1. In this suit the plaintiff laid claim to possession of two plots of land, amounting to bigas 310, as successor of certain shebaits who purchased these lands from the ancestors of the defendants for the maintenance of the worship of an idol Mahadeb in the temples erected by them for the purpose of holding two Sivalingas. He set forth in his plaint that his predecessor had been one Jograjgir, who disappeared in 1268; that on his disappearance the defendants took the lands in suit into their own hands and assisted in the management of the workship of the Mahadeb for five years; that in the month of Falgoon 1278 he, the plaintiff, went to the place, and by performing the worship, &c.;, of the Mahadeb had been employed as shebait; and that he was in possession of the idol Mahadeb and his dwelling house. He, therefore, claimed under Hindu law in right of heirship of the former shebait, and as the person conducting the worship of the idol, to obtain possession of the lands in suit.
2. Both the Courts below have given a decree in favour of the plaintiff, holding that the lands are debuttur lands, which have been long dedicated to the use of the idol, and that the plaintiff as shebait is entitled to the possession of them. They have, however, found that there is no evidence to prove the specific allegation set up by the plaintiff, and which forms the subject of the second issue, that former shebaits purchased these lands from the ancestors of the defendants. The first Court considered that, as the plaintiff had the custody of the idol and of the temple, he was the proper shebait, and was, therefore, entitled to a decree. The lower Court, however, on appeal went a step further, holding that the plaintiff was by Hindu law heir of Jograjgir, the last shebait, and that the defendants having held the lands in suit temporarily in trust for the idol as shebait, the plaintiff as present lawful shebait must succeed.
3. The lower Court has based its decision on a certain passage in the Vyavastha Darpana of Baboo Shama Churn Sircar. The passage as translated reads as follows: (142). 'The virtuous pupil inherits the property of an ascetic; (143) The spiritual brother, that is he who is engaged in the same pilgrimage or sojourns in the same hermitage, takes the property of a hermit; (144) On failure of these, the associate in holiness or the person belonging to the same order inherits.'
4. It is admitted on all hands that the present plaintiff was never an associate in holiness, nor in fact was ever personally acquainted with or lived with the previous shebait. But the Court below has hold that he is a person belonging to the same order as the previous shebait, and is, therefore, entitled to succeed. It has, however, been contended before us, and we think correctly, that the translation, the person belonging to the same order,' is not strictly correct. The words in the original are,
5. In the first passage, No. 143, the word (Ekasrmanibasi) has been translated sojourns in the same hermitage,' thereby showing clearly that the word (Asram) refers to a locality or hermitage. The same word is employed in the succeeding passage in connection with the word (Choikatra basi). It thus signifies the person who lives in the same hermitage. There is nothing, therefore, in the original to justify the translation belonging 'to the same order' in the sense of a particular order of priesthood or class of ascetics. All that the text conveys is that the person who has occupied the same hermitage with the previous ascetic is entitled to succeed him. And this interpretation is confirmed by the language of Yajnawalcya, who in the Dayabhaga, chap. xi, Section vi, para. 35, says as follows: 'The heirs of a hermit, of an ascetic, and of a professed student, are in their order the preceptor, the virtuous pupil, and the spiritual brother and associate in holiness.' We gather, therefore, from this that the principle of succession is based entirely upon fellowship and personal association with the ascetic, and that a stranger, though of the same order of ascetics, is excluded.
6. We think, therefore, that the construction put upon this passage by the lower Court is incorrect, and that the present plaintiff has no title under the terms of the shastras to succeed to any property held by the deceased Jograjgir. Under these circumstances, the two allegations of title which the plaintiff sets up and on which he bases his claim to this property are entirely unsubstantiated. On this ground alone, therefore, the claim of the plaintiff should have been dismissed. But we observe further that no deed of endowment has been put in in this case. There is nothing to show the terms on which the lands were dedicated to the idol, or that the particular priest who performs the religious services of the temple is the person entitled to administer the lands of the endowment. The plaintiff admits that throughout his incumbency the defendants have held those lands and administered the revenues, and that he has never touched them at all. That the defendants should do this and have a right to do it is intelligible, for it is by no means an uncommon occurrence for an endowment to be in the hands of a layman who administers the revenues and makes provision for the religious services of the temple. There is, therefore, prima facie, no obstacle in the way of the defendants' title, and as the plaintiff has not attempted to rebut this, and has failed to substantiate the particular allegations upon which be sets up his own title, we hold that his suit must be dismissed. We, therefore, set aside the judgments of the lower Courts, and direct that the plaintiff's suit be dismissed with costs in all the Courts.