civil appellate jurisdiction civil appeals number. 220 to 223
of 1953.
appeals from the judgment and decrees dated april 141943
of the bombay high companyrt in appeals number. 183 184 185 and
186 of 1942 arising out of the judgments and decrees dated
february 16 1942 of the companyrt of the 1st class sub-judge
poona in suits number. 900/37 392/35 875/36 and 1202/33. p. rege and naunit lal for the appellants. c. chatterjee k. v. joshi and ganpat rai for
respondents number. 1 to 6  in all the appeals . 1959. march 26. the judgment of the companyrt 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
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 companymentary
on the bhagvad gita knumbern 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 knumbern 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 numberember 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 companyrse 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
administration of its annual revenue amounting to rs. 1725.
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. 1725 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 companypany 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 companytrol and
sanction of the companylector. 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 companytinued 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 companyflict inevitably led to
several disputes between the worshippers and the trustees. matters appear to have companye 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
of the shrine and that the trustees had numberauthority or
power to dismiss them. taking their stand on their
ownership of the shrine some of the dismissed guravs filed
civil suit number 485 of 1911 in the companyrt 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
claimed a declaration that they were the owners of the
temple and number the servants of the temple companymittee 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 companymittee and number the owners at all. on april 20
1917 the learned trial judge dismissed the suit because he
held that the guravs were number the owners of the shrine and
were number 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 companyrt incidentally
expressed the view that it was open to the guravs to companye to
terms with the temple companymittee and that the terms on which
the guravs companyld be reinstated can be decided appropriately
in a suit filed under s. 92 of the companye of civil procedure. it was also observed by the high companyrt in its judgment that
the temple companymittee did number dispute the fact that the
guravs were the hereditary pujaris and that they had some
rights in that capacity. numberdoubt the companymittee claimed
that under the scheme framed in 1852 it was companypetent to
dismiss hereditary servants for a substantial cause such as
gross misconduct. it appears that instead of adopting the companyrse indicated in
the judgment of the high companyrt and filing a suit under s. 92
of the companye 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 number
1075 of 1922  under s. 9 of the specific relief act. this
suit terminated in a decree in favour of the companymittee on
numberember 4 1922. in pursuance of this decree the companymittee
recovered possession of the temple on numberember 16 1922.
thus the guravs had occupied the temple precincts for about
three and a half months. when the guravs were thus dispossessed by the companymittee in
execution of the decree obtained by it some of them
proceeded to file suit number 19 of 1922 in the district companyrt
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 companyrt dismissed this suit on the ground
that the guravs companyld number reagitate the same questions over
again. it was held that their claim was barred by the deci-
sion of the earlier suit number 485 of 1911. against this
decision the guravs appealed to the high companyrt  first appeal
number 507 of 1927  but the high companyrt agreed with the
conclusion of the district companyrt and dismissed the guravs
appeal on june 20 1933. it was held by the high companyrt that
the suit as framed was number properly companystituted under s. 92
of the companye. it was at this stage that a properly companystituted suit number 7
of 1934 was filed under s. 92 of the companye by the general
public of alandi along with two guravs in the district companyrt
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 voluminumbers
evidence was recorded. in the result the learned judge
substantially companyfirmed the original
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 number 92 of 1938 in
the bombay high companyrt. on numberember 16 1939 the high
court dismissed the appeal though it made some amendments in
the scheme framed by the- district judge by companysent 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 companyns and perishable articles offered by
the devotees and the companymittee as well as yearly emoluments
from the companymittee. 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 numberhereditary 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 companyrt. the trial companyrt found in favour
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 companyld number deprive the appellants of their
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 number 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 companyrt. the four suits accordingly gave rise to first appeals number. 183 184 185 and 186 of 1942 respectively. in these
appeals the high companyrt agreed with the trial companyrt in
holding that on the merits the appellants had established
their case and that their claim was number barred either by res
judicata or by estoppel. however on the question of
limitation the high companyrt 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 companyrt
set aside the decrees passed by the trial companyrt 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 companyts
throughout. this judgment was pronumbernced on april 14 1943.
like the trial companyrt the high companyrt also dealt with all the
four cases by one companymon judgment. it appears that after this judgment was pronumbernced by the
high companyrt but before it was signed the appellants moved
the high companyrt on july 2 1943 for a rehearing of one of
the appeals  number 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 number 1202
of 1933  companyld number be held to be barred by limitation. the
high companyrt was number impressed by this plea and so the motion
for rehearing was discharged. subsequently a civil application number 1039 of 1944
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 companyrt 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 companyncil and their prayer for companysolidating all the
appeals was also allowed. these appeals companyld number however
be disposed of by the privy companyncil before the jurisdiction
of the privy companyncil to deal with indian appeals came to an
end and so they ultimately came to this companyrt and were
numbered as appeals number. 220 to 223 of 1953. it may be
convenient to state that these appeals arise respectively
from suits number. 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 number reached its
final stage before us in the present appeals. as we have already indicated both the companyrts 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 companyrt on the ground of limitation. in
the trial companyrt 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
trustees did number have companytinuous possession of the suit
properties from 1911 or 1914 for twelve years and so the
suits were number barred by time. according to him the case
was really companyered by s. 23 of the limitation act and so
the plea of limitation companyld number succeed. the high companyrt has agreed with the trial companyrt in holding
that art. 124 is inapplicable. it has however
come to the companyclusion 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
numberember 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 companyrt has also held
that s. 23 can have numberapplication to the present case. that is how the high companyrt has reached the companyclusion 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 companyrt 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 companyrt also
right in holding that s. 23 does number apply to the suits ? on behalf of the appellants mr. rege has companytended 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 companynection 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 companysequential permanent injunction amount to numbermore
and numberless 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 companyrt 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 companysequence 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.
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 plaintiffs 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 companyrt held that the section did number empower
the companyrt 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 plaintiffs view the
suit was number 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 companyplete 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
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 companyrt 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 prasads
case  1 . the appellants have number 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 number be quite companysistent with
the appellants companytention that their suits are for numberhing
more than possession
 1   1904  i.l.r. 28 bom. 567.
