PETITIONER: BALKRISHNA SAVALRAM PUJARI AND OTHERS Vs. RESPONDENT: SHREE DNYANESHWAR MAHARAJSANSTHAN & OTHERS. DATE OF JUDGMENT: 26/03/1959 BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SARKAR, A.K. SUBBARAO, K. CITATION: 1959 AIR 798 1959 SCR Supl. (2) 476 CITATOR INFO : RF 1981 SC1106 (18) ACT: Limitation-Suit for Possession of Sansthan by hereditary worshippers on ouster by trustees-Period of limitation- Trustees, if in possession adversely to Plaintiffs-Ouster, if a continuing wrong-Indian Limitation Act, 1908 (9 of 1908), Arts. 120, 124, S. 23. HEADNOTE: The appellants who were the hereditary worshippers, called Guravs, of the Shree Dnyaneshwar Sansthan of Alandi, claimed to be its owners. The respondents as trustees of the said Sansthan dismissed eleven of the Guravs in 1911, served a notice on the rest calling upon them to agree to act according to the orders of the Temple committee and appointed six Brahmins to carry on the services of the Sansthan. The Guravs did not agree and sued the respondents for a declaration of their rights of ownership and consequential reliefs. That litigation ended in the High Court in 1921 with the result that their claim of ownership stood rejected but their rights as hereditary worshippers were left open. Thereafter the Guravs took forcible possession of the temple on July 25,1922. The trustees brought a suit under s. 9 of the Specific Relief Act on September 12, 1922, and obtained a decree on November 4, 1932. In execution of that decree the Guravs were dispossessed. The suits, out of which the present appeals arise, were filed by the appellants against the trustees for declaration of their rights as hereditary servants of the Sansthan, a permanent injunction restraining the trustees from obstructing them in the exercise of the said rights and accounts. The respondents claimed that the appellants were servants of the Temple committee and had no hereditary rights as claimed by them; even if they had, their claim to such rights was barred by limitation. The trial Court decreed the suits. In appeal the High Court, while agreeing with the trial court on the merits, disagreed on the question of limitation, held the suits to be barred by limitation under art. 120 Of the Limitation Act, the cause of action arising either on the filing of the s. 9 suit by the respondents or, in any event, on the date when the said suit was decreed, S. 23 of the Act having no application, and allowed the appeals. It was contended on behalf of the appellants in this Court that the suits were governed by art. I24 Of the Limitation Act, and even if art. 120 applied, S. 23 saved limitation. Held, that the High Court was right in holding that art. 120 and not art. 124, of the Limitation Act applied and that S. 23 had no application to the suits in question. 477 Article 124 Of the Limitation Act applies only where the cause of action for the suit is wrongful dispossession of the plaintiff and adverse possession by the defendant in respect of the hereditary office in question. In such suits, the contest usually is between rival claimants to the hereditary office and not between such claimants and trustees. It is impossible to ignore the provision Of Col. 3 to that article in deciding its applicability. Kunj Bihari Prasadji v. Keshavlal Hiralal, [1904] I.L.R. 28 Bom. 567 and jalim Singh Srimal v. Choonee Lall Johurry, [1911] 15 C.W.N. 882, held inapplicable. Thathachariar v. Singarachariar, A.I.R. 1928 Mad. 377, ap- proved. Annasami v. Advarachari, I.L.R. 1941 Mad. 275, distin- guished. Jhalandar Thakur v. jharula Das, [1914] I.L.R. 42 Cal. 2444, referred to. Section 23 Of the Limitation Act refers not to a continuing right but to a continuing wrong. A continuing wrong is essentially one that creates a source of continuing injury as opposed to one that was complete and makes the doer liable for such continuance. A completed inJury would not be a continuing wrong even though it might give rise to continuing damage. Thus tested, the injury to the appellants resulting from the decree obtained by the trustees in the s. 9 suit, which amounted to a ouster, was complete at the date of the ouster and S. 23 Of the Limitation Act could not apply so as to save limitation. Choudhury Bibhuti Narayan Singh v. Maharaja Sir Guru Mahadeu Asram Prasad Saki Bahadur, [1930] I.L.R. 19 Pat. 208 and Khair Mohammad Khan v. Mst. jannat, [1940] I.L.R. 22 Lah. 22, referred to. Maharani Rajroop Koer v. Syaed Abdul Hossein, [1880] L.R. 7 I.A. 240 and Hukum Chand v. Maharaj Bahadur Singh, [1933] L.R. 60 I.A. 313, distinguished and held inapplicable. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 220 to 223
of 1953.
Appeals from the Judgment and decrees dated April 14,1943,
of the Bombay High Court in Appeals Nos. 183, 184, 185 and
186 of 1942, arising out of the judgments and decrees dated
February 16, 1942, of the Court of the 1st Class Sub-Judge,
Poona, in Suits Nos. 900/37, 392/35, 875/36 and 1202/33.
V. P. Rege and Naunit Lal, for the appellants.
N. C. Chatterjee, K. V. Joshi and Ganpat Rai, for
respondents Nos. 1 to 6 (In all the Appeals).
