The Plaintiff brought this suit for the recovery of possession of a turn of worship in a certain temple for 8 days in the month from the 13th to the 20th by virtue of a usufructuary mortgage from the mother and guardian of Defendants Nos. 3 and 4 on the allegation that he had been dispossessed from the same by the Manager of the Defendant No. 2 the Raja of Puri who is supporting the claim of Defendant No. 1. The Defendant No. 1 admits that the grandfather of Defendants Nos. 3 and 4 was the original shebak, but says that he had in 1865 made a gift of this turn of worship in favour of his (Defendant No. 1's) father and that during his minority, Plaintiff had been employed as a khatnihar or paid servant on his behalf and used to pay him a certain amount of money every year.
Defendants Nos. 3 and 4 did not contest the Plaintiff's claim but both Defendants Nos. 1 and 2 did on various grounds. The court of first instance decreed the suit for recovery of possession but the learned Subordinate Judge has dismissed the same. It is contended in second appeal that the learned Subordinate Judge is wrong.
In the first place the learned Subordinate Judge finds that the usufructuary mortgage-bond is not proved because the evidence is not in conformity with the requirements of sec. 59 of the Transfer of Property Act and sec. 69 of the Evidence Act.
A turn of worship is not an interst in immoveable property. See Ishan chandra Roy v. Monmohini Dassi(1): sec. 59 of the Transfer of Property Act, which is applicable to mortgages of immoveable property only, has therefore no application. Then again the document in question was executed in 1879 three years before the Transfer of Property Act came into force and under sec. 2, cl. (c) the Act had no application. There is no other law which required that a document like the one in question should have been attested by witnesses.
Then the learned Subordinate Judge says: “No doubt the Plaintiff was allowed to perform the deb-sheba from 13th to 20th of every month without a hitch but that in my opinion does not create any right in Plaintiff's favour since the Plaintiff has not been able to prove satisfactorily that he was doing the sheba from 13th to 20th of every month as a shebait,” we are unable to follow the reasoning of the learned Subordinate Judge. The Plaintiff claims as the mortgagee of shebak and not as a shebak, if he had possession as such mortgagee that would be quite sufficient to make out a prima facie title as such mortgagee. In the case of Jagannath v. Birbhadra(2), it was held that the Plaintiff who had acted as shebait for 10 years bad acquired a complete title against Defendants who had not sued to oust him within 10 years under Article 120 of the Second Schedule to the Limitation Act. Although the learned Subordinate Judge finds that he had no doubt the Plaintiff had held possession for over 20 years he distinguishes this case because the period was not 10 years.
Then the learned Subordinate Judge says, “it does not lie in the mouth of the Defendant No. 2 to set up the right and possession of No. 1 Defendant's father Kangala since the Raja's predecessor admitted Plaintiff's possession by Ex. 2” and in the next sentence “Ex. 2 does not Show that Plaintiff's possession or his right was ever admitted since it distinctly mentioned that Plaintiff was in possession on behalf of Defendants Nos. 3 and 4” As the Plaintiff claims as mortgagee only the possession claimed by him in 1880 must have been as mortgagee only and if that possession was recognised, that possession could not now be impeached by Defendant No. 2 or his manager.
The Plaintiff is himself one of the recognized shebaks, on other days, and if in the case of such a shebak, on the acquisition of an additional turn of worship the ceremony of sharatir be at all necessary it is difficult to see how after undisputed possession for 20 years, and express recognition by or on behalf of Defendant No. 2, the question can be raised in the present case. Then again although the learned Subordinate Judge finds in the early part of his judgment that Plaintiff was undoubtedly in possession of the sheba from the 13th to 20th of every month, in a later part be says it was for the Plaintiff to prove that the turn of worship of Defendants Nos. 3 and 4 was from the 13th to 20th and in conclusion finds the second issue against the Plaintiff.
The judgment of the learned Subordinate Judge is a Curious combination of bad law and worse reasoning and we have no hesitation in setting aside the same.
As the judgment is full of contradiction it is difficult to make out what has been found for and what found against the Plaintiff. The case must, therefore, be remanded to the District Judge to try it himself Costs to abide the result.
Case remanded.