Baker, J.
1. The plaintiffs sued for a declaration that they were the managers and owners of the plaint property and had the right of collecting the income of it and for an injunction directing defendant No. 1 not to collect the income of the property from the tenants, defendants Nos. 2 to 27, and to recover mesne profits as the income already collected by defendant No. 1 with future mesne profits and costs. Subsequently by Exhibit 84 at the end of the case they applied to amend their plaint by adding a prayer for possession. That application was granted although no formal amendment was made in the plaint.
2. The facts of the case are that certain lauds-or the income of certain lands it is not clear which-were granted to a shrine at Mahuli of Jivanram Swamy, the family of the plaintiffs being the vahivatdars. The Sanad was given to one Govindbhat bin Rambhat who had two sons Ramchandrabhat and Haribhat. Ramchandrabhat was the father of the present plaintiffs. Haribhat sold the suit property to defendant No. 1 on June 7, 1914. Subsequently in 1919 Haribhat died. The plaintiffs sued to have the alienation set aside, on the ground that the property being devasthan property is inalienable and that Haribhat had no right to dispose of it.
3. The first Court awarded the plaintiffs' claim, and on appeal his decree was confirmed by the Assistant Judge of Satara. The defendant makes this second appeal,
4. In the Courts below very numerous questions of law were raised and were argued at great length as will appear from the judgments. Most of these have now been given up in second appeal, although the appeal still involves questions of some difficulty. But the two main points which have been argued before us are, first, limitation, and, secondly, as to the nature of the property, and one or two minor points have been raised as well. The argument regarding limitation, which is the main argument in the case, is briefly this that what the plaintiff sues for is a declaration and injunction, that such a suit is governed by Article 120 of the Indian Limitation Act, and, therefore, as limitation will run from the date of the transfer on June 7, 1914,'the present suit which is brought on June 7, 1926, is barred by limitation. This point has been considered at great length by the lower appellate Court and also by the first Court, and the learned Assistant Judge, after considering the pleadings, has come to the conclusion that what the plaintiffs have claimed in this case is in effect possession. He speaks of constructive possession, and it has been argued by the learned advocate for the appellant that no such term as constructive possession is to be found in the Civil Procedure Code ; consequently, if the suit is one for possession this must be for possession pure and simple, and that as a matter of fact it is not a suit for possession but a suit merely for a declaration and injunction.
5. Now, quite apart from the ultimate alteration by Exhibit 84 in which prayer forpossesion was expressly included, in considering the nature of the present property it is to be remembered that what is claimed is the assessment of the lands which are actually in the possession of occupancy tenants, and, therefore, the only way in which the plaintiffs could obtain possession of this assessment from defendants Nos. 2 to 27 is by a declaration that they are entitled to it and an injunction restraining defendant No. 1 from collecting the assessment from the tenants, and the relief granted by the first Court which is at p. 19 is 'plaintiffs as vahivatdars of the plaint shrine to be put in such possession of the plaint properties as Is permissible by their nature and consistently with the rights of defendants Nos. 2 to 27.' Defendants Nos. 2 to 27 are the occupancy tenants who are in actual possession of the lands and whose possession cannot of course be disturbed in the present suit. In these circumstances I think that on the view which has been taken by the Judge of the lower appellate Court, viz., that the suit between the parties proceeded as if it were one for possession, although the Judge has criticised the orders based upon Exhibit 84, there can be no doubt that the intention of the plaintiffs was to claim such possession as they could obtain of the property in suit, and that was the relief awarded by the lower Court.
6. The learned advocate for the appellant has relied on a case in Dattatraya v. Lakshman : AIR1932Bom15 , which is a judgment of my own, in which, he contends, the facts were on all fours with the present case and it was held that the Article applicable to the suit was Article 120, it being a suit for a declaration and injunction, and he has read the abstract of the plaint in that case which was for a declaration that the income of the village of Takli was not liable to be mortgaged by Manohar and Eknath for their personal debts; that the mortgages in favour of defendants Nos. 1 to 3 may be declared to be void and no longer binding on the religious endowment, and for an injunction against defendants Nos. 1 to 3B for preventing them from claiming any income of the said village from defendant No. 4, the Collector; and that defendant No. 4 should be directed to pay the income of the Dumala village of Khare Takli to the plaintiffs and their heirs and successors. And at p. 1428 it is stated :-
The present suit is a suit for a declaration and injunction and as such falls under Article 120 of the Indian Limitation Act, the limitation applicable being six years from the date when the cause of action arose.