478
1959. March 26. The Judgment of the Court was delivered by
GAJENDRAGADKAR, J.-These four appeals represent the last
stage of a long and tortuous litigation between the
appellants Waghmares (also called Guravs) who claim the
rights of hereditary worshippers in the Shree Dnyaneshwar
Maharaj Sansthan, Alandi, and respondents 1 to 6 who are the
trustees of the said Sansthan. Alandi , which is a small
town situated on the banks of the river Indrayani at a dis-
tance of about 14 miles from Poona, is regarded as a holy
place of pilgrimage by thousands of Hindu devotees. In the
last quarter’ of the 13th century Shree Dnyaneshwar Maharaj,
the great Maharashtra Saint and Philosopher, lived at
Alandi. He was a spiritual teacher and reformer; by his
saintly life and his inspiring and illuminating commentary
on the Bhagvad Gita, known as Dnyaneshwari, he helped to
create a popular urge and fervour for religious and social
revolution which led to the foundation of a devotional cult;
the followers of this cult are known as Warkaris in
Maharashtra. They refuse to recognise any barriers of caste
or class; and amongst them prevails a feeling of real and
genuine spiritual brotherhood. Every year, in the months of
July and November, thousands of them proceed on pilgrimage
on foot and accompany the annual palanquin procession from
Alandi to Pandharpur. Pandharpur is the chief centre of
pilgrimage in Maharashtra and it is regarded by devotees as
the Banares of Southern India. About 1300 A. D. Shree
Dnyaneshwar Maharaj took Samadhi at Alandi and since then
Alandi also has become a place of pilgrimage.
In or about 1500 A. D. a big temple was erected in front of
the idol of Shiva called Siddeshwar where the said Shree
Dayaneshwar Maharaj took his Samadhi. In due course the
Mahratta Kings and the Peshwas of Poona granted the village
of Alandi in inam for the upkeep of the temple and the
Samadhi. About 1760 A. D. Peshwa Balaji Baji Rao framed a
budget called Beheda or Taleband in order to regulate the
management and worship of the shrine and provided for proper
479
administration of its annual revenue amounting to Rs. 1,725.
The appellants claim that their ancestors were then in
possession of the temple and management of its affairs
especially the worship of the shrine. The budget framed by
the Peshwa shows that out of the sum of Rs. 1,725 an amount
of Rs. 361 was assigned to the worshippers for some of their
services.
After the fall of the Mahratta power the management of
Alandi passed into the hands of the East India Company which
continued the old arrangement without any interference. In
1852, under orders from the-Government of Bombay the
Collector of Poona drew up a yadi or memorandum appointing
six persons as Punchas (trustees) with directions to them
for the management of the temple in accordance with the old
tradition and practice as well as for the administration of
the revenue of the village subject to the control and
sanction of the Collector. This arrangement came to be
described as ” the scheme of 1852″.
In 1863 the Religious Endowment Act was passed, and
inconsequence, in 1864 the Government of Bombay withdrew
their superintendence over the affairs of the Alandi
Sansthan; and the trustees continued to manage the affairs
of the temple without any supervision on the part of the
Government. It was during this period that the appellants’
ancestors began to assert that they were the owners of the
shrine while the trustees insisted on treating them as the
servants of the shrine. This conflict inevitably led to
several disputes between the worshippers and the trustees.
Matters appear to have come to a crisis in 1911 when the
trustees dismissed eleven Guravs from the temple service on
the ground that they were found guilty of gross misconduct.
The Guravs nevertheless asserted that they were the owners
of the shrine and that the trustees had no authority or
power to dismiss them. Taking their stand on their
ownership of the shrine some of the dismissed Guravs filed
Civil Suit No. 485 of 1911 in the Court of the Subordinate
Judge, Poona, against the trustees and this was the
beginning of the long drawn out litigation which followed
between the parties. In that suit the Guravs
480
claimed a declaration that they were the owners of the
temple and not the servants of the temple committee; and as
owners they were entitled to perform the worship at the
shrine and to appropriate the offerings made to the idol of
the Saint. This claim was resisted by the trustees who
pleaded that the Guravs were merely the servants of the
temple committee and not the owners at all. On April 20,
1917, the learned trial judge dismissed the suit because he
held that the Guravs were not the owners of the shrine and
were not entitled to the declarations claimed by them.
Against this decision the Guravs preferred several appeals
but these appeals were dismissed on August 3, 1921. While
dismissing their appeals the High Court incidentally
expressed the view that it was open to the Guravs to come to
terms with the temple committee and that the terms on which
the Guravs could be reinstated can be decided appropriately
in a suit filed under s. 92 of the Code of Civil Procedure.
It was also observed by the High Court in its judgment that
the temple committee did not dispute the fact that the
Guravs were the hereditary pujaris and that they had some
rights in that capacity. No doubt the committee claimed
that under the scheme framed in 1852 it was competent to
dismiss hereditary servants for a substantial cause such as
gross misconduct.
It appears that instead of adopting the course indicated in
the judgment of the High Court and filing a suit under s. 92
of the Code, the Guravs chose to take the law into their own
hands, and obtained forcible possession of the temple
premises on July 25, 1922, and began to perform the puja and
to take the offerings placed before the deity as they had
been doing prior to their dismissal. This was followed by a
suit filed by the trustees on September 12, 1922 (Suit No.
1075 of 1922) under s. 9 of the Specific Relief Act. This
suit terminated in a decree in favour of the committee on
November 4, 1922. In pursuance of this decree the committee
recovered possession of the temple on November 16, 1922.
Thus the Guravs had occupied the temple precincts for about
three and a half months.
