brothers were living in different places and were messing separately and therefore there was no undivided joint family as alleged by the appellants. Further, the appellants adduced no evidence on the alleged joint family funds and therefore they cannot succeed merely on the strength of the Deed of Partition because nothing contained in it could be used against Krishna Kamini for she was not a party to it. The alleged title of the appellants to this property is based on the Deed of Arpannama executed by Chintaharan but this Deed of Arpannama is founded upon the Deed of Partition and therefore the appellants must fail because they have failed to prove the case pleaded in the plaint.
12. No doubt the Title deed of 1907 says that Chintaharan is the purchaser of this property and the appellants adduced no oral evidence as contended by Mr. Banerjee but, in our opinion, the Deed of Partition is conclusive on this question. Chintaharan and his brothers executed this Deed by way of family settlement. Chintaharan was the best judge of his own case and he had admitted in this Deed that this property was purchased by them out of their joint family funds in his name. Hence, this Deed of Partition became the root title of this property so far as Chintaharan was and his heirs arc concerned. This Deed has been found to be genuine by the Courts below and Chintaharan had acted upon this Deed by executing the Deed of Arpannama in which he had also admitted that this properly was purchased by them out of their joint family funds and it was allotted to him by the said Deed of Partition. Moreover, the Deed of Arpannama has also been found to be validly executed by him. Hence, Krishna Kamini was bound by these two Deeds on the principles laid down by the Supreme Court in the case of : 3SCR841 (supra) so far as this Calcutta property is concerned and therefore we are not impressed by the contention of Mr. Banerjee.
13. Mr. Chose then argued that the respondents have challenged the validity of the dedication in favour of the appellants solely on the ground that it being a fraudulent Deed was not acted upon by Chintaharan and this case not being established by them the Appellate Courts went wrong in going into question of acting upon this Deed by Chintaharan. But, the plaint says that during their respective lifetime Chintaharan, Krishna Kamini, Sashimukhi and those two brothers of Chintaharan had acted as she-baits in terms of this Deed and this fact has been specifically denied by the respondents in their written statements. The case made out in the plaint is also that Sashimukhi had falsely and fraudulently said in the original conveyance that Chintaharan's Deed of Arpannama was never acted upon and the charges of fraud and falsity have been denied in the written statements. It is an elementary rule of construction of all pleadings that the Court must look into all the relevant allegations made in the pleadings and will only look to the substance of the matter and not to its form as the Supreme Court has said in the case of Janakiram Iyer v. Nilkanta Iyer reported in ATR 1962 SC 633 and therefore we are not impressed by the contention of Mr. Ghose that the pleas of fraud and non-acting upon this Deed by Chintaharan are interwoven in the written statements of the respondents.
14. It was also argued by Mr. Ghose that no issue was framed on the question of acting upon this Deed by the Trial Court and it was contended that in view of my judgment in the case of A. Akooji Jadwat Pvt. Ltd. v. Oriental Fire and General insurance Co. Ltd., reported in : AIR1972Cal228 where I have followed the decisions of the Judicial Committee and of the Supreme Court at page 233 of the report, it must he held that the Appellate Courts below should not have gone into the question of acting upon this Deed by Chintaharan. But, the parties after applying their mind to the state of pleadings stated above went to trial and adduced evidence on it and therefore a mere omission to frame a specific issue on this question is of no moment as said by the Supreme Court in the case of Nedunuri Karneswararnma v. Sampati Subba Rao, reported in : 2SCR208 of the report, and followed by me in my unreported judgment dated 10 to 12-5-1972 in Suit. No. 1444 of 1961 Jiwandas Agarwal v. Narayandas Deora of the Original Side of this Court and sufficiently indicated in Akooji's case (supra) and hence there is no merit in. the contention of Mr. Ghose.
15. In this connection, Mr. Ghose has also submitted before us that Sashimukhi had admitted that this property was dedicated by Chintaharan to the appellants and this admission is contained in the Power of Attorney mentioned earlier. But, she was an old and illiterate lady of about 82 years age when she executed this power. Her contemporaneous acts and conduct, as I shall show later, were wholly inconsistent with this Power and yet the attesting witnesses were not even called by the appellants to support this power nor the gentlemen who had supposed to have explained it to her were found anywhere near the Trial Court. Further, she had validly revoked this Power within a few days of its execution and therefore this contention of Mr. Ghose has no substance.
