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Jharula Das Vs. Jalandhar Thakur and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtKolkata
Decided On
Judge
Reported in14Ind.Cas.142
AppellantJharula Das
RespondentJalandhar Thakur and anr.
Cases ReferredRadhabai v. Anantrav Bhagwant Deshpande Row
Excerpt:
hindu law - shebaib--widow--decision of previous unit with widow or shebait--how far binding on reversioner or subsequent shebait--want of collusion or dishonesty--subsequent shebait--limitation-adverse possession--fresh start of adverse possession. - .....6 c.l.j. 621 seems to us quite indistinguishable from this case and is a clear authority that the suit is barred by article 124. we have been referred also to veerabhadra varaprasada row v. vellanki venkatadri 10 m.l.j. 114 in which it was held, following the full bench decision in radhabai v. anantrav bhagwant deshpande row 9 b. 193 that in a suit for the income of a hereditary office, a preceding holder fully represents his successors in matters of res judicata and limitation.6. we need not go into the question how the rights of the plaintiff are affected by the fact that his own suit was withdrawn. it appears to us that when it is clearly proved that the defendant has bean in possession of the property in suit since 1892, and that a suit by the then trustee of the property for.....
Judgment:

1. This was a suit brought by one Banerji Thakur for recovery of 11 bighas of lekhraj land and an interest of 31/2 annas on the income derived from offerings in a, certain temple. The property originally belonged to one Pratipal, who was a shebait of the temple and was succeeded in that office by his widow, Girimoni. Girimoni sold the land to the defendant, Jharula Das, in 1882. Previously, in 1231, she had mortgaged some other land and her interest in the temple income to the defendant. He sued on the mortgage and obtained a decree on the 24th September 1880. This was before the Transfer of Property Act and seems to have been no more than an ordinary decree for money. In execution, he put up the temple income for sale and bought it himself. He obtained delivery of possession in 1892. Girimoni and the present plaintiff then sued to have the sale set aside on the ground, among others, that the property was not alienable, and in the alternative for a declaration that it would not bind the present plaintiff after Girimoni's death. That suit was ultimately withdrawn with liberty to sue again. Girimoni then sued again and that suit was dismissed, being held to be barred by Section 244 of the then Code. Girimoni then died and this suit has now been brought by the present plaintiff. It was decreed by the learned Sub-Judge and the defendant appeals.

2. As regards the lekhraj land, we have no hesitation in maintaining the decision of the learned Sub-Judge. That was voluntarily alienated by Girimoni, and the view of the learned Sub-Judge that there was no legal necessity for any of these transactions has not been contested before un With respect to this property, Girimoni had the ordinary interest of a Hindu widow and not that of a shebait, and the land was not the subject of the former suits. The only question, therefore, that has been argued before us with respect to the land is whether the evidence justifies the findings of the learned Sub-Judge, that Girimoni died within 12 years of the suit, and that the present plaintiff is the next reversioner. After reading the evidence, we have no doubt at all that the decision of the Court below on these two paints is correct.

3. The main question in the appeal is whether the suit, so far as it relates to the temple income, is barred by (i) limitation and (ii) the rule of res judicata. It appears to us that both these questions turn on the point whether Girimoni fully represented the estate and this point appears to us to be concluded by authority. It cannot be contended for a moment that there was any collusion or dishonesty about the former suits. In one of them the plaintiff himself was a party. And that the decision of a suit, fairly conducted, against a widow binds the reversioners is now well settled (see the cases quoted on page 631 of the 6th volume of the Calcutta Law Journal). And when the widow occupies the position of a shebait, as in this case, it appears that her sex makes no difference. This was held in Pydigantam Jagannadha Row v. Rama Doss Patnaik 28 M. 197 which was followed in Lilabaii Misrain v. Bishun Chobey 6 C.L.J. 621.

4. There is also authority that decrees against shebaits in honest suits bind their successors. The reason of this is explained in Prosunno Coomar Debia v. Golab Chand Baboo 2 I.A. 145 : 23 W.R. 253 : 14 B.L.R. 450; Gora Chand Lurki v. Makhan Lal Chakravarti 6 C.L.J. 404 : 11 C.W.N. 489 and Litabati v. Bishun Chobey 6 C.L.J. 621 quoted above. That reason is that shebaits with their predecessors and successors form one continuous representation of the idol and consequently subsequent shebaits are regarded as the same persons in law as their predecessors. If this is so, it seems clear that the plaintiff is bound by the decree passed against his predecessor, Girimoni. It is argued that the validity of the defendant's purchase was not decided in that case, which was dismissed on the ground that it was barred by Section 244 of the then Code. But if the plaintiff is regarded as the same person in law as Girimoni, this argument must fail. Girimoni, if she liked, could have attacked the sale under Section 244 of the Code and in that event would very probably have won her case. But she advisedly preferred to abandon that line of attack and to rely on a regular suit, in which course she was aided and assisted by the plaintiff. Naturally, it was held that the suit was barred. Bat when she had taken this unsuccessful course with her eyes open, she certainly could not thereafter have pleaded that her right to recover the property had not been decided and that she was entitled to bring another suit for the purpose of recovering it. And if the plaintiff is regarded by the eye of the law as the same as Girimoni, it is evident that he cannot do so either, more especially, perhaps, when he aided Girimoni to bring the unsuccessful suit. It appears to us that the right of the shebaits generally to recover the property was finally extinguished by the decision in the former suit.

5. It is clear also that the adverse possession runs from the delivery of possession to the defendant and that the suit is long barred. The case clearly comes under Article 124 of the Schedule to the Limitation Act see Gnanasambanda v. Velu Pandaram 27 I.A. 69 : 23 M. 271. In that case, the contention that a subsequent shebait obtained a fresh start in the contention of adverse possession was distinctly overruled. The case of Pydigantam Jagannadha Row v. Rama Das Patnaik 28 M. 197 quoted above, which was followed in Lailabati Misrain v. Bishun Chobey 6 C.L.J. 621 seems to us quite indistinguishable from this case and is a clear authority that the suit is barred by Article 124. We have been referred also to Veerabhadra Varaprasada Row v. Vellanki Venkatadri 10 M.L.J. 114 in which it was held, following the Full Bench decision in Radhabai v. Anantrav Bhagwant Deshpande Row 9 B. 193 that in a suit for the income of a hereditary office, a preceding holder fully represents his successors in matters of res judicata and limitation.

6. We need not go into the question how the rights of the plaintiff are affected by the fact that his own suit was withdrawn. It appears to us that when it is clearly proved that the defendant has bean in possession of the property in suit since 1892, and that a suit by the then trustee of the property for recovery was finally dismissed in 1898, the present suit, so far as it affects the 31/2 annas of the shebait, is barred both by limitation and by the principle of res judicata. Accordingly the appeal will be allowed in part. The decree of the Subordinate Judge so far as it directs the recovery of possession of the 11 bighas with me3ne profits from the date of the suit, to be hereafter ascertained, is affirmed; and so far as it relates to shebait and the profits arising therefrom is set aside. Costs of both Courts will be awarded to the respective parties in proportion to their success, the calculation being based on the valuation of the relief sought in the plaint.


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