7. On a reference, however, to the facts of that case it will be found that the plaintiff's in that case were not entitled to immediate possession when the suit wag brought, and at p. 1423 it was pointed out that there was some difficulty as to the position in which the plaintiffs stood, and finally quoting from the judgment of the lower Court it was stated :-.the suit was brought by the plaintiffs as presumptive heirs of Eknath and not as devotees or worshippers or strangers to the grant interested in the performance of these festivals,' It so happened that during the pendency of this suit Eknath died on December 16, 1926, and an application was made by the plaintiffs for leave to amend the plaint in order to join a prayer for possession to the other prayers for a declaration and injunction which they have made.
8. That application was not granted, as will be found at p. 1430, on the ground that the case was already decided on other issues and that no advantage will be gained by allowing such an amendment. But that makes it clear that up to the time of Eknath's death, that is to say, when the suit was brought, plaintiffs had no right to possession. They were only the presumptive heirs of Eknath, and therefore the suit as brought was merely for a declaration and injunction, and as such governed by Article 120 of the Indian Limitation Act. That will distinguish that case from the present case.
9. The learned advocate for the appellant has further relied on Krishnaji v. Annaji : AIR1930Bom61 . That, however, is a case also distinguishable from the present case, the suit being not for possession but only for a declaration, and in that case quoting from Francis Legge v. Rambaran Singh I.L.R. (1897) All. 35 the distinction between a suit for a declaration and a suit for actual possession of immoveable property is pointed out and it is stated (p. 1245):
In a suit to which Article 144 would apply, there must be a prayer, ex press or implied for the dispossession of some one from the property or from the interest in it which the suit claims ...There is no one to be dispossessed from it or from any interestin it.
10. Applying that principle it will be seen that in the present case what the plaintiffs seek is dispossession of defendant No. 1 from the enjoyment of this property, that is to say, the assessment paid by the occupancy tenants which he is at present receiving.
11. The learned advocate for the appellant argues that whether it is a suit for possession or a suit for constructive possession does not change the nature of it. But in view of the circumstances to which I have already alluded, viz., the relief which, on an examination of the pleadings, the plaintiffs actually sought, the relief which was actually granted by the lower Court (vide paragraph 1 in the order) which gives such possession of the property as it is capable of yielding-and the only possession would be by way of an injunction to defendant No. 1 not to receive and to the tenants not to pay the assessment to defendant No. 1 but to pay it to the plaintiffs. I am of opinion that the Courts below were correct in holding that this was not a suit simply for a declaration and an injunction and that Article 120 will not apply.
12. Article 120 is a residuary article to be applied when no other Article will apply and the Article applicable in the present case would be Article 144 which provides for twelve years' period of limitation, the time running from the date when the possession of the defendant becomes adverse to the plaintiff The learned Assistant Judge has referred to Article 134, but the question of the exact Article which applies, if Article 120 does not, is of academic interest as the period will be twelve years. Under the recent ruling of the Privy Council Article 184 will not apply and the Article applicable appears to be Article 144. It has been further contended by the learned advocate for the appellant that assuming Article 144 to apply, the limitation will not run from the date of the transfer which was June 7, 1914,-the present suit brought on June 7, 1926, 6th being Sunday, is in time from that date-but the cause of action will begin from 1909 when Haribhat, the defendants' predecessor, set up his title. In that year the members of the plaintiffs' family, thewahiwatdars of the shrine, partitioned the property, and it is contended that their possession was adverse from that date. But the question is to whom was it adverse The beneficiary or owner in this case is an inanimate object, not exactly the idol, but the saint in whose honour the tomb was erected, and obviously such an owner must be represented by some human agency, in this case consisting of the family of the plaintiffs who may be regarded as the vahivatdars or shebaits, and the income of the lands, which is merely their assessment, is devoted to the upkeep of the tomb, The sanad granted by the British Government is in the name of the Swamy's vahivatdar, and so long as the property continues in the possession of the members of the family of the vahivatdar, the grantee, there can be no question of any adverse possession against the shrine or the idol. It is only when there is an alienation to strangers that any question of adverse possession would arise. So far, therefore, as the partition between the members of the family is concerned, that cannot have the effect of giving the starting point for adverse possession as against the idol or against the plaintiffs as representing the idol. The learned advocate for the appellant, however, contends that since 1873 the members of the family have been alienating the property to strangers. There is, however, no evidence that any previous alienation has ever taken place with regard to the particular property which is now in suit and which consists only of a fraction of the property belonging to the Swamy, Whether the other alienations could have the effect of starting adverse possession from that date is a question which will arise when those alienations are challenged in a suit. At present we are only concerned with the alienation made by Haribhat in favour of defendant No. 1, and, as has been already stated, that alienation was made in 1914. No question, therefore, of adverse possession before the date of the alienation will arise. And it has been held in the case of Dattatraya v. Lakshman : AIR1932Bom15 , to which I have referred, that adverse possession will commence from the date of the alienation. I have no doubt, therefore, that the Article applying is Article 144 of the Indian Limitation Act, Limitation began to run from the date of the alienation in 1914 and the suit is within twelve years of that. The suit is, therefore, not barred by limitation.
