Case: Balkrishna Savalram Pujari And Others Vs. Shree Dnyaneshwar Maharajsansthan &amp; Others

their dispossession continued, it cannot be said that the trustees were committing wrongful acts or acts of tort from moment to moment so as to give the appellants a cause of action de die in diem.We think there can be no doubt that where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of S. 23 in such a case.That is the view which the High Court has taken and we see no reason to differ from it.32. We would now like to refer to some of the decisions which were cited before us on this point. The first case which is usually considered in dealing with the application of S. 23 is the decision of the Privy Council in Maharani Rajroop Koer v. Syed Abdul Hossein, 7 Ind App 240. In order to appreciate this decision it is necessary to refer, though briefly, to the material facts. The plaintiff had succeeded in establishing his right to the pyne or an artificial watercourse and to the use of the water flowing through it except that which flowed through the branch channel; he had, however, failed to prove his right to the water in the tal except to the overflow after the defendants as owners of mouzah Morahad used the water for the purpose of irrigating their own land. It was found that all the obstructions by the defendants were unauthorised and in fact the plaintiff had succeeded in the courts below in respect of all the obstruction except two which were numbered No. 3 and No. 10. No. 3 was a khund or channel cut in the side of the pyne at a point below the bridge whereas No. 10 was a dhonga also below the bridge and it consisted of hollow palm bees so placed as to draw off water in the pyne for the purpose of irrigating the defendants lands. It was in regard to these two obstructions that the question about the continuing wrong fell to be considered; and the Privy Council held that the said obstructions which interfered with the flow of water to the plaintiffs mehal were in the nature of continuing nuisance as to which the cause of action was renewed de die in diem so long as the obstructions causing such interference were allowed to continue. That is why the Privy Council allowed the plaintiffs claim in respect of these two obstructions and reversed the decree passed by the High Court in that behalf. In fact the conduct of the defendant showed that whenever he drew off water through the said diversions he was in fact stealing plaintiffs water and thereby committing fresh wrong every time. Thus this is clearly not a case of exclusion or ouster.33. Similarly, in Hukum Chand v. Maharaj Bahadur Singh, 60 Ind App 313: (AIR 1933 PC 193 ), the Privy Council was dealing with a case where the defendants act clearly amounted to a continuing wrong and helped the plaintiff in getting the benefit of S. 23. The relevant dispute in that case arose because alterations had been made by the Swetamvaris in the character of the charans in certain shrines and the Digambaris complained that the said alterations amounted to an interference with their rights. It had been found by the courts in India that the charans in the old shrines were the impressions of the footprints of the saints each bearing a lotus mark. "The Swetambaris who preferred to worship the feet themselves have evolved another form of charan not very easy to describe accurately in the absence of models or photographs which shows toe nails and must be taken to be a representation of part of the foot. This the Digambaris refused to worship as being a representation of a detached part of the human body". The courts had also held that the action of the Swetambaris in placing the charans of the said description in three of the shrines was a wrong which the Digambaris were entitled to complain. The question which the Privy Council, had to consider was whether the action of the Swetambaris in placing the said charans in three of the shrines was a continuing wrong or not; and in answering this question in favour of the plaintiffs the Privy Council referred to its earlier decision in the case of Maharani Rajroop Koer (supra) and held that the action in question was a continuing wrong. There is no doubt that the impugned action did not amount to ouster or complete dispossession of the plaintiffs. It was action which was of the character of a continuing wrong and as such it gave rise to a cause of action de die in diem. In our opinion, neither of these two decisions can be of any assistance to the appellants.34. On the other hand the decision of the Patna High Court in Bibhuti Narayan Singh v. Mahadev Asram, ILR 19 Pat 208: (AIR 1940 Pat 449 ) as well as that of the Full Bench of the Punjab High Court in Khair Mohammad Khan v. Mst. Jannat, ILR (1941) 22 Lah 22: (AIR 1940 Lah 359) support the respondents contention that where the impugned act amounts to ouster there is no scope for the application of S. 23 of the Limitation Act. We are, therefore, satisfied that there is no substance in the appellants contention that S. 23 helps to save limitation for their suits.35. The result no doubt is unfortunate. The appellants have succeeded in both the courts below in proving their rights as hereditary worshippers; but their claim must be rejected on the ground that they have filed their suits beyond time. In this court an attempt was made by the parties to see if this long drawn out litigation could be brought to an end on reasonable terms agreed to by them, but it did not succeed.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The trustees, on the other hand, cannot be said to have taken possession of the office themselves adversely in the appellants. They do not take the profits themselves nor do they perform the duties associated with the said office. They have, in exercise of their authority and power as trustees, dismissed the appellants predecessors from office and have made fresh appointments of servants to perform the worship at the Sansthan; and, in making the said appointments, have in fact destroyed the hereditary character of the office.The dispute in the present appeals is between the worshippers who claim hereditary rights and the trustees of the institution who claim to have validly terminated. the services of some of the predecessors of the appellants and to have made valid appointments to the said officer.It is, therefore, impossible to accept the argument that the claim made by the appellants in their respective suits attracts the provisions of Art. 124. It is conceded by Mr. Rege that if Art. 124 does not apply, the suits would be governed by Art. 120 which is a residuary article. It may prima facie appear somewhat strange that whereas a suit against a person claiming to hold the hereditary office adversely to the plaintiff is governed by a period of twelve years, a claim against the trustees like the respondents in the present appeals who have dismissed the hereditary worshippers should be governed by a period of six years. It may be possible to suggest that there is a substantial difference in the nature of the two disputes; but apart from it, it is well known that the artificial provisions of limitation do not always satisfy the test of logic oris explained to mean that the hereditary office is possessed when the profits thereof are usually received or (if there are no profits) when the duties thereof are usually performed.It is clear that before this Article can apply it must be shown that the suit makes claim for possession of an office which