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PETITIONER: BALKRISHNA SAVALRAM PUJARI AND OTHERS

       Vs.

RESPONDENT: SHREE DNYANESHWAR MAHARAJSANSTHAN & OTHERS.

DATE OF JUDGMENT: 26/03/1959

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SARKAR, A.K. SUBBARAO, K.

CITATION:  1959 AIR  798            1959 SCR  Supl. (2) 476  CITATOR INFO :  RF         1981 SC1106  (18)

ACT: Limitation-Suit  for  Possession of Sansthan  by  hereditary worshippers  on  ouster by  trustees-Period  of  limitation- Trustees,  if in possession adversely to  Plaintiffs-Ouster, if  a  continuing wrong-Indian Limitation Act,  1908  (9  of 1908), Arts. 120, 124, S. 23.

HEADNOTE: The  appellants who were the hereditary worshippers,  called Guravs, of the Shree Dnyaneshwar Sansthan of Alandi, claimed to  be its owners.  The respondents as trustees of the  said Sansthan  dismissed eleven of the Guravs in 1911,  served  a notice  on  the  rest  calling upon them  to  agree  to  act according  to  the  orders  of  the  Temple  committee   and appointed  six  Brahmins  to carry on the  services  of  the Sansthan.  The Guravs did not agree and sued the respondents for   a  declaration  of  their  rights  of  ownership   and consequential  reliefs.  That litigation ended in  the  High Court in 1921 with the result that their claim of  ownership stood  rejected but their rights as  hereditary  worshippers were  left  open.   Thereafter  the  Guravs  took   forcible possession  of  the temple on July  25,1922.   The  trustees brought  a  suit under s. 9 of the Specific  Relief  Act  on September  12,  1922, and obtained a decree on  November  4, 1932.    In  execution  of  that  decree  the  Guravs   were dispossessed.   The suits, out of which the present  appeals arise, were filed by the appellants against the trustees for declaration  of their rights as hereditary servants  of  the Sansthan,  a permanent injunction restraining  the  trustees from obstructing them in the exercise of the said rights and accounts.  The respondents claimed that the appellants  were servants  of  the  Temple committee and  had  no  hereditary rights as claimed by them; even if they had, their claim  to such  rights  was  barred by limitation.   The  trial  Court decreed the suits. In appeal the High Court, while  agreeing with  the  trial  court  on the  merits,  disagreed  on  the question  of  limitation,  held the suits to  be  barred  by limitation  under art. 120 Of the Limitation Act, the  cause of  action arising either on the filing of the s. 9 suit  by

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the respondents or, in any event, on the date when the  said suit  was decreed, S. 23 of the Act having  no  application, and allowed the appeals.  It was contended on behalf of  the appellants  in  this Court that the suits were  governed  by art.   I24  Of  the Limitation Act, and  even  if  art.  120 applied, S. 23 saved limitation. Held, that the High Court was right in holding that art. 120 and not art. 124, of the Limitation Act applied and that  S. 23 had no application to the suits in question. 477 Article  124  Of the Limitation Act applies only  where  the cause  of action for the suit is wrongful  dispossession  of the  plaintiff  and adverse possession by the  defendant  in respect  of  the  hereditary office in  question.   In  such suits, the contest usually is between rival claimants to the hereditary  office  and  not  between  such  claimants   and trustees.  It is impossible to ignore the provision Of  Col. 3 to that article in deciding its applicability. Kunj Bihari Prasadji v. Keshavlal Hiralal, [1904] I.L.R.  28 Bom.  567  and jalim Singh Srimal v. Choonee  Lall  Johurry, [1911] 15 C.W.N. 882, held inapplicable. Thathachariar  v. Singarachariar, A.I.R. 1928 Mad. 377,  ap- proved. Annasami  v.  Advarachari,  I.L.R. 1941  Mad.  275,  distin- guished. Jhalandar Thakur v. jharula Das, [1914] I.L.R. 42 Cal. 2444, referred to. Section 23 Of the Limitation Act refers not to a  continuing right  but  to a continuing wrong.  A  continuing  wrong  is essentially  one that creates a source of continuing  injury as  opposed  to  one that was complete and  makes  the  doer liable  for such continuance.  A completed inJury would  not be  a  continuing wrong even though it might  give  rise  to continuing damage. Thus tested, the injury to the appellants resulting from the decree  obtained  by the trustees in the s.  9  suit,  which amounted to a ouster, was complete at the date of the ouster and  S.  23 Of the Limitation Act could not apply so  as  to save limitation. Choudhury Bibhuti Narayan Singh v. Maharaja Sir Guru Mahadeu Asram  Prasad  Saki Bahadur, [1930] I.L.R. 19 Pat.  208  and Khair  Mohammad Khan v. Mst. jannat, [1940] I.L.R.  22  Lah. 22, referred to. Maharani Rajroop Koer v. Syaed Abdul Hossein, [1880] L.R.  7 I.A.  240 and Hukum Chand v. Maharaj Bahadur  Singh,  [1933] L.R. 60 I.A. 313, distinguished and held inapplicable.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 220 to  223 of 1953. Appeals  from the Judgment and decrees dated April  14,1943, of  the Bombay High Court in Appeals Nos. 183, 184, 185  and 186 of 1942, arising out of the judgments and decrees  dated February 16, 1942, of the Court of the 1st Class  Sub-Judge, Poona, in Suits Nos. 900/37, 392/35, 875/36 and 1202/33. V.   P. Rege and Naunit Lal, for the appellants. N.   C.  Chatterjee,  K.  V.  Joshi  and  Ganpat  Rai,   for respondents Nos. 1 to 6 (In all the Appeals). 478 1959.  March 26.  The Judgment of the Court was delivered by GAJENDRAGADKAR,  J.-These  four appeals represent  the  last stage  of  a  long  and  tortuous  litigation  between   the appellants  Waghmares  (also called Guravs)  who  claim  the

