Dibakar Dutta vs Chandi Charan Bose

P.N. Mookerjee, J.—This is the Defendant''s second appeal, arising out of a suit for declaration of the Plaintiffs'' co-shebaiti right in the endowment in suit and for removal of the Defendant from co-shebaitship on account of misconduct and also for accounts. In the plaint, it was stated, inter alia that the Defendant was appointed a managing shebait by consent and that he used to render accounts as such managing shebait and that he having failed or refused or ceased to render such accounts, a decree of accounts was also necessary.

The defence denied the Plaintiffs'' shebaiti right and also the Plaintiffs'' allegation that the Defendant had been appointed managing shebait by consent. The allegations of misconduct on the part of the Defendant and about his liability for accounts were also controverted. The defence further took the plea of limitation in the written statement and, during arguments before the learned Munsif, the plea of limitation was expanded to include also a case of adverse possession. The learned Munsif dismissed the Plaintiffs'' suit, holding, inter alia, that the suit was barred by limitation under Article 124 and/or Article 144 of the Indian Limitation Act. The learned Munsif also found that neither mismanagement nor misconduct nor non-performance of the sheba had been proved by the Plaintiffs so as to justify removal of the Defendant and the claim for accounts also could not be substantiated. On the question of the Plaintiffs'' shebaitship, however, the learned Munsif found in their favour.

Against the above decree of dismissal, the Plaintiffs appealed and their appeal was decided originally by the lower appellate court on January 2, 1948. The lower appellate court affirmed the learned Munsif''s finding on the merits that the Plaintiffs had a valid claim to the shebaitship. It further held that, in view of Section 10 of the Indian Limitation Act, the question of limitation also must be decided in favour of the Plaintiffs. It accordingly, gave the Plaintiffs a decree for joint possession in respect of the disputed debuttar properties. But, on the question of removal of the Defendant and also of accounts, it agreed with the learned Munsif and dismissed the Plaintiffs'' claim in that respect. The suit, accordingly, was decreed in part, that is, only for joint possession, by the lower appellate court and the Plaintiffs'' appeal was allowed in part.

From this appellate decision the Defendant came to this Court in Second Appeal No. 493 of 1948. That Second Appeal was heard by G.N. Das, J., and by his judgment, delivered on August 27, 1951, his Lordship was pleased to allow the appeal and send the case back to the lower appellate court for rehearing on two questions, namely, whether the Defendant was the managing shebait, as alleged by the Plaintiffs, and whether the suit was barred by limitation, or, strictly speaking, adverse, possession. It was stated in his Lordship''s judgment,-and that is also the obvious position-that if the question of managing shebaitship be found in favour of the Plaintiffs no question of limitation or adverse possession would arise and that question need not be considered. If, on the other hand, the said question be answered against the Plaintiffs, the question of limitation or adverse possession would be considered by the lower appellate court. His Lordship also affirmed the concurrent findings of the two courts below on the question of the Plaintiffs'' claim to the shebaitship which, on the merits, was found in favour of the Plaintiffs.

The matter went back to the lower appellate court and the learned Subordinate Judge, who dealt with the appeal this time, found against the Plaintiffs, so far as the question of the Defendant''s managing shebaitship was concerned, and he recorded a clear finding that, on the evidence, the Plaintiffs'' allegation that the Defendant had been appointed managing shebait by consent had not been established. Necessarily, therefore, in accordance with the directions of this Court in its order of remand, the learned Subordinate Judge had to consider the question of limitation or adverse possession. Before the learned Judge, it appears to have been accepted by both parties that, so far as adverse possession between co-shebaits is concerned, it stood on the same footing as adverse possession between co-sharers, and the same test or tests would have to be applied for determination or decision of the said question. Accepting that position, the learned Subordinate Judge came to the conclusion that, on the evidence before him, no case of ouster had been established and all that could be found was that the Defendant was apparently in exclusive enjoyment and possession of the debuttar properties and also in exclusive performance of the Deb Sheba, and that for quite a pretty number of years. But that alone, in the opinion of the learned Subordinate Judge, would not necessarily amount to ouster, which was one of the essential ingredients for holding in favour of adverse possession against a co-sharer or a co-shebait. In this view, the learned Subordinate Judge decided the question of limitation or adverse possession in favour of the Plaintiffs and against the Defendant and, in the light of his said finding and the finding in favour of the Plaintiffs on the merits on the question of their co-shebaitship, he decreed the Plaintiffs'' suit joint possession, as was done by his predecessor on the earlier occasion.