481
When the Guravs were thus dispossessed by the committee in
execution of the decree obtained by it, some of them
proceeded to file Suit No. 19 of 1922 in the District Court
of Poona; this suit purported to be one under s. 92 of the
Code but it claimed the same reliefs as had been claimed by
the Guravs in theirs earlier suit of 1911. On April 25,
1927, the District A Court dismissed this suit on the ground
that the Guravs could not reagitate the same questions over
again. it was held that their claim was barred by the deci-
sion of the earlier Suit No. 485 of 1911. Against this
decision the Guravs appealed to the High Court (First Appeal
No. 507 of 1927); but the High Court agreed with the
conclusion of the District Court and dismissed the Guravs”
appeal on June 20, 1933. It was held by the High Court that
the suit as framed was not properly constituted under s. 92
of the Code.
It was at this stage that a properly constituted suit, No. 7
of 1934, was filed under s. 92 of the Code by the general
public of Alandi along with two Guravs in the District Court
at Poona. This suit claimed that a proper scheme should be
framed for the management of the temple. Even so, one of
the allegations made in the plaint referred to the Guravs’
rights as hereditary worshippers. It was apparently
apprehended that this allegation would be treated as outside
the scope of a scheme suit under s. 92 and so the Guravs
took the precaution of filing four separate suits on behalf
of four branches in the Waghmare family one after the other.
These suits were numbered as 1202 of 1933, 392 of 1935, 875
of 1936 and 900 of 1937; the plaintiffs in these suits were
respectively the members of the third, the fourth, the first
and the second branch of the Waghmare family’. It appears
that the hearing of these suits were stayed by an order of
the District Judge pending the final decision of the scheme
suit which was being tried by him.
The scheme suit was taken, up for hearing in 1937. As many
as 22 issues were framed in this suit and voluminous
evidence Was recorded. In the result the learned judge
substantially confirmed the original
61
482
scheme of 1852, though he issued certain directions
modifying it. This decree was passed on December 11, 1937.
The trustees felt aggrieved by this decree and challenged
its propriety by preferring an appeal, No. 92 of 1938, in
the Bombay High Court. On November 16, 1939, the High
Court dismissed the appeal though it made some amendments in
the scheme framed by the- District Judge by consent of the
parties.
After the scheme suit was thus disposed of by the High
Court, the four suits filed by the pujaris were taken up for
trial by the learned Subordinate Judge, First Class, Poona.
In all these suits the appellants claimed their rights as
hereditary vatandar Pujari Gurav Servants of the Sansthan.
They alleged that they were under a duty to perform worship
according to certain rites in Shree Dayaneshwar Sansthan and
that they were also under an obligation to perform other
incidental duties enumerated by them in their plaints.
Likewise they claimed that for remuneration they were
entitled to receive coins and perishable articles offered by
the devotees and the committee as well as yearly emoluments
from the committee. On these allegations the appellants
claimed a declaration about their respective rights and an
injunction permanently restraining the trustees from
obstructing the appellants in the exercise of the said
rights. They also claimed accounts from the trustees in
regard to the offerings prior to the institution of the suit
as well as those made after the institution of the suit and
before the passing of the decree.
These allegations were denied by respondents 1 to 6. Their
case was that the appellants were the servants of the temple
committee and as such had no hereditary rights set up, by
them. In the alternative, it was pleaded by them that even
if the appellants had any hereditary rights the same had
been lost by their misconduct and had been otherwise
extinguished by limitation. Against the appellants’ claim
pleas of res judicata and estoppel were also raised.
On these pleadings as many as 21 issues were framed in the
trial court. The trial court found in favour
483
of the appellants on all the issues. The learned judge held
that the Guravs had established the hereditary rights set
out by them and he was inclined to take the view that the
respondents could not deprive the appellants of their
hereditary rights of service because of the misconduct of
some of their ancestors. He also found that there was no
substance in the plea of estoppel or res judicata and that
the suits were not barred by limitation. In the result the
appellants’ suits were decreed on February 16, 1942.
Thereupon the respondents challenged these decrees by
preferring appeals against them in the Bombay High Court.
The four suits accordingly gave rise to First Appeals Nos.
183, 184, 185 and 186 of 1942 respectively. In these
appeals the High Court agreed with the trial court in
holding that on the merits the appellants had established
their case and that their claim was not barred either by res
judicata or by estoppel. However, on the question of
limitation the High Court took the view that the appellants’
suits were governed by art. 120 of the Limitation Act and
that they had been filed beyond the period of six years
prescribed by the said article. That is why the High Court
set aside the decrees passed by the trial court, allowed the
respondents’ appeals and dismissed the appellants’ suits.
However, in view of the special facts of the case the High
Court directed that each party should bear its own costs
throughout. This judgment was pronounced on April 14, 1943.
Like the trial court the High Court also dealt with all the
four cases by one common judgment.
It appears that after this judgment was pronounced by the
High Court but before it Was signed, the appellants moved
the High Court on July 2, 1943, for a rehearing of one of
the appeals (No. 186 of 1942). It was urged before the High
Court that even if art. 120 applied the claim made by the
appellant in the said appeal (which arose from Suit No. 1202
of 1933) could not be held to be barred by limitation. The
High Court was not impressed by this plea and so the motion
for rehearing was discharged.
Subsequently a Civil Application, No. 1039 of 1944,
484
was made by the appellant in the said appeal seeking to
raise the same point over again but this application was
rejected by the High Court on September 12, 1944.
