(Sowcar) Sahanada Govinda Doss v. (Rajah) Venkata Perumal Rajah

The Judgment of the Court was delivered by

Miller, J.:— This suit was instituted in 1903 by the Rajah of Karvetnagar through a next friend, an officer of the Court of Wards, to recover possession, on behalf of the temple of Sri Venugopalasami in Karvetnagar, of the village of Konasamudram which, according to the plaint, was given to the temple on 29th August 1808 by a sanad of that date. The present Rajah has after the institution of the suit taken over the zemindari from the Court of Wards and continues the suit himself. In 1881 a lease of the village for a term of ten years terminating on the last day of June 1891 was given by the then Rajah to two persons whom I may call the lessees, at a rental of Rs. 4,000 a year which was to be credited in payment of sums due to them on mortgages executed by the Rajah. The Rajah is admittedly hereditary Dharmakarta of the temple of Sri Venugopalasami, but the money borrowed on the mortgages was not for the purposes of the temple but for his own private use.

2. In 1885 Konasamudram and another village were mortgaged by a simple mortgage to the father of the defendant I may call him the purchaser—and in 1887 he sued on the mortgage and obtained an ex parte decree on 1st April of that year. The property was attached in execution of the decree, and was brought to sale in August 1889 and purchased by the mortgagee; the judgment-debtor attempted to get the sale set aside alleging, inter alia, that the property sold, the Konasamudram village was “tanakha” of the Sri Venugopalasami Temple and some other temples. The District Judge in March 1890 dismissed the application, and the High Court dismissed the appeal from his order, observing as regards the allegation that the property was temple property, that point ought to have been raised in the suit. The judgment of the High Court was on 16th April 1891, but the sale was confirmed in April 1890 after the District Judge's order, and possession was delivered by proclamation on 7th May 1890 to the purchaser who, as I have said was the mortgagee himself.

3. In 1891 the Rajah's mother sued the purchaser to recover the village from him on behalf of the temple, but her suit. Original Suit No. 9 of 1891, was dismissed by the District Judge who held that on the facts stated in the plaint she had no cause of action. From this decision, no appeal was preferred, and the purchaser and after him his sons, remained in possession of the village until this suit was filed on 30th June 1903.

4. The Subordinate Judge has decreed the plaintiff's claim, holding that the village was granted to the temple and is in possession of the Rajah in his capacity of hereditary Dharmakarta, and consequently that its alienation was unlawful and the Rajah as Dhamakarta can recover possession of it.

5. He also dealt with several pleas in bar of the claim deciding them all against the defendants. Of these pleas the only ones argued before us are those which raise questions of limitation, res judicata, and bona fide purchase without notice.

6. I will deal first with the plea of limitation. For the appellants it is claimed that Article 142, Sch. 1, Lim. Act applies and that the plaintiff is bound to show that he was not dispossessed twelve years before the institution of the suit, while the respondent contends that the defendants must show adverse possession for 12 years if they want to bar the suit. In the Court below some other provisions of the Limitation Act were relied on, but before us no argument was based on them.

7. As the evidence stands, it is not very important to decide which of the two articles Article 142 or Article 144, is applicable to the case, but I am unable to see any reason why Article 142 should not be applied if it is necessary to apply it.

8. For the appellants it was contended as in the lower Court, that the Dharmakarta lost possession at the date of the lease, i.e in 1881 the lease was given by the Rajah not as Dharmakarta but as zamindar, and the lessees did not therefore hold under the Dharmakarta but adversely to him. The Subordinate Judge has rejected this contention and, I think, has rightly rejected it. As Dharmakarta the Raja could lawfully grant a lease for a term of years, and though he did not grant the lease as Dharmakarta and put the proceeds into his own pocket and not into the temple chest that makes no difference; the grant of the lease was lawful and the possession of the lessees was lawful; their right to possession may be referred to the right of the Dharmakarta to give them possession and his misappropriation of the rent does not affect their possession.

