The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.186 of 1999 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Kanhu Majhi …. Appellant -versus- Kartik Dehury and others ..... Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. P. R. Barik, Advocate. For Respondents- None CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :30.04.2024 :: Date of Judgment :16.05.2024 A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment. 2. The appellant of this 2nd appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.19 of 1994 and he was the respondent before the First Appellate Court in the First Appeal vide T.A. No.6 of 1996.
Legal Reasoning
The respondents of this 2nd appeal were the defendants before the Trial Court in the suit vide T.S. No.19 of 1994 and they were the Page 1 of 15 {{ 2 }} appellants before the First Appellate Court in the First Appeal vide T.A. No.6 of 1996. 3. The suit of the plaintiff (appellant in this 2nd appeal) before the Trial Court vide T.S. No.19 of 1994 against the defendants (respondents in this 2nd appeal) was a suit for declaration of title. 4. The suit properties are Hal Plot No.418/508 under Hal Khata No.12 in Mouza Bada-Dangua under Khunta Police Station in the District of Mayurbhanj described in Schedule ‘B’ of the plaint. As per plaintiff’s case, the suit properties were the properties of the deity Gadanaikani Thakurani of village Bada-Dangua. One Hadibandhu Dehury was the marfatdar of the said deity Gadanaikani Thakurani of village Bada-Dangua. As per the Gazette Notification No.11680 dated 23.02.1965, the suit properties belonging to Gadanaikani Thakurani was treated as rayati and Hasilat land by the successor of Hadibandhu Dehury i.e. Sanatan Dehury. Sanatan Dehury was the only son of Hadibandhu Dehury. The defendants are the successors of Sanatan Dehury. Sanatan Dehury sold the Schedule ‘A’ (1) and ‘A’ (2) suit properties i.e. Ac.0.03 decimals and Ac.0.35 decimals to the plaintiff by executing and registering sale deed Nos.2417 & 2347 dated 03.12.1980 & 20.11.1982 respectively and Page 2 of 15 {{ 3 }} delivered possession thereof. After the execution and registration of the sale deeds from Sanatan Dehury, the plaintiff became the exclusive owner of the same and possessed the suit properties since the date of his purchase. But, in the Hal settlement, the R.o.R. of the suit properties was erroneously published in the name of the deity Gadanaikani Thakurani Bije Nijagaon, Bada-Dangua indicating the names of the defendants as the marfatdars of the deity and noting the possession of the plaintiff in the remarks column of suit Hal Plot No.418/508 as an illegal purchaser thereof. Thereafter, the plaintiff filed Mutation Case No.118/94 before the Tahasildar, Udala to record his name in respect of the suit properties, to which, the defendants objected stating that, they are not at all aware about the execution of any sale deed by their predecessor Sanatan Dehury in favour of the plaintiff in respect of the suit properties. The said sale deeds in question are not genuine and lawful sale deeds. After hearing from both the sides, the Tahasildar, Udala allowed the mutation case filed by the plaintiff and passed an order for recording the suit properties in the name of the plaintiff. But, when in the mutation case, the defendants questioned the genuineness of the sale deeds as well as the title of the plaintiff over the suit properties, then he (plaintiff) Page 3 of 15 {{ 4 }} approached the Civil Court by filing the suit vide T.S. No.19 of 1994 being the sole plaintiff against the defendants praying for declaration of his right and title over the suit properties by virtue of the sale deeds in his favour vide R.S.D. Nos.2417 & 2347 dated 03.12.1980 & 20.11.1982 respectively along with other relief(s), to which, he is entitled for. 5. Having been noticed from the Trial Court in the suit vide T.S. No.19 of 1994 filed by the plaintiff, the defendants contested the same by filing their joint written statement denying the averments made by the plaintiff in his plaint taking their stands specifically therein that, they (defendants) are very simple, innocent, illiterate and poor persons. Sanatan Dehury, the so called vendor of the sale deeds in favour of the plaintiff, was the father of the defendant Nos.1 to 7 and he (Sanatan Dehury) was the marfatdar of the deity Gadanaikani Thakurani of village Bada-Dangua. The said Sanatan Dehury was cultivating the suit properties in lieu of sevapuja of the deity Gadanaikani Thakurani. But, the plaintiff at the instance of Dasarathi Majhi of their village has managed to create the fake sale deeds Nos.2417 & 2347 dated 03.12.1980 & 20.11.1982 respectively in respect of the suit properties in his favour. But, in fact, they (defendants) being the successors of