JUDGMENT

HANSARIA, J. :—The respondent-plaintiff has placed himself within two horns of a bull and it is not possible for him to avoid strike by one or the other. And the bull is no ordinary one, as it has the backing and the blessings of no less powerful a body that Privy Council of Jamkhandi State, within whose territorial jurisdiction the suit property was situate, for the recovery of which the respondent made his claim by filing the present suit on 4-2-1954. It is a pity that despite the case of the appellant-defendant having received support from the Privy Council, he came to lose on the same point, to start with, at the hand of Civil Judge. The High Court, which ultimately upheld the view of the Civil Judge, should not have allowed this piquant situation to prevail.

2. The broad facts of the case at hand consist in filing of the present suit by respondent No. 1 in 1954, seeking possession of the suit property, as validly appointed Padadayya (Mathadhipati) of the math at Jamkhandi. The plaintiff claimed this property on the assertion that he had been duly installed as Padadayya on 30-1-1944, as a successor to Virupakshayya I, who had died as early as 1903. According to him, defendant Nos. 1 and 2 had not been duly installed as Padadayyas; so also, one Shivalingayya, who according to defendant No. 1 had been installed as Padadayya in 1935 and had in turn nominated him as Padadayya in 1943. There is no dispute at all between the parties that if Shivalingayya had been validly nominated and installed as Padadayya, the plaintiff cannot succeed. And it is precisely this aspect of the case which had come to be decided in favour of Shivalingayya by the Privy Council in an earlier litigation began by one Andanayya in 1934, to which, of course, the present plaintiff was not a party, but, according to him, it was the aforesaid Andanayya who had installed him as Padadayya on 30-1-1944.

3. Now, if the present suit has to be regarded as one for possession of suit property simpliciter, as is the prayer in the plaint, it would be hit by Section 50 read with 51 of the Bombay Public Trusts Act, 1950 (the Act). To save this blow by the bull, Shri Wad, appearing for the respondent No. 1, first urged that the suit was really not for possession simpliciter but was for declaration of the status of the plaintiff as Padadayya and prayer for possession may be treated as consequential relief. But, if the present be taken as a suit for declaration, then it was hopelessly barred, because the declaration sought is that the plaintiff had become Padadayya after Virupakshayya I had died in 1903. As the suit was filed in 1954 it was apparently much beyond the time. Faced with this situation, Shri Wads effort was to convince us that the suit is not hit by Sections 50 and 51 of the Act.

4. Let it be seen whether this contention can be accepted. Section 50 of the Act deals with suits relating with public trusts. The relevant part of this section reads as under:

"In any case-

(i) xxx xxx xxx

(ii) where a declaration is necessary that that a particular property is a property belonging to a public trust or where a direction is required to recover the possession of such property or the property or proceeds thereof from any person including a person holding adversely to the public trust,

(iii) xxx xxx xxx

The Charity Commissioner or two or more persons having obtained the consent in writing of the Charity Commissioner as provided in Section 51 may institute a suit......... to obtain a decree for any of the following reliefs:

(a) an order for the recovery of the possession of such property or proceeds thereof,

xxx xxx xxx

Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust except in conformity with a provision thereof.

xxx xxx xxx"

(Emphasis ours)

Section 51 deals with giving of consent by the Charity Commissioner for the institution of suit.

5. Shri Wad contends that clause (ii) applies only when recover