The appellants then applied for leave to appeal to the Privy
Council on August 15, 1944. Their applications were heard
together and were disposed of by an order passed on March
26, 1946, whereby leave was granted to them to appeal to the
Privy Council and their prayer for consolidating all the
appeals was also allowed. These appeals could not, however,
be disposed of by the Privy Council before the jurisdiction
of the Privy Council to deal with Indian appeals came to an
end and so they ultimately came to this Court and were
numbered as Appeals Nos. 220 to 223 of 1953. It may be
convenient to state that these appeals arise respectively
from Suits Nos. 907 of 1937, 392 of 1935, 875 of 1936 and
1202 of 1933. It would thus be seen that the litigation
which began between the parties in 1911 has now reached its
final stage before us in the present appeals.
As we have already indicated, both the courts below have
found in favour of the appellants on most of the issues that
arose in the present litigation; but the appellants have
failed in the High Court on the ground of limitation. In
the trial court the respondents had urged that the present
suits were governed by art. 124 of the Limitation Act and
that since the Guravs had been dismissed from service in
1911 and other Guravs refused to serve in 1913 and 1914
limitatation began to run against them at least from 1914
and so the suits were beyond time. The learned trial judge
held that art. 124 was inapplicable. He also found
alternatively that, even if the said article applied, the
trustees did not have continuous possession of the suit
properties from 1911 or 1914 for twelve years and so the
suits were not barred by time. According to him the case
was really covered by s. 23 of the Limitation Act, and so
the plea of limitation could not succeed.
The High Court has agreed with the trial court in holding
that art. 124 is inapplicable. It has, however,
485
come to the conclusion that the suits are governed by art.
120 of the Limitation Act, and, according to its findings,
limitation began to run against the appellants either from
September 12, 1922, when the trustees filed their suit under
s. 9 of the Specific Relief Act, or, in any case from
November, 1922 when, in execution of the decree passed in
the said’ suit, the appellants were driven out of the temple
precincts by the trustees. The High Court has also held
that s. 23 can have no application to the present case.
That is how the High Court has reached the conclusion that
the appellants’ suits are barred by time under art. 120.
The question which arises for our decision in the present
appeals, therefore, is one of limitation; it has to be
considered in two aspects: Was the High Court right in
holding that art. 120 applies and that the cause of action
accrued more than six years before the dates of the
institution of the present suits ?; Was the High Court also
right in holding that s. 23 does not apply to the suits ?
On behalf of the appellants Mr. Rege has contended that in
substance, in their present suits the appellants have made a
claim for possession of an hereditary office and as such
they would be governed by art. 124 of the Limitation Act.
In this connection he has referred us to the relevant
allegations in the plaint to show that the appellants’
prayer for a declaration about their hereditary rights and
for a consequential permanent injunction amount to no more
and no less than a claim for possession of the said
hereditary office. In support of this argument reliance has
been placed on the decision of the Bombay High Court in Kunj
Bihari Prasadji v. Keshavlal Hiralal (1). In that case the
plaintiff had made a claim to the gadi of the Swaminarayan
temple at Ahmedabad and had asked for a declaration that the
will of the last Acharya which purported to appoint
defendant 14 as his adopted son and successor was null and
void. As a consequence a perpetual injunction -was also
claimed restraining the defendants from offering any
obstruction to the plaintiff in occupying the said gadi.
The
(1) (1904) I.L.R. 28 Bom. 567.
486
principal point which was decided in the case had reference
to the effect of the provisions of s. 42 of the Specific
Relief Act., The plaintiff’s suit had been dismissed in the
courts below on the ground that he had omitted to ask for
further relief as he was bound to do under s. 42 of the said
Act and the High Court held that the section did not empower
the court to dismiss the suit under the said section. In
considering the nature of the claim made by the plaintiff
Jenkins, C. J., observed that ” in the plaintiff’s view the
suit was not one of possession of land appertaining to the
gadi but to determine who was to occupy the gadi and thus as
gadinishin become the human agent of the deity. If that was
so, then the injunction restraining all interference with
the occupancy by the plaintiff of the gadi secures in the
most complete manner to him the rights he claims “. The
learned Chief Justice also observed that ” the plaintiff
might in terms have asked for possession of the office he
said was his “, but be asked ” how would practical effect be
given to an award of possession of office otherwise than by
preventing interference with the rights of which it was made
up “. Even so, having reversed the decree passed by the
courts below, when the High Court remanded the case for
retrial, the plaintiff was advised to amend his plaint and
to define more precisely the terms of the injunction he
sought. It is urged that, in the present appeals also, by
asking for a declaration of their rights and for an
appropriate injunction against the respondents, the
appellants were in effect asking for possession of the
hereditary office. It is doubtful if the claims made by the
appellants in their respective suits are exactly analogous
to the claim made by the plaintiff in Kunj Bihari Prasad’s
case (1). The appellants have not only asked for an
injunction but also for an account of the income received by
the trustees from July 23, 1933, up to the date of the suit
as well as for similar account from the date of the suit
until the date of the decree. A claim for accounts in the
form in which it is made may not be quite consistent with
the appellants’ contention that their suits are for nothing
more than possession
(1) (1904) I.L.R. 28 Bom. 567.
487
of the hereditary office ; but in dealing with the present
appeals we are prepared to assume that they have in
substance claimed possession of the office. The question
which then arises is: Does this claim for possession attract
the application of art. 124 of the Limitation Act ?
