1. This appeal arises out of a suit instituted by the plaintiffs as Panchayets and members of the Dhobi community of Narinda in the Town of Dacca for recovery of possession of an Akhra of certain Thakurs together with the lands, buildings and moveable properties appurtenant thereto on declaration of the rights of the said Dhobi community to the same.
2. It is alleged by the plaintiffs that the Akhra has been in existence on the Lakheraj land of Schedule (ka) from time immemorial for the worship of certain Thakurs, which has been installed by the ancestors of the Dhobi community of Narinda, that the Akhra and the adjoining lands, buildings and structures appertaining to the same have been in the ownership, possession, management and control of the Dhobi community of Narinda in succession to their ancestors and that by virtue of adverse prossession for a period far exceeding 12 years in succession to their ancestors from time immemorial the Dhobi community of Narinda have acquired an indefeasible right to the properties,' and that ' the Panohayets appointed by the Dhobi community have all along been vested with the right and ownership as also with the power of exercising acts of ownership and possession and of controlling and managing the said Akhra and all properties appertaining thereto as also the appointment and dismissal of the priest and Shebait for performing the worship of the deities.' It is further alleged that one Hari Das Babaji was the former Pajari, but he was dismissed by the plaintiffs and the defendant No. 6 was appointed in his place, that the defendant No. 1 in 1905 purchased a hari to the north of the Akhra, and in collusion with the defendant No. 6, opened a passage over the Akhra : this led to disputes and criminal proceedings. The plaintiffs dismissed the defendant No. 6, appointed another person as Pajari in his place, and brought a title suit against the former for establishment of title to and possession of the Akhra and the properties belonging to it, which was decreed, but the defendants Nos. 1 to 5 in collusion with the defendant No. 6 offered resistance to plaintiffs obtaining possession, which led to the institution of the present suit.
3. The defendants denied the title and possession of the Diobi community. They pleaded inter alia that the Akhra together with the properties appertaining thereto belonged to the Biaragis whom the plaintiffs called Pujaris, and not to the Dhobi community, that the Akhra site was in a Taluk which on a partition fell to the share of certain Ghoses who took a kabuliyat from Hari Das and subsequently allowed the defendant No. 6 to continue in possession as a tenant-at-will, and that the defendant No. 1 took a Miras settlement of the land from the Ghoses and purchased the huts of the Akhra from the defendant No. 6.
4. The Courts below concurred in holding that the Akhra and the properties belong to the Dhobi community and the suit has been decreed.
5. The defendants Nos. 1 and 2 have appealed. It is contended on behalf of the appellants that a community consisting of a fluctuating body of persons is not a juristic person, and cannot be owners of property. We have been referred to Salmond's Jurisprudence, 4th Edition, page 290, where the learned author in dealing with the Uses and purposes of incorporation' says: 'With a single individual the law knows well how to deal, bat common ownership is a source of serious and manifold difficulties. If two persons carry on partnership or own and manage property in common compilations arise, with which nevertheless the law can deal without calling in the aid of fresh conceptions. But what if there are fifty or a hundred joint owners? With such a state of facts legal principles and conceptions based on the type of individual ownership are scarcely competent to deal. How shall this multitude manage its common interests and affairs? How shall it dispose of property or enter into contracts? What if some be infants or insane or absent? What shall be the effect of the bankruptcy or death of an individual member? How shall one of them sell or otherwise alienate his share? How shall the joint and separate debts and liabilities of the partners be satisfied out of their property? How shall legal proceedings be taken by or against so great a number? These questions and such as these are full of difficulty even in the case of a private partnership if the members are sufficiently numerous. The difficulty is still greater in the case of interests, rights or property vested not in individuals, or indefinite associations of individuals but in the public at large or in indeterminate classes of the public.'
6. Reference was also made to Rivers v. Adams (1878) 3 Ex. D. 361 at p. 365 : 48 L.J. Ex. 47 : 39 L.T. 39 : 27 W.R. 381. In that case it was held that a right claimed by the inhabitants of a parish to out and carry away for use as fuel in their own houses faggots or baskets of the underwood growing upon a common belonging to the lord of the manor is a right to a profit a prendre in the soil of another, and that such a right cannot exist by custom, prescription or grant unless it be a Grown grant which incorporates the inhabitants.
7. It is contended that an unincorporated body of persons can hold property jointly only by appointment of a trustee. The difficulties in the way of a fluctuating body of persons holding property jointly are many and are pointed out in the passage in Salmond's Jurisprudence quoted above, yet there are instances of a body of unincorporated persons jointly owning property in India. As observed by Mayne in Hindu Law, paragraph 222: 'individual property is the rule in the west, corporate property is the rule in the east.' There are the village communities who own property in a manner not consistent with modern notions of individual ownership. Then there is the Mitakshara joint family.
8. Some of the objections pointed out by Salmond quoted above may be urged against them.
9. Ownership of property by a fluctuating body of persons is recognised in the Hindu Law. In Yajnavalkya, Chapter If, v. 187, it is stated 'whoever appropriates what belongs to the community shall be made to forfeit his property and be banished the realm.' The commentary in the Mitakshara on this verse is 'whoever appropriates what belongs to the community, i.e., anything which is the common property of all the villagers collectively and the like bodies.'