16. The following contentions were made by Mr. Ghose to assail the finding of the Appellate Courts on the Calcutta property. The Deeds of Partition and Arpannama executed by Chintaharan were found to be genuine. These two Deeds are contemporaneous documents and they should be read together. They reveal the intention of Chintaharan to dedicate the Calcutta properly to the appellant deities. And to carry out this intention he made himself the sole shebait for life and validly dedicated this property to them by executing the said Deed of Arpannama. In support of this contention Mr. Ghose relied on the decision of the Judicial Committee in the case commonly known as Singh Sanatan v. Singh Raiput, reported in 65 Ind App 106 = (AIR 1938 PC 73). He also contended that the question of acting upon this Deed of Arpannamma by Chintaharan cannot arise in this case because it has not been challenged as a sham document and therefore it should be inferred that, at least, this property was validly dedicated by Chintaharan to the appellant deities by executing this Deed of Arpannama.
17. We are not impressed by the contentions of Mr. Ghose. It is true that Chintaharan had validly executed the said Deed of Arpannama but that by itself does not necessarily prove his actual intention to dedicate this property to the appellant-deities nor that he had in fact divested himself of all beneficial interest in his property and these two elements are the most essential ingredients to constitute a valid endowment. His intention must he proved not by 'the wordings of the deeds' as said in the case of Kashiswaree v. Krishna Kamini, reported in 2 Hay 557, but by the contemporaneous or subsequent evidence of his or his descendents' acts and conduct in relation to this property. This is the law laid down by the Judicial Committee in the case of Watson v. Ram Chand, reported in (1890) 17 Ind App 110, and in Singh Sanatan's case 65 Ind App 106 -- (AIR l938 PC 73) (supra) and also by this Court in the cases of Ganga Narain v. Brindaban, reported in (1865) 3 WR 142; Sikandar Ali v. Kushal Chandra Sarma, reported in 36 Cal WN 158 = (AIR 1932 Cal 418) : Baidyanath Mullick v. Sm. Radharani Dassi, reported in (1946) 50 Cal WN 394; Brojabala v. Sri Saradiya Durgamata, reported in : AIR1953Cal285 : by the Full Bench of the Allahabad High Court in the case of Sri Tahakurji v. Sukdeo Singh, reported in ILR 42 All 395 = (AIR 1920 All 63) (FB) and by the Division Bench of the same High Court in the case of Ramdhan v. Prayag Narain, reported in ILR 43 All 503 -- (AIR 1921 All 37). Fur-tier. 'the successor who challenges the alienation, will have to prove that the property in fact belongs to the religious endowment' is the decision of the Supreme Court in the case of Srinivas Raddicr v. Ramaswamy Reddier, reported in : 3SCR120 of the report, Dr. Mukherjee, in his treatise 'On The Hindu Law of Religious and Charitable Trusts'' (3rd Edn.) at page 81, says this : --
'When there is a deed of dedication executed by the donor, the mere execution of the document though it purports on the face of it to dedicate property to religious or charitable uses, is not enough to constitute a valid endowment. It must be proved that the donor intended to divest himself of his ownership in the property dedicated.'
18. In this state of the law the alleged intention of Chintaharan to dedicate this property to the appellant-deities has been specifically pleaded in the plaint. It has also been pleaded that Chintaharan, Krishna Kamini, Sashimukhi and those two brothers of Chintaharan including their descendents have acted as shebaits to establish that Chintaharan had in fact divested himself of all beneficial interests in this property. The plaint also says that Krishna Kamini on the false allegation that she had installed the said deity mentioned earlier had purported to dedicate the Nabadwip property to that idol. Further pleading is that Sashimukhi had falsely and fraudulently alleged that Chritahnran had never acted upon his Deed of Arpannama. And the respondents have specifically denied all those allegations in their Written Statements. The appellants adduced no satisfactory evidence on all these allegations though the burden of proof lay heavily on them and on the other hand the respondents have shown to the satisfaction of the Appellate Courts that the names of Chintaharan, Krishna Kamini and Sashimukhi were recorded respectively as owners of this Calcutta property with the Corporation of Calcutta and Sashimukhi as its owner and in her personal capacity had realised its rents since the drath of her mother until this property was sold by her to the respondent No. 1.
