JUDGMENT : BANERJI, J.:— This appeal arises in a suit brought by the appellant for possession of certain immoveable property of which an endowment was made by Babu Hari Das and Babu Mahabir Prasad, in 1882, for the worship of an idol, They appointed two trustees who refused to act, and thereupon they themselves managed the trust property so long as they were alive. After the death of Babu Mahabir Prasad, the survivor of the two founders of the trust, the management was in the hands of his widow, Makundi Bibi. She died in 1885, and after her the property was managed by Babu Bisbeshwar Prasad, a cousin of the founder of the trust, until his death in 1894. The defendant, Sunder Bibi, is his daughter. She having transferred the management of the property to Babu Girdhar Das, defendant, by an instrument, dated the 24th of February, 1901, this suit has been brought by the plaintiff who is the son of Babu Baij Nath Prasad, another cousin of Babu Hari Das and Mahabir Prasad. He asserts that as the next male heir of the founders of the trust, he is entitled to manage the trust property, and accordingly claims the property as manager thereof. The court of first instance dismissed the suit, holding, the claim to be barred ‘by limitation. The lower appellate court has affirmed this decree, and both courts have held that the management of the trust by Bisheshwar Prasad and his daughter, Sunder Bibi, for more than twelve years, next preceding the institution of the suit constituted adverse possession. The learned District Judge referred in his judgment to “article 18, schedule ii, Limitation Act.” That article lias manifestly no application to the present case. He probably meant to refer to article 118 of the second schedule to Act No. IX of 1871, which corresponds to article 120 of the second schedule of the present Limitation Act (No. XV of 1877); and which provides for cases to which no specific article in the schedule is applicable. 2. It is contended on behalf of the appellant that the courts below have erred in holding the claim to be barred by limitation. 3.
2. It is contended on behalf of the appellant that the courts below have erred in holding the claim to be barred by limitation. 3. It is clear that, that section 10, of the Limitation Act is inapplicable, inasmuch as the defendants do not deny the endowment, but on the contrary assert their own right as managers of the endowment, and it is not the plaintiff's case that the property has been applied to purposes other than those of the trusts of the endowment, This was held by their Lordships of the Privy Council in Balwant Rao v. Putan Mal, [1883] I.L.R., 6 All., 1, S.C.L.R. 10 I.A., 90.. That was a case very similar to the present. The High Court has held that “so far as the suit is for declaration that the plaintiff is, by right of inheritance, chief manager of the temple services and properties, it falls within article 123 of Limitation Act. The Act applicable to this suit is Act IX of 1871, and in so far as it seeks recovery of possession of the temple property, it falls within article 145 of the same Act.” Their Lordships of the Privy Council saw no reason for differing from the High Court in thinking that the suit fell within article 123 or article 145, but they did not decide the point. They were also of opinion that if neither of those articles applied, the suit would be governed by article 118. The articles of the present Limitation Act corresponding to articles mentioned above, are articles 124, 144 and 120. 4. So that the suit is governed either by the 12 years' rule of limitation provided by articles 124 and 144 or by the six years' rule prescribed by article 120. We are of opinion that as the plaintiff in this case claims the office of manager by right of inheritance and seeks to recover possession of trust property, the period of limitation for the suit is 12 years under articles 124 and 144 to be computed from the date on which the defendants or their predecessors in title took possession adversely to the plaintiff. Neither of the courts below has come to any distinctfinding as to the date on which adverse possession was taken, and also as to the date of the accrual of the plaintiffs right.
Neither of the courts below has come to any distinctfinding as to the date on which adverse possession was taken, and also as to the date of the accrual of the plaintiffs right. The courts ought to have determined on whom the right of management devolved upon the death of Makundi Bibi in 1885, and whether Bisheshwar Prasad held the office of manager adversely to the persons who acquired the right of management on behalf of all of them. The courts below have further over-looked the fact that at the date of Makundi Bibi's death, the plaintiff was admittedly a minor. We are informed that he continued to be a minor till 1899. If that is so, and if the right of the plaintiff accrued upon the lady's death, the suit, which was brought in 1901, was within time. These questions have not been determined, and as the learned advocate for the respondent admits, the case has not been properly tried, We therefore allow the appeal, set aside the decrees of the courts below and remand the case to the Court of first instance with directions to re-admit it under its original number in the register and try it according to law, bearing in mind the observations made above, Costs here and hitherto will be cost in the cause.