The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.76 of 1997 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Kalia Sethy (dead) and others …. Appellants -versus- Sri Sri Balaji Mahaprabhu ..... Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr. S.S. Rao, Sr. Advocate. assisted by Mr. B.K. Mohanty, Advocate. For Respondent- None CORAM: HON’BLE MR. JUSTICE A.C.BEHERA Date of Hearing :12.03.2025 :: Date of Judgment :03.04.2025 A.C. Behera, J. This second appeal has been preferred against the reversing judgment. 2. The appellants in this second appeal were the defendants before the Trial Court in the suit vide T.S. No.115 of 1973 and respondents before the First Appellate Court in the First Appeal vide T.A. No.105 of 1977 (82/1980). The respondent-Deity in this second appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.115 of 1973 and appellant Page 1 of 13 {{ 2 }}
Legal Reasoning
before the First Appellate Court in the First Appeal vide T.A. No.105 of 1977 (82/1980). 3. The suit of the plaintiff-Deity (respondent in the second appeal) vide T.S. No.115 of 1973 against the defendants (appellants in the second appeal) was a suit for injunction simpliciter. 4. According to the case of the plaintiff-Deity, the suit properties are the properties of the plaintiff-Deity and the usufructs/products of the said properties are used as the feeding of the “Abhyagats” from the “Prasad” offered to the plaintiff-Deity. In the year 1940, the father of the defendant Nos.1 & 2 and uncle of the defendant No.3 i.e. Raghu Sethi was engaged as Bhag chasi (Bhag tenant) in respect of the suit properties by the plaintiff-Deity and accordingly, Raghu Sethi was cultivating the suit properties on Bhag basis and he was providing the Bhag of the products of the suit properties to the plaintiff-Deity. That Raghu Sethi died in the year 1962. After the death of Raghu Sethi, the plaintiff-Deity through its marfatdar kept the suit properties for personal cultivation of the Deity engaging labourers. When in the year 1971, the marfatdar of the plaintiff-Deity became ill and undergone treatments at Berhampur Hospital, during that time, taking advantage of the absence of the marfatdar from the village, the defendant No.3 tried to create disturbances in the suit properties. For which, a proceeding under Section 144 of the Cr.P.C., 1973 was started Page 2 of 13 {{ 3 }} and thereafter, the said proceeding under Section 144 of the Cr.P.C. was converted to a proceeding under Section 145 of the Cr.P.C., 1973. Subsequently, the said proceeding under Section 145 of the Cr.P.C. was dropped and R.I., Jakar Firka was appointed as a receiver of the suit properties. For which, the plaintiff-Deity filed the suit against the defendants praying for restraining them (defendants) from entering into the suit properties and from creating disturbances in the peaceful possession of the plaintiff-Deity in the suit properties. 5. Having been noticed from the Trial Court in the suit, the defendants challenged the same by filing their joint written statement taking their stands inter alia therein denying the averments made by the plaintiff-Deity in its plaint that, Raghu Sethi (father of the defendant Nos.1 & 2) and Brundaban Sethi (father of the defendant No.3) were cultivating the suit properties originally as raiyats having their occupancy right in the same and they were in cultivating possession of the suit properties throughout. After the death of Brundaban Sethi, his son i.e. defendant No.3 Budhia Sethi inherited the tenancy right of his father Brundaban Sethi in the suit properties and he (defendant No.3 Budhia Sethi) jointly cultivated the suit properties with Raghu Sethi. Subsequently, the suit properties were divided between them i.e. between their two branches into two equal shares. Accordingly, the defendant No.3 was cultivating half and the father of the defendant Nos.1 & 2 i.e. Page 3 of 13 {{ 4 }} Raghu Sethi was cultivating half of the suit properties according to the distributions made between them. When Raghu Sethi died, his sons i.e. defendant Nos.1 & 2 succeeded to the half share of their father Raghu Sethi in the suit properties and cultivated the same like their father. Accordingly, the defendants have their occupancy rights in the suit properties. Their such rights in the suit properties under the Tenancy Act are statutorily protected. The defendant No.4 (Anadi Sethi) is the son of the defendant No.3, though he (defendant No.4) is entitled to his tenancy right in the suit