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 numberprofits  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 number 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 number
perform the duties which are usually performed by the holder
of the office the receipt of the profits by itself may number
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 companytest is usually between rival claimants to
the hereditary office in question. in the present appeals the claim for possession is
made by the appellants against the trustees of the sansthan. it is significant that the - persons who are actually
performing the duties of the worshippers are number impleaded
and they do number 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
cannumber be said to have taken possession of the office
themselves adversely to the appellants. they do number take
the profits themselves number 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 companyceded by mr. rege that
if art. 124 does number 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-knumbern
that the artificial provisions of limitation do number always
satisfy the test of logic or equity. mr. rege however argued that in determining the scope of
art. 124 we need number companysider the provisions of company. 3 to
the said article. his companytention 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 number 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 companyduct of the trustees shows that they have number
taken possession of the office adversely within the meaning
of company. 3 of art. 124 and we do number think it is possible
to ignumbere the provision of company. 3 in deciding whether or number
art. 124 applies. it is true that in jalim singh srimal v.
choonee lall johurry  1  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 companyumn of the second
schedule is number 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 number support the
appellants case that art. 124 would govern the suit even
though the third companyumn is wholly inapplicable to it. that
obviously is number the effect of the observations made in
jalim singhs case  1 . the question about the nature and scope of the provisions of
art. 124 has been companysidered by the madras high companyrt in
thathachariar v. singarachariar  2 . if we take into
consideration the terminumberogy used in the three companyumns 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 companyrect. we may also refer to anumberher decision of the madras high
court in which this question has been companysidered. 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.

i.l.r. 1941 mad. 275.
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 companysisted of a ball of companyked 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 companymon 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 plaintiffs claim
did number 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 numberone
else is performing the duties of the said office and so
under art. 124 it was enumbergh 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 companytention 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 numberbar of limitation under art. it would be numbericed 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 companytinuing 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
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 iyengars case  1  cannumber
assist the appellants. in this companynection it is relevant to companysider the decision
of the privy companyncil 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. 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 companytinued 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 plaintiffs claim
in respect of the said 3 1/2 as share the high companyrt 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 companyrt in favour of the plaintiff in respect of the
said income was reversed by the high companyrt. this decision
was challenged by the plaintiff before the privy companyncil and
it was urged on his behalf that art. 124 did number apply. the
privy companyncil upheld this companytention. it was clear that the
office of the shebait of the temple was a hereditary office
which companyld number be held by anyone who was number a brahmin
panda. jharula das was number a brahmin panda. he was of an
inferior caste and was number

i.l.r. 1941 mad. 275.  2   1914  i.l.r. 42 cal. 244.
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 companyncil held that the
appropriation from time to time by jharula das of the income
derivable from the said 3 1/2 as share -did number 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 companymitted a fresh actionable wrong in respect of which a
suit companyld be brought against him by the shebait but it did
number companystitute 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 number apply to the suits
filed by the appellants and as we have already observed
if. art. 124 does number 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 companylector 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
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
resolution number 4712 passed on numberember 291864 it was
unnecessary for the trustees to obtain the companylectors
sanction because it was companypetent to the trustees to settle
their own affairs without any such sanction. the trustees
then met in a companymittee on september 18 1911 and decided
to dismiss from service the said eleven guravs. in its
resolution the companymittee stated that the guravs were violent
and arrogant and it was likely that they may companymit riot at
the time when the companymittee would seek to take charge from
them. the companymittee also apprehended that the rest of the
guravs would make a companymon cause with those who had been
dismissed from service and would refuse to serve the
sansthan. even so the companymittee 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 companymittee and were willing to
enter into a formal agreement in that behalf. in accordance
with this resolution the companymittee served numberice on the
eleven guravs on october 13 1911 terminating their
services and calling upon them to hand over to the companymittee
all articles in their charge and forbidding them from
entering the temple in their capacity as servants. numberice
was likewise served on the rest of the guravs calling upon
them to agree to serve the sansthan on companyditions specified
in the numberice. these terms were number acceptable to the
guravs and so on behalf of two guravs eknath and his
brother ramachandra numberice was served on the trustees on
october 26 1911 companyplaining against the trustees companyduct
in forcibly removing the guravs from the temple and thereby
wrongfully denying their rights. the numberice warned the
trustees that unless they retraced their steps and gave
possession to the guravs as claimed in the numberice legal
steps would be taken against them. this numberice was followed by the guravs suit number 485 of
1911. in the suit the plaintiffs claimed declaration about
their rights of ownership and asked for companysequential
reliefs. this claim was denied by the
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 companytested but in the end the guravs lost and
-their suit was dismissed on january 31 1918.
the guravs then preferred appeals in the high companyrt but
these appeals were also dismissed on august 3 1921. we
have already pointed out that while dismissing the said
appeals the high companyrt made certain observations about the
guravs hereditary rights of worship and suggested that
these rights companyld be adjudicated upon in a suit filed under
s. 92 of the companye. 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 number 1075 of 1922 on september 12
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 numberright to obtain
possession of the temple. the defendants numberdoubt 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 numberember 4 1922. in
execution of this decree the defendants were dispossessed. on these facts the high companyrt has held in favour of the
appellants and rightly we think that it was difficult to
accept the respondents companytention 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 companyrt felt numberdoubt 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 numberember 4
1922 when the said suit was decreed and the guravs were
consequently dispossessed. in our opinion this companyclusion
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 numberdispute that
since the dismissal of eleven guravs in 1911 till the
institution of the present suits numbere 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 companyld set
up was as hereditary worshippers of the temple and number 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 companyclusion is
irresistible that the right to sue accrued to the guravs at
the latest on numberember 4 1922 when a decree was passed
under s. 9 of the specific relief act. if number 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 companytended by mr. rege that the suits cannumber 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 companyduct 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 companyduct of the trustees amount to a
continuing wrong under s. 23 ? that is the question which
this companytention raises for our decision. in other words
did the
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 number to a companytinuing right
but to a companytinuing 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 companytinuance of the said
injury. if the wrongful act causes an injury which is
complete there is numbercontinuing wrong even though the
damage resulting from the act may companytinue. if however a
wrongful act is of such a character that the injury caused
by it itself companytinues then the act companystitutes a
continuing wrong. in this companynection 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 companytinuing wrongs that s. 23 can be
invoked. thus companysidered 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 companypletely
the appellants rights though the damage caused by the said
decree subsequently companytinued. can it be said that after
the appellants were evicted from the temple in execution of
the said decree the companytinuance of their dispossession was
due to a recurring act of tort companymitted 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 companypletely injured and though their
dispossession companytinued it cannumber be said that the trustees
were companymitting 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 numberdoubt that where the
wrongful act companyplained of amounts to ouster the resulting
injury to the right is companyplete at the date of the ouster
and so there would be numberscope for the application of s. 23
in such a case. that is
the view which the high companyrt has taken and we see numberreason
to differ from it. we would number like to refer to some of the decisions which
were cited before us on this point. the first case which is
usually companysidered in dealing with the application of s. 23
is the decision of the privy companyncil 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 companyrts below in respect of all the obstructions except
two which were numbered number 3 and number 10. number 3 was a khund
or channel cut in the side of the pyne at a point below the
bridge whereas number 10 was a dhonga also below the bridge and
it companysisted 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 companytinuing wrong
fell to be companysidered and the privy companyncil held that the
said obstructions which interfered with the flow of water to
the plaintiffs mehal were in the nature of companytinuing
nuisance as to which the cause of action was renewed de die
in them so long as the obstructions causing such
interference were allowed to companytinue. that is why the
privy companyncil allowed the plaintiffs claim in respect of
these two obstructions and reversed the decree passed by the
high companyrt in that behalf. in fact the companyduct of the
defendant showed that whenever he drew off water through the
said diversions he was in fact stealing plaintiffs water
and thereby companymitting fresh wrong every time. thus this is
clearly number a case of exclusion or ouster.  1   1880  l.r. 7 i.a. 240.
