The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.240 of 1991 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Padma Charan Sahu and another …. Appellants Khageswar Patra(dead) and others …. Respondents -versus- Appeared in this case:- For Appellants For Respondents : : Mr. A.K. Mishra, Advocate Mr. L. Pradhan, Advocate CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 13..08.2024 / date of judgment :21.08.2024 A.C. Behera, J. This 2nd appeal has been preferred against the confirming judgment. 2. The appellants in this 2nd appeal were the defendants before the trial court in the suit vide T.S. No.06 of 1988 and appellants before the 1st appellate court in the 1st appeal vide T.A. No.14 of 1990. // 2 // The predecessor of the respondents in this 2nd appeal, i.e., Khogeswar Patra was sole plaintiff before the trial court in the suit vide T.S. No.06 of 1988 and respondent before the 1st appellate court in the 1st appeal vide T.A. No.14 of 1990. 3. The suit of the plaintiff (Khogeswar Patra) vide T.S. No.06 of 1988 before the trial court against the defendants was a suit for recovery of possession. The suit properties are Khata No.61, Plot No.752 A0.035 decimals in Mouza Nuagaon under Baliguda Tahasil in the district of Phulbani. 4. The case of the plaintiff before the trial court as per his pleadings
Legal Reasoning
against the defendants was that, the suit properties were originally the properties of the plaintiff, but, he (plaintiff) donated the same to the deity
Legal Reasoning
Shri Shri Rameswar Mahaprabhu Bije, Nuagaon. Subsequent thereto, the plaintiff became the President of the temple committee of the deity Shri Shri Rameswar Mahaprabhu. As per the decision of the temple committee, some properties of the deity including the suit properties were leased out to different persons including the plaintiff for the purpose of running their shops/businesses thereon in order to earn some income for the deity from the same. The suit properties were leased out to the plaintiff by the temple committee of Shri Shri Rameswar Mahaprabhu. Some years thereafter, the temple committee decided to sell the suit Page 2 of 22 // 3 // properties to the respective lessees in order to keep the sold money thereof in the account of the deity for the smooth management of the temple. As per the decision of the temple committee, the suit properties were sold to the plaintiff through Registered Sale Deed No.131 of 1986. Then, the defendants approached the plaintiff to let out the suit properties in their favour with a condition to vacate the same as and when they will be asked to vacate. After accepting the request of the defendants, the plaintiff let out the suit properties to the defendants and the defendants constructed two shades on the same and each defendants paid Rs.30/- per month to the plaintiff towards rent. As such, they(defendants) continued the payment of rent till the middle part of 1986. Accordingly, the plaintiff was getting Rs.60/- in total per month from the defendants towards rent of the suit properties. So, the occupation of the defendants over the suit properties was permissive under the plaintiff. Subsequent thereto, the plaintiff applied for mutation of the suit properties to his name by filing Mutation Case No.502 of 1986. In that mutation case, public notices were issued. The defendants contested the said mutation case of the plaintiff by filing their objection for rejection of the same stating that, they (defendants) are in long possession of the same, but, the plaintiff has no interest therein. After adjudicating that mutation case, the Tahasildar rejected to the prayer of mutation of the plaintiff as per its final order Page 3 of 22 // 4 // dated 28.11.1986 and directed for recording the names of the defendants in the remarks column of the RoR of the suit properties as unauthorized occupiers. Then, on 01.12.1986, the plaintiff asked the defendants to vacate the suit properties in his favour in order to construct houses thereon, to which, the defendants denied and claimed their right, title, interest and possession over the same. For which, without getting any way, the plaintiff approached the civil court by filing the suit vide T.S. No.06 of 1988 against the defendants praying for directing the defendants to vacate the suit properties forthwith, failing which, to evict the defendants from the same and to recover the possession of the same from the defendants through process of the court along with other relief, to which, he (plaintiff) is entitled for, as the court deems fit and proper. 