19. Moreover, the Question of acting upon a Deed of Arnannama cannot be solely confined to a case where it has been challenged as a sham document because an actual and effective dedication must be proved by cogent evidence. Furthermore, Krishna Karnini's Deed of Arpannama though it solety relates to the Nabadwin property and not, in our opinion, it establishes beyond doubt that Chintaharan did not intend to act upon his Deed of Arnannamn otherwise this pious lady would not have dedicated this Nahadwip property to the deity installed by her and not by Chintaharan. Hence, the finding of the Appellate Courts on this properly both on fact and on law cannot be upset.
20. Now on the question of limitation and the maintainability of the suit it has been contended by Mr. Chose that the respondents had abandoned these two pleas before Dutt, J. and therefore they should not be allowed to agitate these two pleas before us because the Supreme Court has debarred from arguing new pleas in the case of Gaud Sankar v. Hindusthan Trust Property Pvt. Ltd., reported in : AIR1972SC2091 by making the following observation at page 133 of the report:--
'If the Court expressly says that only certain points have been argued and no other points have been argued the statement in the judgment has prima facie to be accepted as correct.'
21. But, no such statement appears from the judgment of Mr. Justice Dutt who had decided the appeal on the 'principal question' relating to dedication of these two properties. This would appear from page 8 of the paper Book and His Lordship has further recorded at page 17 of the Paper Book that no 'other point was argued' by Mr. Ghose. These two points were left open by Dutt, J. in our opinion and therefore the respondents arc entitled to urge them before us in this appeal in order to support the decision of his Lordship and hence we overrule this objection of Mr. Ghose.
22. Issue No. 4 framed by the Trial Court was on limitation and by a sweeping statement it was held that the suit was not barred by the Law of limitation. On this issue the Lower Appellate Court said: 'The learned Advocates for the appellants further argued that the suit was barred under Article 58 of the Limitation Act because the cause of action arose in 1957 when the Title Suit No. 17 of 1957 was brought by the plaintiff-shebaits in the City Civil Court. But after the plaint was returned, it was not refiled, in the proper Court (vide Ext. P). This objection does not appeal to me as valid because that suit was brought before the defendant No. 1 came into the picture. The present suit contains reliefs prayed for against the defendant No. 1 and it cannot be said that the cause of action against her arose in 1957. The bar of limitation, in my opinion, cannot be effectively pleaded against the plaintiffs.'
23. Now, as Mr. Mitter learned Advocate for respondent, relied on Article 58 of the Limitation Act, 1963 Mr. Ghose contended that this Article is solely confined to a declaratory suit and it does apply where injunction has also been prayed as in this case before us. But, speaking for the Supreme Court in the case of C. Mohammad Yunus v. Syed Unniassa, reported in : 1SCR67 of the report, Shah, J., (as he then was) said this: --
'......... a suit for a declaration of a right and an injunction restraining the defendants from interfering with the exercise of that right is governed by Article 120 of the Limitation Act, 1908 and in such a suit the right to sue arises when the cause of action accrues.'
24. Therefore, there is no merit in this contention of Mr. Ghose who then argued that this suit is governed not by Article 58 but by Article 94 or 96 of the Limitation Act, 1963 for these reasons. Articles 58, 94 and 96 of the Act reproduce Articles 120, 134-A and 134-B respectively of the Limitation Act 1908. Article 58 is in part III whereas Articles 94 and 96 are in Part VIII of the Act. Part III deals with declaratory suits only and Article 58 is a residuary Article for such suits. Part VIII deals with suits relating to trusts and trust properties. Article 96 governs a suit for possession of immovable properties comprised in a Hindu endowment and Article 94 specifically deals with a suit to set aside a transfer of an immovable property made by a manager of a Hindu religious endowment. It has been held in a Single Bench decision of this Court in the case of Sanat Kumar Mitra v. Hem Chandra Dev, reported in : AIR1961Cal411 , following a Single Bench decision of the Madras High Court in the case of Subramania Ayyar v. Maya Kone, reported in AIR 1940 Mad 81, that a suit to set aside a transfer of lease of a trust property is governed not by Article 120 but by Article 134-A of the Limitation Act 1908, and therefore this suit should also be governed by Article 94 and not by Article 58 because the sale of the Calcutta property made by Sashimukhi has been challenged in the plaint.