Sanatan Dehury, they are possessing the suit properties on behalf of the deity as the Page 4 of 15 {{ 5 }} marfatdars of the deity Gadanaikani Thakurani in lieu of their sevapuja to the deity Gadanaikani Thakurani. For which, the suit properties were correctly recorded in the Hal settlement in the name of the deity Gadanaikani Thakurani under Hal Khata No.12 Plot No.418/508. But, the possession of the said Hal suit plot No.418/508 has been illegally/erroneously noted in the remarks column thereof in favour of the plaintiff. In fact, the plaintiff has no right, title, interest and possession over the suit properties. Because, the sale deed Nos.2417 & 2347 dated 03.12.1980 & 20.11.1982 respectively in question in favour of the plaintiff in respect of the suit properties is a fraudulent, illegal and void sale deeds and they (defendants) have rightly questioned the genuineness of the sale deeds before the Tahasildar, Udala. As the plaintiff has no right, title, interest and possession over the suit properties, for which, the suit of the plaintiff is liable to be dismissed with cost. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 8 (eight) numbers of issues were framed by the Trial Court in the suit vide T.S. No.19 of 1994 and the said issues are:- Page 5 of 15 {{ 6 }} I S S U E S Is the suit maintainable in the present form? Is there any cause of action to bring the suit? Is the suit bad for non-joinder of necessary parties? Is the suit barred by law of limitation? Has the plaintiff any right, title, interest and possession (i) (ii) (iii) (iv) (v) over the suit land by the operation of the sale deed? (vi) possession? (vii) Whether the plaintiff obtained the sale deed on fraud? (viii) To what relief or reliefs the plaintiff is entitled to? Has the defendants perfected title by way of adverse 7. In order to substantiate the aforesaid relief sought for by the plaintiff against the defendants in the suit vide T.S. No.19 of 1994, he (plaintiff) examined three numbers of witnesses from his side including him as P.W.2 and relied upon the documents vide Exts.1 to 3 on his behalf. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendants examined 2 (two) witnesses on their behalf including defendant No.2 as D.W.2 and exhibited three documents from their side vide Exts.A to C. 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 the issues in favour of the plaintiff and against the defendants, the Trial Court decreed the suit of the plaintiff vide T.S. Page 6 of 15 {{ 7 }} No.19 of 1994 on contest against the defendants with cost as per its judgment and decree dated 29.08.1996 and 11.09.1996 respectively and declared the right, title and interest of the plaintiff over the suit properties assigning the reasons that, the plaintiff is the exclusive owner of the suit properties by purchasing the same from the predecessor of the defendants i.e. from Sanatan Dehury, who was the marfatdar of the deity Gadanaikani Thakurani. For which, neither the defendants nor the deity Gadanaikani Thakurani has any right, title and interest over the suit properties. 9. On being dissatisfied with the aforesaid judgment and decree dated 29.08.1996 and 11.09.1996 respectively passed by the Trial Court vide T.S. No.19 of 1994 in favour of the plaintiff and against the defendants, they (defendants) challenged the same by preferring the First Appeal vide T.A. No.6 of 1996 being the appellants against the plaintiff by arraying him (plaintiff) as respondent. 10. After hearing from both the sides, the First Appellate Court allowed that First Appeal vide T.A. No.6 of 1996 of the defendants and set aside the judgment and decree dated 29.08.1996 and 11.09.1996 respectively passed by the Trial Court in T.S. No.19 of 1994 in favour of the plaintiff and dismissed that suit vide T.S. No.19 of 1994 of the Page 7 of 15 {{ 8 }} plaintiff as per the judgment and decree dated 10.02.1999 and 24.02.1999 respectively assigning the reasons that, the suit properties belong to the deity Gadanaikani Thakurani of village Bada-Dangua and as the deity has not been arrayed as a party to the suit being the owner of the suit properties, the suit of the plaintiff is bad for non-joinder of necessary party and the suit of the plaintiff is also barred by limitation, for which, the plaintiff is not entitled for the decree of declaration of his title over the suit properties. Because, the plaintiff cannot be the owner of the suit properties on the basis of sale deeds vide sale deed Nos. 2417 & 2347 dated 03.12.1980 & 20.11.1982 respectively executed by Sanatan Dehury in his favour in respect of the properties of the deity. 