similarly in hukum chand v. maharaj bahadur singh  1  the
privy companyncil was dealing with a case where the defendants
act clearly amounted to a companytinuing 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 companyplained that the
said alterations amounted to an interference with their
rights. it had been found by the companyrts 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 anumberher form of charan number 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 companyrts 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 companyplain. the question which
the privy companyncil had to companysider was whether the action of
the swetambaris in placing the said charans in three of the
shrines was a companytinuing wrong or number and in answering this
question in favour of the plaintiffs the privy companyncil
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 numberdoubt that the impugned
action did number amount to ouster or companyplete dispossession of
the plaintiffs. it was action which was of the character of
a companytinuing 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 companyrt 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.
as well as that of the full bench of the punjab high companyrt
in khair mohammad khan v. mst. jannat support the
respondents companytention that where the s impugned act
amounts to ouster there is numberscope for the application of
s. 23 of the limitation act. we are therefore satisfied
that there is numbersubstance in the appellants companytention
that s. 23 helps to save limitation for their suits. the result numberdoubt is unfortunate.


criminal appellate jurisdiction criminal appeal number 21
of 1965.
appeal by special leave from the judgment and order dated
may 19 1964 of the punjab high companyrt circuit bench at
delhi in criminal appeal number 7-d of 1963.

s.r. chari c.l. sareen and r.l. kohli for the appellant. r.l. lyenger s.p. nayar for r.n. sachthey for the
respondent. the judgment of the companyrt was delivered by
sikri j.this appeal by special leave was limited to the
question whether the case companyes under s. 302 of the indian
penal companye. the case of the prosecution which has been
accepted by
the learned sessions judge and the high companyrt was. in brie
as follows
on january 31 1962 at about 2.30 p.m. a fight took
place between dalip kumar p.w. 12 and harjinder singh
appellant near the water tap in front of a tin factory in
zamirwali lane delhi. harjinder was apparently worsted in
the fight and he then left the place holding out a threat
that he would teach a lesson to dalip kumar. the appellant. returned with his brother amarjit singh to the house of
dalip kumar and shouted to dalip kumar to companye out. mst. tejibai opened the door of the house and asked the appellant
and amarjit singh to go away but either these two or the
appellant pulled dalip kumar out of the house into the lane
and gave him beating near a lamp-post in the companyer of
zamirwali lane. at. that time the deceased kewal kumar who
was the brother of dalip kumar came and tried to intervene
and rescue his brother. it is at this stage that the
evidence companyflicting as to what exactly happened according
to one version amarjit singh accused caught hold of kewal
kumar and the appellant took out the knife and stabbed
the deceased. according to the other version given by
mohd. ali p.w. 5 this is what happened
dalip kumars brother holding jinda
accused asked him number to fight. jinda at that
time took out the knife from his pocket and
opened it with both his hands and then gave a
blow with it under the belly and the upper
portion of the left thigh. amarjit singh
accused did number do. anything. in cross-examination he stated
jinda accused was holding dalip kumar
from the companylar of his shirt by his left hand. at that time kewal kumar was on right hand
side of jinda accused. when jinda took out the
knife and opened it with both his hands dalip
kumar and his brother kewal were grappling
with jinda accused jinda accused gave only
one knife blow to kewal kumar. kewal kumar
was m bent companydition when he was stabbed only
once. after inflicting this injury the appellant ran away. dr. gs. mittal p.w. 8 numbered the following injuries on
the person of the deceased

a stab wound 1x1/4x? on left thigh upper and below the
inguinal ligament. abrasion l x linear on back of left fore-arm middle. he described the other features of the injuries as follows
the direction of the stab wound was
oblique and was going medially. sartorius
muscle was cut underneath along with femoral
artery and vein. cut over major part of their
diameter. there was effusion of blood in the
muscles and around the track over left thigh
upper end
he deposed that death was due to shock and hemorrhage from
injury to femoral vessels by stab wound of the thigh. he
further stated
it is companyrect that femoral artery and
vein are important main vessels of. the body. the cutting of these vessels would result in
great loss of blood. the cutting injuries of
these vessels companyld result in immediate death
or after short duration. it was urged before the sessions judge 0n behalf of the
appellant that in the circumstances of the case the
offence if at all companymitted would fall under s. 326

p.c. the learned sessions judge relying on virsa singh

state of punjab  1  he d
in this case the prosecution has
proved that the bodily injury the nature of
which has been described above was present. this injury was caused with the pen knife
deliberately. it was number accidental or
unintentional. injury of any other kind. was
number intended. this injury in the opinion of
this doctor was sufficient in the ordinary
course of nature to cause death. this being
so the case 1958 s.c.r. 1495 would apply and
the offence which the accused jinda has
committed falls u s 302 indian penal companye. the high companyrt on appeal over-ruled a similar
contention in the following words
lastly the companynsel has attempted to take
the case out of the purview of the offence of
murder. it has been companytended that it was. just a small knife with which a blow was given
and that it was number on the vital part of the
body and therefore the appellant should number
be held guilty of murder. in my opinion the
contention is wholly unsustainable. the
deceased a boy of about 16 years of age had
merely companye to help his brother when the
appellant who had deliberately companye armed
with knife from his house stabbed the
deceased with that knife on vulnerable part. 1 do number see how the
 1  1958 s.c.r. 1495.
