A mere worshipper cannot bring a suit for possession on behalf of an idol.

( 1 ) THIS is an appeal on behalf of the plaintiffs who had brought a suit for proprietary possession of the land (for clarity, which was marked in the Commissioners map), by demolition of certain constructions made thereon, on the allegations that that plot of land belonged to Shivaji and the defendants have wrongfully encroached upon that land and had made constructions in December 1945.

( 2 ) THE plaintiffs in the suit were Shivaji through Babu Ram, acting as next friend of plaintiff 1, claiming to be its Pujari and there were 9 other Hindus who had claimed to file the Suit in representative capacity and had taken permission of the Court under Order 1, Rule 8, Civil P. C. The existence of a temple of Shivaji in Gurahi Bazar, Mohalla Saadatganj, cannot be denied. It has been there for a very long time. On behalf of the plaintiffs it was alleged that it was a public temple and it stood on plot No. 1944 which number includes the land in dispute also. This land was dedicated to plff. 1, Shivaji from time immemorial and the dedication was sought to be proved by long user and it was said that plaintiff 1 had derived title on account of this dedication by long user. Plaintiffs also claimed damages in the sum of Rs. 320/- in respect of a wall and two trees that stood on that plot and said to have been destroyed by the defendants.

( 3 ) DEFENDANT 1 carries an extensive business in vicinity of the temple and the other defendants are his relations. They denied the title of the plaintiffs either by virtue of Khasra or by dedication. They claimed the proprietorship of the land In themselves and they alleged that the shivala had been built by their ancestors and they had been supervising and maintaining the service of Shivaji. They admitted the existence of the wall and the trees but they denied that the plaintiffs were entitled to any damages. The defendants also pleaded that the plaintiffs had no right to bring the suit and the plaintiffs were also not in possession of the property in dispute within 12 years and, therefore, the suit was barred by limitation. The trial Court decreed the plaintiffs suit on the findings that the plaintiff was entitled to sue through Babu Ram, who was a worshipper, and that the suit was within 12 years and the suit was not barred by time and that the plaintiffs right to this plot of land had been established.

( 4 ) DEFENDANTS filed an appeal and the lower appellate Court has dismissed the suit. The lower appellate Court has given the findings that though the plaintiff had established his title by virtue of the lettar of the Financial Commissioner but he has failed to establish his possession within. 12 years and he has recorded a finding that plaintiff 1 was not entitled to maintain the suit through Bibu Ram, who was held by the lower appellate Court to be only a worshipper and was not a Pujari.

( 5 ) AGGRIEVED by that decision the plaintiffs have come up in appeal to this Court and learned counsel for the appellants has urged two points in appeal. The first point urged by him was that the finding of the lower appellate Court about the possession of the plaintiffs, is vitiated, because the lower appellate Court has not considered the evidence of defence at all and has not come to the conclusion that the defendants were in possession. The plot of land over which possession was claimed being an open land, in case, the Court does not record a finding of the defendants possession it should have been deemed to have been in possession of the plaintiffs, whose title was established and was admitted by the lower appellate court. The second point urged by the learned counsel for the appellants was that the lower appellate Court had erred in law in holding that an idol cannot sue through a worshipper.

( 6 ) WHILE replying to the arguments of the learned counsel for the appellants, counsel for the respondents has also challenged the finding regarding the title in favour of plaintiff 1.

( 7 ) IN sup