Article 124 governs suits for possession of an hereditary
office. The period of limitation prescribed by the article
is twelve years and the said period begins to run when the
defendant takes possession of the office adversely to the
plaintiff. This is explained to mean that the hereditary
office is possessed when the profits thereof are usually
received or (if there are no profits) when the duties
thereof are usually performed. It is clear that before this
article can apply it must be shown that the suit makes claim
for possession of an office which is hereditary; and the
claim must be made against the defendant who has taken
possession of the said hereditary office adversely to the
plaintiff. Unlike art. 142 the fact that the plaintiff, is
out of possession of the hereditary office for more than
twelve years before the date of his suit would not defeat
his claim for possession of the said office. What would
defeat his claim is the adverse possession of the said
office by the defendant for the prescribed period. As the
explanation makes it clear usually the receipt of the
profits may amount to the possession of the office; but if
the defendant merely receives the profits but does not
perform the duties which are usually performed by the holder
of the office, the receipt of the profits by itself may not
amount to the possession of office. The cause of action for
possession in suits falling under art. 124 is the wrongful
dispossession of the plaintiff and the adverse possession by
the defendant of the office in question. Claims for
possession of hereditary offices which attract the
application of this article are usually made by holders of
the said offices against persons who claim adverse
possession of the said offices; in other words, in suits of
this kind, the contest is usually between rival claimants to
the hereditary office in question.
In the present appeals the claim for possession is
488
made by the appellants against the trustees of the Sansthan.
It is significant that the – persons who are actually
performing the duties of the worshippers are not impleaded ;
and they do not claim to hold office as hereditary officers
either. They have been appointed by the trustees as
servants of the institution and they perform the duties of
worship as such servants. The trustees, on the other hand,
cannot be said to have taken possession of the office
themselves adversely to the appellants. They do not take
the profits themselves nor do they perform the duties
associated with the said office. They have, in exercise of
their authority and power as trustees, dismissed the
appellants’ predecessors from office and have made fresh
appointments of servants to perform the worship at the
Sansthan; and in making the said appointments, have in fact
destroyed the hereditary character of the office. The
dispute in the present appeals is between the worshippers
who claim hereditary rights and the trustees of the
institution who claim to have validly terminated the
services of some of the predecessors of the appellants and
to have made valid appointments to the said office. It is,
therefore, impossible to accept the argument that the claim
made by the appellants in their respective suits attracts
the provision& of art. 124. It is conceded by Mr. Rege that
if art. 124 does, not apply, the suits would be governed by
art. 120 which is a residuary article. It may prima facie
appear somewhat strange that whereas a suit against a person
claiming to hold the hereditary office adversely to the
plaintiff is governed by a period’ of twelve years, a claim
against the trustees like the respondents in the present
appeals who have dismissed the hereditary worshippers should
be governed by a period of six years. It may be possible to
suggest that there is a substantial difference in the nature
of the two disputes ; but apart from it, it is well-known
that the artificial provisions of limitation do not always
satisfy the test of logic or equity.
Mr. Rege, however, argued that in determining the scope of
art. 124 we need not consider the provisions of col. 3 to
the said article. His contention appears
489
to be that once it is shown that the suit is for possession
of an hereditary office, art. 124 must apply though the
claim for possession may not have been made ,against a
person who has taken possession of the office adversely to
the plaintiff. He also urged alternatively that the
trustees should be deemed to have, taken possession of the
office adversely to the appellants. We have already held
that the conduct of the trustees shows that they have not
taken possession of the office adversely within the meaning
of col. 3 of art. 124; and we do not think it is possible,
to ignore the provision of col. 3 in deciding whether or not
art. 124 applies. It is true that in Jalim Singh Srimal v.
Choonee Lall Johurry (1), while holding that the adjustment
on which the plaintiff’s claim was based in that case was in
time both under arts. 115 and 120, Jenkins, C. J, has
observed that the function of the third column of the second
schedule is not to define causes of action but to fix the
starting point from which the period of limitation is to be
counted ; but this observation does not support the
appellants’ case that art. 124 would govern the suit even
though the third column is wholly inapplicable to it. That
obviously is not the effect of the observations made in
Jalim Singh’s case (1).
The question about the nature and scope of the provisions of
art. 124 has been considered by the Madras High Court in
Thathachariar v. Singarachariar (2). ” If we take into
consideration the terminology used in the three columns of
art. 124 “, observed Srinivasa Aiyangar, J., in that case, ”
it is clear that the nature of the suit intended to be
covered by that article must be a suit filed by a plaintiff
who claims the office from a person who at that time holds
the office himself “. In our opinion this view is correct.
We may also refer to another decision of the Madras High
Court in which this question has been considered. In
Annasami v. Adivarachari (3) a Full Bench of the Madras High
Court was dealing with a suit in
(1) (1911) 15 C.W.N. 882. (2) A.I.R. 1928 Mad, 377.
(3) I.L.R. 1941 Mad. 275.
62
490
which the plaintiff had claimed an injunction restraining
the trustee and the archakas of the Sri Bhuvarabaswami
temple at Srimushnam from interfering with the performance
of the duties of his office of mantrapushpam of the temple.