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rights  of hereditary worshippers in the  Shree  Dnyaneshwar Maharaj Sansthan, Alandi, and respondents 1 to 6 who are the trustees  of the said Sansthan.  Alandi , which is  a  small town situated on the banks of the river Indrayani at a  dis- tance  of about 14 miles from Poona, is regarded as  a  holy place of pilgrimage by thousands of Hindu devotees.  In  the last quarter’ of the 13th century Shree Dnyaneshwar Maharaj, the  great  Maharashtra  Saint  and  Philosopher,  lived  at Alandi.   He  was a spiritual teacher and reformer;  by  his saintly  life and his inspiring and illuminating  commentary on  the  Bhagvad Gita, known as Dnyaneshwari, he  helped  to create  a popular urge and fervour for religious and  social revolution which led to the foundation of a devotional cult; the  followers  of  this  cult  are  known  as  Warkaris  in Maharashtra.  They refuse to recognise any barriers of caste or  class; and amongst them prevails a feeling of  real  and genuine spiritual brotherhood.  Every year, in the months of July  and November, thousands of them proceed on  pilgrimage on  foot and accompany the annual palanquin procession  from Alandi  to  Pandharpur.  Pandharpur is the chief  centre  of pilgrimage in Maharashtra and it is regarded by devotees  as the  Banares  of  Southern India.  About 1300  A.  D.  Shree Dnyaneshwar  Maharaj took Samadhi at Alandi and  since  then Alandi also has become a place of pilgrimage. In or about 1500 A. D. a big temple was erected in front  of the  idol  of Shiva called Siddeshwar where the  said  Shree Dayaneshwar  Maharaj  took his Samadhi.  In due  course  the Mahratta Kings and the Peshwas of Poona granted the  village of  Alandi  in  inam for the upkeep of the  temple  and  the Samadhi.   About 1760 A. D. Peshwa Balaji Baji Rao framed  a budget  called Beheda or Taleband in order to  regulate  the management and worship of the shrine and provided for proper 479 administration of its annual revenue amounting to Rs. 1,725. The  appellants  claim  that their ancestors  were  then  in possession  of  the  temple and management  of  its  affairs especially the worship of the shrine.  The budget framed  by the Peshwa shows that out of the sum of Rs. 1,725 an  amount of Rs. 361 was assigned to the worshippers for some of their services. After  the  fall  of the Mahratta power  the  management  of Alandi passed into the hands of the East India Company which continued the old arrangement without any interference.   In 1852,  under  orders  from  the-Government  of  Bombay   the Collector  of Poona drew up a yadi or memorandum  appointing six  persons as Punchas (trustees) with directions  to  them for the management of the temple in accordance with the  old tradition and practice as well as for the administration  of the  revenue  of  the village subject  to  the  control  and sanction  of  the Collector.  This arrangement  came  to  be described as " the scheme of 1852". In  1863  the  Religious  Endowment  Act  was  passed,   and inconsequence,  in  1864 the Government of  Bombay  withdrew their  superintendence  over  the  affairs  of  the   Alandi Sansthan;  and the trustees continued to manage the  affairs of  the  temple without any supervision on the part  of  the Government.  It was during this period that the  appellants’ ancestors  began to assert that they were the owners of  the shrine  while the trustees insisted on treating them as  the servants  of  the shrine.  This conflict inevitably  led  to several disputes between the worshippers and the trustees. Matters  appear  to have come to a crisis in 1911  when  the trustees dismissed eleven Guravs from the temple service  on the ground that they were found guilty of gross  misconduct. The  Guravs nevertheless asserted that they were the  owners