properties, but he is staying away from the village of the suit properties due to his employment as a teacher in Phulbani District. The plaintiff-Deity is not at all in possession and enjoyment over the suit properties. For which, the plaintiff is not entitled to the relief i.e. permanent injunction or any other relief against them (defendants). Therefore, the suit filed by the plaintiff-Deity is not maintainable under law. The further case of the defendants was that, the suit filed by the plaintiff-Deity is not maintainable before the civil Court, because the proper Court for adjudication of the disputes between the parties is the Revenue Court. The right of the plaintiff-Deity in the suit properties has already been extinguished as per the provisions of Orissa Estates Abolition Act as well as Orissa Land Reforms Act. For which, they Page 4 of 13 {{ 5 }} (defendants) are the occupancy raiyats of the suit properties and they (defendants) are in possession over the same. The plaintiff-Deity has no interest or possession in the suit properties. For which, the suit of the plaintiff-Deity is liable to be dismissed against them (defendants). 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 6 (six) numbers of issues were framed by the Trial Court in the suit vide T.S. No.115 of 1973 and the said issues are:- I S S U E S (i) Whether the plaintiff is in possession over the suit land? (ii) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? (iii) Whether the defendants are tenants and they are in cultivating possession of the suit land as claimed by them? (iv) Whether the Court has jurisdiction to entertain this suit? (v) Whether the suit is not maintainable? (vi) To what other relief? 7. In order to substantiate the aforesaid relief i.e. injunction sought for by the plaintiff against the defendants before the Trial Court in the suit vide T.S. No.115 of 1973, altogether 7 numbers of witnesses were examined on behalf of the plaintiff-Deity as P.Ws.1 to 7 and series of documents were exhibited from the side of the plaintiff-Deity as Exts.1 to 8/d. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendants examined 6 (six) witnesses from their side including defendant No.3 as D.W.6 and exhibited series of documents on their behalf vide Exts.A to Y/2. Page 5 of 13 {{ 6 }} 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 against the plaintiff-Deity and in favour of the defendants and basing upon the findings and observations made by the Trial Court in all the issues against the plaintiff-Deity and in favour of the defendants, the Trial Court dismissed the suit of the plaintiff on contest against the defendant Nos.1 to 3 & 5 and ex parte against the defendant No.4 as per its judgment and decree dated 13.10.1977 and 04.11.1977 respectively assigning the reasons that, the plaintiff-Deity is not in possession over the suit properties, but the defendants are cultivating the said suit properties as tenants under the plaintiff-Deity. For which, the plaintiff-Deity is not entitled for the relief i.e. permanent injunction against the defendants. 9. On being dissatisfied with the aforesaid judgment and decree of the dismissal of the suit of the plaintiff-Deity vide T.S. No.115 of 1973 passed by the Trial Court on dated 13.10.1977 and 04.11.1977 respectively, the plaintiff-Deity challenged the same preferring the First Appeal vide T.A. No.105 of 1977 (82/1980) being the appellant against the defendants arraying them (defendants) as respondents. 10. After hearing from both the sides, the First Appellate Court allowed that First Appeal of the plaintiff-Deity vide T.A. No.105 of 1977 (82/1980) on contest against the defendants/respondents and set aside the Page 6 of 13 {{ 7 }} judgment and decree of the dismissal of the suit passed by the learned Trial Court as per its judgment and decree dated 20.01.1997 and 04.02.1997 respectively on the ground that, though the predecessor of the defendants i.e. Raghu Sethi was the Bhag tenant in respect of the suit properties under the plaintiff-Deity, but after the death of Raghu Sethi, the defendants were not inducted as Bhag tenants in the suit properties on behalf of the plaintiff-Deity, for which, as per law, the plaintiff-Deity is the owner of the suit properties and the plaintiff-Deity is also in possession over the suit properties, for which, the plaintiff-Deity is entitled for the decree of permanent injunction against the defendants and accordingly, the learned First Appellate Court decreed the suit vide T.S. No.115 of 1973 of the plaintiff-Deity against the defendants and restrained them (defendants) permanently from interfering into the peaceful possession of the plaintiff-Deity in the suit properties. 