25. But, the Calcutta property is not a dedicated property as held earlier and a mere challenge without a prayer for setting aside that sale is not enough to make this suit a suit to set aside that sale. Moreover, applicability of Article 120 of the Limitation Act, 1908, was not even argued in Subramania's case AIR 1940 Mad 81 and therefore it was not an authority on the question of limitation but in Sanat Kumar's case : AIR1961Cal411 a supposed principle from Subramania's case was deduced and was applied. That it is not permissible to deduce a principle in the manner done in Sanat Kumar's case has been laid down by the Supreme Court in the case of the State of Orissa v. Sudhansu Shekar Misra, reported in : (1970)ILLJ662SC of the report, approving the principles laid down by Lord Halsbury in the case of Quinn v. Leathern, reported in LR (1901) AC 495. Further, Sanat Kumar's case has no application in the instant case because in that case the relief claimed in prayer (f) of the plaint was: 'That the Indenture of lease dated the 10th December, 1946, mentioned in the plaint be adjudged void.' and prayer (g) was: 'That the said Indenture of lease be delivered up and cancelled.' as appears from page 413 of the report whereas no such reliefs have been prayed in the plaint before us in relation to the said Deed of Sale executed by Sashimukhi in favour of the respondent No. 1 and furthermore, this Calcutta property is not at all a dedicated property whereas the property in Sanat Kumar's case was admittedly a trust property. Hence. Article 94 of the Act has no application to the case before us and Article 96 of the Act does not apply for there is no prayer in the plaint for possession of the two properties in question. And there being no other appropriate Article, this suit must be governed by Article 58 of the Act.
26. Then, it was contended by Mr. Ghose that the appellants' 'right to sue first accrued' within the meaning of this expression as used in this Article on May 29, 1964, when Sashimukhi sold the Calcutta property to the respondent No. 1 and therefore this suit was not time-barred. Mr. Ghose cited the decisions of the Supreme Court in the cases of Mst. Rukhmabai v. Lal Laxminarayan, reported in : 2SCR253 , and : 1SCR67 (supra) and contended that prior to this sale there was no 'clear and unequivocal threat to infringe' the rights of the appellant-deities in this property so as to give rise to a 'compulsory cause of action' for this suit because the previous acts of Sashimukhi in relation to this property did not effectively invade or jeopardise the rights of the appellant-deities for, according to Mr. Ghose, Sashimukhi, during her lifetime, had performed the Debsheba and puja of the appellant-deity No. 1 in the 'Said house at Nabadwip. Mr. Ghose further contended that the shebaits were losing the income of the Calcutta property as Sashimukhi was unlawfully misappropriating it but this loss of income did not affect the appellant-deities who were being maintained by Sashimukhi.
27. In answer to this argument, Mr. Mitter has rightly pointed out that the 'compulsory cause of action' for a declaration as claimed in the plaint namely that these two properties were debuttar properties arose at least in the year 1957 and not on May 29, 1964. It has been found by the Appellate Courts that in assertion of her right as the absolute owner of this Calcutta property in her personal capacity Sashimukhi had been realising rents from the tenants since the death of Krishna Kamini in 1940 and had evicted a tenant from a portion of this property and inducted a new tenant there in 1953. It has also been found by the Appellate Courts that Sashimukhi never acted as the shebait of the appellant-deities nor did she perform the Debsheba and puja of the appellant-deity No. 1 nor had she ever maintained the appellant-deities. These findings based on evidence cannot be questioned before us. On March 22, 1957, the appellant-deities filed the aforesaid Title Suit No. 17 of 1957 in the City Civil Court, Calcutta, for a declaration that these two properties were debutter properties and for a permanent injunction restraining Sashimukhi from selling this Calcutta properly to her co-defendant in that suit. On March 27, 1957 Sashimukhi filed her written statement in the said suit a copy whereof and a copy of the petition for injunction filed by the appellants and also a copy of the issues framed in that suit were received as additional evidence in this Court on the prayer of Mr. Mitter with the consent of Mr. Ghose and Mr. Banerjee. On July 7, 1957 the plaint in that suit was directed to be returned to the appellants by the City Civil Court on the ground that it has no jurisdiction to try that suit and on September 9, 1957 the appellants took back that plaint but did not file it in any Court nor it was produced before us. It, however, appears from the above records that the said suit was filed on the same allegations as are before us, except as to the sale of the Calcutta property to the respondent No. 1 for she had purchased it in 1964, and those allegations were denied by Sashimukhi in her written statement.