11. On being aggrieved with the aforesaid judgment and decree dated 10.02.1999 and 24.02.1999 respectively passed by the First Appellate Court in T.A. No.6 of 1996 dismissing the suit of the plaintiff vide T.S. No.19 of 1994 passed by the Trial Court after setting aside the judgment and decree of that suit, he (plaintiff) challenged the same by preferring this 2nd appeal being the appellant against the defendants by arraying them (defendants) as respondents. 12. This 2nd appeal was admitted on formulation of the following substantial questions of law i.e.:- Page 8 of 15 {{ 9 }} (i) Whether the learned lower Appellate Court is legally justified in dismissing the plaintiff’s suit, for non-joinder and mis-joinder of parties, when necessary and proper parties are on record? (ii) Whether the finding of the learned Appellate Court to the effect that the suit is barred by limitation, as it has not been brought within three years from the publication of record of right i.e. 1987 when plaintiff’s suit is for declaration of title basing upon the registered sale deed dated 20.11.1982 which disputed by the defendants in the year 1994? 13. I have already heard from the learned counsel for the appellant (plaintiff) only, as none appeared from the side of the respondents (defendants) to participate in the hearing of the 2nd appeal. 14. As both the above formulated substantial questions of law are interlinked having ample nexus/connection with the law connected in this 2nd appeal, then both the formulated substantial questions of law are taken up analogously for their discussion. It is the undisputed case of the parties that, the suit properties were the properties of the village deity Gadanaikani Thakurani of suit village Bada-Dangua. The vendor of the plaintiff in the sale deed in question vide sale deed Nos.2417 & 2347 dated 03.12.1980 & 20.11.1982 respectively in favour of the plaintiff in respect of the suit properties i.e. Sanatan Dehury (predecessor of the defendants) was the marfatdar of the village deity Gadanaikani Thakurani. Page 9 of 15 {{ 10 }} It is forthcoming from the Hal R.o.R. of the suit properties vide Khata No.12 that, the Bijesthali (Asthan) of the recorded owner of the suit properties i.e. deity Gadanaikani Thakurani is at village Bada- Dangua. The above materials are clearly and unambiguously going to show that, Gadanaikani Thakurani is the village deity of village Bada-Dangua. The Hal Khata No.12 has been exclusively published/recorded in the name of the village deity Gadanaikani Thakurani of village Bada-Dangua indicting the name of the deity Gadanaikani Thakurani as the owner of the suit properties. Though, the plaintiff has filed the suit for declaration of his title, but the plaintiff has not impleaded the recorded owner of the suit properties i.e. Gadanaikani Thakurani as a party to the suit. The law regarding the non-impleation of the deity (who is the recorded owner of the suit properties in the R.o.R.) in a suit for declaration like the suit at hand vide T.S. No.19 of 1994 has already been clarified in the ratio of the following decisions of Hon’ble Courts:-
Legal Reasoning
(i) 2018 (I) CLR 572—State of Orissa and another Vrs. Sukuru Polai and others—Paragraph-8—CPC, 1908— Section 9—Deities’ property—who will be a party in the suit—Suit property has been recorded in the name of the deity Sri Sri Kasi Viswanath Mohaprabhu. The deity is a perpetual minor. In absence of the deity, the suit is not maintainable. Page 10 of 15 {{ 11 }} (ii) 2018 (I) CLR 576— Ishwar Samal Vrs. Keshab Samal and others—Odisha Hindu Religious Endowments Act, 1951—Section indexed institution as public Religious Endowment—Suit for partition without Endowment impleading Commissioner—Fatal. Properties—An either Math 69(1)—Math or Section 69 (1) of the Act postulates that, whenever the trustee or any religious institution is sued 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. (Paragraph 10) 15. Here in this suit at hand, when Hal R.o.R. of the suit properties has been published in the name of the deity Gadanaikani Thakurani and when the deity Gadanaikani Thakurani is a public deity being the deity of village Bada-Dangua and when the deity Gadanaikani Thakurani has not been impleaded as a party and when as per law, the deity is a necessary party to the suit for declaration of title filed by the plaintiff and when the Trial Court has not given any notice to the Commissioner of Endowment before the commencement of the hearing of the suit, then at this juncture, by applying the principles of law enunciated in the ratio of the aforesaid decisions, the suit of the plaintiff vide T.S. No.19 of 1994 is not entertainable under law. Page 11 of 15 {{ 12 }} 16. That apart, when it is the admitted case of the parties, as per their pleadings that, the suit properties were the properties of the deity Gadanaikani Thakurani and Gadanaikani Thakurani is their village deity and when the sale deed Nos.2417 & 2347 dated 