# SUPREME COURT REPORTS [1959] Supp. BALKRISHNA SAVALRAM PUJARI AND OTHERS v. SHREE DNYANESHW AR MAHARAJ SANSTHAN & OTHERS

- **Citation:** [1959] Supp. 2 S.C.R. 476
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Civil Appeals Nos. 220 to 223 of 1953
- **Bench:** P. B. Gajendragadkar, A. K. Sarkar, K. SuBBA RAo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-reports-1959-supp-balkrishna-savalram-pujari-and-others-v-shree-1691
- **Pages:** 24

## Headnote

Limitation-Suit for possession of Sansthan by hereditary worshippers on ouster by trustees-Period of limitation-Trustees, if
in possession adversely to plaintiffs-Ouster, if a continuing wrong
-Indian Limitation Act, I908 (9 of I908), Arts. I20, I24, 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 Gura vs 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 jnjunction 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. 124 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. r20
an<:! not art. 124, of the Limitation Act applied and that s. 23
had no application to the suits in question.
(2) S.C.R. SUPREME COURT REPORTS
477
Article 124 of the Limitation Act applies only where the
1959
cause of action for the suit is wrongful dispossession of the plaintiff and adverse possession by the defendant in respect of the
Balkrishna
hereditary office in question. · In such suits, the contest usually Sava/ram Pujari
is between rival claimants to the heniditary office and not
& Others
between such claimants and trustees. It is impossible to ignore
v.
the provision of Col. 3 to that article in deciding its applicabi- Shree Dnyaneshwar
lit y.
Maha raj Sans than
Kunj Bihari Prasadji v. Keshavlal Hiralal, [1904] I.L.R. 28
& Others
Born. 567 and Jalim Singh Srimal v. Choonee Lall Johurry, [19II]
15 C.W.N. 882, held inapplicable.
Thathachariar v. Singarachariar, A.LR. 1928 Mad. 377, approved.
Annasami v. Advarachari, I.L.R. 1941 Mad. 275, distinguished.
Jhalandar Thakur v. ]harula Das, [1914] 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 continuin~ injury as opposed to
one that was complete and makes the doer liable for such continuance. A completed injury would not be a conti11uing wrong
even though it might give rise to continuing damage.
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

## Text

_Characters 0–39,981 of 56,157. This is a partial read: ask again with offset=39981 for what follows._

1959
March 26.
476
SUPREME COURT REPORTS [1959] Supp.
BALKRISHNA SAVALRAM PUJARI
AND OTHERS
v.
SHREE DNYANESHW AR MAHARAJ
SANSTHAN & OTHERS.
(P. B. GAJENDRAGADKAR, A. K. SARKAR and
K. SuBBA RAo, JJ.)
Limitation-Suit for possession of Sansthan by hereditary worshippers on ouster by trustees-Period of limitation-Trustees, if
in possession adversely to plaintiffs-Ouster, if a continuing wrong
-Indian Limitation Act, I908 (9 of I908), Arts. I20, I24, 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 Gura vs 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 jnjunction 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. 124 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. r20
an<:! not art. 124, of the Limitation Act applied and that s. 23
had no application to the suits in question.
(2) S.C.R. SUPREME COURT REPORTS
477
Article 124 of the Limitation Act applies only where the
1959
cause of action for the suit is wrongful dispossession of the plaintiff and adverse possession by the defendant in respect of the
Balkrishna
hereditary office in question. · In such suits, the contest usually Sava/ram Pujari
is between rival claimants to the heniditary office and not
& Others
between such claimants and trustees. It is impossible to ignore
v.
the provision of Col. 3 to that article in deciding its applicabi- Shree Dnyaneshwar
lit y.
Maha raj Sans than
Kunj Bihari Prasadji v. Keshavlal Hiralal, [1904] I.L.R. 28
& Others
Born. 567 and Jalim Singh Srimal v. Choonee Lall Johurry, [19II]
15 C.W.N. 882, held inapplicable.
Thathachariar v. Singarachariar, A.LR. 1928 Mad. 377, approved.
Annasami v. Advarachari, I.L.R. 1941 Mad. 275, distinguished.
