Acquiring title of hereditary trusteeship by prescription.

The Judgment was delivered by :

The unsuccessful plaintiffs, ten in number, are the appellants. Having initially failed before the authorities under the Hindu Religious and Charitable Endowments Act, 1959, hereinafter referred to as the Act, in their O. A. No. 20 of 1969 on the file of the Deputy Commissioner, H. R. and C.E. (Admn.) Department and the subsequent appeal, A. P. No. 56 of 1975, on the file of the Commissioner, H. R. and C.E. (Admn.) Department, they filed O. S. No. 61 of 1979 on the file of the Sub Court, Tiruvallur, to set aside the order in A. P. No. 56 of 1975 and consequently to allow their petition, O. A. No. 20 of 1969. The said suit filed under Section 70 of the Act was dismissed and hence this appeal.

2. The abovesaid authorities negatived the plaintiff's prayer for declaration that they are the hereditary trustees of the suit temple. According to the plaint, suit temple was built by the father of plaintiffs 1 and 2 with the funds supplied by the family of all plaintiffs in the year 1921, all of them hail from a common ancestor and they and their predecessors alone have been the hereditary trustees of the suit temple all along for over five decades. They also pleaded that they have perfected their right to be such hereditary trustees by continuous, uninterrupted and open enjoyment thereof adverse to the interest of any other person.

3. The first defendant, who died pending the suit and whose legal heirs are defendants 3 to 9, filed a written statement repudiating the claim of the plaintiffs. According to him, the management of the temple was with the elders of the village representing various castes, with the consent of the villagers. The second defendant/Commissioner of the Department filed a written statement also stating that the suit temple has been managed by the villagers and that the claim of the plaintiff was untenable.

4. The court below has held that the plaintiffs are not the hereditary trustees and that the abovesaid order of the Commissioner, H. R. and C.E. is not liable to set aside, but it did not go into the question of the plaintiffs' claim of title to the office by adverse possession.

5. The court below also found that the allegation that the suit temple was constructed by the ancestors of the plaintiffs is not proved. Against this finding there is no attack by the learned counsel for the appellants, but he only made before me two submissions. The first one is that it is in evidence that right from 1938, the plaintiffs' family was alone in management of the suit temple and so they should be declared hereditary trustees as defined under Section 6(11) of the Act. His second submission is that at any rate the plaintiffs have perfected title to the said office by prescription. In this appeal I have to consider these two submissions only.

6. The said claim of the learned counsel for the appellants is strongly rebutted by both the learned counsel for the first respondent/Commissioner and for the other respondents, the legal representatives of the deceased first defendant.

7. Let me first of all dispose of the question of title by adverse possession. No doubt, as pointed out by the learned counsel for the appellants, this Court held in Dy. Commr. H. R. and C.E. Board v. Sidhdhivinayaga Mudaliar, 1971 (1) MLJ 422 that even the office of hereditary trusteeship could be acquired by prescription. But the learned counsel for the respondents 2 to 8 relied on Kameswara Rao v. Somanna, 1955 AIR(AP) 212, to contend that unless there is a rightful claimant to the office, no person can set up title by adverse possession and the question of adverse possession would not arise at all in such a case. According to the learned counsel for respondents 2 to 8, in the present case though the villagers had the right to elect the trustees for the temple, it is not shown by the plaintiffs that there was any trustee or trustees elected or nominated at any point of time by the villagers, against whom adverse posse