Bapna, J. - (1.) THIS is a second appeal by the plaintiff in a suit for possession.
(2.) IT was alleged that there is a public temple of Thakurji Sriji Gopi Nathji in village Khejroli, Tehsil Amber. Mahant Narain Das alleging himself to be the manager and trustee of the temple instituted a suit on behalf of the Deity on the 27th of March, 1943, in the Court of the Munsif, Jaipur-Amber, on the allegations that there were two shops which were part of the temple, and which had been handed over to the defendant Atmaram temporarily some time in Bhadon, Svt. year 1994, on the occasion of Atmaram's daughter's marriage, but the defendant failed to return the possession of the shops to the temple. IT was prayed that possession over the shops be deliverd to the plaintiff. The defendant denied the temple to be a public temple and also the fact that the shops were temple property. He pleaded that Dhan Das, former Mahant of the temple, had mortgaged these two shops to Jagdeo Harbux, and gave possession some time in Svt. year 1954, and the representatives of Jagdeo Harbux on their own account made a mortgage of the same shops with the defendant and his brother some time in Svt. year 1968, and transferred the possession to them. It was alleged that the limitation for redemption having expired, Dhan Das had lost his right of ownership in the shops. It was alleged that the temple was the property of Dhan Das and his brother Shamdas, and the plaintiff was neither the Mahant of the temple nor a successor of Dhan Das and Shamdas. The trial court, after evidence, held that the temple of Thakurji Sriji Gopinathji was a public temple and had been founded by one Mahant Narain Das, whose successor was Mahant Dhan Das, and that the present Mahant Narain Das, who sued on behalf of the Deity, was the chela and successor of Mahant Dhan Das, and was entitled to sue. He held that the two shops were situated outside the compound of the temple and were not part of the temple property. It was held that the delivery of possession by Mahant Narain Das to the defendant for a temporary purpose some time in Svt. year 1994 was not proved but on the other hand it had been proved that Dhan Das had mortgaged the shop with Jegdeo Harbux some time in Svt. year 1954, and therefore the shoes came into possession of the defendant from the heirs of Jegdeo Harbux. The suit was accordingly dismissed. The same judgment was upheld on appeal, and the plaintiff filed this second appeal on the 5th of July, 1948. Atmaram having died is now represented by his sons Gumani Ram and Bihari Lal. A preliminary objection was taken that though a second appeal lay on facts according to the Civil Procedure Code in force on the date of the institution of the suit, yet that right had been taken away by the enforcement of the Jaipur Code of Civil Procedure, 1943 (Act XL of 1943 ). Under Act XL of 1943, a second appeal on facts under sec. 100 was only permitted when the decision of the lower court had varied or reversed any finding of the trial court. The objection was supported by a decision of this Court in Mehtabchand vs. Sah Nanoo Lal (1), decided by one of us in Single Bench, but as the matter required further consideration, this appeal was directed to be laid before a Division Bench. It was held in Mehtabchand's case on an interpretation of sec. 154 of the Code of Civil Procedure (Act XL of 1943) that only a present right of appeal was saved by that section. This present right of appeal was construed as being only one which could be exercised immediately on the introduction of the new Code and did not include a right of appeal which had not accrued to litigants by the case not having been decided prior to the introduction of the Code. The entire case law was ably put forward before us by learned counsel appearing for the parties, and we are of opinion that the view expressed in Mehtabchand's case must be modified. Sec. 154 of Act XL of 1943 is in the following terms: - "nothing in this Code shall affect any present right of appeal which shall have accrued to any party at its commencement. " The decision in Mahtabchand's case purports to follow the decisions in Benode Behari Bhadra vs. Ram Sarup Chamar (2) and Ganda Mal vs. Piran Ditta (3 ). In Benode Behari Bhadra's case it was held that the words present right of appeal could mean only a right of appeal existing on the date of the commencement of the new Code in respect of a judgment passed under the former Code and reliance was placed on the remarks of Lord Esher, M. R. in Hornsey Local Board vs. Monarch Investment Building Society (4 ). Having carefully gone through the latter case. It seems to us that the Calcutta High Court did not appreciate the matter in its true perspective. In Hornsey's case the plaintiffs, a local Board, in pursuance of public Health Act, served notices on the owners of premises fronting on a street, to do certain paying works and on default made by them completed the works themselves. The works were begun in 1874 and completed in 1875, but the apportionment of the expenses among the frontagers was not made till 1885. The defendants had subsequently to the completion of the works become the owners of certain premises in the street in respect of which the work had been done, In 1887 the amount of the expenses apportioned was demanded from the defendants. The expenses in respect of such premises not having been paid, the plaintiffs brought the action in 1888 in the