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of  the  shrine and that the trustees had  no  authority  or power  to  dismiss  them.   Taking  their  stand  on   their ownership  of the shrine some of the dismissed Guravs  filed Civil  Suit No. 485 of 1911 in the Court of the  Subordinate Judge,  Poona,  against  the  trustees  and  this  was   the beginning  of the long drawn out litigation  which  followed between the parties.  In that suit the Guravs 480 claimed  a  declaration  that they were the  owners  of  the temple and not the servants of the temple committee; and  as owners  they  were entitled to perform the  worship  at  the shrine and to appropriate the offerings made to the idol  of the  Saint.   This claim was resisted by  the  trustees  who pleaded  that  the Guravs were merely the  servants  of  the temple  committee and not the owners at all.  On  April  20, 1917, the learned trial judge dismissed the suit because  he held  that the Guravs were not the owners of the shrine  and were  not  entitled  to the declarations  claimed  by  them. Against  this decision the Guravs preferred several  appeals but  these appeals were dismissed on August 3, 1921.   While dismissing   their  appeals  the  High  Court   incidentally expressed the view that it was open to the Guravs to come to terms with the temple committee and that the terms on  which the Guravs could be reinstated can be decided  appropriately in a suit filed under s. 92 of the Code of Civil  Procedure. It was also observed by the High Court in its judgment  that the  temple  committee  did not dispute the  fact  that  the Guravs  were the hereditary pujaris and that they  had  some rights  in  that capacity.  No doubt the  committee  claimed that  under  the scheme framed in 1852 it was  competent  to dismiss hereditary servants for a substantial cause such  as gross misconduct. It appears that instead of adopting the course indicated  in the judgment of the High Court and filing a suit under s. 92 of the Code, the Guravs chose to take the law into their own hands,  and  obtained  forcible  possession  of  the  temple premises on July 25, 1922, and began to perform the puja and to  take the offerings placed before the deity as  they  had been doing prior to their dismissal.  This was followed by a suit  filed by the trustees on September 12, 1922 (Suit  No. 1075  of 1922) under s. 9 of the Specific Relief Act.   This suit  terminated in a decree in favour of the  committee  on November 4, 1922.  In pursuance of this decree the committee recovered  possession  of the temple on November  16,  1922. Thus the Guravs had occupied the temple precincts for  about three and a half months. 481 When  the Guravs were thus dispossessed by the committee  in execution  of  the  decree  obtained by  it,  some  of  them proceeded to file Suit No. 19 of 1922 in the District  Court of  Poona; this suit purported to be one under s. 92 of  the Code but it claimed the same reliefs as had been claimed  by the  Guravs  in theirs earlier suit of 1911.  On  April  25, 1927, the District A Court dismissed this suit on the ground that the Guravs could not reagitate the same questions  over again. it was held that their claim was barred by the  deci- sion  of  the earlier Suit No. 485 of  1911.   Against  this decision the Guravs appealed to the High Court (First Appeal No.  507  of  1927);  but the High  Court  agreed  with  the conclusion  of the District Court and dismissed the  Guravs" appeal on June 20, 1933.  It was held by the High Court that the suit as framed was not properly constituted under s.  92 of the Code. It was at this stage that a properly constituted suit, No. 7 of  1934, was filed under s. 92 of the Code by  the  general