9. The real question is, it seems to me, a question of fact. Possession was transferred by proclamation after the Court sale, and from the date of proclamation the purchaser, it is contended, obtained possession of the reversion, the term of the lease being then unexpired. The proclamation of possession was made, it will be remembered, on 7th May 1890, and the term continued until 30th June 1891. The suit was instituted on 30th June 1903. It is not denied by Mr. Srinivasa Iyengar that, although possession of the reversion was transferred on 7th May 1890 to the purchaser, still if the Rajah continues to receive the rent from the lessees, he must be held to have retaken possession in spite of the Court, and if he continued to receive all the rent due up to the end of the term, he must be said to have been in possession on 30th June 1891 and therefore within twelve years of the suit. Mr. Govindraghava Iyer contended that though the proclamation of 7th May 1890 transferred the possession of the Rajah to the purchaser, it did not transfer that of the Dharmakarta. As Dharmakarta the Rajah continued in possession: (the fallacy in the argument seems to lie in the claim that a man can be in and out or partly in and partly out of possession at the same time): though turned out by the Court as Rajah, the plaintiff any no doubt still have had a right to remain in possession as Dharmakarta, but the right to possession is not possession.

10. Mr. Govindaraghava Iyer also contended that inasmuch as the lessee could not by any act of his own make his possession adverse to his lessor, the payment of rent, if any, to the purchaser cannot make any difference. This is really irrelevant because the lessee's possession is not in question; the question is whether the possession of the Rajah ceased before the expiry of the term. The Court certainly took it from him by its proclamation and unless he re acquired it by receipt of rent he has lost it.

11. The lessees had undertaken to pay to the temple a sum of Rs. 1,500 annually out of the rent of Rs. 4,000 for the last four, years of the term, and the accounts now produced by the Rajah from his Devastanam office are intended to prove that rents were received up to July 1891. [After discussing evidence on the question, his Lordship proceeded as follows:] I have dealt with fill the evidence to which our attention was called on behalf of the plaintiff and it cannot be said to prove satisfactorily that anything was paid to the Rajah by the lessees for rent falling due after the date of transfer of possession. The defendants do not show that their father received rent before June 1891; they do not produce their father's accounts, but it is perhaps unfair to draw any inference against them from this fact, as the matter was over 12 years old at the date of the trial and so far as the lessees were concerned had been entirely closed. There was no debt due to the so wear which would require the preservation of the account relating to it, or its being brought up into the accounts of succeeding years.

12. There is the evidence of D.W 2 who swears that the lessees were asked by him to pay the rent for the last year of their term to the sowcar i.e the purchaser and that they agreed to settle with the sowcar directly; he dose not personally know if they actually paid anything. This evidence is supported by the prima facie probability that the sowcar having obtained possession would demand the rent, and that the lessees after the Court's proclamation would not have paid the Rajah anything. They might have withheld payment from both sides, but; there is no evidence as to that: the Rajah's mother sued in March 1891 to recover the village for the temple, but before that time there is no apparent reason why the lessees should have refused payment to the purchaser. I think then there is sufficient evidence to show that the Rajah lost possession before 30th June 1891; and that is sufficient to bar the suit for possession.

13. It is not so clear that the purchaser received any rent before the end of June 1891, but he had the possession given him by the Court in 1890, and that will, I think, be possession adverse to the Rajah, it not being shown that rent falling due subsequent to that date was paid to the Rajah or any one else. The fact, if it be a fact, that the lessees did not pay their rent, until after the end of June 1891, will not make the purchaser's possession any the less adverse to the Rajah.

14. The suit is therefore in my opinion barred by limitation.

15. It is however desirable, in view of the probability that the case may be taken to a higher Court, that we should decide also the principal issues in the suit, that it is to say those dealing with the question whether the village was granted to the temple and so became trust property in the Rajah's hands and the mortgage and sale were therefore inoperative as against the trust, [After discussing some evidence his Lordship proceeded as follows:] Now there is no evidence as to what is the accepted signification of the word “tanakha” in the registers and accounts of the Karvetnagar zamindari, if I except the statement of P.W 7 that in the zemindari it generally, means “giving away” a statement on which I do not think much reliance can be placed and which Mr. Govindaraghava Iyer did not ask us to accept as of great value. From Wilson's Glossary and other dictionaries which have been shown to us I gather that the word might be used to indicate a permanent assignment of the revenue of a village to a particular purpose, but that is not its necessary signification, and it may equally well connote a temporary order allotting or assigning, in the non-technical meaning of that word, certain income to a certain purpose for convenience and for such time as convenience may support the arrangement. It certainly does not necessarily import a permanent grant.

