1. This appeal arises out of a suit brought by the shebaits of Thakar Madan Mohan J in for recovery of possession of certain lands, which they allege to be the property of the idol. The suit was decreed by the Conrt of first instance but dismissed on appeal, and the plaintiffs appeal to this Court.
2. The learned Subordinate Judge in appeal held that the plaintiffs had failed to prove that the land in suit was absolutely dedicated to the idol, or that it was inalienable, tie consequently held that the sales, by which the properly had been lost to the idol, could not be set aside, and that the suit for recovery of the land must, therefore, fail.
3. On behalf of the plaintiffs it is urged (i) that the conclusions of the Appellate Court are not warranted by the facts found, (ii) that the burden of proof has been wrongly placed on the plaintiffs, (iii) that even if the findings of the lower Appellate Court are correct still the property is not freely alienable, and (iv) that the finding with regard to limitation is wrong.
4. As to the first point it resolves itself really into a plea that the lower Appellate Court has not dealt rightly with the rubakaries which have been marked 3 and 4. The sanads by which the endowment is said to have been made are not forthcoming. Their validity, however, was inquired into in 1842 and these rubakaries are the decisions of the Revenue authorities on the point. In them the sanads are referred to and one of them is found to be valid. The proceeding is described as one between Government as plaintiff and the idol, by its marfatdars, as defendant. The lower Appellate Court holds that these documents do not establish that the land was absolutely dedicated to the Thakur. Assuming that the learned Subordinate Judge has misconstrued the effect of these documents the question arises whether this misconstruction can be rectified in second appeal. The authorities show that such misconstruction cannot justify interference in second appeal, if the document is merely a piece of evidence, and not a document of title. It is argued that these rubakaries are equivalent to decrees, establishing the dedication of the property to the idol and may, therefore, be regarded as documents of title. But, clearly, the right of the idol to the land was not in controversy in those proceedings. All that the plaintiff in those proceedings was interested in claiming was that the land, whether it belonged to the idol or not, was subject to the assessment of rent or revenue. In these circumstances, it seems to me that the decision cannot be regarded as a document of title. The case of Maganlal v. Doshi Mulji 25 B. 631 which has been referred to, is quite distinguishable as that was a case of a grant, not by a third person, hut by Government itself. The cases of Nimaye Churn Puteetundee v. Jogendranath Banerjee 21 W.R. 365; Gobinda Kumar Roy v. Debendra Kumar Roy Chowdhury 12 C.W.N. 98; Madhob Chandra Bara v. Srimatee Rani Sarat Kumari Debi 15 C.W.N. 126 : 6 Ind. Cas. 26 on the other hand, support the view that these documents are merely evidence, and, that being so, the fact that the learned Subordinate Judge has not given them their proper effect, if that is the case, will not justify interference in second appeal.
5. There is no substance, in my opinion, in the second point. The learned Subordinate Judge is quite right in saying that the plaintiffs were bound to prove that the property was dedicated to the idol and was inalienable. It is argued, however, that, as the defendants admit that the property was nominally debuttur, it was incumbent on them to prove that it was not really debuttar. This, however, is not, in my opinion, a correct view. It would lead to much injustice if it were held that sheb tits, who have themselves sold property said to belong to an idol as their own, could in a suit to recover the property as inalienable content themselves with showing that the property was usually colled debuttar, and throw on their opponents the almost impossible task of proving the negative, namely that there had been no dedication. The fact that, property is called debuttar is doubtless evidence in the plaintiffs' favour, but it does not relieve them of the whole harden of proving that the land was dedicated and is inalienable. Moreover, this plea is not really a plea that the burden of proof has been misplaced, but a complaint that the lower Appellate Court is wrong in holding that it has not been discharged. And that is a point for that Court and not for us to decide.
6. The third point is based on certain remark in the learned Subordinate Judge's judgment as to what the real nature of the alleged endowment may have been. It is argued that if these conjectures be correct, still the property would not be alienable This argument seems to me of very doubtful validity, but even if it were accepted it would not avail the present, appellants, because it is quite char that these are mere conjectures of the learned Subordinate Judge, and not findings on which the decision is based.
7. In the view that I take of the case it is unnecessary to decide the question of limitation.
8. In my opinion, therefore, all the points taken fail and the appeal must be dismissed with costs.
N. Chatterjea, J.
9. I agree.