Motiram Danaji And Others v. Shenu And Another

1. This is a defendants' appeal concerning a five annas four pies share in the Maharki watan and the Maharki Inam field No. 20 of Makodi, and for possession thereof. The lower Court decreed the claim, but in appeal the relief was reduced to cover two annas eight pies' share only. It was pleaded that amongst other things the suit was barred by limitation, and that is the question which is now agitated in second appeal.

2. The plaintiffs had first of all claimed a declaration only, but on 23rd July 1932 were allowed to amend the plaint by adding reliefs of possession and injunction. It is contended that this should not have been allowed as it deprived the defendants of the plea of limitation. The suit has been held to be within time, and the lower appellate Court says it is governed by Article 124 of the Limitation Act. I do not think that allowing the amendment was contrary to law or in any way irregular. The omission to claim possession seems to have been through oversight. Possession over the field is consequential on the title to the Maharki watan. If amendment had been refused a separate suit for possession was within time, but allowing the amendment was the better course to adopt, so that the entire dispute might be decided in one suit.

3. It is said however that Article 120 applies and not Article 124, because Maharki watan is neither an office nor hereditary, and the article applies only to a claim of an entire office. Recognition of the office of mahar is to be found in Revenue Rules themselves: R. 437, et seq. at pp. 176 to 183 of the Berar Revenue Manual, Vol. 1, R. 437 speaks of the number of mahars to be maintained in office and R. 441, reads as follows:

If there is a dispute as to the right to office, the revenue patel shall make a temporary appointment and the parties shall be referred to a civil Court. If the person decided by the civil Court to have the right to office is in the opinion of the patel of bad character or unfit to perform the duties of the office, he shall demand that a competent substitute be furnished.

4. Rule 442 provides that:

Any person dissatisfied with the patel's order under R. 441 may apply to the Tahsildar for redress,

while R. 440 provides that on the death of a working mahar appointment shall be strictly in accordance with the custom of the village. No other custom except that of succession by heredity has been suggested in this case, and it is quite clear that the revenue authorities, who themselves referred the respondents to the civil Court, would uphold the decision of the civil Court and personally appoint the respondents to work in their turn, unless, owing to their bad character or unfitness, they had to give a substitute. I find therefore that the watan falls under the term ‘hereditary office.’

5. Appellants' learned counsel refers me to a paragraph in U.N Mitra's Limitation and Prescription, Vol. 2, Edn. 6, under Article 124, discussing the question of fractional interest to an office. The learned author states his opinion that a division of rights and duties of an office cannot be made with reference to this article and says that where several co-trustees or co-managers of a public religious office hold it in rotation, the possession by one trustee in his turn is neither exclusive nor adverse to the other trustees.

6. The case of a Maharki watan is not parallel to this, because in it each one claims a share for his branch alone to the exclusion of the others, and the alternate working of a branch year by year is also exclusive of the others.

7. Defendants themselves had resisted the suit on the ground of their exclusive and adverse possession. Even in the case of trustees Mitra recognizes that there can be adverse possession as he says in the same paragraph:

Whether there are two distinct branches of such trustees, and one of the branches as a whole body holds and possesses the office and the properties of the institution to the exclusion of the other branch, such possession is adverse to the latter.

8. I therefore think that Article 124 was properly applied and that the case was in time. The appeal therefore fails and is dismissed with costs.

S.C/A.L

9. Appeal dismissed.