13. That is the principal point which has been argued in the case, the remaining points being of minor importance, The learned advocate for the appellant in the course of his learned argument has referred to several Calcutta and Madras cases :Gnanasambanda Pandara Sannadhi v. Velu Pandaram I.L.R. (1899) Mad. 271 : 2 Bom. L.R. 597P.C. and Damodar Das v. Lakhan Das I.L.R. (1910) Cal. 885 : 12 Bom. L.R. 632P.C. The case of Gnanasambanda Pandara Sannadhi v. Velu Pandaram is not in any way inconsistent with the view which I have junction expressed. In that case the hereditary managers of the property with which a religious foundation was endowed had purported to sell and assign the management and lands of the endowment to the representative of another institution, the first defendant's predecessor, and it was held that there not being any custom of the foundation allowing such an assignment, it was beyond their legal competence and that the possession delivered to the purchaser was adverse to the vendors after the twelve years' period of limitation. That was a case which was on all fours with the present case. It dealt with the claims to the office and the property of the endowment, and their Lordships held that the one is attached to the other, but if there is any distinction, Article 144 of the same schedule is applicable to the property and that bars the suit after twelve years' adverse possession. In that case there had been adverse possession before the suit was brought and that can have no application to the fact of the present case where, as has been said already, the alienation took place in the year 1914. Damodar Das v. Lakhan Das was a case where there was a competition between two chelas ending in a dispute which was settled, by which the property of the temple consisting of two maths was divided between the senior and the junior chelas and it was held that from the date of theekramama between them the possession of the junior chela, by virtue of its terms, was adverse to the right of the idol, and of the senior chela as representing that idol, and that the suit was barred by limitation. The .same remarks will apply as before. The alienation which is made in 1914 would give rise to adverse possession but the right of the idol or the plaintiffs was not barred at the date of the present suit.
14. Then the next point is as regards the nature of the endowment. That has been dealt with at some length by the learned Assistant Judge. The original grant which was made by some prior Government, presumably the Maharaja of Satara, is not forthcoming, but this property was one of those dealt with by the Inam Commissioners in 1852, and we have here the sanad which was issued by Government in 1862. In issuing the notice to the persons claiming the property, which is Exhibit 23, the property is distinctly mentioned as being inalienable, the profits to be utilised for the upkeep of the shrine, Every case will depend on the terms of the narticular grant, and the cases from Calcutta, KuladaProsad (sic) v. Kali Das Naik I.L.R. (1914) Cal. 536 and Bidhu Sekhar Banerjee v.Kuladaprasad Deghoria I.L.R. (1919) Cal. 877, which have been quoted by the learned advocate for the appellant lay down that where the original grant is not forthcoming evidence of conduct is admissible to show the nature of the grant. He has also referred to Raghojirao Saheb v. Lakshmanrao Saheb (1912) L.R. 39 IndAp 202 : I.L.R. 36 Bom. 639 : 14 Bom. L.R. 1226 which as a matter of fact is not a case of devasthan property at all. The sanad which is in favour of the shrine is a sanad ofdevasthan property. The name of the holder is entered as Jivanram Swami, manager Govindbhat bin Kambhat Vishnu Prudd: 'The lands shall be continued for ever as endowment of property of Jivanram Swamy on condition that the managers shall continue faithful subjects and pay Rs. 87-10-0 yearly as judi.' This is a grant not to the managers or vahivatdars coupled with the obligation to make certain payments or render certain services to the shrine, but it is a grant to the idol or rather the shrine itself, and under the ordinary law this renders it inalienable. It is quite clear, therefore, that the managers have no right to alienate the property which belongs to the idol and of which they are only in management because an inanimate object cannot act without human agency. It is not their property and they cannot dispose of it as they have done in the present case, The plaintiffs asked for an amendment by describing themselves as vahivatdars of the shrine. The fact that in the past they may have alienated portions of the property does not give them any prior right or any ownership beyond that which is conferred upon them by the terms of the sanad which is a