1. Thakur Gopi Nath Deb and Thakur Raghunath Deb were the plaintiffs Nos. 1 and 2, the other plaintiffs being the shebaits or marfatdars. The allegation in the case was that the old temple of these Thakurs having been blown down by a storm, they were placed in the temple of the defendants which was near by. Subsequently on account of a dispute between the shebait-plaintiffs and the defendants, the defendants brought a suit for recovery of possession of certain lands dedicated to these Thakurs on the ground of their being the shebaits or marfatdars of these Thakurs and the present shebait-plaintiffs being the pujaris. In that suit, one of the principal issues was whether these thakurs were the family thakurs of the plaintiffs in that case and it was decided that the plaintiffs in that case were not the marfatdars but that the defendants were the marfatdars of these thakurs. After that, the shebait-plaintiffs re-built the temple of the thakurs and wanted to bring them to the new temple. They were opposed by the defendants. Hence this suit, as stated above, by the thakurs and the shebait-plaintiffs.
2. The main prayer in this case is that the thakurs may be taken out of the temple of the defendants and placed in their own new temple so as to be in the custody of the plaintiffs Nos. 3 to 6.
3. The first Court decreed the suit. The Court of appeal below has dismissed it on the ground that it is barred by Article 49, Schedule II of the old Limitation Act of 1877. It has at the same time made a declaration in favour of the plaintiffs Nos. 3 to 6 that they are the custodians of the thakurs.
4. The decree, therefore, is self-contradictory. To say that the plaintiffs are the custodians of the thakurs and at the same time that the plaintiffs are barred from recovering possession of the thakurs, is a contradiction in terms.
5. It has, however, been contended before us that the judgment of the lower appellate Court is wrong and that Article 49 has no application to this case. We think that this contention is right.
6. The suit if it is considered as a suit by the thakurs for removing themselves from the custody of the defendants to the custody of the plaintiffs Nos. 3 to 6, and being placed in their new habitation, is not, in any sense of the term, a suit for a movable property. It would be a suit for which no provision is made in--the Limitation Act and would, therefore, naturally come under Article 120 of the Schedule unless any other article also applies. It has been found by the learned Judge that obstruction was made to the worship of the thakurs being conducted by the plaintiffs Nos. 3 to 6 during the pendency of the previous suit of 1903. The present suit being filed on the 6th February 1907 was well within six years and, therefore, it was not barred by limitation.
7. In this view of the case, it is not necessary to consider whether the thakur is to be considered a movable property. Besides, a thakur has been held to be a juridical person, and considering the claim, as it is made in this case, I do not see why it should not be held that the thakur is a juridical person and is, therefore, not amenable in any sense to the mischief of Article 49.
8. It was contended that Article 145 might apply because under the circumstances the defendants would be bailees or depositaries. It is, however, not necessary to consider that question.
9. The appeal is, therefore, decreed with costs.
10. I agree that the suit is not barred by limitation under Article 49. Applying either Article 120 or Article 145, the suit is within time. I concur, therefore, in the order proposed by my learned brother.