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public of Alandi along with two Guravs in the District Court at Poona.  This suit claimed that a proper scheme should  be framed  for the management of the temple.  Even so,  one  of the  allegations made in the plaint referred to the  Guravs’ rights   as  hereditary  worshippers.   It  was   apparently apprehended that this allegation would be treated as outside the  scope  of a scheme suit under s. 92 and so  the  Guravs took the precaution of filing four separate suits on  behalf of four branches in the Waghmare family one after the other. These suits were numbered as 1202 of 1933, 392 of 1935,  875 of 1936 and 900 of 1937; the plaintiffs in these suits  were respectively the members of the third, the fourth, the first and  the second branch of the Waghmare family’.  It  appears that  the hearing of these suits were stayed by an order  of the District Judge pending the final decision of the  scheme suit which was being tried by him. The scheme suit was taken, up for hearing in 1937.  As  many as  22  issues  were  framed in  this  suit  and  voluminous evidence  Was  recorded.  In the result  the  learned  judge substantially confirmed the original 61 482 scheme   of  1852,  though  he  issued  certain   directions modifying it.  This decree was passed on December 11,  1937. The  trustees felt aggrieved by this decree  and  challenged its  propriety by preferring an appeal, No. 92 of  1938,  in the  Bombay  High Court.  On  November 16,  1939,  the  High Court dismissed the appeal though it made some amendments in the  scheme framed by the- District Judge by consent of  the parties. After  the  scheme  suit was thus disposed of  by  the  High Court, the four suits filed by the pujaris were taken up for trial by the learned Subordinate Judge, First Class,  Poona. In  all these suits the appellants claimed their  rights  as hereditary  vatandar Pujari Gurav Servants of the  Sansthan. They alleged that they were under a duty to perform  worship according to certain rites in Shree Dayaneshwar Sansthan and that  they  were also under an obligation to  perform  other incidental  duties  enumerated  by them  in  their  plaints. Likewise  they  claimed  that  for  remuneration  they  were entitled to receive coins and perishable articles offered by the devotees and the committee as well as yearly  emoluments from  the  committee.  On these allegations  the  appellants claimed  a declaration about their respective rights and  an injunction   permanently  restraining  the   trustees   from obstructing  the  appellants  in the exercise  of  the  said rights.   They  also claimed accounts from the  trustees  in regard to the offerings prior to the institution of the suit as well as those made after the institution of the suit  and before the passing of the decree. These  allegations were denied by respondents 1 to 6.  Their case was that the appellants were the servants of the temple committee  and as such had no hereditary rights set  up,  by them.  In the alternative, it was pleaded by them that  even if  the  appellants had any hereditary rights the  same  had been  lost  by  their  misconduct  and  had  been  otherwise extinguished  by limitation.  Against the appellants’  claim pleas of res judicata and estoppel were also raised. On  these pleadings as many as 21 issues were framed in  the trial court.  The trial court found in favour 483 of the appellants on all the issues.  The learned judge held that  the Guravs had established the hereditary  rights  set out  by them and he was inclined to take the view  that  the respondents  could  not  deprive  the  appellants  of  their

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hereditary  rights of service because of the  misconduct  of some  of their ancestors.  He also found that there  was  no substance  in the plea of estoppel or res judicata and  that the suits were not barred by limitation.  In the result  the appellants’ suits were decreed on February 16, 1942. Thereupon  the  respondents  challenged  these  decrees   by preferring  appeals against them in the Bombay  High  Court. The  four suits accordingly gave rise to First Appeals  Nos. 183,  184,  185  and 186 of  1942  respectively.   In  these appeals  the  High  Court agreed with  the  trial  court  in holding  that on the merits the appellants  had  established their case and that their claim was not barred either by res judicata  or  by  estoppel.  However,  on  the  question  of limitation the High Court took the view that the appellants’ suits  were governed by art. 120 of the Limitation  Act  and that  they  had been filed beyond the period  of  six  years prescribed by the said article.  That is why the High  Court set aside the decrees passed by the trial court, allowed the respondents’  appeals and dismissed the  appellants’  suits. However,  in view of the special facts of the case the  High Court  directed  that each party should bear its  own  costs throughout.  This judgment was pronounced on April 14, 1943. Like the trial court the High Court also dealt with all  the four cases by one common judgment. It  appears that after this judgment was pronounced  by  the High  Court but before it Was signed, the  appellants  moved the  High Court on July 2, 1943, for a rehearing of  one  of the appeals (No. 186 of 1942).  It was urged before the High Court  that even if art. 120 applied the claim made  by  the appellant in the said appeal (which arose from Suit No. 1202 of 1933) could not be held to be barred by limitation.   The High Court was not impressed by this plea and so the  motion for rehearing was discharged. Subsequently a Civil Application, No. 1039 of 1944, 484 was  made  by the appellant in the said  appeal  seeking  to raise  the  same point over again but this  application  was rejected by the High Court on September 12, 1944. The appellants then applied for leave to appeal to the Privy Council  on August 15, 1944.  Their applications were  heard together  and were disposed of by an order passed  on  March 26, 1946, whereby leave was granted to them to appeal to the Privy  Council  and their prayer for consolidating  all  the appeals was also allowed.  These appeals could not, however, be disposed of by the Privy Council before the  jurisdiction of the Privy Council to deal with Indian appeals came to  an end  and  so  they ultimately came to this  Court  and  were numbered  as  Appeals Nos. 220 to 223 of 1953.   It  may  be convenient  to state that these appeals  arise  respectively from  Suits Nos. 907 of 1937, 392 of 1935, 875 of  1936  and 1202  of  1933.  It would thus be seen that  the  litigation which began between the parties in 1911 has now reached  its final stage before us in the present appeals. As  we  have already indicated, both the courts  below  have found in favour of the appellants on most of the issues that arose  in  the present litigation; but the  appellants  have failed  in the High Court on the ground of  limitation.   In the  trial court the respondents had urged that the  present suits  were governed by art. 124 of the Limitation  Act  and that  since  the Guravs had been dismissed from  service  in 1911  and  other Guravs refused to serve in  1913  and  1914 limitatation  began to run against them at least  from  1914 and so the suits were beyond time.  The learned trial  judge held  that  art.  124  was  inapplicable.   He  also   found alternatively  that, even if the said article  applied,  the