28. One of the issues framed in that suit was whether the two properties concerned were debutter properties as claimed by the appellant-deities and denied by Sashimukhi who had not only asserted her ownership on these two properties but also had clearly and unequivocally denied their alleged right, title and interest in these two properties. This denial clearly jeopardised their claim of title to the properties and yet it was contended by Mr. Ghose that the cause of action for that suit was the threatened injury to the Calcutta property whereas the cause of action for this suit was the actual sale of this property and therefore the 'compulsory cause of action' for these two suits are different. But, there is no merit in his contention for it was not the actual sale of this property but her direct and effective invasion on the appellants' title to these two properties as in the earlier suit that gave rise to 'a compulsory cause of action' for this suit. She not only came out openly with her hostile title but also remained in exclusive possession of these two properties which had never been in the appellants' possession since the execution of the Deed of Arpannama by, Chintaharan.
29. The appellants were not in possession of these two properties and their cause of action arose prior to the filing of that suit, if not on March 27, 1957 when Sashimukhi filed her written statement in that earlier suit, or on July 7, 1957 when the plaint in that suit was directed to be returned to them or on September 9, 1957 when they took back that plaint from the City Civil Court for filing it in a proper Court. Therefore, at the latest on September 9, 1957 the appellant's right to sue first accrued for a declaration that these two properties were debutter properties and Article 58 of the Limitation Act, 1963 directly applies to this cause of action on the principles laid down by the Supreme Court in the decisions referred to above. The time to file the suit began to run against the appellants from the date of the said effective invasion on their alleged title to these properties and no fresh cause of action arose by the sale of the Calcutta property though it was of a more aggravated form of invasion. And this right to sue became time-barred on the expiry of six years from September 9, 1957, if not earlier, under Article 120 of the Limitation Act 1908. The instant suit was filed on November 16, 1965 and hence Mr. Ghose cannot take advantage of Section 30 of the Limitation Act, 1963 which was invoked by him because this Act came into operation on January, 1964 and Section 30 does not revive a time-barred cause of action. Hence, in our opinion, this suit is barred by Limitation under Article 58 of the Limitation Act, 1963.
30. The Trial Court and the learned Subordinate Judge, on appeal, unfortunately failed to appreciate the correct position on the question of limitation. No doubt, the respondent No. 1 did not come into the picture in 1957 but that is of no moment because Sashimukhi, in no uncertain terms, made a direct onslaught on the alleged title of the appellant deities to these properties and she continued to remain in possession of these two properties by setting up a hostile title denying their very existence not to speak of the validity of the alleged gift of these two properties in their favour by Chintaharan. They took back that plaint of the earlier suit for filing it in a proper Court to establish their existence and their alleged title to these properties but that plaint never saw the light of the day again. The appellants re-appeared on the scene after the death of Sashimukhi by filing the present suit by asserting the same rights under the same title claimed by them in the earlier suit but in the meantime they had allowed their alleged rights to be barred by lapse of time. Hence, the mere sale of the Calcutta property by Sashrmukhi did not give rise to a fresh cause of action nor did it revive their time-barred 'right to sue' for this declaratory suit and we set aside the finding of the Trial Court and of the lower Appellate Court on the issue of limitation for the reasons stated above.
31. Issue No. 1 framed by the Trial Court relates to the maintainability of the suit and it was decided in the affirmative by saying: 'On a consideration of the pleadings and the evidence on the record, I am of opinion that there is no defect in the present form of the suit.' This bald finding was rightly assailed by the respondents on appeal before the learned Subordinate Judge who, however, expressly left it open as stated already. It has been contended by Mr. Mitter that the suit is not maintainable under Section 34 of the Specific Relief Act. 1963 for these reasons. The appellants had never been in possession and were also out of possession of these two properties at the time of filing this suit. They did not make any prayer for possession of these two properties in this suit and therefore this suit should have been dismissed in limine on this ground. Mr. Ghose, on the other hand, argued that the appellant-deities were in possession of these two properties through Sashimukhi and in any event they were in possession of the Calcutta property through Gopinath and therefore the prayer for injunction which they made makes this action maintainable.