16. Here we have the fact that the Rajah was himself the hereditary Dharmakarta of the Venugopalasawmi temple and the shamilat institutions, and there seems nothing unreasonabls or improbable in the view that he may have found it more convenient to allot the income of the village of Konasamudram to the temple than to make appropriation from the rusum collections. Perhaps indeed the very fact that he was Dharmakarta as well as zamindar renders it less probable, because less necessary, that he would make permanent grants out of the zamindari land. It was his business to keep the temples going, but not necessarily to endow them for that purpose — and if the collection of rusums failed, it may be that he would not have been at all bound to supplement the income of the institution from his own revenues.

17. I am not prepared in these circumstances to infer from the use of the word “tanakha” that there was a grant to the temple. I do not rely on the fact that neither Punyam nor Konasamudram villages appear as Devadayam grants at the Inam Settlement instituted by the British Government. It may be that neither of these villages was allotted to the temples before the Permanent Settlement. Ex. CC is not clear on this point and there is no other evidence. [After discussing further evidence, his Lordship proceeded as follows:] There is in this case a good deal more evidence in favour of the plaintiff than was found in Konwar Doorganath Roy v. Ram Chunder Sen(1). We have the separate appropriation of rents and the description of the villages over a long period. But even so, I doubt, having regard to the ambiguity of the word “tanakha” and “jari” and to the Rajah's position in respect of the temples, whether we can properly be said to have here that very clear and strong evidence which their Lordships in that case held “ought to exist” to enable the plaintiff to discharge the burden which lies upon him, the burden in the present case of proving that the melvaram of the village of Kona, samudram was inalienably conferred upon the temple of Sri Venugopalaswami Varu and the connected temples in Karvetnagar to sustain the worship in those institutions. Upon the whole, though not without some doubt I think the evidence is insufficient to discharge the burden. In the absence of an express grant there is nothing inconsistent with a temporary appropriation of the rents of the village, an appropriation which it has been found convenient to allow to continue for a long period until the money was wanted for other purposes. I would for this reason, as well as upon the ground of limitation, allow the appeal and dismiss the suit with costs in both Courts.

18. It is unnecessary in this view of the case to decide the other two questions argued. The argument on the plea of res judicata was confined to the effect of the decision of the District Judge in Suit No. 9 of 1891 instituted on behalf of the temple by the Rajah's mother to recover the same village. The District Judge held that on the facts stated in the plaint—the District Judge speaks of the allegations on the pleadings, but the earlier part of para. 16 of his judgment shows that he is referring only to the plaint—the plaintiff had no cause of action, the temple, it appeared to him, was in the plaint alleged to be a private institution and the funds provided for its upkeep were at the disposal of the Rajah. It is, as I have said, unnecessary to decide whether in these circumstances the present suit by the plaintiff is barred or not.

19. The other question is whether the defendant's father, as a bona fide purchaser for value without notice of the trust, is entitled to retain the village in spite of the trust. The finding that there is no trust renders it unnecessary to decide this question either.

Tyabji, J.:— I agree in the judgment prepared by my learned colleague which I have the benefit of reading. The facts leading up to this appeal are set out in that judgment and I need not repeat them.

20. The first question with which I propose to deal is whether, the village of Konasamudram appertains to the Sri Venugopalasawmi temple as alleged by the plaintiff. [After discussing the documentary evidence on the point, his Lordship concluded as follows:] After considering the whole of the evidence adduced in this suit with reference to the dedication of the village, I have come to the conclusion that the village of Konasamudram was not dedicated to the Venugopalasawmi temple and that therefore the sale to the defendant's predecessors-in-title was a valid sale.