5. Having been noticed from the trial court in the suit vide T.S. No.06 of 1988, the defendants contested the same by filing their joint written statement denying the averments made by the plaintiffs in his plaint against them(defendants) taking their stands therein that, the plaintiff has no cause of action for filing the suit against them(defendants). The suit of the plaintiff is under-valued. They (defendants) are not in permissive possession over the suit properties. They (defendants) were/are not the tenants of the suit properties under the plaintiff at any point of time. Page 4 of 22 // 5 // The specific plea of the defendants was that, the brother of the plaintiff was the first President of the temple committee. Thereafter, the plaintiff became the President of the temple committee of the deity Shri Shri Rameswar Mahaprabhu. The plaintiff had not purchased the suit properties of the deity Shri Shri Rameswar Mahaprabhu. The temple committee had not decided to sell the suit properties to the plaintiff. The Registered Sale Deed No.131 of 1986 has been falsely created by the plaintiff only in order to grab the suit properties from the defendants. The temple committee had also not delivered the possession of the suit properties to the plaintiff at any point of time. As per law, the temple committee of Shri Shri Rameswar Mahaprabhu had no right to alienate/sell the suit properties either to the plaintiff or to anybody. The occupations of the defendants over the suit properties are not permissive. The suit properties have already been sold to them (defendants) since the year 1971 and as such, they(defendants) have their title and possession over the suit properties. As, they (defendants) are in continuous possession over the suit properties since 1971, for which, the Tahasildar rightly rejected the Mutation Case No.502 of 1986 of the plaintiff. He(plaintiff) has not filed any appeal challenging such rejection. For which, the plaintiff is estopped under law to challenge the same in the civil court. The so-called Sale Deed No.131 of 1986 relied by the Page 5 of 22 // 6 // plaintiff in purchasing the suit properties from the temple committee is an invalid document, which has no legal effect. The plaintiff has no right, title, interest and possession over the suit properties. For which, the plaintiff is not entitled to get the decree of recovery of possession of the suit properties from the defendants. They (defendants) have their title over the suit properties through prescription by way of adverse possession. The suit of the plaintiff is bad for misjoinder of the parties. As, they(defendants) are the rightful owners of the suit properties, for which, the suit of the plaintiff for recovery of possession is liable to be dismissed against them(defendants). 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether eighteen numbers of issues were framed by the trial court in the suit vide T.S. No.06 of 1988 and the said issues are:- I S S U E S (i) (ii) Whether the suit land was the property of the deity Shri Shri Rameswar Mahaprabhu Bije at village Nuagaon prior to 1986? Whether the plaintiff was a lessee under Shri Shri Rameswar Mahaprabhu Bije at village Nuagaon prior to 1986 and was in possession of the suit land as a lessee? (iii) Whether the plaintiff acquired title to the suit land by Sale Deed No.131/86 of 86 in 1986? Page 6 of 22 // 7 // (iv) Whether the defendants were in permissive possession of suit land under the plaintiff from 1978 to 1986 on payment of rent per month as tenants? (v) Whether the defendants have perfected their title over the suit land by adverse possession? (vi) Whether the order of Mutation Officer-cum- Tahasildar, Balliguda in Mutation Case No.502 of 1986 is valid and binding on the plaintiff? (vii) Whether the defendants are liable to be evicted from the suit land? (viii) Whether the plaintiff is entitled for the recovery of possession of the suit land? (ix) Whether there is sufficient cause of action for this suit and when such cause of action arose? (x) Whether the suit is maintainable in its present form and according to law? (xi) Whether the suit is barred by res judicata? (xii) Whether the suit is barred by limitation? (xiii) Whether the valuation of the suit is correct? (xiv) Whether this court has jurisdiction to try the suit? (xv) Whether the description of the suit land in the plaint is correct? (xvi) Whether the suit is hit under Section 106 of the T.P. Act? (xvii) Whether the plaintiff is entitled to the relief claimed for by him? (xviii) To what other relief? 