grant to the idol and not to the individual vahivatdar. The position of the plaintiffs is that of trustees, and, as has been pointed out by the learned Assistant Judge at p. 3 of his judgment, any dispositions made by them by way of alienations cannot but be regarded as violations of the trust. Acts so subversive of the conditions of the trust cannot afford any justification for further acts of misfeasance. I do not think that any weight can be attached to the argument, that because persons who had no power of alienation have made alienations in the past, that, therefore, further alienations such as this in the present suit should be upheld in face of the clear wording of the sanad. I am, therefore, of opinion that the property is inalienable and that the alienations made by Haribhat cannot be upheld.
15. The only other point which was taken was that of estoppel, and that was a point which though raised in the first Court was not taken in the lower appellate Court. In the first Court in the written statement p. 10, line 21, it was contended :-
Plaintiffs are estopped from contending that the properties are devasthaninam properties, because their father and his brother, Hari Govind, have partitioned the properties in 1909, and have since then treated the properties as their private properties...Relying on this conduct of the brothers defendant No. 1 haspurchased the plaint properties from Hari Govind.
16. The Judge of the first Court held that the essentials of estoppel are not present in defendant No.1's case and ' when once it is conceded that the property is of the idol, the conduct of the managers of the property cannot operate as an estoppel against the succeeding managers. If such a contention is allowed, the idol can be deprived of its property very easily.' The argument is somewhat on a par with the one referred to a little earlier in the judgment that because the managers or the trustees in the past have committed breaches of the trust, therefore, further breaches should be upheld, and is an argument which does not in my mind carry very much weight. The learned Counsel for the respondents has pointed out that neither his client nor his predecessors ever made any representation to the defendant. The defendant knew at the date of the purchase that the property was devasthan property as is shown in the Record of Rights up to 1914, and this point was not pressed in the lower appellate Court, I do not think that the plaintiffs can be estopped by Haribhat's alienation in favour of defendant No. 1 from claiming the property from defendant No.1.
17. In these circumstances the view taken by the lower appellate Court appears to be correct. The decree will be confirmed and the appeal dismissed with costs.
Broomfield, J.
1. Very briefly the material facts are these. In the village of Mahuli, three miles from Satara, there is a tomb of a certain Jivanram Swami, According to the contentions of the plaintiffs, which have been upheld by both the lower Courts the suit lands which are situated in the villages of Pathal and Chanchli have been granted for the endowment of this tomb and the income has been and is used to maintain daily and ceremonial worship thereat, The original grant was an ancient one and is not now forthcoming. But the grant was continued by the British Government under sanads issued by the Inam Commission, The sanad relating to some of the lands in suit, those in the village of Pathal, has been produced ; it is Exhibit 30. It recites that certain land claimed as inam, details of which are given in the sanad, is to be continued for ever by the British Government as the endowment property of Jivanram Swami The name of the holder of the inam is given in the sanad as Jivanram Swami and one Govindbhat bin Eambhat Vishnu Prudd is named as the manager. This Govindbhat left two sonsRamchandrabhat, father of the plaintiffs, and Haribhat. Ramchandrabhat and Haribhat appear to have divided the property and the worship between them in 1909. On June 7, 1914, Haribhtat sold his moiety to defendant No. 1, the present appellant, by the sale-deed Exhibit 35. In the suit which gives rise to this appeal the plaintiffs sued for a declaration that they are the managers and owners of the plaint property and as such have the right of collecting the income of the property. They also prayed for injunctions directing defendant No. 1 not to collect the income of the property from the other defendants, who are the tenants in actual occupation of the land, and directing those defendants not to pay to him. It is common ground that the subject-matter of this suit, which is alleged to form part of the endowment in question, is not the land itself but the right to collect the assessment or rent of the land.