is hereditary; and the claim must be made against the defendant who has taken possession of the said hereditary office adversely to the plaintiff. Unlike Art. 142 the fact that the plaintiff is out of possession of the hereditary office for more than twelve years before the date of his suit would not defeat his claim for possession of the said office. What would defeat his claim is the adverse possession of the said office by the defendant for the prescribed period. As the explanation makes it clear usually the receipt of the profits may amount to the possession of the office; but if the defendant merely receives the profits but does not perform the duties which are usually performed by the holder of the office, the receipt of the profits by itself may not amount to the possession of office. The cause of action for possession in suits falling under Art. 124 is the wrongful dispossession of the plaintiff and the adverse possession by the defendant of the office in question. Claims for possession of hereditary offices which attract the application of this Article are usually made by holders of the said offices against persons who claim adverse possession of the said offices; in other words, in suits of this kind, the contest is usually between rival claimants to the hereditary office in question.Mr. Rege, however, argued that in determining the scope of Art. 124 we need not consider the provisions of col. 3 to the said Article. His contention appears to be that once it is shown that the suit is for possession of an hereditary office, Art. 124 must apply though the claim for possession may not have been made against a person who has taken possession of the office adversely to the plaintiff. He also urged alternatively that the trustees should be deemed to have taken possession of the office adversely to the appellants.We have already held that the conduct of the trustees shows that they have not taken possession of the office adversely within the meaning of col. 3 of Art. 124; and we do not think it is possible to ignore the provision of col. 3 in deciding whether or not Art. 124is true that in Jalim Singh v. Choonee Lall 15 Cal WN 882, while holding that the adjustment on which the plaintiffs claim was based in that case was in time both under Arts. 115 and 120, Jenkins C. J, has observed that the function of the third column of the second schedule is not to define causes of action but to fix the starting point from which the period of limitation is to be counted; but this observation does not support the appellants case that Art. 124 would govern the suit even though the third column is wholly inapplicable to it. That obviously is not the effect of the observations made in Jalim Singhs case (supra).23. The question about the nature and scope of the provisions of Art. 124 has been considered by the Madras High Court in Thathachariar v. Singarachariar, AIR 1928 Mad 377  . "If we take into consideration the terminology used in the three columns of Art. 124", observed Srinivasa Aiyangar J., in that case, "it is clear that the nature of the suit intended to be covered by that article must be a suit filed by a plaintiff who claims the office from a person who at that time holds the office himself." In our opinion this view ismust, therefore, hold that Art. 124 does not apply to the suits filed by the appellants; and as we have already observed, if Art. 124 does apply, Art. 120 does.On these facts the High Court has held in favour of the appellants, and rightly, we think, that it was difficult to accept the respondents contention that the cause of action for the present suits which were expressly based upon the status of the Guravs as hereditary servants arose in 1911. But, the High Court felt no doubt that the cause of action to file the present suits had accrued either on September 12, 1922, when the trustees filed their suit under S. 9 of the Specific Relief Act or in any event on November 4, 1922, when the said suit was decreed and the Guravs were consequently dispossessed. In our opinion this conclusion is also right. One of the Guravs who was examined in the present litigation has stated that, "if in any year when it is the turn of any takshim to serve, if a person outside the Gurav family is appointed by the trustees, all the takshims have a right to object." There is also no dispute that since the dismissal of eleven Guravs in 1911 till the institution of the present suits none from the Gurav family has served the temple except for 3 1/2 months in 1922 when the Guravs had wrongfully obtained possession of the temple. In 1922 the Guravs knew that their claim of ownership had been rejected and that the only right which they could set up was as hereditary worshippers of the temple and not its owners. This right was specifically denied by the trustees in their plaint while it was specifically set up in defence by the Guravs in their written statement; and the decree that followed upheld the trustees case and rejected the defendants claim.On these facts the conclusion is irresistible that the right to sue accrued to the Guravs at the latest on November 4, 1922, when a decree was passed under S. 9 of the Specific Relief Act. If not the plaint in the suit, at least the decree that followed clearly and effectively threatened the Guravs rights as hereditary worshippers and so the cause of action to sue on the strength of the said rights clearly and unambiguously arose at that time. If that be the true position it follows that the present suits which have been filed long after the expiration of six years from 1922 are barred by time under Art.dealing with this argument it is necessary to bear in mind that S. 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that S. 23 can be invoked.Thus considered it is difficult to hold that the trustees act in denying altogether the alleged rights of the Guravs as hereditary worshippers and in claiming and obtaining possession from them by their suit in 1922 was a continuingdecree obtained by the trustees in the said litigation had injured effectively and completely the appellants rights though the damage caused by the said decree subsequently continued. Can it be said that, after the appellants were evicted from the temple in execution of the said decree, the continuance of their dispossession was due to a recurring act of tort committed by the trustees from moment to moment? As soon as the decree was passed and the appellants were dispossessed in execution proceedings, their rights had been completely injured, and though their dispossession continued, it cannot be said that the trustees were committing wrongful acts or acts of tort from moment to moment so as to give the appellants a cause of action de die in diem.We think there can be no doubt that where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of S. 23 in such a case.That is the view which the High Court has taken and we see no reason to differ fromare, therefore, satisfied that there is no substance in the appellants contention that S. 23 helps to save limitation for their suits.35. The result no doubt is unfortunate. The appellants have succeeded in both the courts below in proving their rights as hereditary worshippers; but their claim must be rejected on the ground that they have filed their suits beyond time. In this court an attempt was made by the parties to see if this long drawn out litigation could be brought to an end on reasonable terms agreed to by them, but it did not succeed.