10. We have, however, to consider the law of property not as held down in Manu or Tajnavalkya, but as it is now recognised and administered.
11. That property may belong to a village is recognised by the Judicial Committee in the case of Sivaraman Chetri v. Muthaya Chetri 12 M. 241 : 16 I.A. 48 : 6 Sar. P.C.J. 331. There a village tank was the common property of and used by all the inhabitants, of whom one family on the ground of improvements and additions made by their ancestor with the general acquiescence of the village claimed against the rest the exclusive right of repairing the tank at their own expense. It was held upon the evidence that the right belonged not to the plaintiff exclusively but to the village. It is to be observed, as pointed out in the judgment, that the plaintiffs did not assert that they were owners of the tank in any full or proper sense of the term, and the right in dispute was to contribute to the repairs of the tank. It was not an Action for establishment of title to or possession of the property. But the fact that a property may belong to the village is recognised.
12. The right of resident cultivators of a village to a free pasturage over the waste lands of the village was upheld by the Judicial Committee in the cafe of Eholi Nath Nundi v. Midnapore Zemindary Co. 31 C. 503 : 8 C.W.N. 425 : 14 M.L.T. 152 : 31 I.A.75 :8 Sar. P.C.J. 611 where Lord Maonaghten observed as follows: 'it appears to their Lordships that on proof of the fact of enjoyment from time immemorial there could be no difficulty in the way of the Court finding a legal origin for the right claimed. Unfortunately, however, both in the Munsif's Court and '.in the Court of the Subordinate Judge, the question was overlaid, and in some measure obscured by copious references to English authorities, and by the application of principles or doctrines mere or less refined founded on legal conceptions not altogether in harmony with eastern notions.'
13. In the case of Navroji v. Kharsedji 28 B. 20 : 5 Bom.L.R. 745 a question arose as to tie right of management of the Parsi Atash Behram (fire temple) belonging to the Parsi community. Sir Lawrence Jenkins, C. J., in dealing with the argument that the suit was based on ownership and that a fluctuating body of persons, such as the plaintiffs claimed to represent in that suit, was incapable of holding property observed: 'we are not prepared to assent to the proposition that in this country a body such as we have represented before us is incapable of holding property, for even if we pass by the alleged ownership of property by a caste as not being definitely established, there can be no doubt that the village community is capable of property,' and referred to Yajnavalkya, Chapter II, v. 187 and the judgment of the Judicial Committee in the Madras case cited above. The suit, however, was not in the nature of ejectment. It was a suit to restrain interference with the management of trust property, and the learned Chief Justice said: 'it is a mistake to say that the suit is based on ownership alone, from the plaint it is clear this is not so. The allegation in the plaint is not only that the Atash Behram is vested in the Parsi inhabitants of Udwada but that they have from time immemorial managed the same and exercised absolute authority in regard to the maintenance and administration thereof as a place of Zoroastrian worship and observances,' and again; It apparently is opposed to the notions of the Parsi community that the Iran Shah should be regarded as capable of, or the subject of, ownership, but even if there be difficulty or doubt as to its ownership, it is obvious that there must be some one entitled to protect from improper invasion that which for brevity we will call the temple property, and it appears to us that those who can predicate of themselves that they have exercised the management, authority and supervision alleged in the plaint are so entitled.'
14. A later case in the Bombay High Court Jivanji Jamshedji v. Burjorri Naserwanji 3 Ind. Cas. 770 : 33 B. 499 : 11 Bom.L.R. 726 however, was one for ejectment. It appears that the Parsi Panchayet at Bombay appointed a committee to manage the property of the Parsi Anjuman at Surat. The committee managed the property for a very long time--sixty years--with the authority and the acquiescence of the Parsi Anjuman. Subsequently the defendant having trespassed on the property the committee sued him in ejectment. The defendant contended that the plaintiffs had no right to sue for the recovery of the property as they were neither the owners nor the nominees of the Anjuman. It was held that the plaintiffs, being in possession for a long time with the authority and acquiescence of the owners, namely, the Parsi Anjuman at Surat, were entitled to recover possession from a trespasser, and the decision of Sir Lawrence Jenkins, C.J., in Nairoji v. Rharsedji 28 B. 20 : 5 Bom. L.R. 745 was relied upon. But it was common case that the Parsi Anjuman was the owner, and the only question Was whether the plaintiffs as the committee managing the property with the authority of the owner were entitled to succeed.
15. The cases of Maharaj Bahadur Singh v. Paresh Nath Singh 31 C. 839 and Budree Das v. Chooni Lal 33 C. 789 : 10 C.W.N. 581 cited on behalf of the respondents, do not throw any light upon the present question. The first was a suit for a declaration that the act of demolition by the defendants of certain steps in Pareshnath Hill (constructed by the plaintiffs Nos. 2 to 5 as representatives of the Digambari seat of Jains under permission obtained from the plaintiff No. 1, the owner of the hill) was wrongful and for injunction and damages. No question of title of the Jain community to any property arose in that ease and it was not a suit in ejectment.