Jhalandar Thakur v. ]harula Das, [1914] 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 continuin~ injury as opposed to
one that was complete and makes the doer liable for such continuance. A completed injury would not be a conti11uing wrong
even though it might give rise to continuing damage.
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
Mahadev Asram Prasad Saki Bahadur, [1939] I.L.R. 19 Pat. 208
and Khair Mohammad Khan v. Mst. Jannat, [1940] I.L.R. 22
Lah. 22, referred to.
Maharani Rajroop Kaer v. Syaed Abdul Hossein, [1880] L.R.
7 I.A. 240 and Hukum Chand v. Maharaj Bahadur Singh, [1933]
L.R. 60 I.A. 313, distinguished and held inapplicable.
OrvIL
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 judg-
. ments 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 appellants.
N. C. Chatterjee, K. V. Joshi and Ganpat Rai, for
respondents Nos. I to 6 (In all the Appeals).
478
SUPREME COURT REPORTS' [1959] Supp.
'959
1959. March 26.
The Judgment of the Court was
Balkr;shna
delivered by
·
Savalram Pujad
GAJENDRAGADKAR, J.-These four· appeals repre-
& Othm
sent the last stage of a long and tortuous litigation
v.
between the appellants
Waghmares (also
called
Sh"e Dnyaneshwar G
) h
1 ·
th
· ht
f h
d "t
h ·
M h
. s
th
uravs w o c aim
e rig s o
ere 1 ary wors 1pa ara;
ans an
,
h Sh
.
e;. Othm
pers m t e
ree Dnyaneshwar MaharaJ Sansthan,
Alandi, and respondents 1 to 6 who are the trustees
Gajendragadkar }.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 aR 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
cult; 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, thousand~
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 Dnyaneshwar 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
(2) S.C.R.
SUPREME COURT REPORTS
479
administration of its annual revenue amounting to
z959
Rs. 1,725. The appellants claim that their ancestors
l
d
Balktishna
were then in possession of the temp e an manageSava/ram Pujari
ment of its affairs especially the worship of the shrine.
& others
The budget framed by the Peshwa shows that out of
v.
the sum of Rs. 1,725 an amount of Rs. 361 was assign- Shree Dnyaneshwar
ed to the worshippers for some of their services.
Maharaj Sansthan
After the fall of the Mahratta power the manage-
& Others
ment of Alandi passed into the hands of the East Gajendragadkar 1.
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 in consequence, 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
SUPREME COURT REPORTS [1959) Supp.
'959
claimed a declaration that they were the owners of
Balkrishna
the temple and not the servants of the temple comSavalram Puja.i mittee; and as owners they were entitled to perform
& Others
the worship at the shrine and to appropriate the offerv.
ings made to the idol of the Saint. This claim was
Sh"' D~yaneshwar resisted by the trustees who pleaded that the Gura vs
Maha.a; hsansthan were merely the servants of the temple committee and
&Oters
h
II
0
.
_
not t e owners at a .
n April 20, 1917, the learned
Gajendragadkar J. trial judge dismissed the suit because he held that the
Gura vs 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 Gura vs 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 misconduct.
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 Gura vs had
occupied the temple precincts for about three and a
half months.
(2) S.C.R.
SUPREME COttR'r Rl!jPOR'rS
481
I959
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
Balkrishna
the District Court of Poona; this suit purported to be Sava/ram Pujari
one under s. 92 of the Code but it claimed the same
& Others
reli~fs as ~ad been claimed by. the Gura vs in. th~ir Shree Dn;~neshwar
earlier smt of 1911. On April 25, 1927, the DistrwtMaharaj Sansthan
Court dismissed this suit on the ground that the Gura-
& Others
vs could not reagitate the same questions over again.
.
-
It was held that their claim was barred by the deci- Ga;endragadkar /.
sion of the earlier Suit No. 485 of 1911. Against this
decision the Gura vs 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 Gura vs 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 Gura vs
took the precaution of filing four separate suits on behalf of four branches in the W aghmare 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
482
SUPREME COtJRT REPORTS [1959] Supp.
I959
scheme of 1852, though he issued certain directions
.
modifying it. This decree was passed on December
Balkmhn•.