21. The next point with which I shall deal is whether the suit is barred by limitation. I agree that the suit is barred. The defendant's father purchased the village on 8th August 1889 ??? Court auction held in execution of his mortgage decree, and possession was transferred to him in May 1890. Ex. 6 is the sale certificate, dated 21th April 1890, and Ex. 6(a) is the receipt for possession, dated 7th May 1890. At the date of Ex. 6(a) the village was in the actual possession of ijaradars to whom the property had been leased by the zamindar. It is contended for the plaintiffs that the purchaser did not obtain possession of the village in May 1890, nor until the lease had expired. As against this we have the fact that under the decree of the Court the auction purchaser was purported to be put into such possession as could be given to him in May 1890; and strong evidence would be required to show that in spite of the execution proceedings the defendant did not obtain as full and complete a possession as was possible under the circumstances.

22. The plaintiff contends that as a matter of fact, after the date of Ex. 6(a), rent was paid by the ijaradars to the zamindar as trustee of the temple and not to the defendants or their predecessors-in-title; and for this contention reliance is mainly placed on Ex. X-2 which is a memorandum of account. The heading of Ex. X-2 is as follows: “List showing details of amounts received from 1887 to September 1890, on account of Devastanam dues paid by Konduru Venkataraju and other lessees of Konasamudram.” The item in Ex. X-2 relied upon by the plaintiff is for Rs. 250 bearing date 16th July 1890. Ex. X-2 is referred to in the evidence of P.W 4 and Exs. 10 and 11 show how it came into being. It seems to me that the item in Ex. X-2 for Rs. 250 is not a genuine one. It is unexplained why this item should be credited to the Vikruti year 1890 of the Christian era, when, as a matter, of fact, the rent for the previous year 1889 was not fully discharged. That it was not fully discharged is shown by the fact that a total of only Rs. 4,000 is shown as having been received at the foot of the account. The rent being at the rate of Rs. 1,500 per year the total amount due for the three years 1887, 1888 and 1889 would be Rs. 4,500. This fact, connected with the facts to which I have alluded before, makes it extremely improbable that the sum of Rs. 250 should have been paid and accepted as rent for the Vikruti year, 1890.

23. Similar remarks apply to the entry for Rs. 100 in Ex. Y-2, which entry however does not refer to the period in respect of which the sum was received. Ex. Z might show that, as a matter of fact, some portion of the rent was recovered after the transfer, of possession to the defendants' father but that might well refer to the rent due for the period anterior to the purchase by the defendants' father.

24. It was argued that in spite of these facts, the village must be presumed to be in the possession of the trustee so long as the ijara continued. But it seems to me that there is nothing to prevent possession of the lands being transferred by the tenants being made to attorn to the transferee, and if, as a matter of fact, the rent is recovered by the transferee, he has obtained complete possession of the lands.

25. In this connexion it should be mentioned that there is no evidence that the rent of Konasamudram was collected immediately after the date of Ex. 6(a) by the auction purchaser, the present defendants' father. The absence of such evidence was explained by the fact that the person who actually purchased the village in the auction sale, and through whom the present defendant claims it, had died, and it is difficult to trace the accounts at this time so long after the events. This explanation seems to me to be not unreasonable, and in any event it must be for the plaintiff to prove, that in spite of the auction sale and of the formal delivery of possession to him by Ex. 6(a), the rent was collected by the plaintiff and not by the auction purchaser. It is admitted that at the present moment the sons of the auction purchaser are in possession. Their possession can be most reasonably traced to the auction purchase; no circumstances are proved from which their possession can be referred except to the auction purchaser; and, if their possession is to be referred to the auction purchaser, it must prima facie be referred also to Ex. 6(a).

26. I am therefore of opinion that the defendant was in possession of the village adversely to the temple from May 1890. There was some discussion as to the article of the Limitation Act that must apply. On behalf of the appellant Articles 134, 142 and 144 were suggested as the articles that must; apply; the respondent's pleader suggested Article 144. In any case, if the defendants or their predecessors-in-title have been holding the land adversely to the temple since May 1890, the present suit was barred by limitation.

27. Two other points were argued before us on behalf of the appellant, namely that the appellant was a bona fide purchaser for value without notice of any trust; and secondly that the suit was barred by the doctrine of res judicata. It is unnecessary to deal with these points in view of the opinion that I have formed as regards the two questions with which I have dealt. I agree therefore that the appeal should be allowed and the suit dismissed with costs throughput.

S.N/R.K

28. Appeal allowed.