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1. This Letters Patent Appeal arises out of the Title Suit No. 101 of 1967 of the Court of the learned Munsif at Krishnagore filed by the appellants for a declaration that the premises No. 6 Bansidhar Lane, Calcutta and a property at Nabadwip are de-butter properties of the plaintiff deities and for permanent injunction restraining the respondent No. 1 from interfering with their possession of the said Calcutta property and from exercising any act of possession including the realisation of rents of the said property.

2. These are the main averments made in the plaint. Chintaharan Kundu and his two brothers were members of an undivided joint Hindu family and out of their joint family funds they purchased the aforesaid Calcutta property in the name of Chintaharan and the said Nabadwip property in the name of Krishnakamini Devi, the wife of Chintaharan. They divided all their properties by a Deed of Partition dated January 12, 1922 and these two properties were allotted to Chintaharan who dedicated them to the appellant deities by a Deed of Arpannama dated 12-1-1922. Chintaharan and Krishna Kamini died respectively in the years 1923 and 1940 and before their death they respectively acted as shebaits in terms of the said Deed of Arpannama. Thereafter, those two brothers acted as joint shebaits with Sashimukhi, and after the death of those two brothers their present heirs namely Gopinath, his brother and their cousins acted as joint shebaits with Sashimukhi to whom they left the management of the said estate like their respective fathers. Gopinath came to reside in a portion of the said Calcutta property in 1956 and started realising the rents from the tenants but due to a dispute between him and Sashimukhi he could not go on realising the rents and the said dispute was settled by the execution of a Power of Attorney dated June 18, 1962, by Sashimukhi in favour of Gopinath and his two cousins. Thereafter, Sashimukhi fraudulently sold the Calcutta property to the respondent No. 1 on May 29, 1964 by falsely alleging that the Deed of Arpannama executed by Chintaharan had never been acted upon. It also transpires that in 1930 Krishna Kamini purported to dedicate the Nabadwip property to an alleged deity named Sree Radha Gobinda Jew falsely alleging that she was the owner of the said property and she had installed the said deity. Sashimukhi died intestate on June 27, 1965 leaving the respondents Nos. 2 and 3 as her only son and daughter and thereafter the appellants have filed this suit through their shebaits Gopinath, his brother and cousins for the reliefs mentioned earlier.

3. The respondents Nos. 1 to 3 contested the suit by denying all the allegations made in the plaint and on this main defence. Those two properties were not purchased out of the alleged joint family funds. Chintaharan was the sole owner of the Calcutta property whereas Krishna Kamini was the absolute owner of the Nabadwip property. Chintaharan never acted upon the said Deeds of Partition and Arpannama for they were fraudulently procured from him by his two brothers. Krishna Kamini, as the widow of Chintaharan, had inherited the Calcutta property and it was in her exclusive possession during her lifetime. By a Deed of Arpannama dated September 30, 1930, she dedicated the Nabadwip property to a deity named Sree Sree Radha Gobinda Jew installed and worshipped by her. She and Sashimukhi had acted respectively as the Shebaits of the said deity during their lifetime and the respondent No. 2 is now the sole shebait of the said diety. On 6-7-1962 Sashimukhi revoked the said Power of Attorney which was fraudulently procured from her by Gopinath. The appellants and their alleged shebaits were never been nor are in possession of the suit properties which were in exclusive possession of Krishna Kamini and Sashimukhi during their respective lifetime and they used to realise the rents of the said Calcutta property as its owners until it was lawfully sold by Saghimukhi to the respondent No. 1 who has realised its rents by the execution of the rent-decrees obtained by her against the respondent-tenants and she has also ejected them by executing the ejectment-decrees obtained by her against them. She is in possession of this property excepting the portion which has been wrongfully occupied by Gopinath in the year 1957. They have also pleaded adverse possession and limitation and disputed the maintainability of the suit under Section 34 of the Specific Relief Act, 1963.

32. This contention raises a mixed question of fact and law. These are the main findings of the learned Subordinate Judge on the question of possession of these two properties. Gopinath had occupied a portion of the Calcutta property in 1957 but not the portion specified for the residence of the shebaits under Chintaharan's Deed of Arpannama. Gopinath never realised any rents of the Calcutta property. The appellant-deities through him and the other alleged shebaits filed a rent-suit against a tenant which was defended by that tenant and Sashimukhi and the suit was dismissed for non-prosecution. Sashimukhi in her personal capacity and not as a shebait of any deity had been realising the rents of the Calcutta property for over 12 years before 1953 and by execution of the rent decrees also in her personal capacity had realised the rents from some of the tenants of this property. In her personal capacity she had in execution of an ejectment decree against a tenant had recovered possession of a portion of this property in 1953 and letting it out to a new tenant she had realised rents from the new tenant. Gopinath was in occupation of a portion of this property when it was purchased by the respondent No. 1 who had executed, rent-decrees obtained by her against the tenants and she had also recovered possession of this property, excepting the portion occupied by Gopinath, by executing the ejectment-decrees obtained by her against the respondent-tenants of this property. Sashimukhi never acted as the shebait of the appellant-deities whose existence she had completely denied. She had been in exclusive possession of the Nabadwip property as a shebait of the deity installed by her mother and this Nabadwip property is now in exclusive possession of the respondent No. 2 as the shebait of that deity. Sashimukhi defended that suit filed in the City Civil Court denying the existence of the appellant-deities and was in possession of these two properties by setting up her own title to these properties. The Appellant-deities and their alleged shebaits were never in possession of these two properties.