This suit had been filed in 1929. The office of
mantrapushpam was a hereditary office and the plaintiff had
succeeded to it on the death of his father in 1906. The
emoluments of the office consisted of a ball of cooked rice
per them and twelve annas per month. It appears that the
plaintiff was a Vadagalai while the archakas of the temple
were Thengalais and there was animosity between them; and as
a result of this animosity the plaintiff bad never been able
to perform the duties of his office. It was common ground
that the plaintiff was the lawful holder of the office and
that he had been receiving its emoluments month by month
until 1927. The archakas who resisted the plaintiff’s claim
did not claim that they were in possession of the office or
that they had performed the duties of the said office. The
Full Bench held that, where a person is admittedly the
lawful holder of the office and he is enjoying its
emoluments, he must in law be regarded as being in
possession of the office itself, especially where no one
else is performing the duties of the said office; and so
under art. 124 it was enough for the plaintiff to show that
he had been in receipt of the emoluments of the office to
save his claim from the bar of limitation. The Full Bench
also rejected the contention that under art. 120 the suit
was barred because it was held that every time the trustee
and the archakas prevented the plaintiff from performing his
duties as a hereditary officer a. fresh cause of action
arose and so there can be no bar of limitation under art.
120. It would be noticed that the basis of this decision
was that, in the eyes of law, the plaintiff was in
possession of the hereditary office since he was receiving
the emoluments of the said office month by month, and so
every act of obstruction on the part of the archakas and the
trustee was in the nature of a continuing wrong which gave
rise to a fresh cause of action to the plaintiff from time
to time. In other words, on the facts the Full Bench held
that
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s.23 helped the plaintiff and saved his suit from the bar of
limitation. As we will presently point out there is no
scope for applying s. 23 to the facts of the present cases,
and so the decision in Annasami Iyengar’s case (1) cannot
assist the appellants.
In this connection it is relevant to consider the decision
of the Privy Council in Jhalandar Thakur v., Jharula Das (2)
in which it was held that art. 124 was inapplicable. The
defendant Jharula Das had obtained a decree for money on a
mortgage which bad been executed in his favour by Mst.
Grihimoni, the widow of the shebait of the temple. In
execution of the said decree the defendant had caused 3 1/2
as. share of the judgment-debtor including her right in the
nett income of the daily offerings made before the idol to
be put up for sale and had himself purchased it at the
auction sale. As such purchaser he was in possession of the
income of the said share. The judgment-debtor attempted to
challenge the said sale by two suits but her attempts failed
and the’ auction purchaser continued to be in possession of
the income. On the death of Mst. Grihimoni, Bhaiaji
Thakur, who succeeded to the office of the shebait, sued the
defendant for possession of certain lands and claimed a
declaration that he was entitled to receive the 3 1/2 as.
share of the nett income from the offerings to the temple
with other reliefs. This claim was resisted by the
defendant Jharula Das. In regard to the plaintiff’s claim
in respect of the said 3 1/2 as share, the High Court had
held that art. 124 applied and that the claim was barred
under the said article. That is why the decree passed by
the trial court in favour of the plaintiff in respect of the
said income was reversed by the High Court. This decision
was challenged by the plaintiff before the Privy Council and
it was urged on his behalf that art. 124 did not apply. The
Privy Council upheld this contention. It was clear that the
office of the shebait of the temple was a hereditary office
which could not be held by anyone who was not a Brahmin
Panda. Jharula Das was not a Brahmin Panda. He was of an
inferior caste and was not
(1) I.L.R. 1941 Mad. 275.
(2) (1914) I.L.R. 42 Cal. 244.
492
competent to hold the office of the shebait of the temple,
or to provide for the performance of the duties of that
office. On these facts the Privy Council held that the
appropriation from time to time by Jharula Das of the income
derivable from the said 3 1/2 as share -did not deprive Mst.
Grihimoni, and after her death, Bhaiaji Thakur, of the
possession of the office of the shebait although that income
was receivable by them .in right of the shebaitship. The
basis of this decision is that, on each occasion on which
Jharula Das received and wrongfully appropriated to his own
use a share of the income to which the shebait was entitled,
he committed a fresh actionable wrong in respect of which a
suit could be brought against him by the shebait; but it did
not constitute him a shebait for the time being or affect in
any way the title of the office. Thus this decision
emphasises that for the application of art. 124 it is
essential that the defendant to the suit must be in adverse
possession of the hereditary office in question. We must,
therefore, hold that art. 124 does not apply to the suits
filed by the appellants; and as we have already observed,
if. art. 124 does not apply, art. 120 does.
The next point which arises for our decision is whether
under art. 120 the suits are barred by limitation. Under
art. 120 time begins to run against the plaintiffs when the
right to sue accrued to them, and that naturally poses the
question as to when the right to sue accrued to the
appellants. In deciding this question it would be necessary
to recall briefly the material facts in regard to the past
disputes between the appellants and the trustees. These
disputes began in 1911. On January 31, 1911, the trustees
wrote a yadi (memorandum) to the Collector of Poona asking
his permission to dismiss eleven Guravs from service. They
set out in detail several items of misconduct of which the
said Guravs were guilty; and they expressed their opinion
that for the proper management of the affairs of the
institution it was necessary to terminate the services of
the off-ending Guravs (Ex. 407). On April 1, 1911, the
Collector sent a reply to the trustees and told them that,
as a result of the Government
493
Resolution No. 4712 passed on November 29,1864, it was
unnecessary for the trustees to obtain the Collector’s
sanction because it was competent to the trustees to settle
their own affairs without any such sanction. The trustees
then met in a committee on September 18, 1911, and decided
to dismiss from service the said eleven Guravs. In its
resolution the committee stated that the Guravs were violent
and arrogant and it was likely that they may commit riot at
the time when the committee would seek to take charge from
them. The committee also apprehended that the rest of the
Guravs would make a common cause with those who had been
dismissed from service and would refuse to serve the
Sansthan. Even so the committee decided to appoint six
Brahmins temporarily to perform the service, because the
committee was prepared to allow the rest of the Guravs to
render service to the Sansthan if they were ready to act
according to the orders of the committee and were willing to
enter into a formal agreement in that behalf. In accordance
with this resolution the committee served notice on the
eleven Guravs on October 13, 1911, terminating their
services and calling upon them to hand over to the committee
all articles in their charge and forbidding them from
entering the temple in their capacity as servants. Notice
was likewise served on the rest of the Guravs calling upon
them to agree to serve the Sansthan on conditions specified
in the notice. These terms were not acceptable to the
Guravs and so, on behalf of two Guravs Eknath and his
brother Ramachandra, notice was served on the trustees on
October 26, 1911, complaining against the trustees’ conduct
in forcibly removing the Guravs from the temple and thereby
wrongfully denying their rights. The notice warned the
trustees that unless they retraced their steps and gave
possession to the Guravs as claimed in the notice legal
steps would be taken against them.