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trustees  did  not have continuous possession  of  the  suit properties  from  1911 or 1914 for twelve years and  so  the suits  were not barred by time.  According to him  the  case was  really covered by s. 23 of the Limitation Act,  and  so the plea of limitation could not succeed. The  High Court has agreed with the trial court  in  holding that art. 124 is inapplicable.  It has, however, 485 come  to the conclusion that the suits are governed by  art. 120  of the Limitation Act, and, according to its  findings, limitation  began to run against the appellants either  from September 12, 1922, when the trustees filed their suit under s.  9  of  the Specific Relief Act, or,  in  any  case  from November,  1922 when, in execution of the decree  passed  in the said’ suit, the appellants were driven out of the temple precincts  by  the trustees.  The High Court has  also  held that  s.  23 can have no application to  the  present  case. That  is how the High Court has reached the conclusion  that the  appellants’  suits are barred by time under  art.  120. The  question which arises for our decision in  the  present appeals,  therefore,  is  one of limitation; it  has  to  be considered  in  two  aspects: Was the High  Court  right  in holding  that art. 120 applies and that the cause of  action accrued  more  than  six  years  before  the  dates  of  the institution of the present suits ?; Was the High Court  also right in holding that s. 23 does not apply to the suits ? On  behalf of the appellants Mr. Rege has contended that  in substance, in their present suits the appellants have made a claim  for  possession of an hereditary office and  as  such they  would be governed by art. 124 of the  Limitation  Act. In  this  connection  he has referred  us  to  the  relevant allegations  in  the  plaint to show  that  the  appellants’ prayer  for a declaration about their hereditary rights  and for  a consequential permanent injunction amount to no  more and  no  less  than  a claim  for  possession  of  the  said hereditary office.  In support of this argument reliance has been placed on the decision of the Bombay High Court in Kunj Bihari Prasadji v. Keshavlal Hiralal (1).  In that case  the plaintiff  had made a claim to the gadi of the  Swaminarayan temple at Ahmedabad and had asked for a declaration that the will  of  the  last  Acharya  which  purported  to   appoint defendant  14 as his adopted son and successor was null  and void.   As  a consequence a perpetual injunction  -was  also claimed   restraining  the  defendants  from  offering   any obstruction  to  the plaintiff in occupying the  said  gadi. The (1)  (1904) I.L.R. 28 Bom. 567. 486 principal point which was decided in the case had  reference to  the  effect of the provisions of s. 42 of  the  Specific Relief Act., The plaintiff’s suit had been dismissed in  the courts  below on the ground that he had omitted to  ask  for further relief as he was bound to do under s. 42 of the said Act and the High Court held that the section did not empower the  court to dismiss the suit under the said  section.   In considering  the nature of the claim made by  the  plaintiff Jenkins, C. J., observed that " in the plaintiff’s view  the suit  was not one of possession of land appertaining to  the gadi but to determine who was to occupy the gadi and thus as gadinishin become the human agent of the deity.  If that was so,  then the injunction restraining all  interference  with the  occupancy by the plaintiff of the gadi secures  in  the most  complete  manner to him the rights he  claims  ".  The learned  Chief  Justice also observed that "  the  plaintiff might  in terms have asked for possession of the  office  he