Against this decision of the learned Subordinate Judge, the present appeal has been filed by the Defendant and, on his behalf, Mr. Mookerjee has challenged not only the finding on the question of ouster but also endeavoured to re-open the admitted position before the court of appeal below by contending that the law of adverse possession as between co-shebaits is not the same as between co-sharers. So far as this legal aspect is concerned, the point is concluded against the Defendant Appellant by the decision of the Privy Council in the case of Lachhmi Sewak Sahu v. Ram Rap Sahu (1943) 48 C.W.N. 304 (P.C), where their Lordships laid down the law on the point as follows:

The common case in Bengal is of the shebaiti of the family idol descending by inheritance in like manner as secular property under the Dayabhaga. Under that law, debuttar property and secular property could hardly be treated differently. In the latter case it is clear that until something is done which amounts to ouster of one of the heirs, the possession of one is considered to be the possession of all.

The judgment of the Board was delivered by Sir George Rankin who in essence, reaffirmed or reiterated his view, expressed on an earlier occasion as the Chief Justice of this Court in the case of Panchanan Banerjee v. Surendra Nath Mukherjee (1929) 50 C.L.J. 382. The above position is also intrinsically supported-although that support is not necessary in view of the aforesaid Privy Council decision, by the basic or underlying idea of the Full Bench decision of this Court in the case of Monohar Mukherjee Vs. Bhupendra Nath Mukherjee and Others which was, broadly speaking, accepted and affirmed on principle by the Judicial Committee in the case of (1936) L.R. 63 I.A. 448 (Privy Council) , namely, that shebaitship is not merely office or right to office but property as well may well be immovable property.

In view of the aforesaid decision, the law is practically settled that, so far as adverse possession is concerned, the position is the same when the question arises between co-shebaits, as when it arises between co-sharers. "We would, accordngly, reject Mr. Mukherjee''s challenge in this Court to the said admitted position in law, as accepted by both parties in the court of appeal below.

The only question then remains as to whether the learned Judge''s view that, in the present case, ouster has not been proved is a proper view in the facts and circumstances of this case. The learned Subordinate Judge, as we have said above, actually found that the Defendant had been in continuous enjoyment and possession of the debuttar properties and had also been performing the Deb Sheba etc. for a pretty long time. He has, however, expressed the view that, in the circumstances of this case, mere long possession or enjoyment, etc., would not be enough to justify a finding of ouster. This has been controverted to by Mr. Mukherjee on behalf of the Defendant Appellant. It must be accepted, however, upon the findings of the learned Subordinate Judge and on the materials before the court, that, so far as the kabuliats (Exts. A series) on which the Defendant''s story of possession is based are concerned, it has not been proved that they were taken with the knowledge of the Plaintiffs or their predecessors. It must be remembered also that this is a case of private endowment and the properties were the properties of that endowment. The Defendant, although he was not certainly appointed managing shebait by consent, as alleged by the Plaintiffs, was, at least, in charge of the sheba puja of the deity at the date of the relevant compromise decree (Ext. 1) as will appear from the said document itself, namely, Ext. 1, on which primarily both the courts below have found in favour of the Plaintiffs on their claim to the disputed shebaitship. It is quite plain from the said compromise (Ext. 1) that it was the Defendant who was performing the sheba puja of this particular deity at the time and, under the terms of the said compromise, that performance was not to be discontinued, but was to be continued apparently for the benefit and on behalf of all the shebaits. In this context, at least, so far as the sheba puja of the deity is concerned, the Defendant was clearly doing it on behalf of all the shebaits and, to that extent, he was acknowledging the Plaintiffs'' and their predecessors'' right to the said shebaitship. In the circumstances, the exclusive possession of the Defendant of the debuttar properties, however long, would not be enough to justify a finding of ouster. On the other hand, such possession of the deity''s properties must be attributed to him as being or having been on his own behalf and on behalf of the other shebaits too by reason of his (Defendant''s) carrying on the sheba puja of the deity at the same time in the above capacity. In this view and in the light of the other considerations, noted and mentioned by the learned Subordinate Judge, no ouster can be found as against the Plaintiffs and the Defendant''s plea of adverse possession must, accordingly, fail.

In the light of the foregoing discussion we would accept the decision of learned Subordinate Judge and dismiss this appel with costs to the appearing Respondents, hearing fee being assessed at two gold mohurs.

Niyogi, J.

I agree.