country court, claiming a declaration that such expenses were a charge on the premises, and asking for a sale of the premises to give effect to the charge. The defence set up by the defendants was a plea of limitation. The Statute of Limitation provided that "no action or suit or other proceedings shall be brought to recover any sum of money secured by any mortgage judgment or lien or otherwise charged upon or payable out of any land of rent, at law or in equity, or any legacy, but within twelve years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same". It was urged the words "present right to receive the same" were equivalent to "present right to enforce payment of the same". It was held that the present right to receive is not the same as a present right to enforce payment, and the present right to receive came into existence when the work was completed although that right was not capable of enforcement. The present right, therefore, on the aforesaid reasoning need not be one which can be immediately enforced. It has been held by their Lordships of the Judicial Committee in the Colonial Sugar Refining Company, Limited vs. Irving (5) that the right of appeal is a substantive right and a vested right which cannot be taken away except by express or implied provisions. If the right was vested, a question arises, when did it so vest ? The obvious answer is that it became vested on the date when the suit was instituted. On the reasoning of the decision in Hornsey Local Board, the right was a present right even on the date of the institution of the suit, although it was not capable of enforcement unless the case was decided by the court. If it was a vested right, as no doubt it was, it was also a present right because the right was in existence. With great respect, we are of opinion that the reasoning adopted in Benode Behari's Bhadra's case (l) for holding that the present right must be a right capable of being enforced is not correct. The reasoning of the Lahore High Court proceeds in much the same way as in Benode Behari's case (l) and for the above reasons is untenable. The other cases holding the same view are, Bhadreswar Goloi vs. Vishnu Charan Sen (6); Raj Mohan Pal vs. Gobinda Chandra Pal (7) and Alim vs. Moledino (8 ). The order passed in these cases were held to have been passed under the provisions of the new Code, although reliance was also placed on the decision in Benode Behari's case (1 ). It is not necessary to discuss these cases as they only follow Binod Behar's case (1 ). In out opinion, the right of appeal or for that matter of second appeal becomes vested in a litigant on the date of the institution of the suit and in the case before us this was a present right which was saved by the express provision of sec. 154 of the Code. The view taken by the Madras High Court in Kalinga Hebbara vs. Narasima Hebbara (9), and in subsequent cases of the same High Court is in our opinion a correct one. We hold therefore, that the plaintiff had a right to prefer a second appeal on facts according to the law in force on the date of institution of the suit. On the merits we have carefully gone through the evidence and find that no good ground is made for interference. It has not been shown that the land on which the two shops had been built was temple land or that the shops were constructed by funds of the temple or that after their construction they had been dedicated to the temple. There is also no proof that the income of the shops was utilised solely for the purposes of the temple. The plaintiff's evidence on the other hand is quite the other way. Many of the witnesses have admitted that Mahant Dhan Das did business of money lending and kept goods in the shops and did business there. Some of the other witnesses are not telling the truth when they say that the shops were not used by Dhan Das for his own purposes for even Narain Das, the present Mahant, admitted these facts in his cross-examination. Learned counsel for the appellant relied on the statement of D. W. 2 Shiv Nath, who supported the plaintiff to some extent in his cross-examination when he said that the shops were temple property. It was explained by learned counsel for the respondent that he was one of the bhomias who were interested in supporting Mahant Narain Das in recovering the property. He had to be produced because he was an attesting witness to the mortgage deed executed by Dhan Das in favour of Jagdev Harbux, and his statement in cross-examination should not be considered as totally damaging the defendant's case. That explanation is acceptable for when a witness who is produced to prove one fact and is the only witness available for that purpose goes on to say some thing in cross-examination in favour of the opposite party on other matters, the value of that portion of his evidence is to be judged by the circmstances of the case. If the shops were temple properly and that temple was built on land given by bhomias, his conduct in witnessing the deed was quite unnatural. He should have been the first to object to the transfer of the property. This was not done. The other evidence led by the defendant fully supports his case that the property was mortgaged by Dhan Das more than thirty years ago and the plaintiff's version that it was temporarily given to the defendant for the purpose of his daughter's marriage has not at all been proved. This second appeal, therefore, fails, and is dismissed with costs. . ;