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said was his ", but be asked " how would practical effect be given to an award of possession of office otherwise than  by preventing interference with the rights of which it was made up  ".  Even so, having reversed the decree  passed  by  the courts  below,  when the High Court remanded  the  case  for retrial,  the plaintiff was advised to amend his plaint  and to  define  more precisely the terms of  the  injunction  he sought.   It is urged that, in the present appeals also,  by asking  for  a  declaration  of  their  rights  and  for  an appropriate   injunction   against  the   respondents,   the appellants  were  in  effect asking for  possession  of  the hereditary office.  It is doubtful if the claims made by the appellants  in their respective suits are exactly  analogous to  the claim made by the plaintiff in Kunj Bihari  Prasad’s case  (1).   The  appellants  have not  only  asked  for  an injunction but also for an account of the income received by the trustees from July 23, 1933, up to the date of the  suit as  well  as for similar account from the date of  the  suit until  the date of the decree.  A claim for accounts in  the form  in which it is made may not be quite  consistent  with the appellants’ contention that their suits are for  nothing more than possession (1)  (1904) I.L.R. 28 Bom. 567. 487 of  the hereditary office ; but in dealing with the  present appeals  we  are  prepared  to  assume  that  they  have  in substance  claimed possession of the office.   The  question which then arises is: Does this claim for possession attract the  application  of  art.  124  of  the  Limitation  Act  ? Article  124 governs suits for possession of  an  hereditary office.  The period of limitation prescribed by the  article is  twelve years and the said period begins to run when  the defendant  takes possession of the office adversely  to  the plaintiff.   This is 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. In the present appeals the claim for possession is 488 made by the appellants against the trustees of the Sansthan.

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It  is  significant  that the -  persons  who  are  actually performing the duties of the worshippers are not impleaded ; and they do not claim to hold office as hereditary  officers either.   They  have  been  appointed  by  the  trustees  as servants of the institution  and they perform the duties  of worship as such servants.  The trustees, on the other  hand, cannot  be   said  to have taken possession  of  the  office themselves  adversely to 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 office.  It  is, therefore, impossible to accept the argument that the  claim made  by the appellants in their respective  suits  attracts the provision& 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 or equity. 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 489 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. 124 applies.  It is true that in Jalim Singh Srimal  v. Choonee Lall Johurry (1), while holding that the  adjustment on which the plaintiff’s 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 Singh’s case (1). 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 (2).  " If  we  take  into

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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 is correct. We  may  also refer to another decision of the  Madras  High Court  in  which  this question  has  been  considered.   In Annasami v. Adivarachari (3) a Full Bench of the Madras High Court was dealing with a suit in (1) (1911) 15 C.W.N. 882.      (2) A.I.R. 1928 Mad, 377. (3)  I.L.R. 1941 Mad. 275. 62 490 which  the plaintiff had claimed an  injunction  restraining the  trustee  and  the archakas of  the  Sri  Bhuvarabaswami temple  at Srimushnam from interfering with the  performance of the duties of his office of mantrapushpam of the  temple. This   suit  had  been  filed  in  1929.   The   office   of mantrapushpam was a hereditary office and the plaintiff  had succeeded  to  it on the death of his father in  1906.   The emoluments of the office consisted of a ball of cooked  rice per  them and twelve annas per month.  It appears  that  the plaintiff  was a Vadagalai while the archakas of the  temple were Thengalais and there was animosity between them; and as a result of this animosity the plaintiff bad never been able to  perform the duties of his office.  It was common  ground that  the plaintiff was the lawful holder of the office  and that  he  had been receiving its emoluments month  by  month until 1927.  The archakas who resisted the plaintiff’s claim did not claim that they were in possession of the office  or that they had performed the duties of the said office.   The Full  Bench  held  that, where a person  is  admittedly  the lawful  holder  of  the  office  and  he  is  enjoying   its emoluments,  he  must  in  law  be  regarded  as  being   in possession  of  the office itself, especially where  no  one else  is  performing the duties of the said office;  and  so under art. 124 it was enough for the plaintiff to show  that he  had been in receipt of the emoluments of the  office  to save  his claim from the bar of limitation.  The Full  Bench also  rejected the contention that under art. 120  the  suit was  barred because it was held that every time the  trustee and the archakas prevented the plaintiff from performing his duties  as  a hereditary officer a. fresh  cause  of  action arose  and so there can be no bar of limitation  under  art. 120.   It would be noticed that the basis of  this  decision was  that,  in  the  eyes  of  law,  the  plaintiff  was  in possession  of the hereditary office since he was  receiving the  emoluments  of the said office month by month,  and  so every act of obstruction on the part of the archakas and the trustee  was in the nature of a continuing wrong which  gave rise  to a fresh cause of action to the plaintiff from  time to  time.  In other words, on the facts the Full Bench  held that 491 s.23 helped the plaintiff and saved his suit from the bar of limitation.   As  we will presently point out  there  is  no scope for applying s. 23 to the facts of the present  cases, and  so the decision in Annasami Iyengar’s case  (1)  cannot assist the appellants. In  this connection it is relevant to consider the  decision of the Privy Council in Jhalandar Thakur v., Jharula Das (2) in  which it was held that art. 124 was  inapplicable.   The defendant  Jharula Das had obtained a decree for money on  a mortgage  which  bad  been executed in his  favour  by  Mst.