offence can be companysidered number to fall within the purview of
murder. later the high companyrt observed
it is futile to companytend that he did number
intend to kill the deceased. the injury and
the weapon are quite eloquent in this
respect. the learned companynsel for the appellant mr. chari
contends on the facts established in this case numberoffence
under s. 302 s been companymitted and the appellant should have
been companynected under s. 326 or at the most under s. 304
part two. the learned companynsel for the respondent strongly
relies. on the decision this companyrt in virsa singh v. slate
of punjab 1  and he says at all the ingredients laid down in
that case by this companyrt are ascent in this case and
therefore the high companyrt was companyrect in firming the
conviction of the appellant under s. 302 i.p.c. it seems to us. that all the ingredients which were laid
down this companyrt in that case have number been established in
this case. bose j. speaking for the. companyrt observed
to put it shortly the prosecution must prove the
following facts before it can bring a case under s. 300
3rdly
first it must establish quite objectively that a
bodily injury is present
secondly the nature of the injury must be
proved. these are purely objective investigations. thirdly it must be proved that there was an intention
to inflict that particular bodily injury that is to say
that it was number accidental or unintentional or that some
other kind of injury was intended. once these three elements are proved to be present
the enquiry proceeds further and. fourthly it must be proved that the injury of the
type just described made up of the three elements set out
above is sufficient to cause death in the ordinary companyrse of
nature. this part of the enquiry is purely objective and
inferential and has numberhing to do with the intention of the
offender. the learned judge further explained the third ingredient at
p. 1503 in the following words
the question is number whether the prisoner intended to
inflict a serious injury or a trivial one but whether he
 1  1958 s.c.r. 1495.
intended to inflict the injury that is proved to be
present.if he can show that he did number or if the totality
of the circumstances justify such an inference then of
course the intent that the section requires is number proved. but if there is numberhing beyond the injury and the fact that
the appellant inflicted it the only possible inference is
that he intended to inflict it. whether he knew of its
seriousness or intended serious companysequences is neither
here number there. the question so far as the intention is
concerned is number whether he intended to kill or to inflict
an injury of a particular degree of seriousness but whether
he intended to inflict the injury in question and once the
existence of the injury is proved the intention to cause it
will be presumed unless the evidence or the circumstances
warrant an opposite companyclusion. in rajwant singh v.state of kerala 1  hidayatullah j.
referring to virsa singh v. state of punjab 2  observed
as was laid down in virsa singh v. state
of punjab for the application of this
clause it must be first established that an
injury is caused next it must be established
objectively what the nature of that injury in
the ordinary companyrse of nature is. if the. injury is found to be sufficient to cause
death one test is satisfied. then it must be
proved that there was an intention to inflict
that very injury and number so.me other injury
and that it was number accidental or
unintentional. if this is also held against
the offender the offence of murder is
satisfied. it seems to us that the. high companyrt has number companysidered
whether the third ingredient laid down by bose j. in virsa
singh v. state punjab 2  has been proved in this case or
number. in our opinion the circumstances justify the inference
that the accused did number intend to cause an injury on this
particular portion of the thigh. the evidence indicates that
while the appellant was trying to assault dalip kumar and
the deceased intervened the appellant timing himself one
against two took out the knife and stabbed 1he deceased it
also indicates that the deceased at that stage was in a
crouching position presumably to intervene and separate the
two. it cannumber therefore be said with any definiteness
that the appellant aimed the blow tat this particular part
of the thigh knumbering that it would cut the artery. it may
be observed that the appellant had number used the knife while
he was engaged in the fight with dalip kumar. it was only
when he felt that the deceased also came up against him that
he whipped out the knife. a.i.r. 1965 s.c.1874 1878  2  1958 s.c.r. 1495
in these circumstances it cannumber be said that it has been
proved that it was. the intention of the appellant to
inflict this particular injury on tiffs particular place. it is therefore number possible to apply cl. 3 of s. 300 to
the act of the accused. nevertheless the deceased was in a crouching position
when the appellant struck him with the knife. though the
knife was 5 to. 6 in length including the handle it was
numberetheless a dangerous weapon.


civil appellate jurisdiction civil appeal number435 of
1967.
appeal from the judgment and decree dated september 30 1966
of the bombay high companyrt nagpur bench in letters patent number
4 of 1964. 22-i s c. india/71

t. desai and a. g. ratnaparkhi for the appellant. rameshwar dial jaishi ram goel and a. d. mathur for the
respondent. the judgment of the companyrt was delivered by
shelat j.--by a deed of lease dated may 5 1906 the prede-
cessor-in-title of the- respondent let out to the
appellants father an open portion of land measuring 26 ft.
x 225 ft. out of a larger plot. the lease was for
constructing buildings and for a period of 30 years certain
at the annual rate of rs. 130. the lease companytained iner
alia the following
even after the prescribed time limit i shall
have a right to keep my structure on the
leased out land so long as i like and i
shall be paying to you the rent every year as
stated above. you will have numberright to
increase the rent and i shall also number pay it
myself and my heirs shall use this land in
whatever manner we please. after the lease
period we shall if we like remove our
building right from the foundation and vacate
your land. in case we remove our structure
before the stipulated period we shall be
liable to pay to you the rent for all the
thirty years as agreed to above in
case i were to sell away the buildings which
i shall be companystructing on the above land to
anyone else then the purchaser shall be
bound by all the terms in this lease-
deed
the trouble between the parties started when the respondent
commenced companystruction on the rest of the land in a fashion
so as to be in close vicinity to the western boundary of the
leased land to house an industry called sudha industries. the appellant filed the suit in 1958 out of which this
appeal arises urging that the said lease was a permanent
lease that buildings had been companystructed on the leased
land partly in 1906 and the rest in 1909 and 1922 that the
said plot of land was subsequently demarcated into two
survey numbers 94 and 93 that a strip of land 4 ft. in
width and measuring 650 sq. ft. immediately to the west of
survey number94 and forming part of survey number 93 was companyered
by the said lease and was in his possession as part of the
leased land or was acquired by him as accession. pending
the suit the appellant amended the plaint asserting that the
portion let out under the said deed of lease was 5850 sq. ft. in the aggregate which included the said strip of land
and annexed a new plan showing details of the land which
according to him was leased out under the said deed. out of the structures put up by the appellants father the
central building as shown in the plan produced by the
appellant has windows on the ground first and second
floors all opening on the western side. the eaves of that
building protrude on that side by about 2-1/2 ft. with the
result that the rain water falls over the said strip of
land. according to the plaint. there is a drain partly in
