JUDGMENT :- These two second appeals, by plaintiffs, arise out of a suit for possession of lands in villages Kanaur and Bajhar, Tehsil Kasumpti, and for mesne profits. The suit was decreed by the trial Court (Senior Subordinate Judge, Mahasu), but was dismissed in appeal by the learned District Judge. Hence, these two second appeals.

Regular Second Appeal No. 10 of 1954 arises out of Civil Appeal No. 57/51 of the Court of the District Judge, Mahasu, whereby the decree for possession passed by the trial Court was set aside, while Regular Second Appeal No. 11 of 1954 arises out of Civil Appeal No. 71/51, whereby the decree of the trial Court, awarding a sum of Rs. 2,353/- as mesne profits was set aside. Since both the second appeals were inter-connected, they were heard together. This judgment will dispose of both of them.

2. Parties, with the exception of respondent No. 1, Thakur Narsinghji Maharaj through Raja Dalip Singh of Dhami, are descendants of a common ancestor, named Mannu. The plaintiffs case was that the ancestors of themselves and defendants 2 to 10 had settled in village Kanaur several years ago. They acquired 40 bighas and 15 biswas of land in village Kanaur and 120 bighas and 2 biswas of land in Bajhar.

In the year 1978 B., there was a partition between Kundan (father of the plaintiffs) and the descendants of Ram Das (Kundans paternal uncle). Half of the lands fell to the share of Kundan and it remained in his possession uptil his death; after that, the plaintiffs continued in possession of their share till 1996 B., when they were forcibly dispossessed by defendants 2 to 10 in collusion with the Raja Sahib of Dhami.

Mutation was also, erroneously, effected over the entire land (shares of both branches) in the name of Thakur Narsinghji Maharaj, defendant No. 1. Defendants 2 to 10 were, however, shown in possession. Consequently, the plaintiffs prayed that they be put in possession of their share and also awarded mesne profits.

3. This suit was resisted by defendant No. 1 on various grounds. In the first place, it was contended that the action was not triable by a Civil Court. Secondly, that the Raja Sahib of Dhami could not be sued without the permission of the Governor-General of India. Thirdly, the lands in suit belonged to the Ruler of Dhami State and had been dedicated to Sri Narsinghji Maharaj, who was the family deity of the ruling family of Dhami State.

The Ruler had permitted the ancestors of the parties to remain in possession of the suit land on condition that they performed Puja at the temple of Narsinghji Maharaj. Further, the partition proceedings of 1978 B. were admitted, but it was contended that the nature of the parties possession was unaffected. There was no question of the plaintiffs having been forcibly dispossessed.

In point of fact, they neglected to do Puja at the temple and left Dhami State. Consequently, defendants 2 to 10 remained in possession with the permission of the darbar. On 30th Phagun, 2003 B., the Ruler granted a Patta in their favour, whereby, on their undertaking to do Puja regularly for the deity, they were permitted to take the yield of the land. Under these circumstances, it was contended that the plaintiffs were not entitled to any relief.

4. The remaining defendants, while supporting the written-statement of defendant No. 1, further pleaded that the present suit was barred by reason of the decision in a prior suit No. 66 of 1996 B. filed by them against the present plaintiffs. In that suit, the Court held that the land in suit belonged to Thakur Narsinghji Maharaj and the present plaintiffs were in possession as mere Pujaris.

The factum of partition in 1978 B. was admitted. They denied that the plaintiffs had been forcibly dispossessed. Since the plaintiffs failed to perform Puja, the defendants were put in possession of the entire land. They denied that there had been any collusion between them and the Raja of Dhami. They also relied upon the Patta granted to them by the Ruler o

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