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Grihimoni,  the  widow  of the shebait of  the  temple.   In execution of the said decree the defendant had caused 3  1/2 as. share of the judgment-debtor including her right in  the nett  income of the daily offerings made before the idol  to be  put  up  for sale and had himself purchased  it  at  the auction sale.  As such purchaser he was in possession of the income of the said share.  The judgment-debtor attempted  to challenge the said sale by two suits but her attempts failed and the’ auction purchaser continued to be in possession  of the  income.   On  the death  of  Mst.   Grihimoni,  Bhaiaji Thakur, who succeeded to the office of the shebait, sued the defendant  for  possession of certain lands  and  claimed  a declaration  that he was entitled to receive the 3  1/2  as. share  of the nett income from the offerings to  the  temple with  other  reliefs.   This  claim  was  resisted  by   the defendant  Jharula Das.  In regard to the plaintiff’s  claim in  respect of the said 3 1/2 as share, the High  Court  had held  that  art. 124 applied and that the claim  was  barred under  the said article.  That is why the decree  passed  by the trial court in favour of the plaintiff in respect of the said  income was reversed by the High Court.  This  decision was challenged by the plaintiff before the Privy Council and it was urged on his behalf that art. 124 did not apply.  The Privy Council upheld this contention.  It was clear that the office of the shebait of the temple was a hereditary  office which  could  not be held by anyone who was  not  a  Brahmin Panda.   Jharula Das was not a Brahmin Panda.  He was of  an inferior caste and was not (1) I.L.R. 1941 Mad. 275. (2) (1914) I.L.R. 42 Cal. 244. 492 competent  to hold the office of the shebait of the  temple, or  to  provide for the performance of the  duties  of  that office.   On  these facts the Privy Council  held  that  the appropriation from time to time by Jharula Das of the income derivable from the said 3 1/2 as share -did not deprive Mst. Grihimoni,  and  after  her death, Bhaiaji  Thakur,  of  the possession of the office of the shebait although that income was  receivable by them .in right of the  shebaitship.   The basis  of this decision is that, on each occasion  on  which Jharula Das received and wrongfully appropriated to his  own use a share of the income to which the shebait was entitled, he committed a fresh actionable wrong in respect of which  a suit could be brought against him by the shebait; but it did not constitute him a shebait for the time being or affect in any  way  the  title  of the  office.   Thus  this  decision emphasises  that  for  the application of  art.  124  it  is essential that the defendant to the suit must be in  adverse possession  of the hereditary office in question.  We  must, 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 not apply, art. 120 does. The  next  point which arises for our  decision  is  whether under  art. 120 the suits are barred by  limitation.   Under art. 120 time begins to run against the plaintiffs when  the right  to sue accrued to them, and that naturally poses  the question  as  to  when  the right  to  sue  accrued  to  the appellants.  In deciding this question it would be necessary to  recall briefly the material facts in regard to the  past disputes  between  the appellants and the  trustees.   These disputes  began in 1911.  On January 31, 1911, the  trustees wrote  a yadi (memorandum) to the Collector of Poona  asking his permission to dismiss eleven Guravs from service.   They set  out in detail several items of misconduct of which  the said  Guravs were guilty; and they expressed  their  opinion