32. This contention raises a mixed question of fact and law. These are the main findings of the learned Subordinate Judge on the question of possession of these two properties. Gopinath had occupied a portion of the Calcutta property in 1957 but not the portion specified for the residence of the shebaits under Chintaharan's Deed of Arpannama. Gopinath never realised any rents of the Calcutta property. The appellant-deities through him and the other alleged shebaits filed a rent-suit against a tenant which was defended by that tenant and Sashimukhi and the suit was dismissed for non-prosecution. Sashimukhi in her personal capacity and not as a shebait of any deity had been realising the rents of the Calcutta property for over 12 years before 1953 and by execution of the rent decrees also in her personal capacity had realised the rents from some of the tenants of this property. In her personal capacity she had in execution of an ejectment decree against a tenant had recovered possession of a portion of this property in 1953 and letting it out to a new tenant she had realised rents from the new tenant. Gopinath was in occupation of a portion of this property when it was purchased by the respondent No. 1 who had executed, rent-decrees obtained by her against the tenants and she had also recovered possession of this property, excepting the portion occupied by Gopinath, by executing the ejectment-decrees obtained by her against the respondent-tenants of this property. Sashimukhi never acted as the shebait of the appellant-deities whose existence she had completely denied. She had been in exclusive possession of the Nabadwip property as a shebait of the deity installed by her mother and this Nabadwip property is now in exclusive possession of the respondent No. 2 as the shebait of that deity. Sashimukhi defended that suit filed in the City Civil Court denying the existence of the appellant-deities and was in possession of these two properties by setting up her own title to these properties. The Appellant-deities and their alleged shebaits were never in possession of these two properties.
33. On these facts the possession of Sashimukhi cannot be the possession of the appellant-deities nor of their alleged shebaits and hence we overrule the contention of Mr. Ghose based on possession of Gopinath. Further, the evidence of Gopinath is that he used to pay rents to the appellant-deities and though this evidence was not accepted by the learned Subordinate Judge and yet, in our opinion, this case made out by Gopinath from the witness-stand cuts at the root of the contention of Mr. Ghose regarding the possession of the appellant-deities through Gopinath because Gopinath's own case was that he did not occupy that portion of this property as the shebait of the appellant deities but as a tenant under them. But the appellants had no possession, either actual or constructive, of this property. For all these reasons, in our opinion, the occupation of Gopinath of that portion of this property can never be the possession of the appellants as contended by Mr. Ghose.
34. The appellants are out of possession of these two properties and yet they did not ask for recovery of possession in the plaint. The suit therefore does not appear to be maintainable under Section 34 of the Specific Relief Act, 1963. A Division Bench of this Court in the case of Anilabala Debi v. Madhabendu Narain Roy, reported in 46 Cal WN 20 at p. 28 = (AIR 1942 Cal 245) of the report, says this:--
'..... Where the plaintiff whose title isdenied by the Defendant is out of possession and the Defendant is in possession, the 'further relief (under Section 42 of the Specific Relief Act 1877 which corresponds to Section 34 of the present Act) would be recovery of possession and a suit for declaration of title will not be maintainable unless the plaintiff prayed for possession also.'
(Words in brackets are supplied by me).
35. In that case Madhabendu was not in possession of the suit properties which were in possession of Anilabala. He claimed for a declaration that he was the full owner of those properties and asked for an injunction restraining Anilabala from managing them and from interfering with his management of the same. He did not claim for possession of those properties in the plaint and his prayer for injunction was rejected by the Division Bench. The appellants before us are not in possession of these two properties and they not having claimed recovery of possession must fail in this action because their prayer for injunction cannot be granted in view of the above decision of the Division Bench of this Court.
36. Assuming, however, that the appellants are in possession of that portion of the Calcutta property which is still under occupation of Gopinath, but being out of possession of the remaining portion of this property, they cannot maintain this action under Section 34 of, the Specific Relief Act, 1963 on the principles laid down by the Supreme Court in the case of Ram Saran v. Smt. Ganga Devi, reported in : AIR1972SC2685 of the report. In that case Smt. Ganga Debi was in possession of some of the suit properties and the plaintiffs did not ask for possession of those properties; the decision of the Supreme Court was that the said suit was hit by Section 42 of the Specific Relief Act 1877. In the instant case the appellants are out of possession of the major portion of the Calcutta property which is in the exclusive possession of the respondent No. I and furthermore, the appellants had never been nor are in possession of the Nabadwip property. In the premises we overrule the contentions of Mr. Ghose and hold that this suit is not maintainable.
37. In this view of the matter, this appeal must fail and is dismissed with costs. We do not find it necessary to express any opinion on the question of adverse possession urged before us by Mr. Banerjee.
38. I agree.