16. In Budree Das v. Chooni Lal 33 C. 789 : 10 C.W.N. 581 the suit was brought by the plaintiffs, first, in their capacity as trustees of the Sitambari Panohayet Jain Temple, secondly, on behalf of themselves and other members of the Sitambari Jain community of Calcutta, and thirdly, in their individual capacity as members of such community for declaration that the defendants were not trustees of the temple and its properties and the plaintiffs were such trustees, that the defendants may be ordered to make over possession of the temple and properties to the plaintiffs as such trustees, and in the alternative for the appointment of new trustees and for other reliefs, and the question was whether the suit came within the purview of Section 539 of the Civil Procedure Code. The question raised in the present case did not arise in either of the two cases cited above. In the latter case there was a prayer for an order to make over possession to the plaintiffs but only as trustees.
17. It appears, however, that the right of a fluctuating body of persons, such as the residents of a village, to property or to right of pasturage has been recognised by the Privy Council, and although there is no case in which the right of a particular caste or community to hold property except in the case of Jivanji Jamshedji v. Burjorji Naserwanji 3 Ind. Cas. 770 : 33 B. 499 : 11 Bom. L.R. 726 in which the right of the Parsi Anjuman to hold property was not disputed has been decided, there are observations tending to show that such body of persons is capable of owning property see the observations of Sir Lawrence Jenkins, C.J., in the case of Navroji v. Kharsedji 28 B. 20 : 5 Bom. L.R. 745 cited above.
18. It is pointed out on behalf of the appellants that the right claimed by the plaintiffs is not based upon any grant, but upon prescription. A right by prescription (by adverse possession) cannot be acquired unless there is privity of title. In the case of a fluctuating body of persons, a body incapable of succession, there cannot be a prescription. See Rivers v. Adams (1878) 3 Ex. Cas. D. 361 at p. 365 :48 L.J. Ex. 47 : 39 L.T. 39 : 27 W.R. 381. The Dhobi community of Narinda, Dacca, being a fluctuating body, there cannot be such a privity of title as is essential to the acquisition of a right by adverse possession.
19. The Courts below, however, have found that it has been satisfactorily proved that the Akhra was established generations ago by the Dhobi community of Narinda, that the Akhra and its properties belong to that community and that the Akhra has existed from time immemorial. Although a grant has not been set up, the fact of the right to the Akhra and its properties having been enjoyed by the Dhobi community from time immemorial points to a legal origin. It is found that the Panchayets of the Dhobi community manage the Akhra and its properties. The position of the Panchayets appears to be analogous to that of the plaintiffs in the two Bombay cases cited above.
20. Without deciding the broad question whether a particular caste or community can own property (a question not free from difficulty), we think that having regard to the facts found in the case, viz., that the Dhobi community of Narinda has been owning the Akhra and its properties from time immemorial through Panchayets, it must be held that they have a right to hold and manage property and maintain suits with respect thereto through Panchayets.
21. The plaintiffs, the present Panchayets, obtained leave to proceed with the suit on behalf of the Dhobi community after service of notice under Order I, Rule 8 of the Civil Procedure Code. It is not disputed that the plaintiffs have the right to represent the community in the suit if the Dhobi community are owners and can hold property.
22. Two other questions were also raised on behalf of the appellant. The first is that some of the matters mentioned in the judgment of the Court of Appeal below are not evidence against the defendants. The learned Subordinate Judge referred to the fast that a petition of the defendant No. 6 objecting to the name of Rakhal (who claimed under a deed of gift from Hari Das being recorded in the Municipal Registers in respect of the holding comprising the Akhra) was signed by the defendant No. 6 and verified by him and some Dhobis of Narinda, and said 'that facts and the contents of the petition of objection show that the Dhobis were interested in the objection and in the Akhra and its properties and that the Panchayet of the Dhobi community had dismissed Haridas and appointed the objector as the Shebait.' It is contended that any statements of the Dhobis in support of their title cannot be evidence against the defendants. But the learned Subordinate Judge did not use the fact or the petition of objection mentioned above in proof of the title of the plaintiffs, but only as showing that the Dhobis had dismissed Hari Das and were interested in the Akhra.
23. Objection is also taken to the Subordinate Judge's having used the description of boundaries given in the conveyance of strangers in favour of the plaintiffs. But there is some authority in support of the view that they are evidence. See Abdullah v. Kunj Behari Lal 12 Ind. Cas. 149 : 16 C.W.N. 252 : 14 C.L.J. 467; Imrit Chamar v. Sirdhari Pandey 13 Ind. Cas. 120 : 17 C.W.N. 108 15 C.L.J. 7 and the Court billow refers to other ample evidence.
24. The last point taken is, that there id no finding on the question of limitation by the lower Appellate Court. But the Court of first instance decided the question in favour of the plaintiffs, and the question does not appear to have been raised or pressed before the Appellate Court.
25. The appeal must, therefore, fail and is dismissed with costs.