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that  for  the  proper  management of  the  affairs  of  the institution  it was necessary to terminate the  services  of the  off-ending  Guravs (Ex. 407).  On April  1,  1911,  the Collector  sent a reply to the trustees and told them  that, as a result of the Government 493 Resolution  No.  4712  passed on November  29,1864,  it  was unnecessary  for  the  trustees to  obtain  the  Collector’s sanction because it was competent to the trustees to  settle their  own affairs without any such sanction.  The  trustees then  met in a committee on September 18, 1911, and  decided to  dismiss  from service the said eleven  Guravs.   In  its resolution the committee stated that the Guravs were violent and arrogant and it was likely that they may commit riot  at the  time when the committee would seek to take charge  from them.   The committee also apprehended that the rest of  the Guravs  would  make a common cause with those who  had  been dismissed  from  service  and  would  refuse  to  serve  the Sansthan.   Even  so the committee decided  to  appoint  six Brahmins  temporarily  to perform the service,  because  the committee  was prepared to allow the rest of the  Guravs  to render  service  to the Sansthan if they were ready  to  act according to the orders of the committee and were willing to enter into a formal agreement in that behalf.  In accordance with  this  resolution the committee served  notice  on  the eleven  Guravs  on  October  13,  1911,  terminating   their services and calling upon them to hand over to the committee all  articles  in  their charge  and  forbidding  them  from entering  the temple in their capacity as servants.   Notice was  likewise served on the rest of the Guravs calling  upon them to agree to serve the Sansthan on conditions  specified in  the  notice.   These terms were not  acceptable  to  the Guravs  and  so,  on behalf of two  Guravs  Eknath  and  his brother  Ramachandra, notice was served on the  trustees  on October 26, 1911, complaining against the trustees’  conduct in forcibly removing the Guravs from the temple and  thereby wrongfully  denying  their rights.  The  notice  warned  the trustees  that  unless they retraced their  steps  and  gave possession  to  the Guravs as claimed in  the  notice  legal steps would be taken against them. This  notice  was followed by the Guravs’ Suit  No.  485  of 1911.  In the suit the plaintiffs claimed declaration  about their  rights  of  ownership  and  asked  for  consequential reliefs.  This claim was denied by the 494 trustees  who claimed the right to dismiss the  Guravs.   It was alleged on their behalf that some of the plaintiffs  had been dismissed and others had resigned their employments and so  all  of  them  had lost their  rights.   This  suit  was seriously  contested  but  in the end the  Guravs  lost  and -their suit was dismissed on  January 31, 1918. The  Guravs  then preferred appeals in the  High  Court  but these  appeals  were also dismissed on August 3,  1921.   We have  already  pointed out that, while dismissing  the  said appeals, the High Court made certain observations about  the Guravs’  hereditary  rights of worship  and  suggested  that these rights could be adjudicated upon in a suit filed under s.  92  of  the Code.  Thus at the  time  when  the  Guravs’ appeals  were dismissed the position was that the  claim  of ownership set up by them had been rejected; but the question as  to  whether they were entitled to the lesser  rights  of hereditary worshippers was left open. The  Guravs then obtained forcible possession of the  temple and  that  led  to  the trustees’ suit under  s.  9  of  the Specific  Relief  Act, No. 1075 of 1922,  on  September  12,

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1922.   In this suit the trustees specifically alleged  that the  relationship  of  the defendants  as  servants  of  the Sansthan  had  ceased  as from  September,  1911,  and  they averred that the defendants had therefore no right to obtain possession of the temple.  The defendants no doubt  disputed this  claim  and  pleaded  that  they  were  the  hereditary vatandar pujari servants but their claim was negatived and a decree  for possession was passed on November 4,  1922.   In execution of this decree the defendants were dispossessed. 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, 495 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 defendant’s  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. 120. It  is then contended by Mr. Rege that the suits  cannot  be held  to  be  barred under art. 120 because  s.  23  of  the Limitation Act applies; and since, in the words of the  said section,   the  conduct  of  the  trustees  amounted  to   a continuing wrong, a fresh period of limitation began to  run at  every  moment  of  time  during  which  the  said  wrong continued.   Does  the conduct of the trustees amount  to  a continuing  wrong under s. 23 ? That is the  question  which this  contention raises for our decision.  In  other  words, did the 496 cause  of  action  arise de die in them as  claimed  by  the appellants  ? In 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

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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 continuing  wrong.  The decree 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 497 the view which the High Court has taken and we see no reason to differ from it. 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 (1) 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 obstructions  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 trees 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  plaintiff’s  mehal  were in the  nature  of  continuing nuisance as to which the cause of action was renewed de  die in   them   so  long  as  the  obstructions   causing   such

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interference  were  allowed to continue.  That  is  why  the Privy  Council allowed the plaintiff’s 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  plaintiff’s  water and thereby committing fresh wrong every time.  Thus this is clearly not a case of exclusion or ouster. (1)  (1880) L.R. 7 I.A. 240. 63 498 Similarly,  in Hukum Chand v. Maharaj Bahadur Singh (1)  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    Swetambaris 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 of 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 (2 ) 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. On  the other hand the decision of the Patna High  Court  in Choudhury Bibhuti Narayan Singh v. Maharaja Sir Guru Mahadev Asram Prasad Sahi Bahadur(3) (1) (1933) L.R. 60 I.A. 313.   (2) (1880) L.R. 7 I.A. 240. (3) [1939] I.L.R. 19 Pat. 208. 499 as  well as that of the Full Bench of the Punjab High  Court in   Khair  Mohammad  Khan  v.  Mst.   Jannat  support   the respondents’  contention  that  where the  s,  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. 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. In the result the appeals fail and are dismissed.  We would,

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however, direct that the parties should bear their own costs throughout. Appeals dismissed.