7. In order to substantiate the aforesaid relief sought for by the plaintiff against the defendants in the suit vide T.S. No.06 of 1988, he (plaintiff) examined seven witnesses from his side including him as P.W.1 and relied upon the document vide Ext.1. Page 7 of 22 // 8 // On the contrary, in order to nullify / defeat the suit of the plaintiff, the defendants examined four witness on their behalf including them(defendants) as D.Ws.1 and 2 without proving any document from their side. 8 After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered all the issues in favour of the plaintiff and against the defendants and basing upon the findings and observations made by the trial court in all the issues in favour of the plaintiff and against the defendants, the trial court decreed the suit of the plaintiff vide T.S. No.06 of 1988 on contest against the defendants with cost, as per its judgment and decree dated 25.07.1990 and 04.08.1990 respectively and directed the defendants to deliver the vacant possession of the suit properties to the plaintiff assigning the reasons that, the suit properties were the properties of the deity Shri Shri Rameswar Mahaprabhu Bije at village Nuagaon till 1986. Till 1986, the deity Shri Shri Rameswar Mahaprabhu was the landlord of the suit properties and the plaintiff (P.W.1) was a lessee thereof under the deity Shri Shri Rameswar Mahaprabhu. Thereafter, the plaintiff purchased the suit properties through registered Sale Deed No.131 of 1986(Ext.1) from the temple committee and became the owner thereof. Then, he (plaintiff) let out the same to the defendants on monthly rent Page 8 of 22 // 9 // basis. So, the defendants were the tenants of the suit properties under the plaintiff. The order of rejection of mutation case of the plaintiff passed by the Tahasildar is not binding upon the plaintiff concerning his title in the suit properties. The defendants are the trespassers of the suit properties, as they (defendants) have defaulted in paying rent to the plaintiff. For which, they(defendants) are liable to be evicted from the same and the plaintiff is entitled to get the decree of recovery of possession of the suit properties from the defendants. So, the trial court decreed the suit of the plaintiff against the defendants. 9. On being dissatisfied with the aforesaid judgment and decree passed by the trial court in T.S. No.06 of 1988 in favour of the plaintiff and against the defendants, they(defendants) challenged the same by preferring the 1st appeal vide T.A. No.14 of 1990 being the appellants against the plaintiff arraying him(plaintiff) as respondent. After hearing from both the sides, the 1st appellate court dismissed that 1st appeal vide T.A. No.14 of 1990 of the defendants on contest against the plaintiff as per its judgment and decree dated 06.07.1991 and 16.07.1991 respectively concurring / accepting the findings and observations made by the trial court in favour of the plaintiff and against the defendants in the suit vide T.S. No.06 of 1988. Page 9 of 22 // 10 // 10. On being aggrieved with the aforesaid judgment and decree of the dismissal of the 1st appeal vide T.A. No.14 of 1990 of the defendants passed on dated 06.07.1991 and 16.07.1991 respectively, they(defendants) challenged the same by preferring this 2nd appeal being the appellants against the plaintiff arraying him (plaintiff) as respondent. 11. When, during the pendency of this 2nd appeal, the respondent(plaintiff) expired, then, his legal heirs have been substituted in his place as respondents. 12. This 2nd appeal was admitted on formulation of the following substantial questions of law and the said questions are :- “1. Whether the suit of the plaintiff vide T.S. No.06 of 1988 for recovery of possession of the suit properties is maintainable under law in absence of the deity, who is the recorded owner of the suit properties and in whose name the RoR of the suit properties stands? 2. Whether the suit of the plaintiff is bar under Section 69(1) of The Orissa Hindu Religious Endowments Act, 1951?” 13. I have already heard from the learned counsels of both the sides. 