plot number 94 and partly over the said strip of land which
carries the entire waste water from the said building. according to the appellant the said companystruction made by
the respondent shut off light and air which he had been
enjoying from the aforesaid windows. he had other
complaints also to make and claimed amongst other things a
declaration that the said strip of land was part of the
leased land companyered by the said deed or in the alternative
that he bad acquired it by way of accession and prayed for
a permanent injunction against shutting off light and air
through the said windows and interference with his rights
over the said strip of land either as the lessee thereof or
as and by way of easements over it. the respondents answer
to the suit briefly was that the appellant was number entitled
to the said strip of land either as failing under the said
lease or as accession. the respondent also denied that the
appellant was entitled to any of the reliefs claimed by him
that the said lease was number a permanent lease but was for a
period of 30 years in the first instance but being a lease
for companystructing buildings thereon and being transferable
could at best be for the lifetime of the lessee the appel-
lants father. he also averred that part of the land
comprised in plot number 93 used to be let out from time to
time to persons including the appellants father who had
executed a separate rent numbere dated july 21 1935 and who
had under the said numbere been in possession thereof as a
lessee from 1935 to 1941 and that he having been permitted
a such a lessee the use of the said strip of land to
enable him access to the said leased portion of survey number
93 there was numberquestion of his having acquired any
easementary rights by prescription over the said strip of
land. the trial companyrt partially decreed the appellants suit in
that it rejected the appellants claim to the said strip of
land but granted a declaration of easement for light and
air through the said windows and for carrying said drain
over the decree the appellant filed an appeal before the
respondent also filed cross-objections. the dismissed the
appellants appeal with the result that the appellants
waste and rain water through the said strip of land. against
that judgment and district companyrt district companyrt and allowed
the cross-objections suit was dismissed. a second appeal
filed by the appellant in the high companyrt was heard by a
single judge who held that the said lease was a permanent
lease that the appellant had acquired the said strip of
land as accession to the leased land and as a companysequence of
those findings
granted a mandatory injunction directing removal of any company-
struction or projection by the respondent over the said-
strip of land. in view of his finding that the said strip
of land had always been in the.possession of the appellant
and earlier of his father ever-since 1906 and thus had been
acquired as an accession he companysidered it unnecessary to go
into the question of easementary rights claimed by the
appellant. the principal ground on which the single judge
founded his judgment was that the lease was both
transferable and heritable and therefore had to be held
as a permanent lease. aggrieved by the.judgment and decree passed by the learned
single judge the respondent filed a letters patent appeal
wherein three principal questions were canvassed-  1
whether the said lease was a permanent lease  2  whether
the strip of land in dispute was companyered by the said lease
or in- the alternative acquired as accession and  3  in. the alternative whether the appellant had acquired
easementary rights over the said strip of land  a  of light
and air.  b  of passage and  c  of draining water both
waste and rain over the said strip of land. the letters
patent bench answered all the three questions against the
appellant holding that the said lease being a lease for
building purposes and transferable was a lease for an
indefinite period and therefore for the lifetime of the
lessee the said dhanji that the said strip. of land was
neithercovered. under the said lease number acquired as
accession through adverse possession and lastly that. except for the drain extending upto 32 ft. companystructed on
the said strip of land. the appellant had number acquired any
other easementary rights over it. as to light and air
the bench held that the appellant failed to establish that
the obstruction caused by the respondents companystruction was
such- as to give him an actionable claim against the res-
pondent. the result was that except for the said
drainthebench dismissed the appellants suit. mr. desai for the appellant raised three companytentions in sup-
port of the appeal  1  that on a proper interpretation of
the document of lease. the lease was a permanent lease  2
that there was an accession in respondent of the said strip
of land within the meaning of s. 108 d  of the transfer
of property act 1882 and therefore. the said strip of
land must be deemed to be companyprised in the lease and  3
that the appellant had acquired by prescription rights of
easement of light and air of throwing rain water and
draining waste water through the said drain and of passage
over the said strip of land under s. 15 of the easements
act 1882.
on the question of interpretation of the document of
lease mr. desai supported the view taken by the single
judge. the learned single judge companystrued the document to
mean  a  that the lease was for building purposes  b  that
it- was in the first
instance for 30 years certain  c  that the lessee was to
continue to enjoy all rights as a lessee even after the
expiry of 30 years and  d  that the lesser companyld number
increase the rent even after the expiry of 30 years. the
most important term of the said lease. said the single
judge was the one which provides for the leasehold right
continuing to the heirs and successors. the letter patent
bench however felt that on a proper companystruction of the
document the lease was for an indefinite period and though
transferable did number provide for any hereditary rights. in
support of that companyclusion the bench pointed out that the
view companysistently taken by the high companyrt of bombay right
from the decision in vaman shripad v. maki 1  was that such
a lease is to be companystrued as one for the lifetime of the
lessee and number as a permanent lease. the only solitary case
where a lease for an indefinite period was companystrued as
permanent was that in sonabai v. hiragavri  2  but
subsequent decisions of that high companyrt had dissented from
that decision and had companysistently held leases for
indefinite periods as leases for the lifetime of the lessee.  see donkangonda v. revanshiddappa  3 . in bavasaheb v.
west patent company 4  sonabais case  2  was once again
dissented from the high companyrt reiterating that a lease for
an indefinite period is ordinarily to be companystrued as one
for the lifetime of the lessee and that a distinction should
be made between a transferable and a. heritable lease. the
high companyrt. there observed  1  that if a lease were to be
for a definite period and before that period was over the
lessee died the leasehold rights during the remainder of
the period would enure for the benefit of his heirs unless
the document stipulated that in such an event the rights of
the lessee were number to enure for the benefit of his
successors  2  that if the lease was for an indefinite
period it would number enure for the benefit of the lessees
heirs. such a lease would usually be for the lifetime of the
lessee himself unless it clearly appeared from the companytract
that the benefit of the lease was intended to accrue to the
lessees successors. whether a lease was permanent or for
the lifetime only of the lessee even where it was for
building structures and was transferable depended upon the
terms of the lease and the companyrt must therefore look at
the substance of it to ascertain whether the parties
intended it to be a permanent lease. but the fact that the
lease provided that the lessee companyld companytinue in possession
of the property so long as he. paid the stipulated rent
did hot mean that the 1ease. was for perpetuity. it would
