The main legal point established in the judgment is that actual possession matters in cases where the plaintiff has not asked for possession in addition to the subsidiary remedy of injunction.

Kunhi Raman, J.

1. An interesting question of law arises for decision in this second appeal. Defendant 1 is the appellant. The suit was for a permanent injunction restraining the defendant from interfering with the plaintiffs peaceful possession and enjoyment of the suit properties and the performance of the religious services which are referred to in the plaint. It is conceded by the parties that the property which is the subject-matter of the litigation was originally granted by the Nawab of the Carnatic to one Nirgum Bi, the mother of the plaintiff Roshan Bi. The service to be performed by the inamdar was connected with the celebration of the mohurrum every year. Nirgum Bi executed a document, Ex. l, on 25th October 1873. This is described as "guardian and dharmakartha kararnama" and it was executed in favour of Nirgum Bis son-in-law Dastagir. The recitals in this document are that Dastagir is the only senior male member connected with the family who can be relied upon to manage the properties because on the date of the document Roshan Bi and Budan Khan, the two other children of Nirgum Bi, were minors. The document conferred a right upon Dastagir to manage the properties and imposed the duty on him to discharge the religious functions annexed to the properties. This has been construed by the trial Court as a document by which Dastagir was appointed agent by Nirgum Bi, and the appellants learned advocate although he does not concede this position, does not think it necessary to question the finding for advancing the argument which he is addressing in second appeal. Dastagir was the father of defendant l. Defendant 2 is impleaded as the son of defendant 1. The second daughter of Nirgum Bi is Roshan Bi the plaintiff. Pending suit she died and thereupon her sons widow Amina Bi and her son Rajan Sahib who is the grandson of Roshan Bi were brought on record as the legal representatives of the deceased plaintiff 1 and impleaded as plaintiffs 3 and 2 respectively. Defendant 1 contested the suit. He denied plaintiff 1s claim and pleaded inter alia that the suit for injunction was not maintainable because possession was with him and not with plaintiff 1 on the date of suit. According to him, his father Dastagir was the donee of the properties under Ex. 1 and on the death of Dastagir the ownership devolved on him being the only son of Dastagir. As an alternative plea, he alleged that he had acquired title by adverse possession. A third plea that was raised by him which is the only plea that is relevant for the purpose of this second appeal was that the suit for a mere injunction was not maintainable, because on the date of suit possession of the property was with defendant 1 and not with plaintiff 1. The appellants learned advocate has confined his attention to this question of law in the first instance, though he has other contentions to urge.

2. The learned Subordinate Judge decreed the plaintiffs suit. According to the learned Judge, Ex. 1 was a document by which an agency was created and by which defendant 1s father Dastagir was appointed the agent of Nirgum Bi, his mother-in-law, for the purpose of managing the suit property. On the death of Nirgum Bi, the right of ownership that was vested in her devolved on her only surviving daughter Roshan Bi. On the death of Dastagir, the agency devolved upon defendant 1 who continued to manage the property as the agent of the then owner Roshan Bi who was his maternal aunt. Although actual physical possession of the property was vested in defendant 1, yet because defendant 1 happened to be the agent of Roshan Bi and he was enjoying possession in that capacity, legal possession must be presumed to be vested in Roshan Bi herself. In his judgment, the learned Subordinate Judge first considers the question of title and finds that title was vested in Roshan Bi, and then he says as follows:

At the most defendant 1 was only an agent. The possession of the agent must be treated as the possessi