14. In order to assail the impugned judgments and decree passed by the trial court and 1st appellate court, the learned counsel for the appellants(defendants in the suit) relied upon the following decisions:- (i) Srikar Patra vrs. Sri Gopinath Dev and others (decided on 30.03.2021 in S.A. No.100 of 1992) (ii) Collector, Koraput vrs.Sunadhar Pujari and others (decided on 30.11.2023 in S.A. Nos.75 and 76 of 1987) Page 10 of 22 // 11 // 15. On the contrary, in support of the impugned judgment and decree passed by the trial court and 1st appellate court, the learned counsel for the respondents(successors of the plaintiff) relied upon the ratio of the following decisions:- (i) Gayadhar Mohanty and others vrs. Abhimanyu Pattanaik and others. (ii) AIR 2000(S.C.)-426 : Ishwar Dass Jain (dead) through LRs. vrs. Sohan Lal (dead) by L.Rs. 16. So far as the first substantial question of law, i.e., whether the suit of the plaintiff vide T.S. No.06 of 1988 for recovery of possession of the suit properties is maintainable under law in absence of the deity, who is the recorded owner of the suit properties and in whose name, the RoR of the suit properties stands is concerned; The suit properties are under Khata No.61 Plot No.752 measuring an area A0.0.035 decimals in Mauza Nuagaon under Balliguda Tahasil in the district of Phulbani. It is the undisputed case of the parties that, the RoR of the suit properties under Khata No.61 stands in the name of the deity Shri Shri Rameswar Mahaprabhu. The deity Shri Shri Rameswar Mahaprabhu is a public deity and its temple is a public temple. 17. As per the own pleadings of the plaintiff in his plaint that, the suit properties were the properties of the deity Shri Shri Rameswar Page 11 of 22 // 12 // Mahaprabhu. He(plaintiff) has purchased the suit properties from the Temple Committee through Sale Deed No.131 dated 28.02.1986 (Ext.1). It appears from the sale deed vide Ext.1 that, the said sale deed has been executed by the committee of the deity Shri Shri Rameswar Mahaprabhu temple represented through the plaintiff himself in favour of the plaintiff. According to the plaintiff, on the basis of such sale deed vide Ext.1, he (plaintiff) has become the owner of the suit properties and on the basis of his ownership and possession through Sale Deed No.131 dated 28.02.1986(Ext.1), he (plaintiff) has prayed for recovery of possession of the suit properties against the defendants. 18. There is no indication in the Sale Deed No.131 dated 28.02.1986 vide Ext.1 about the execution of that sale deed by the deity Shri Shri Rameswar Mahaprabhu, though, according to the plaintiff, the deity Shri Shri Rameswar Mahaprabhu was the undisputed owner of the suit properties on the date of execution of the sale deed vide Ext.1 in his favour. There is also no indication in the sale deed vide Ext.1 about the execution of the same after obtaining statutory permission under Section 19(1) of the Orissa Hindu Religious and Endowments Act, 1951 from the Endowment Commissioner of Orissa for alienation of the properties of the deity, i.e., suit properties. Page 12 of 22 // 13 // 19. As per Section 19(1) of the Orissa Hindu Religious and Endowments Act, 1951, “no transfer by exchange, sale or mortgage and no lease for a term exceeding five years of any immovable property belonging to, or given or endowed for the purpose of, any religious institution, shall be made unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution and no such transfer shall be valid or operative unless it is so sanctioned.” When, the plaintiff himself admitting in his pleadings that, the suit properties were the properties of the deity Shri Shri Rameswar Mahaprabhu at the time of execution of the sale deed vide Ext.1 on dated 28.02.1986, then, as per the mandates of Section 19(1) of the Orissa Hindu Religious and Endowments Act, 1951, prior sanction/permission from The Endowment Commissioner was mandatory and compulsory for execution and registration of the Sale deed No.131 dated 28.02.1986 vide Ext.1. 