. 11, 1937. The trustees felt aggrieved.by this decree
Saualram PuJ•ri
d h ll
d .
.
b
,.
.
.,, Oth s
an c a enge its propriety y pre1errmg an appeal,
v."
No. 92 of 1938, in the Bombay High Court. On
Shree Dnyaneshwa. November 16, 1939, the High Court dismissed the
Maharaj Sansthan appeal though it made some amendments in the sche-
& Others
me framed by the District Judge by consent of the
Gajendr~kar ]. parties.
.
.
After the scheme smt 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 Dnyaneshwar. 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 perishal;>le arti-
. cles 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 allega.tions were denied by respondents I 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
(2) S.C.R.
SUPREME COURT REPORTS
483
of the appellants on all the issues. The learned judge
I959
h.elhd that the Gburahvs hadd hestablis~ed
1
. thde hetrekditahry
Balkrishna
rig ts set out y t em an
e was me me to a e t e 5
1
P . .
.
.
ava ram
u;art
view that the respondents could not deprive the appel-
& others
lants of their hereditary rights of service because of
v.
the misconduct of some of their ancestors. He also Shree Dnyaneshw~r
found that there was no substance in the plea of es- Maharaj Sansthan
toppel or res judicata and that the suits were not bar-
& Others
red by limitation. In the result the appellants' suits Gajendragadkar 1.
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 barI'ed 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 a ppellauts 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 ii 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
SUPREME COURT REPORTS [1959] Supp.
'959
was made by the appellant in the said appeal seeking
8 lk . h
to raise the same point over again but this applicaSava~•:'P~•d tion was rejected by the High Court on 'September 12,
& Others
1944.
v.
The appellants then applied for leave to appeal to
Shree D~yaneshwar the Privy Council on August 15, 1944. Their applicaMahar•J Sansthan tions were heard together and were disposed of by an
& Others
d
d
M
_
or er passe
on
arch 26, 1946, whereby leave was
Gajendragadkar J. 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,
(2) S.C.R. SUPREME COURT REPORTS
485
come to the conclusion that the suits are governz959
ed by art. 120 of the Limitation Act, and, according
.
to its findings, limitation began to run against the 5
B;lkris~na. .
appellants either from September 12, 1922, when the
ava;,a:'/iher~Jari
trustees filed their suit under s. 9 of the Specific
v.
Relief Act, or, in any case from November, 1922,Shree Dnyaneshwar
when, in execution of the decree passed in the said Maharaj Sansthan
suit, the appellants were driven out of the temple pre-
&- Others
cincts by the trustees. The High Court has also held Gajendragadkar 1
thats. 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
(r) (1904) I.L.R. 28 Born. 567.
486
SUPREME COURT REPORTS [1959] Supp.
'959
principal point which was decided in the case had
Balktishna
reference to the effect of the provisions of s. 42 of the
Savalrnm p,.jari Specific Relief Act. The plaintiff's suit had been dis-
& Others
missed in the courts below on the ground that he had
v.
omitted to ask' for further relief as he was bound to do
Sluee Dnyaneshwar under s. 42 of the said Act and the High Court held
Mahara; Sansthan th t th
t'
d'd
t
h
d'
.
& Othm
a
e sec 10n 1 no empower t e court to rnm1ss
the suit under the said section. In considering the
Gajendrngadkar }.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 in-junction 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
he 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
ad vised 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 fo:i:. nothing more than possession
(1) (1904) I.L.R. 28 Born. 567.
(2) S.C.R.
SUPREME COURT REPORT~
487
of the hereditary office ; but in dealing with the prex959
sent aJ?peals we are p~epared to a_ssume that they
Balkrishna
have m substance claimed possess10n of the office. savalram Pujari
The question which then arises is: Does this claim for
0 others
possession attract the application of art. 124 of the
v.
Limitation Act?
Skree Dnyaneshwar
Article 124 governs suits for possession of an here- Maharaj Sansthan
ditary office.
The period of limitation prescribed by
& Others
the article is twelve years and the said period begins Gajendragadkar J.
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 b'efore 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
SUPREME COtfR't' REl>OR't'S
[1959] Supp.