2. The principal question in this appeal is one of limitation. It was contended in the lower Courts and is again contended here that the Article of limitation applicable to the case is 120, and that the suit was, therefore, barred, The trial Court held that the Article applicable was 142. The Court of first appeal held that either Article 134 or Article 144 applied to the case. In order to determine which Article applies it is necessary to consider the nature of the property and the nature of the plaint. It was held by a full bench of this Court in The Collector of Thana v. Hari Sitaram I.L.R. (1882) Bom. 546 F.B. that a cash allowance granted by the Peshwas to be levied from certain immoveable property for the support of a Hindu temple was immoveable property or an interest in immoveable property within the meaning of Section 1 (12) of the Limitation Act, XIV of 1859, The language of that section corresponds to that of Article 144 of the present Limitation Act, which provides limitation of twelve years for suits brought ' for possession of immoveable property or any interest therein not hereby otherwise specially provided for.' In Morhhat Purohit v. Gangadhar Karkare I.L.R. (1883) Bom. 234 it was held, following The Collector of Thana v. Hari Sitaram, that aninamdar's right to the money value of a fixed quantity of grain to be paid to him yearly by his tenant was immoveable property within the meaning of the Indian Limitation Act. In LakshmandasBhagatramji v. Manoher Ganesh Tambekar I.L.R. (1885) Bom. 149 it was held that the right to receive annually a fixed permanent allowance payable out of the revenues of a temple must be regarded as immoveable property; and inRanmalsingji v. Mahashankar : (1911)13BOMLR1047 it was held that the right to levy summary cess, whether it originated in an agreement or in unlawful exaction, is an interest in immoveable property within the meaning of Article 144 of the Indian Limitation Act. There can be no doubt, therefore, that the right to collect the assessment of these lands must be regarded as immoveable property or an interest in immoveable property within the meaning of those words as used in Article 144, and that proposition is not disputed by Mr. Abhyankar for the appellant. His argument is that Article 144 only applies to suits to recover possession of immoveable property of which it is possible to get physical possession. It seems to me, however, that no such distinction can be made. If the words 'immoveable property' in the Article may include incorporeal things- if they may include a right to recover rent or assessment or cesses, as the authorities show, it follows that the word ' possession ' in the Article cannot invariably mean physical possession. A person is in possession of an incorporeal interest in immoveable property when his right to enjoy it is undisputed, and a person out of possession, who claims possession of such an interest, can only get it by a declaration of his right and an injunction enforcing that right. The declaration and the injunctiontogether constitute possession of the interest, I think, therefore, that the learned Assistant Judge is right when he says-
The only kind of possession which plaintiffs could get in the event of success was the right to collect the rent). It logically follows, therefore, that their right) to collect the rent could be enforced only by a mandate couched in the form in which it has been sought. In effect, therefore, it was a suit for such possession as the plaint properties were susceptible of, and the mere absence of a technical expression in the reliefs cannot make it the less a suit) of that kind.
3. As a matter of fact by Exhibit 84 the plaintiffs did make an application to the Court asking that their suit should be interpreted as one for ' constructive possession ' of the plaint property. The amendment was allowed and additional Court fees accepted, although no formal alteration was made in the plaint. In my opinion no formal alteration was necessary, because even without this application the plaint praying for a declaration and injunction was in effect in the circumstances of this case a suit for possession within the meaning of Article 144. As I hold that the suit comes within the terms of Article 141 it follows that it is not governed by Article 120, Article 134 cannot be applied in view of the decision of the Privy Council in Vidya Varuthi Thirtha v. Balusami Ayyar As my learned brother has pointed out, the cases relied on by Mr. Abhyankar in support of his argument that Article 120 applies, Dattatraya v. Lakahman : AIR1932Bom15 and Krishnaji v. Annaji : AIR1930Bom61 , are clearly distinguishable. In the former case the plaintiff's could not ask and did not ask for possession, for at the time of the suit they were only the presumptive heirs of one Eknath who was in possession. The second case is distinguishable on a similar ground. Mr. Justice Patkar pointed out at page 1244 of his judgment in that case that it was a suit for a declaration that the plaintiff was entitled to a share at some future date in the property in suit. He was not suing for possession, not because the nature of the property was such that physical possession was impossible, but because at the time of the suit he was not entitled to possession. In these two cases, therefore, a declaration of right and an injunction could not be said to be equivalent to possession of the interest claimed. That being so, the proper Article to apply was clearly not 144 but 120. But in the present ease I am of opinion that the lower Courts were right in holding that the plaintiffs' suit is not barred by Article 120.