20. In view of the provisions of law envisaged under Section 19(1) of The Orissa Hindu Religious Endowments Act, 1951, the lands belonging to the deity cannot be subjected to alienation in violation of the statutory requirements. So, prior compliances of the provisions of Section 19(1) of The Orissa Hindu Religious and Endowments Act, 1951 are mandatory for alienation/transfer of the properties of the deity. Therefore, alienation Page 13 of 22 // 14 // of the properties of the deity in contravention of the provisions of Section 19(1) of The Orissa Hindu Religious Endowments Act, 1951 is invalid/illegal and void. 21. On this aspect, the propositions of law has been clarified in the ratio of the following decisions:- (i) (ii) 2018(II) CLR-748 : (Sri) Sri Bramheswar Mohadev, Bije and others vrs. Baishnab Charan Biswal and another—Orissa Hindu Religious Endowments Act, 1951—Sections 19, 25, 41 and 3—Suit Property recorded in the name of deity marfat defendant No.2 and one B—Defendant No.1 claims to have purchased the suit property from defendant No.2—Held, in absence of permission from the Commissioner of Endowments as required under Section 19 of the Act, the sale deed in favour of the defendant no.1 is void.(Para 13) 2014(I) OLR-602 : Chittaranjan Sahoo, Smt. Bimala Kabi Satapathy vrs. Collector, Khurda and others (in both the cases)—Deity— Orissa Hindu Religious Endowments Act, 1951— Section the Commissioner of Endowment, sale of the land belonging to the deity is expressly barred under the Section— Provisions are mandatory in nature and any alienation made in contravention of the provisions is void. (Para- 19) 19—Without sanction prior by (iii) 81(1996) CLT-571 (F.B.) : Smt. Basanti Kumari Sahu vrs. State of Orissa and others—Orissa Hindu Religious Endowments Act, 1951—Section 19(1)— Provisions under—Mandatory in nature—Alienation of land in contravention of such provisions—Void—. (iv) AIR 1998(Rajasthan)-85 : Temple of Thakurji vrs. State of Rajasthan and others—Rajasthan Tenancy Act—Section 46—Khetedari rights—Accrual of— Exemption is provided in respect of minor and person incapable of cultivating land personally—Deity falls under both categories—No person can get Katedary rights in respect of property belonging to minor—Deity is perpetual minor—Pujari of deity by manipulating Page 14 of 22 // 15 // getting such rights recorded in his favour—Entry is null and void—It is plain case of sabotage of public policy and legal philosophy. (Para 11) 22. When, undisputedly the Sale Deed No.131 dated 28.02.1986 vide Ext.1 has not been executed by the deity and when the said sale deed vide Ext.1 has been executed without obtaining any sanction/permission for sale from the Endowment Commissioner and when the said sale deed vide Ext.1 has been executed in contravention of the provisions of Section 19(1) of The Orissa Hindu Religious Endowments Act, 1951, then at this juncture, in view of the principles of law enunciated in the ratio of the aforesaid decisions of the Hon’ble Courts, the said sale deed vide Ext.1 relied by the plaintiff is illegal, invalid, void and non-est in the eye of law. So, as per law, on the basis of that sale deed vide Ext.1, neither title nor possession or any interest in the suit properties has been transferred from its owner, i.e., from the deity Shri Shri Rameswar Mahaprabhu to the plaintiff. Therefore, it is held that, the plaintiff has no title and possession in the suit properties, but, the deity Shri Shri Rameswar Mahaprabhu is the owner of the suit properties. 23. When, as per the discussions and observations made above, it has been held that, the plaintiff has no title in the suit properties, then at this Page 15 of 22 // 16 // juncture, the suit of the plaintiff against the defendants for recovery of possession of the suit properties is not maintainable under law. 24. On this aspect, the propositions of law has already been clafiried in the ratio of the following decisions:- (i) (ii) (iii) (iv) (v) AIR 2007(S.C.)-2577 : Ramchandra Sakharam Mahajan vrs. Damodar Trimbak Tanksale(D) and others—Specific Relief Act, 1963—Suit is for recovery of possession on the strength of title—Burden is on the plaintiff to establish his title, but, the weakness of the defence(defendant) or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to get a decree. 2019(3) CCC(S.C.)-14 : Sopanrao and another vrs. Syed Mehmood and others—In a suit filed for possession based on title, plaintiff is bound to prove his title. (1969) 3 SCC-129 : Somanath Burman vrs. Dr. S.P. Raju and another—In a suit for possession brought on basis of title—The plaintiff cannot succeed unless he proves his title to the suit property as well as its possession within 12 years. 2016(3) CCC-158(Delhi) : Lata Sharma vrs. K.R. Saini and others—In a suit for possession on the basis of title, plaintiff is required to prove title deeds. 