1959
made by the appellants against the trustees of the
B lk . h
Sansthan. It is significant that the persons who are
Sava;,.:' ;~ari actually performing the duties of the worshippers
& Others
are not impleaded ; and they do not claim to hold
v.
office as hereditary officers either. They have been
Shree D~yaneshwar appointed by the trustees as servants of the institution
Maha;;10,i;,:sthan and they perform the duties of worship as such servants. The trustees, on the other hand, cannot be
Gajendragadkar J. said to have taken possession of the office themselves
adversely to the appellants. They do not take the
profits themselves -Uor 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 provisions 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 plaihtiff 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 equity.
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
(2) S.C.R.
SUPREME COURT REPORTS
4S9
to be that once it is shown that the suit is for possesx959
shion o
1
f ~n h~reditary o~ce, art.124 muhst appbly though
Balkrishna•
t e. c aim .ior possession may not
ave . een made Sava/ram Pujari
agamst a person who has taken possess10n of the
& others
office adversely to the plaintiff. He also urged alter_ v.
natively that the trustees should be deemed to haveShree Dnyaneshwar
taken possession of the office adversely to the appel- Maharaj Sansthan
lants.
We have already held that the conduct of the
& Others
trustees shows that they have not taken possession ofcajendragadkar J.
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.
Ohoonee Lall J ohurry (1 ), while holding that the adjust-
·ment 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) (19n) 15 C.W.N. 882.
(2) A.I.R. 1928 Mad. 377.
.
(3) I.L.R. 1941 Mad. 27 5.
62
490
SUPREME COURT REPORTS [1959] Supp.
z959
which the plaintiff had claimed an injunction restrainBalkdshna
ing the ~rustee and th~ archakas of th~ Sri B h u varaSavalrnm Pujari baswam1 temple at Sr1mushnam from mterfering with
& Others
the performance of the duties of his office of mantrav.
pushpam of the temple.
This suit had been filed in
Skree Dnyaneshwar 1929. The office of mantrapushpam was a hereditary
Mah";,,a~
1
;•nsthan office and the plaintiff had succeeded to it on the
"'
death of his father iu 1906. The emoluments of the
Gajendragadkar J. office consisted of a ball of cooked rice per diem 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
had 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, an·d 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
(2) S.C.R.
SUPREME COURT REPORTS
491
s. 23 helped the plaintiff and saved. his suit from the
x959
bar of limitation. As we will presently point out there
Balkrishna
is no scope for applying s. 23 to the facts of the preSavalram Pujari
sent cases, and so the decision in Annasami lyengar's
& Others
case (1) cannot assist the appellants.
v.
In this connection it is relevant to consider the deci- Shree Dnyaneshwar
·
f th
p ·
C
"l ·
Jh z d
Th k
Maharaj Sansthan
swn o
e
nvy
ounm in
a an ar
a ur v.
& Others
Jharula Das (2) in which it was held that art. 124 was
inapplicable. The defendant Jharula Das had obtain- Gajendragadkar J.
ed a decree for money on a mortgage which had been
executed in his favour by Mst. Grihimoni, the widow
of the shebait of the temple. In execution of the said
decree the defendant had caused 3t 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 3tas. 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 3tas. 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
(r) l.L.R. r94r Mad. 275.
(2) (1914) I.L.R. 42 Cal. 244.
492
SUPREME COURT REPORTS (1959] Supp.
x959
competent to hold the office of the shebait of the
temple, or to provide for the performance of the duties
Balakrishna
of that office.
On these facts the Privy Council held
Savalram Pujari h
f
& Others
t at the appropriation rom time to time by Jharula
v.
Das of the income derivable from the said 3ias. share
Shree Dnyaneshwar did not deprive Mst. Grihimoni, and after her death,
Maharaj Sansthan Bhaiaji Thakur, of the possession of the office of the
& Othm
shebait although that income was receivable by them
G . d-dk
1 in right of the shebaitship. The basis of this decision
a;en raga
ar
. •
h
.
h'
Jh
1s that, on eac
occas10n on w 10h
arula 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 she bait; 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 Gura vs 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 offending Gura vs (Ex. 407). On
April 1, 1911, the Collector sent a reply to the trustees
and told them that, as a result of the Government
(2) S.C.R.