11. On being aggrieved with the aforesaid judgment and decree dated 20.01.1997 and 04.02.1997 respectively passed by the First Appellate Court in T.A. No.105 of 1977 (82/1980) in favour of the plaintiff-Deity and against the defendants, they (defendants) challenged the same by preferring this second appeal being the appellants against the plaintiff- Deity arraying plaintiff-Deity as respondent. Page 7 of 13 {{ 8 }} 12. This Second Appeal was admitted on formulation of the following substantial questions of law i.e.- (i) Whether the materials available in the records are going to show that, the defendants are possessing the suit properties as Bhag tenants under the plaintiff-Deity and whether they (defendants) are in lawful possession over the suit properties? (ii) Whether the learned First Appellate Court has acted illegally and with material irregularity in holding that, the defendants are not in possession over the suit properties, as Bhag tenants under the plaintiff-Deity? (iii) Whether the judgment and decree passed by the First Appellate Court is contrary to the law and evidence available in the record? (iv) Whether the judgment and decree passed by the First Appellate Court in passing the decree of the suit in favour of the plaintiff and against the defendants is sustainable under law? 13. I have already heard only from the learned counsel for the appellants (defendants), as none appeared from the side of the respondent (plaintiff-Deity) for hearing of the second appeal. 14. When, all the above four formulated substantial questions of law are interlinked having ample nexus with each other according to the pleadings of the parties and judgments and decrees passed by the Trial Court and First Appellate Court, then all the four formulated substantial questions of law are taken up together analogously for their discussions hereunder. Page 8 of 13 {{ 9 }} 15. It is the concurrent findings of the Trial Court and First Appellate Court on facts after appreciation of oral and documentary evidence of the parties that, the plaintiff-Deity is the owner of the suit properties. It was the findings of the learned Trial Court in its judgment and decree that, the defendants are the Bhag tenants of the suit properties under its landlord i.e. the plaintiff-Deity, to which, the First Appellate Court reversed in its judgment and decree and held that, the defendants have not become able to establish that, they are the Bhag tenants of the suit properties under the plaintiff-Deity. For which, the learned First Appellate Court passed the decree i.e. permanent injunction against the defendants. 16. Now the question arises, whether the defendants are cultivating the suit properties as Bhag tenants under its landlord i.e. the plaintiff-Deity or not? As per the Section 2(21) of the Orissa Land Reforms Act, 1960, a minor land owner comes within the purview i.e. “person under disability”. It is the settled propositions of law that, Deity is a perpetual minor. 17. Here in this suit/appeal at hand, when the plaintiff is a Deity, then as per law, the plaintiff (Sri Sri Balaji Mahaprabhu) is a perpetual minor. It is very fundamental in law that, when a Deity is a perpetual minor, then in a suit or in a proceeding, the Deity is to be represented Page 9 of 13 {{ 10 }} through some or by human agency. Because, the Deity is a juristic person. 18. The properties belonging to a minor like Deity requires protection. For which, it is the obligation of the State and its instrumentalities as well as the Court to protect the interest of the Deity, as the Deity is a perpetual minor. On this aspect the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the following decisions:- (i)
Legal Reasoning