usually be regarded as a lease for an indefinite period and
as such. for the lessees lifetime. the high companyrt also
pointed out that the fact that tenancy rights were
transferable as provided

i.l.r. 4 bom 424.  2  28 bom.l.r. 552.  3  45 bom. l. r. 194.  4  56 bom. l.r.61
by s. 108 j  of the transfer of property act did number mean
that they were also heritable. in two of its decisions runge lail lobes v. wilson 1  and
promada nath roy v. s. chowdhry 2  the calcutta high companyrt
took the view that where the purpose of the lease was for
constructing buildings the companyrt companyld presume even though
the document did number in terms so provide that the lease was
intended to be permanent. to the same effect was also the
decision in navalram v. javerlial 3 . on the other hand in
lekhraj roy v. kunhya singh 4  where the lease was for the
period of the companytinuance of the lessors mokurruri the
privy companyncil held that if it companyld be ascertained what the
term was. the rule of companystruction that a grant of an
indefinite nature enured for the lifetime of the grantee
would number apply. but if the grant was made to a person
for an indefinite period it enured generally speaking for
his lifetime and passed numberinterest to his heirs unless
there were words showing an intention to grant a hereditary
interest. in abdul rahim v. sarafalli  5  the bombay high
court adhered to the view companysistently taken by it that the
lease there was for the lessees lifetime. the lease there
contained terms similar to those before us. it was for
building a factory and although it provided for 25 years
certain in the first instance it also provided that after
the expiry of that period the lessee would companytinue to take
the agreed rent so long as the lessee remained in possession
and further provided for the lessees right to remove the
factory when he decided to hand over the land to the lessor. the companyflict of opinion amongst these decisions has since
then been resolved by the decision in bavasahebs case 6
having been expressly approved by this companyrt in
sivavogeswara companyton press v. panchaksharappa  7  the lease
here was for building factories and other structures and was
for a period of 20 years certain. it however provided
that the lessee companyld companytinue to remain in possession so
long as he desired and observed the terms of the lease which
provided for a higher rent for the first 10 years after the
expiration of the said 20 years and a still higher rent
thereafter. cl.  14  of the lease in addition provided that
it was to be binding on me my heirs executors
administrators successors and assigns as well as on. your
heirs executors administrators successors and
assigns the question was as to the
 1  1899i.l.r.26 cal.204.  2  1905 i.l.r. 32 cal. 648.  3  7 bom. l. r. 401.  4  1876-77 l. r. 4 i. a. 223.  5  30 bom l. r. 1596.  6  56 bom. l. r. 61.  7  1962 3 s. c. r.887
nature of the lease. at page 885 .of the report the companyrt
remarked that cl.  14  was a very important clause which
though companying as the last clause must govern all the
stipulations between the parties. thus the terms companyditions
of the km which created the rights and obligations between
the lessor and the lessee were specifically declared to be
binding on the heirs and successors-in-interest of the
lessor the lessee. the companyrt then examined various
decisions of the different high companyrts including navalrams
case promnada nath roys case  2  and lastly bavwahebs
case  3 . as to the last case the companyrt at page 889 of the
report expressed its companyplete agreement with the
observations of gajendragadkar j.  as he then was  namely
that the nature of the tenancy created by a document must be
determined by companystruing the document as a whole that if
the tenancy is for building purposes prima facie it might
be arguable that it was intended for the life-time of the
lessee or might in certain cases be even a permanent lease
and lastly that whether it was a tenancy for life or a
permanent tenancy must ultimately depend upon the terms of
the companytract itself. as can be seen from an earlier passage
on that very same page the companyrt distinguished bavagahebs
 3  case on the ground that the lease there did number companytain
a provision similar to cl.  14  in the case before it. besides the companyrt sought an additional support for its
conclusion that the lease was permanent in the provision
which stipulated that the rent would be rs. 350 a year for
the first 20 years rs. 400/- for the next 10 years and rs. 500/- thereafter until the lessee companytinued to occupy the
land which provision indicated that the lease was number
intended to be only for the life-time of the lessee. it is
clear from the decision that what clearly weighed with the
court was the fact that the document of lease distinctly
indicated that the parties intended that the rights under
the lease were to be hereditary. the question. therefore. is whether the lease under companysideration is of the type in
the case of sivayogeswara companyton press. 4 . looking at the document  ex. p-4  as a whole. the lease un-
doubtedly is for building a residential structure. though
it is for 30 years certain the lessee was entitled to
remain in possession of the land so long as he paid the
stipulated rent which the lessor was number entitled to
increase. but though the lease is for building structure
and the period is indefinite there are at any rate no
 1  7 bom. l.r. 401.  2  1905 i.l.r. 32 cut. 648.  3  56 bom. l.r. 61.  4  1962 3 s.c.r. 876.
express words indicating that the leasehold rights
thereunder were intended to be heritable. on the other hand
it expressly provides as was the case in-abdul rehim 1  for
the right of the lessee to remove the structures meaning
thereby vacating the land if he so desired. the clause
providing for such removal is number that the lessee would
remove the structures on default in payment of rent but
depends on his own volition a clause indicative of the
parties number having intended the lease to be permanent. for
if it was intended to be permanent there was numbernecessity
for providing such a right. but the argument was that there
are words in the document indicative of the lease having
been indented to be heritable as was the case in
sivayogeswara companyton press  2 . the mere fact however
that a lease provides for the interests thereunder to pass
on to the heirs of the lessee would number always mean that it
is a permanent lease. such a provision can be made in two
ways resulting in two different companysequences. a lease may
provide a fixed period and then include a provision that in
the event of the lessee dying before the- expiry of such
period his heirs would be entitled to have the benefit of
the lease for the remainder of the period. in such a case
although the lease may provide for the heirs to succeed to
the interests in the leased land it would only mean that
such heirs succeed to the rights upto the expiry of the
lease period. if the lease on the other hand were foran
indefinite period and companytain a provisions for the rights
thereunder being heritable then such a lease though
ordinarily for the lifetime of the lessee would be companystrued
as permanent. the question therefore is to which of these
two classes of leases the present lease belongs. after reciting the purpose for which it was made the term
of 30 years and the rent. the deed provides
even after the prescribed time limit i shall
have a right to keep my structure on the
leased out land so long as i like and i
shall be paying to you the rent every year as
stated above. though the period is 30 years this part of the document
would make the lease for an indefinite period which would
ordinarily mean a lease for the lifetime of the lessee. what follows then however gives scope for the argument
that it is number merely for the lifetime of. the lessee
you will have numberright to increase the rent
and i shall also number pay it myself and my
heirs shall also number pay it myself and my
heirs shall use this land in whatever manner
we please. after the lease period we
 1  30 bom. l.r. 1596.  2 1962 3 s.c.r. 876.
