The judgment established the principle that adverse possession can extinguish a deity's title to property, and the withdrawn prayer in the plaint did not affect the maintainability of the suit.

JUDGMENT

Mukerji, J. - The plaintiff who is the appellant in this appeal sued as shebait of a certain deity for a declaration that the deity has got lakheraj title to the lands in suit. The suit was decreed by the Court of first instance but has been dismissed on appeal.

2. The plaintiff's case was that the lands were dedicated to the deity by his ancestor Raja Rudranarain Roy but the defend ante have got themselves recorded in tie Settlement papers as the owners of the lands, and the said entry has thrown & cloud over the deity's title to the land?

3. The case of the defendants, was that the lands ware the niskar property of Raja Rudranarain Roy that the said Raja had never dedicated the lands to the deity, but had mortgaged them to one Joynarain Maiti, and that their predecessors had purchased them at au auction sale in execution of the decree on the said mortgage and since then they or their predecessors have been in possession thereof.

4. The learned District Judge held in his judgment that the title of the deity had been established bat that it had been extinguished by adverse possession on the part of the defendants and their predecessors. In this view of the matter the learned District Judge dismissed the suit. He further observed in his judgment that as the plaintiff was out of possession he should have filed a suit for recovery of possession, and as he did not do so but merely asked for a declaration of the title of the deity to the lands, a declaratory decree ought not to be given to him.

5. The first contention of the appellant is that in arriving at his finding on the question of possession the learned Judge has omitted to take into consideration some of the materials which were relied upon in the judgment of the Court of first instance and has proceeded upon a misconception of some of the facts. Many of the matters to which our attention was drawn in this respect are pieces of evidence or circumstances which it is difficult to say were overlooked or ignored by the learned Judge. And the matters which need be considered so far as this ground is concerned are three in number. It is said in the first place that there is on the record the evidence of D. W. No. 2 who states that the defendants had not been in possession of the lands for some time before the suit and if this evidence was taken into account the presumption afforded by the Record of Rights would be destroyed. The learned Judge has remarked in his judgment that the oral evidence cannot be taken to mean that the tenants are actually paying rent to the plaintiff. As the lands are rent paying lands in the occupation of tenants, the passage in the deposition of the witness, can only mean that the defendants have not realized the rents for sometime, but that does not mean that the defendants were out of possession or that the plaintiff, was receiving rent from the tenants. The learned Judge has referred to the fact that the tenants are siding with the plaintiff and that taking advantage of the dispute they are not paying rent to either of the parties. Nextly it is said that the learned Judge was in error in supposing that there was no objection on behalf of the plaintiff when the names of the defendants' predecessors were recorded in respect of the lands under the Land Registration Act after their purchase. What the learned Judge has observed in his judgment in this connection seems to us to be quite correct. He has remarked that there was a question as to whether these lands or some other lands were purchased, but as only one property admittedly was purchased, namely, the property in suit, the registration of name must have been in reference to that property. He seems to us to have been right in observing that there was no objection as to the registration, for the only objection that was raised was as to the identity of the property, in respect of which the names were to be registered. Lastly it is said that the learned Judge was wrong in supposing that Ex. 15 the