In a case between Sri Mangala Thakurani Bije, Kakatpur and others Vrs State of Orissa and others reported in 2010 (Supp.- II) OLR 992 & 110 (2010) CLT 574 (at Para 5), deity is a perpetual minor and it has to be represented through some human agency. Land belong to the deity & not to the Marfatdars. (ii) In a case between Sri Brajabandhu Pati Vrs Collector-cum- Trustee, Debattar, Dhenkanal and others reported 2010 (Supp.-I) OLR 734 and 2010 (I) CLR 27 (at Para 10), deity is a perpetual minor and the property belonging to a minor requires protection, it is the obligation of the authorities to protect the interest of the minor. (iii) In a case between Arnapurna Dibya Vrs Anadi reported in 45 (1977) CLT 461 (B.R.), the lands belong to deity of which a widow was the Marfatdar. Held for purposes of determination of the resumable and non-resumable land sit is immaterial whether the marfatdar is a widow or a person under disability. It is the deity and not the marfatdar who is the land lord. (iv) In a case between Niranjan Mekap and others Vrs. State of Orissa and others reported in 2015(I) CLR 998 (at Para 34), deity being a perpetual minor, it is the primary duty of the State and its authorities to protect the interest of the deity. In case of any allegation of failure on the part of the State and its instrumentalities Page 10 of 13 {{ 11 }} to do so, finally, the Court has to protect the interest of the deity, who is a perpetual minor. 19. The defendants have not pleaded in their pleadings (written statement) projecting them as the Bhag tenants of the suit properties under its landlord i.e. plaintiff-Deity, rather they (defendants) have claimed their ownership in their written statement over the suit properties taking their stands in their pleadings that, their predecessors i.e. Raghu Sethi and Brundaban Sethi were originally cultivating the suit properties as raiyats having their occupancy rights in the suit properties and after their death, the occupancy rights of their predecessors i.e. Raghu Sethi and Brundaban Sethi devolved upon them (defendants), as they (defendants) are their successors. For which, according to the pleadings of the defendants, they (defendants) are the occupancy raiyats of the suit properties and they (defendants) are the owners of the same and as such, they (defendants) are possessing the suit properties as owners. 20. When, it is the concurrent findings of both the Courts i.e. Trial Court and First Appellate Court on facts in their respective judgments and decrees after thorough appreciation of the pleadings as well as oral and documentary evidence of the parties that, the plaintiff-Deity is the owner of the suit properties and when the defendants have not claimed/pleaded in their pleadings (written statement) that, they are the Bhag tenants of the suit properties under the plaintiff-Deity, then at this juncture, the Page 11 of 13 {{ 12 }} findings/observations made by the First Appellate Court in its judgment and decree reversing the findings and observations of the Trial Court and held that, the defendants are not the Bhag tenants of the suit properties under the plaintiff-Deity. So, it cannot be held that, the aforesaid findings and observations made by the First Appellate Court reversing the findings and observations made by the Trial Court are unreasonable. 21. As per the discussions and observations made above, when it is held that, the plaintiff-Deity is the owner of the suit properties, for which, the possession of the plaintiff-Deity over the suit properties is not unlawful. Therefore, the suit for injunction simpliciter filed by the plaintiff-Deity against the defendants cannot be held as not maintainable under law. For which, in other words, it can be held that, the suit for injunction filed by the plaintiff-Deity against the defendants is maintainable under law. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the decision between Rekhaben Vrs Patel Baldev Amrutlal reported in 2023 (3) CCC 2 (Gujarat), once the possession is lawful, suit for injunction simpliciter is maintainable. 22. When, as per the discussions and observations made above, it is held that, the suit for injunction simpliciter filed by the plaintiff-Deity against the defendants in respect of the suit properties is maintainable Page 12 of 13 {{ 13 }} under law and when the findings and observations made by the First Appellate Court in its judgment and decree are not unreasonable, then at this juncture, the question of interfering with the same through this second appeal filed by the appellants (defendants) does not arise. Therefore, there is no merit in the appeal of the appellants (defendants). The same must fail. 23. In result, the second appeal filed by the appellants (defendants) is dismissed on merit, but without cost. The judgment and decree passed by the First Appellate Court in T.A. No.105 of 1977 (82/1980) setting aside the judgment and decree passed by the Trial Court in T.S. No.115 of 1973 is confirmed. Orissa High Court, Cuttack. 03.04.2025//Utkalika Nayak// Junior Stenographer (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Apr-2025 15:32:47 Page 13 of 13