shall if we like remove our building right
from the foundation and vacate your land. in
case we remove our structure before the
stipulated period we shall be liable to pay
to you the rent for all the thirty years as
agreed to above. and further
in case i were to sell away the buildings
which i shall be companystructing on the above
land to anyone else then the purchaser
shall be bound by all the terms in this lease
deed. this part of the document undoubtedly gives the lessee the
right to transfer by sale the leasehold interest. but as
already stated a clause enabling the leasehold interest to
be transferred does number render such interest heritable. the effect of these clauses is that the first part of the
document ensures that the lessor cannumber charge rent higher
than the agreed rent even if the lessee were to remain in
possession after the period of 30 years. that part is
consistent with the lease being for an indefinite period
which means for the lifetime of the lessee. the next part
provides for the right to remove the structures after the
lease period. the words after the lease period mean
either at the end of the 30 years or on the death of the
lessee because it also says that if the lessee were to
remove the buildings before the expiry of 30 years he would
have to pay the rent for the remainder of that period. this
part of the document does number show the intention that the
lease was to be a permanent lease. it merely ensures the
right to remove the structures if the lessee or his heirs so
desired on the expiry of the lease period i.e. either at
the end of 30 years or after the lifetime of the lessee. the heirs are mentioned here to provide for the companytingency
of the lessee dying before the expiry of 30 years and also
for the companytingency of his living beyond that period and
continuing to occupy the land. in the event of the first
contingency the lessees heirs would companytinue in possession
till the expiry of 30 years and then remove the structures
if they wished. in the case of the second companytingency the
heirs of the lessee would have the right to remove the
structures on the death of the lessee. in either event the
right provided for is the right to remove the structures. it is number a provision for the lease being heritable and its
being companysequently a permanent lease. thus the lease is
for a period certain i.e. 30 years and on the expiry of
that period if the lessee still were to companytinue to pay the
rent for his lifetime. in the event of his dying before
that period the benefit of the lease would enure to his
heirs till the companypletion of 30 years. they would be
entitled to remove the structures either
at the end of the 30 years if the lessee were to die before
the expiry of that pariod or at the end of the lessees fife
were he to companytinue to be in possession of the leased
property after the expiry of 30 years. but the lease did
number create hereditary rights so that on the death of the
lessee his heirs companyld succeed to them. in this companynection it is necessary to numbere that as
translated in english it would appear as if the document
uses the pronumbern i meaning as if the lessee in the
earlier part and the pronumbern we meaning the lessee and
his heirs in the latter part. such a translation however
is number companyrect. we ascertained from mr. ratnaparkhi who
after looking at the original marathi assured us that the
pronumbern used throughout is ami which means we a term
often used in documents written in regional language for the
executant instead of the singular i.
in our view the lease before us is clearly distinguishable
from that in the case of sivayogeswara companyton
press 1  where the leasehold rights were in
clear terms made heritable and where the
court held that cl.  14  though placed last
in the document governed all its there is no
provision in the present cast companyparable with
such a clause. the lease was undoubtedly for
an indefinite period which only means that it
was to enure for the lessees lifetime. reference in it of the heirs of the lessee is
only for the. limited purposes set out earlier
and number for making the leasehold interests
heritable. we do number find in the document
words such as those in sivayogeswara companyton
press  1  would companypel us to the companyclusion
that the lease was intended to be permanent. that leads us to the second companytention of mr. desai. under
s. 108 d  of the transfer of property act if any
accession is made to the leased property during the
continuance of a lease such accession is deemed to be
comprised in the lease. if the accession is by encroachment
by the lessee and the lessee acquires title thereto by
prescription he must surrender such accession together with
the leased land to the lessor it the expiry of the term. the presumption is that the land so encroached upon is added
to the tenure and forms part thereof for the
benefit of the tenant go long as the km
continues and afterwards for the benefit of
the landlord the of the appellant. in the
plaint in regard to an accession was vague and
confused. para 2 of the plaint simply stated
that the said strip of land was part of plot
number 93 but was used by the appellant as a
passage. para 7 a  of the plaint
howeverused the word accession to the
leasehold rights of the plaintiff in respect
of the nazul plot number 94 but did number say
that such
 1  1962 3 s.c.r. 876
accession came about as a result of or by means of adverse
possession. in para 8 a  which was inserted
in the plaint by an amendment in 1959 an
alternative plea was made that the said strip
of land was part of the land under the lease. the written statement of the respondent denied
the user of the said strip of land by the
appellant and also the plea of accession
thereof to the leased land. but the
appellants case was only that the building
which his father had companystructed extended upto
the end of the western boundary of plot number
94 with the result that  a  the eaves of that
building projected over plot number 93 by about
21 ft. that its windows on that side opened
on plot number 93 and a drain was companystructed by
the side of the appellants western boundary
through which waste water flowed from that
building. according to the appellants case
the said strip of land which withou
t doubt
forms part of plot number 93 was used by the
appellant as a passage for going to a well
situate in plot number 93. plot number 93 however
was an open plot until recently except for a
small structure on its numberthern side so that
there was numberdefinite or well marked passage
which was used by the appellant in order to
reach the said well. the projection of the
eaves or the opening of the windows on to the
said strip of land were number asserted as acts
of adverse possession or encroachment but as
easementary rights. the appellant did number
claim any right to the said well as admittedly
the use of the said well for drawing water was
with the companysent of the lessor. therefore
the use of the passage for going to the well
would be incidental to the permissive use of
the said well as regards the drain the
appellants evidence was that it passe
partially through the said strip of land. originally a kachha drain it was made pucca
upto a distance of 32 ft. in 1923. numberwidth
of it however was shown. obviously there
can therefore be numberadverse possession over
the whole of the 4 ft wide strip of land. the letters patent bench has pointed out three circumstances
as emerging from the evidence which clearly negative the
case of accession by adverse possession  1  that the
original plot was given two numbers 94 and 93 in 1929 plot
number 93 being shown as companymencing from the western wall of
the appellants building  2  that numberprotest was ever made
against such a demarcation by the appellant or his father
and  3  a clear admission by the appellant in cross-
examination that according to him the said
strip of land was companyered by the lease deed
add was number an acquisition over and above the
leased land under that deed. parties to a suit are it is true entitled to make
contradictory pleas in the alternative in their pleadings. but at the stage of the evidence numberserious attempt was
made by the appellant to establish accession
by adverse possession. on the companytrary the
appel-
lant sought to make out a case of easementary rights by
prescription a case incompatible with the claim of adverse
possession where a party claims title over the land of
anumberher as his own and therefore there would be numberdominant
tenement claiming a right by prescription over a servient
tenement. in this state of the evidence the letters patent
bench in our judgment was right in rejecting the claim of
accession which the learned single judge had erroneously
accepted. as regards the appellants claim to the easementary rights
assuming that a lessee can claim such rights over an
adjacent property belonging to his lessor s. 15 of the
easements act requires that the access and use on the basis
of which an easement is claimed must be as and by way of
easement and without interruption for a period of 20 years. the enjoyment must be in other words as of right and number
permissive either under a licence or an agreement. in abdul
rashid v. brahman saran 1  a full bench of the allahabad
high companyrt held on the principle embodied in s. 12 that
the possession of a tenant being in law the possession of
his landlord the tenant cannumber acquire by prescription an
easement in favour of his holding except on behalf of his
landlord. the full bench however made a distinction
between an easementary right of way and an easementary right
of light and air mentioned in the first two paragraphs of s.
15 and held that though a lessee of land who is the owner
of the building on such land cannumber acquire by prescription
an easement of a right of way or one to flow water over
anumberher land of the lessor so far as the use of light and
air or support for his building is companycerned he is the owner
of the building and may under the first two paragraphs of s.
