The legal provisions of the Land Revenue Act and Trusts Act were interpreted to determine ownership, power to file the suit, and entitlement to partition with respect to sir and khudkasht lands.

Findlay, J C—The plaintiff, idol of Mandir Shri Sheoji of mouza Mohgaon (Seoni), filed the present suit against the three defendant-appellants for a declaration that it was entitled to have the partition of the said village effected and to have separate possession of 4 annas share thereof together with all rights appurtenant thereto, and the defendants have now come up to this Court on appeal. The pleadings of the parties and the facts of the case are fully stated in the judgment of the lower Court and I proceed at once to dispose of the questions which have been agitated in this appeal.

2. On the appeal coming on for hearing, the counsel for the appellants did not press the objection with regard to limitation in view of the fact that the order, dated 26th May 1922, of the Deputy Commissioner (cf. copy P. 4) shows that the latter officer considered he was acting under Section 165, Land Revenue Act.

3. The first point pressed on behalf of the appellants was that Jairamgir, as the sarbharakar of the temple, could not alone file the present suit. In this connexion, reference has been made to the so-called trust-deed and it is suggested that there must be four Panchas duly appointed before the present suit could be filed by them. I am unable, however, to accede to this proposition. The deed in question is perhaps an irregular and faulty one. Mt. Sonabai gifted the property to the idol but remained manager during her life. Then the four Panchas named were to manage after her death, but the terms of the deed clearly imply that the deity was to be the owner and that the Panchas were to be mere managers. The mutation record of 1912 (P. 2) bears out this view and it is perfectly clear that Jairamgir has been de facto manager on behalf of the idol.

4. In those circumstances, I am in agreement with the view taken in Sheo Ramji v. Ridhnath Mahadeoji, 1923 AIR(All) 160 and am of opinion that Jairamgir had power to file the present suit in the form it was filed. There was no distinct provision in the deed constituting the so-called trust that when any Panch died, another was to be appointed in his place. Even if the Panchas were to be given the position of trustees, which is extremely doubtful in view of the terms of the deed Section 76, Trusts Act, would be a sufficient answer to the appellants allegation on appeal in this connexion. The trust-deed does not lay down that, if any of the trustees die, the others shall be incapable of acting until a fresh trustee is appointed. On the contrary, the only provision in this connexion laid down therein is that, if all the Panchas are absent (or presumably dead), the existing King should take over the management and make proper arrangements. The first contention urged on appeal, therefore, fails.

5. The next contention urged is that Sonabai had owned a 5 anna 4 pie share of the village and had gifted the 4 anna share without khudkasht to the temple and that the remaining 1 anna 4 pie share with khudkasht had been given to Parsadgir and has now fallen into the share of the present defendant-appellants. In other words, it is argued (cf. the jamabandis of D. 3, D. 4 and D. 5) that whatever khudkasht Sonabai had at the time of the gift to the temple did not pass thereto, it being admitted at the same time that, if any khudkasht land was subsequently created in respect of the 4 anna share that would pass therewith.

6. As regards the sir land, similarly it is urged that the plaintiff-respondent was not entitled to claim partition with respect to any sir lands, as these exclusively belonged to the defendants. In the absence of any distinct pleading or proof that there has been a partition of sir and khudkasht lands and that these are in the exclusive possession of the defendant-appellants, I do not think this contention can succeed. Even the defendants' witnesses (cf. the evidence of D.W. 1, Madangopal) professed ignorance as to whether there had been any partition of sir and khudkashfc lands, while La