4. If the Article applicable is Article 144, the suit is in time whether limitation runs from the date of the alienation in 1914 or from the date of Haribhat's death in 1919. It cannot be reasonably contended, in my opinion, that the starting point of limitation should be placed prior to the alienation. Mr. Abhyankar has no doubt contended that an adverse title was set up in the year 1909, at the time of the partition between Haribhat and his brother, and even before that year. But this particular plea of adverse possession was not alleged in the written statement and no issue was framed upon it. It is not, therefore, open to the appellant to take this point in second appeal, particularly as it cannot be disposed of upon the materials on the record. Owing to the failure to raise this plea specifically and the absence of an issue, we have no materials to determine whether the alleged previous alienations of the property were in any real sense adverse to the davasthan. We were informed by Mr. Abhyankar himself that these were alienations of the land only, not the land which is the subject-matter of this suit but other land, the assessment of the laud being still reserved for the service of the devas-than, If that was so, and if the endowment consisted only of the assessment, as is admitted to be the case with the suit land, then it would seem that there was no alienation at all. As regards the partition between Haribhat and his brother in 1909, as my learned brother has pointed out, it is difficult to see how any arrangement come to between the members of the family of thevahivatdars could be made the foundation of an adverse title by a stranger who came into possession of the suit property for the first time in 1914.
5. Secondly, Mr. Abhyankar raised the point which is covered by the first issue in the trial Court, and contended that the grant is not a religious but a secular one, a grant not to the tomb or the shrine, but to the family of the plaintiffs subject to a charge to keep up the worship of the shrine. Taking advantage of the fact that the original grant is no longer available it is urged that it is permissible now to take into consideration the conduct of the parties in order to determine whether that original grant was a grant to the institution or a grant to the vahivatdars or managers subject to a trust for the benefit of the institution, In this connection the cases of Kulada Prosad Deghoria v. Kali Das Naik I.L.R. (1914) Cal. 536 : I.L.R. 36 Bom. 639 Bidhu Sekhar Banerjee v. Kuladaprasad Deghoria I.L.R. (1919) Cal. 877 : 14 Bom. L.R. 1226 and Raghojirao Saheb v. Lakshmanrao Saheb (1912) L.R. 39 IndAp 202 were referred to. This point has been sufficiently dealt with by my learned brother. I see no reason for differing from the view taken by the lower Courts that the terms of the sanad Exhibit 30, which I have already referred to, make it clear that this is a case of a devasthan endowment, a grant to the institution and not a grant to the vahivatdars subject to a trust. That being so, the property which is the subject of the grant is admittedly inalienable except for necessity, which in the present case has not been proved.
6. As regards the point of estoppel, the argument is that the previous alienations of properties belonging to this institution were entered in the Record of Rights, These transactions showed that the property had been dealt with as private property, and because the alienations were effected by the predecessors of the plaintiffs and of defendant No.1's vendor Haribhat, therefore, it is contended that the plaintiffs are estopped from maintaining in this suit that the property is not private property but devasthan inam. I think this argument is untenable. Defendant No. 1 was a witness in the case. His deposition is Exhibit 73. He does not allege there that he had examined the Record of Bights or that he was aware of the transactions referred to or that at the time of his purchase he considered the property to be private property. On the contrary his evidence rather suggests to me that he treated it as devasthan property and claimed to be himself the vahivatdar of that devasthan property by virtue of his purchase. There is no evidence to show that there was any declaration, act or omission on the part of the plaintiffs or their predecessors by which the defendant was induced to believe anything and to act on such belief. The conditions of Section 115 of the Indian Evidence Act are, therefore, not complied with and there is no question of estoppel.
7. I agree with my learned brother that the appeal fails and should be dismissed with cost.