2001(4) CCC-344(Bombay) : Stanley Parker Jones vrs. Bansraj Laltaprasad Mishra—Suit for recovery of possession—A party who approaches civil court for possession must prove that, he was legally entitled to recover possession and court will not give decree of possession to a stranger or trespasser even when defendant is not in a position to prove that, he is entitled to continue his possession. 25. When, the plaintiff has filed the suit for recovery of possession stating him(plaintiff) as the owner of the suit properties and when, he (plaintiff) is not the owner of the suit properties, but, the deity Shri Shri Page 16 of 22 // 17 // Rameswar Mahaprabhu is the owner of the suit properties and the RoR of the suit properties under Khata No.61 stands in the name of the deity Shri Shri Rameswar Mahaprabhu, then at this juncture, the suit of the plaintiff is not maintainable in absence of the deity Shri Shri Rameswar Mahaprabhu. 26. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:- (i) (ii) AIR 1971(S.C.)-240 : Ch. Surat Singh (dead) and others vrs. Manohar Lal and others—C.P.C., 1908— Order 41, Rule-20—Effect of non-joinder—Property of a person cannot be dealt with behind his back, 2009(I) CLR-64 : Shaikh Saffiqueuddin vrs. Gulei @ Golap Samal and nine others—In any court proceeding, wherever the property of the deity is involved, the deity is a necessary party. Any judgment or order behind its back would not be binding on the deity, in view of the provisions contained in the proviso to Order 1, Rule 9, CPC. More so, it would be violative of the principles of natural justice.(Para-17) (iii) 2018(I) CLR-572 : State of Orissa and another vrs. Sukuru Polai and others—It is evident that the suit property has been recorded in the name of Sri Sri Kasi Viswanath Mahaprabhu. The deity is a perpetual minor. In absence of the deity, the suit is not maintainable. (Para 8) (iv) 2024(I) OLR-384 : Collector, Koraput vrs. Sunadhar Pujari and others (para-23)—The claim of the parties over the properties of the deities cannot be adjudicated behind the back of the deities. So, the deities are the necessary parties to the suit. 27. In addition to that, when the properties of a public deity, i.e., Shri Shri Rameswar Mahaprabhu are involved in the suit, for which, by virtue Page 17 of 22 // 18 // of the provisions of law envisaged in Sections 25(1) and 73(1) of The Orissa Hindu Religious Endowments Act, 1951, jurisdiction of civil court to entertain the present suit of the plaintiff is ousted. On this aspect, the provisions of law has already been clarified in the ratio of the following decisions:- (i) (ii) 94(2002) CLT-755 : Brahman Nijog vrs. Badu Nijog and others, Bijendra Samantaray and others— C.P.C., 1908—Section 9—Jurisdiction of Civil Court to decide the rights of the parties claimed in the Endowment matter—Scope of—The rights of the parties as claimed can only be decided by the competent authority under the Orissa Hindu Religious Endowments Act and the Civil Court has no jurisdiction to decide the case. (Para 14) 2021(II) CLR-29 : Srikar Patra vrs. Sri Gopinath Dev and others—Orissa Hindu Religious Endowments Act, 1951—Section 25(1) and Section 73(1) read with C.P.C., 1908, Section 9—Suit properties are the properties of the plaintiff No.1(deity) which have been unlawfully alienated in favour of Defendant No.1—Suit for recovery of possession—Section 73(1) of the Endowments Act bars a suit or other legal proceedings in respect of administration or any other dispute of a religious institution, because, Section 25(1) of the Endowments Act provides for recovery of immovable trust property unlawfully alienated. Thus, the remedy of the provisions of Section 25(1) of the Endowments Act is an efficacious remedy for the recovery of the properties of the deity, i.e., suit properties from the defendant No.1. So, the suit for recovery of possession in the civil court is not maintainable. (Para nos.7.5 and 7.6) 28. As per the discussions and observations made above, it is held that, the suit of the plaintiff vide T.S. No.06 of 1988 for recovery of possession in respect of the properties of the deity Shri Shri Rameswar Page 18 of 22 // 19 // Maprabhu in the garb of declaration of title of the plaintiff over the suit properties indirectly in absence of deity is not maintainable under law. 29. So far as the 2nd formulated substantial question of law, i.e., Whether the suit of the plaintiff is bar under Section 69(1) of The Orissa Hindu Religious Endowments Act, 1951 is concerned; When, it is held above that, the properties of the public deity Shri Shri Rameswar Mahaprabhu and its temple are involved in the suit, then at this juncture, it was the bounden duty of the trial court to give notice to the Commissioner of Endowment at least a month before the hearing of the suit vide T.S. No.06 of 1988 as per Section 69(1) of The Orissa Hindu Religious Endowments Act, 1951, but the trial court has not done so. For which, it can be held that, the adjudication of the suit vide T.S. No.06 of 1988 by the trial court was not in conformity with the law. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:- (i) 2024(I) OLR-384 : Collector, Koraput vrs. Sunadhar Pujari and others—In the suit, the properties of the religious institutions, i.e., properties of the deities and temples are in issue. So, it was the bounden duty of the Trial Court to give notice to the Commissioner of Endowment at least a month before hearing of the suit as per Section 69(1) of the Orissa Hindu Religious Endowments Act, 1951, but the Trial Court has not done so, for which, the suit of the plaintiffs must fail. (Para- 20) Page 19 of 22 // 20 // (ii) 2018 (1) CLR 576—Ishwar Samal Vrs. Keshab Samal and others—Paragraph 10—The Odisha Hindu Religious Endowments Act, 1951—Section 69 (1)— Section 69 (1) of the Act postulates that, whenever the trustee or any religious institution is issue in any Civil or Revenue Court in respect of any property belonging to or given or endowed for the purpose of any religious institution, notice of such Suit shall be given by the Court concerned to the Commissioner at least a month before commencement of hearing. It is the bounden duty of the Court to issue notice to the Commissioner of Endowments. Neither the math nor the Commissioner of Endowments are the party to the suit. No notice was issued by the learned Trial Court to the Commissioner of Endowments before hearing of the suit. In their absence, the suit must fail. (Para 10) 30. Here in this suit/appeal at hand, when, the properties of the public religious institution, i.e., Shri Shri Rameswar Mahaprabhu and its temple were involved in the suit vide T.S. No.06 of 1988, then at this juncture, in view of the Section 69(1) of The Orissa Hindu Religious Endowments Act, 1951 and also in view of the ratio of the above decisions, it was the bounden duty of the trial court to give notice to the Commissioner of Endowments at least a month before hearing of the suit, but, the trial court has not done so, for which, the suit of the plaintiff vide T.S. No.06 of 1988 must fail. Therefore, the decisions relied by the learned counsel for the respondents indicated in para no.15 of this judgment are not applicable to this appeal on facts and law as discussed above. Page 20 of 22 // 21 // 31. When the materials available in the record are sufficient to adjudicate this 2nd appeal effectively, then at this juncture, the question of taking any additional evidence as prayed for by the appellants/defendants under Order 41, Rule-27 of the C.P.C., 1908 through I.A. No.562 of 2024 does not arise. So, the petition under Order 41, Rule-27 of the C.P.C. vide I.A. No.562 of 2024 of the appellants/defendants along with other pending applications of the
Decision
parties, if any, stand rejected and disposed of. 32. When, the suit of the plaintiff vide T.S. No.06 of 1988 was not maintainable under law on several grounds as per the discussions and observations made above, then at this juncture, the trial court should not have decreed the same and the 1st appellate court should not have confirmed the same, for which, there is justification under law for making interference with the judgments and decrees of the trial court and 1st appellate court, through this 2nd appeal filed by the appellants/defendants. So, there is merit in the 2nd appeal of the appellants(defendants). The same must succeed. 33. In result, the 2nd appeal filed by the appellants (defendants) is allowed on contest against the respondents, but without cost. Page 21 of 22 // 22 // The judgments and decrees passed by the trial court and 1st appellate court in T.S. No.06 of 1988 and T.A. No.14 of 1990 respectively are set aside. The suit be and the same vide T.S. No.06 of 1988 filed by the plaintiff (predecessor of the respondents) against the defendants(appellants) is dismissed on contest, but without cost. Judge Orissa High Court, Cuttack The 21st of August, 2024/ Jagabandhu, P.A. ( A.C. Behera ) Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 21-Aug-2024 15:46:50 Page 22 of 22