Balkrishna Savalram Pujari & Ors Vs.
Shree Dnyaneshwar Maharajsansthan & Ors  INSC 25 (26 March 1959)
CITATION: 1959 AIR 798 1959 SCR Supl. (2) 476
CITATOR INFO :
RF 1981 SC1106 (18)
Limitation-Suit for Possession of Sansthan by
hereditary worshippers on ouster by trustees-Period of limitationTrustees, if
in possession adversely to Plaintiffs-Ouster, if a continuing wrong-Indian
Limitation Act, 1908 (9 of 1908), Arts. 120, 124, S. 23.
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
Kunj Bihari Prasadji v. Keshavlal Hiralal,
 I.L.R. 28 Bom. 567 and jalim Singh Srimal v. Choonee Lall Johurry,
 15 C.W.N. 882, held inapplicable.
Thathachariar v. Singarachariar, A.I.R. 1928
Mad. 377, approved.
Annasami v. Advarachari, I.L.R. 1941 Mad.
Jhalandar Thakur v. jharula Das, 
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
in Jury would not be a continuing wrong even though it might give rise to
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,  I.L.R. 19 Pat. 208 and Khair
Mohammad Khan v. Mst. jannat,  I.L.R. 22 Lah.
22, referred to.
Maharani Rajroop Koer v. Syaed Abdul Hossein,
 L.R. 7 I.A. 240 and Hukum Chand v. Maharaj Bahadur Singh,  L.R. 60
I.A. 313, distinguished and held inapplicable.
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
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 distance 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
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
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 decision 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.
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
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 491 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
Grihimoni, the widow of the she bait 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 she bait, 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
(3)  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