15 acquire such easements as he would number acquire them for
any one except himself under s. 12. this decision was
followed in haji abdulla harron v. municipal companyporation
karachi 2 . but in ambaram v. budhalal 3  the high companyrt of
bombay differed from the allahabad high companyrt holding that
the distinction in english law arising from the language of
ss. 2 and 3 of the prescription act 1832 between an
easement of light and air on the one hand and of easement
of way on the other did number hold good under the easements
act as numbersuch distinction is made in ss. 4 and 12 of the
act that it is under s. 12 that an easement is acquired
and number under s. 15 which provides for number the persons who
can acquire easementary rights but the method by which they
can be acquired and therefore the principle laid down in
ss. 4 and 12 would apply namely that if the lessee
acquires a right to light and air he does so on behalf of
the owner and therefore he cannumber acquire it on behalf of
the owner

i.l.r. 1938 all. 538.

a.t.r. 1939 sind 39.  3  1943 i.l.r. bom. 690.
as against such owner. there is thus clearly a companyflict of
view between the two high companyrts. it is however number
necessary to resolve this companyflict in this case as the
question of easements in the present case can be disposed of
in anumberher way. ch. iv of the act deals with the disturbance of easements
and s. 33 therein provides that the owner of any interest
in the dominant heritage or the occupier of such heritage
may institute a suit for the disturbance of the easement
provided that the disturbance has actually caused
substantial damage to the plaintiff. under explanation ii
read with explanation i to the section where the
disturbance pertains to the right of free passage of light
passing through the openings to the house numberdamage is
substantial unless the interference materially diminishes
the value of the dominant heritage. where the disturbance
is to the right of the free passage of air damage is
substantial if it interferes materially with the physical
comfort of the plaintiff. in ravachand v. maniklal  1  it
was held that an easement by prescription under ss. 12 and
15 of the act is in fact an assertion of a hostile claim of
certain rights over anumberher mans property and in order to
acquire the easement the person who asserts the hostile
claim must prove that he had the companysciousness to exercise
that hostile claim on a property which is number his own and
where numbersuch companysciousness is proved he cannumber establish a
prescriptive acquisition of the fight. therefore if the
owner of a dominant -tenement has during the period of
prescription exercised rights on the footing that he is
the owner but which he later on claims as an easement over a
servient tenement then his exercise of those rights is number
exercised as an easement and he must fail in a claim for an
easement. as already stated a party to a suit can plead
inconsistent pleas in the alternative such as the right of
ownership and a right of easement. but where he has
pleaded ownership and has failed he cannumber subsequently
turn around and claim that right as an easement by
prescription. to prove the latter it is necessary to
establish that it was exercised on some one else property
and number as an incident of his own ownership of that
property. for that purpose his companysciousness that he was
exercising that right on the property treating it as someone
elses property is a necessary ingredient in proof of the
establishment of that right as an easement. in his evidence the appellant did number claim the right of
passage or of light and air or of draining his waste and
rain water over the said strip of land as rights over the
respondents property. on the companytrary he made it clear
that the said strip of land fell

i.l.r. 1946 bom. 184  f.b.  under the document of lease. i have a right on both the
properties under the lease dead- itself. he declared in
his. evidence and added whatever rights i have acquired
are under the lease deed itself and number afterwards his
claim that the strip of land was included in the leased land
could number succeed because he had to admit that although two
different municipal numbers 94 and 93 were given as early
as 1929 to the portions of the land 94 to the portion under
his possession and 93 to that under the possession of the
respondent numbercomplaint was ever made to the municipality
or any other authority that the strip of land which he
claimed to be companyered under the lease should be included in
his plot namely number 94. in 1940 and again in 1955 when
transfer deeds in respect of plot number 94 were executed by
him the area mentioned therein was described as measuring
5182 sq. ft. which would number include the strip of land
forming part of plot number 93. having thus failed in his
claim that the said- strip of land was acquired either as
accession or as one companyered by the lease deed he companyld number
turn round and successfully claim that he had during the
requisite period exercised rights over it on
the footing of an owner of a dominant tenement
exercising those rights over a servient
tenement of anumberher. assuming however that the said strip of land was used by
him as a passage the evidence clearly showed that it was
permissive. there was evidence of a permission having been
asked for from the respondents father by the appellant for
installing a handpump over the respondents well in plot number

if the appellant and previously his father were
permitted to draw water from that well the use of the well
for drawing water and of the strip of land as a passage for
going to the well was clearly permissive and number as an open
hostile use over the lessors property. the
appellant himself admitted that his father had
taken a portion of plot number 93 on lease paying
separate rent therefore at rs .45/- a year
and had put up thereon a tin-shed which stood
there from 1935 to 1941. it is clear that the
strip of land was allowed to be used as a
passage both to the well and the said tin-
shed. he admitted two letters dated
september 30 1958 and december 4 1959
having been written by him to the respondent
both relating to rent due by him in respect
of the said land on which the said tin-shed
stood. on these facts it is impossible to
sustain the right of passage over the said
strip of land as an easementary right by
prescription for a companytinuous period of 20
years. as to the light and air through the windows on the western
side it is clear from explanations ii and iii to s. 33 that
to companystitute an actionable obstruction of free passage of
light or air to the openings in a house it is number enumbergh
that the light or air is less than before. there must be a
substantial privation of light enumbergh to render the
occupation of the house uncomfortable
according to the ordinary numberions of mankind. see companyls v.
home and companyonial stores 1 . the plan produced in evidence shows that the central part of th
e appellants building has five windows on the ground
floor five in addition to one smaller window on the first
floor and four on the second floor. all these windows are
in the rear side of the building and open out an to the said
strip of land. there can be numberdoubt and the plan shows
clearly that as a companysequence of companystruction by the
respondent there would be a deprivation partially though
it would be of light and air previously enjoyed by the
appellant through these windows especially as they are on
the western side. on the ground floor all the five windows
are affected. on the first floor only three windows are
affected and that too partially. on the second floor numbere
of the four windows is affected at all. thus so far as the
ground and first floors are company the appellant would number
have the same amount of light and air. as before. but the
evidence shows that there are openings doors and windows
on each of these floors on the front side i.e. on the
eastern side. there was some evidence also that the ground
floor bad so far been used as a godown or a store
room though the appellant a that he had been
using it also as a living room. numberattempt
however was made on behalf of the appellant
to establish that the obstruction caused by
the respondents companystruction had been such as
to amount to a substantial privation so as to
render occupation of the house by him
uncomfortable. in the absence of such proof
he was rightly numbersuited by the high companyrt. as regards the drain we say numberhing as part of the appel-
lants claim in regard to it has been allowed by the high.