This notice was followed by the Guravs’ Suit No. 485 of
1911. In the suit the plaintiffs claimed declaration about
their rights of ownership and asked for consequential
reliefs. This claim was denied by the
494
trustees who claimed the right to dismiss the Guravs. It
was alleged on their behalf that some of the plaintiffs had
been dismissed and others had resigned their employments and
so all of them had lost their rights. This suit was
seriously contested but in the end the Guravs lost and
-their suit was dismissed on January 31, 1918.
The Guravs then preferred appeals in the High Court but
these appeals were also dismissed on August 3, 1921. We
have already pointed out that, while dismissing the said
appeals, the High Court made certain observations about the
Guravs’ hereditary rights of worship and suggested that
these rights could be adjudicated upon in a suit filed under
s. 92 of the Code. Thus at the time when the Guravs’
appeals were dismissed the position was that the claim of
ownership set up by them had been rejected; but the question
as to whether they were entitled to the lesser rights of
hereditary worshippers was left open.
The Guravs then obtained forcible possession of the temple
and that led to the trustees’ suit under s. 9 of the
Specific Relief Act, No. 1075 of 1922, on September 12,
1922. In this suit the trustees specifically alleged that
the relationship of the defendants as servants of the
Sansthan had ceased as from September, 1911, and they
averred that the defendants had therefore no right to obtain
possession of the temple. The defendants no doubt disputed
this claim and pleaded that they were the hereditary
vatandar pujari servants but their claim was negatived and a
decree for possession was passed on November 4, 1922. In
execution of this decree the defendants were dispossessed.
On these facts the High Court has held in favour of the
appellants, and rightly we think, that it was difficult to
accept the respondents’ contention that the cause of action
for the present suits which were expressly based upon the
status of the Guravs as hereditary servants arose in 1911.
But, the High Court felt no doubt that the cause of action
to file the present suits had accrued either on September
12, 1922, when the trustees filed their suit under s. 9 of
the Specific Relief Act or in any event on November 4,
495
1922, when the said suit was decreed and the Guravs were
consequently dispossessed. In our opinion this conclusion
is also right. One of the Guravs who was examined in the
present litigation has stated that, ” if in any year when it
is the turn of any takshim to serve, if a person outside the
Gurav family is appointed by the trustees, all the takshims
have a right to-, object “. There is also no dispute that
since the dismissal of eleven Guravs in 1911 till the
institution of, the present suits none from the Gurav family
has served the temple except for 3 1/2 months in 1922 when
the Guravs had wrongfully obtained possession of the temple.
In 1922 the Guravs knew that their claim of ownership had
been rejected and that the only right which they could set
up was as hereditary worshippers of the temple and not its
owners. This right was specifically denied by the trustees
in their plaint while it was specifically set up in defence
by the Guravs in their written statement; and the decree
that followed upheld the trustees’ case and rejected the
defendant’s claim. On these facts the conclusion is
irresistible that the right to sue accrued to the Guravs at
the latest on November 4, 1922, when a decree was passed
under s. 9 of the Specific Relief Act. If not the plaint in
the suit, at least the decree that followed clearly and
effectively threatened the Guravs’ rights as hereditary
worshippers and so the cause of action to sue on the
strength of the said rights clearly and unambiguously arose
at that time. If that be the true position it follows that
the present suits which have been filed long after the
expiration of six years from 1922 are barred by time under
art. 120.
It is then contended by Mr. Rege that the suits cannot be
held to be barred under art. 120 because s. 23 of the
Limitation Act applies; and since, in the words of the said
section, the conduct of the trustees amounted to a
continuing wrong, a fresh period of limitation began to run
at every moment of time during which the said wrong
continued. Does the conduct of the trustees amount to a
continuing wrong under s. 23 ? That is the question which
this contention raises for our decision. In other words,
did the
496
cause of action arise de die in them as claimed by the
appellants ? In dealing with this argument it is necessary
to bear in mind that s. 23 refers not to a continuing right
but to a continuing wrong. It is the very essence of a
continuing wrong that it is an act which creates a
continuing source of injury and renders the ‘doer of the act
responsible and liable for the continuance of the said
injury. If the wrongful act causes an injury which is
complete, there is no continuing wrong even though the
damage resulting from the act may continue. If, however, a
wrongful act is of such a character that the injury caused
by it itself continues, then the act constitutes a
continuing wrong. In this connection it is necessary to
draw a distinction between the injury caused by the wrongful
act and what may be described as the effect of the said
injury. It is only in regard to acts which can be properly
characterised as continuing wrongs that s. 23 can be
invoked. Thus considered it is difficult to hold that the
trustees’ act in denying altogether the alleged rights of
the Guravs as hereditary , worshippers and in claiming and
obtaining possession from them by their suit in 1922 was a
continuing wrong. The decree obtained by the trustees in
the said litigation had injured effectively and completely
the appellants’ rights though the damage caused by the said
decree subsequently continued. Can it be said that, after
the appellants were evicted from the temple in execution of
the said decree, the continuance of their dispossession was
due to a recurring act of tort committed by the trustees
from moment to moment ? As soon as the decree was passed and
the appellants were dispossessed in execution proceedings,
their rights had been completely injured, and though their
dispossession continued, it cannot be said that the trustees
were committing wrongful acts or acts of tort from moment to
moment so as to give the appellants a cause of action de die
in diem. We think there can be no doubt that where the
wrongful act complained of amounts to ouster, the resulting
injury to the right is complete at the date of the ouster
and so there would be no scope for the application of s. 23
in such a case. That is
497
the view which the High Court has taken and we see no reason
to differ from it.
We would now like to refer to some of the decisions which
were cited before us on this point. The first case which is
usually considered in dealing with the application of s. 23
is the decision of the Privy Council in Maharani Rajroop
Koer v. Syed Abdul Hossein (1) In order to appreciate this
decision it is necessary to refer, though briefly, to the
material facts. The plaintiff had succeeded in establishing
his right to the pyne or an artificial watercourse and to
the use of the water flowing through it except that which
flowed through the branch channel; he had, however, failed
to prove his right to the water in the tal except to the
overflow after the defendants as owners of mouzah Morahad
used the water for the purpose of irrigating their own land.
It was found that all the obstructions by the defendants
were unauthorised and in fact the plaintiff had succeeded in
the courts below in respect of all the obstructions except
two which were numbered No. 3 and No. 10. No. 3 was a khund
or channel cut in the side of the pyne at a point below the
bridge whereas No. 10 was a dhonga also below the bridge and
it consisted of hollow palm trees so placed as to draw off
water in the pyne for the purpose of irrigating the
defendants’ lands. It was in regard to these two
obstructions that the question about the continuing wrong
fell to be considered; and the Privy Council held that the
said obstructions which interfered with the flow of water to
the plaintiff’s mehal were in the nature of continuing
nuisance as to which the cause of action was renewed de die
in them so long as the obstructions causing such
interference were allowed to continue. That is why the
Privy Council allowed the plaintiff’s claim in respect of
these two obstructions and reversed the decree passed by the
High Court in that behalf. In fact the conduct of the
defendant showed that whenever he drew off water through the
said diversions he was in fact stealing plaintiff’s water
and thereby committing fresh wrong every time. Thus this is
clearly not a case of exclusion or ouster.
(1) (1880) L.R. 7 I.A. 240.
63
498
Similarly, in Hukum Chand v. Maharaj Bahadur Singh (1) the
Privy Council was dealing with a case where the defendants’
act clearly amounted to a continuing wrong and helped the
plaintiff in getting the benefit of s. 23. The relevant
dispute in that case arose because alterations had been
made by the Swetambaris in the character of the charans
in certain shrines and the Digambaris complained that the
said alterations amounted to an interference with their
rights. It had been found by the courts in India that the
charans in the old shrines were the impressions of the
footprints of the saints each bearing a lotus mark. “The
Swetambaris who preferred to worship the feet themselves
have evolved another form of charan not very easy to
describe accurately in the absence of models or photographs
which shows toe nails and must be taken to be a
representation of part of the foot. This the Digambaris
refused to worship as being a representation of a detached
part of the human body “. The courts had also held that the
action of the Swetambaris in placing the charans of the said
description in three of the shrines was a wrong of which the
Digambaris were entitled to complain. The question which
the Privy Council had to consider was whether the action of
the Swetambaris in placing the said charans in three of the
shrines was a continuing wrong or not; and in answering this
question in favour of the plaintiffs the Privy Council
referred to its earlier decision in the case of Maharani
Rajroop Koer (2 ) and held that the action in question was a
continuing wrong. There is no doubt that the impugned
action did not amount to ouster or complete dispossession of
the plaintiffs. It was action which was of the character of
a continuing wrong and as such it gave rise to a cause of
action de die in diem. In our opinion, neither of these two
decisions can be of any assistance to the appellants.
On the other hand the decision of the Patna High Court in
Choudhury Bibhuti Narayan Singh v. Maharaja Sir Guru Mahadev
Asram Prasad Sahi Bahadur(3)
(1) (1933) L.R. 60 I.A. 313. (2) (1880) L.R. 7 I.A. 240.
(3) [1939] I.L.R. 19 Pat. 208.
499
as well as that of the Full Bench of the Punjab High Court
in Khair Mohammad Khan v. Mst. Jannat support the
respondents’ contention that where the s, impugned act
amounts to ouster there is no scope for the application of
s. 23 of the Limitation Act. We are, therefore, satisfied
that there is no substance in the appellants’ contention
that s. 23 helps to save limitation for their suits.
The result no doubt is unfortunate. The appellants have
succeeded in both the courts below in proving their rights
as hereditary worshippers; but their claim must be rejected
on the ground that they have filed their suits beyond time.
In this court an attempt was made by the parties to see if
this long drawn out litigation could be brought to an end on
reasonable terms agreed to by them, but it did not succeed.
In the result the appeals fail and are dismissed. We would,
however, direct that the parties should bear their own costs
throughout.
Appeals dismissed.