03.12.1980 & 20.11.1982 respectively have been executed by the predecessor of the defendants i.e. Sanatan Dehury, who was the marfatdar of the deity, in his individual capacity without taking any permission under Section 19 of the Hindu Religious Endowment Act, 1951 for alienation of the suit properties for any benefit of the deity, then at this juncture, it cannot at all be held that, the said alienation of the suit properties made by the marfatdar of the deity i.e. Sanatan Dehury in his individual capacity to the plaintiff is lawful. On that aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the following decisions:- (i) 1993 (I) OLR 249—Biswanath Chowdhury and others Vrs. Shyam Sundar Chowdhury and after him Narayan Chowdhury and others—(Paragraph 11)—A Sebait or a Marfatdar is a trustee of the religious institution, the properties belonging to the institution vests in the deity, who is a juristic person and not on the Marfatdar or Sebait. (ii) 110 (2010) CLT 574—Sri Mangala Thakurani Bije; Kakatpur & Ors. Vrs. State of Orissa & Ors.— (Para 5)—Deity—Marfatdar—Land—Land belong to the Deity & not to the Marfatdars. Page 12 of 15 {{ 13 }} (iii) 2018 (I) CLR 1228—Sairendri Devi and others Vrs. Kamuna @ Kamrunisha and Others—(Paras 10 & 11)—Odisha Hindu Religious Endowments Act, 1951— Section 19(1)— Marfatdar can’t alienate property belonging to Deity without permission under Section 19 of the Act. (iv) 2014 (I) OLR 602—Chittaranjan Sahoo Vrs. Collector, Khurda and others—(Paras 20 to 22)— Deity—Lands belonging to the deity cannot be subjected to alienation in violation of statutory requirement. (v) 2015 (II) OLR 311—Niranjan Mekap and others Vrs. State of Orissa and others—(Paras 31 & 34)— Deity—Deity being a perpetual minor, it is the primary duty of the State and its authorities to protect interest of the deity—In case of any allegation of failure on the part of the State and its instrumentalities to do so, finally, the Court has to protect the interest of the deity, who is a perpetual minor. (vi) 2022 (I) CLR 198 (DB)—Priyanath Das Vrs. Smt. Kiranabala Das and Others—(Para 24)—CPC 1908— Religious Endowments—Suit for partition of properties recorded in the name of the deity—Trial Court found the endowment to be real—In appeal the learned single Judge held the property to be not real debottar—During the pendency of the A.H.O., a report was called for from the Commissioner of Endowments in regard to the deity and its properties. The Commissioner of Endowments reported that all the religious institutions are deemed to be public until declared as private under Section 41 of the Odisha Hindu Religious Endowments Act and that in the suit for partition notice was required to be served on the Commissioner in the absence of any declaration under Section 41 of the Act—Held, in view of the report of the Commissioner of Endowment, the matter remanded to the Trial Court. In view of the propositions of law enunciated in the ratio of the decisions referred to supra, when the suit properties are the properties of the village deity Gadanaikani Thakurani, which is a public deity and the Page 13 of 15 {{ 14 }} marfatdar of the deity i.e. Sanatan Dehury (vendor of the plaintiff) had no right to alienate the suit properties without prior permission under Section 19 of the Odisha Hindu Religious Endowment Act, 1951, then at this juncture, the alienation made by the predecessor of the defendants i.e. Sanatan Dehury to the suit properties through R.S.D. Nos.2417 & 2347 dated 03.12.1980 & 20.11.1982 respectively in favour the plaintiff are in violation of the statutory requirements of law, for which, the ownership and possession of the deity Gadanaikani Thakurani over the suit properties has not been lawfully transferred to the plaintiff through the said sale deed Nos.2417 & 2347 dated 03.12.1980 & 20.11.1982 vide Exts.1 & 2 respectively. So, the plaintiff is not entitled for the decree for declaration of his title over the suit properties. Therefore, the judgment and decree passed by the First Appellate Court in T.A. No.6 of 1996 in dismissing the suit of the plaintiff vide T.S. No.19 of 1994 after setting aside the judgment and decree of the Trial Court cannot be held as erroneous. For which, the question of interfering with the same through this 2nd appeal filed by the appellant (plaintiff) does not arise. Page 14 of 15 {{ 15 }} Therefore, there is no merit in the 2nd appeal filed by the appellant (plaintiff). The same must fail. 17. In result, the 2nd appeal filed by the appellant (plaintiff) is dismissed on merit, but without cost. The judgment and decree passed by the First Appellate Court in T.A. No.6 of 1996 in dismissing the suit of the plaintiff after setting aside the judgment and decree passed by the Trial Court in T.S. No.19 of 1994 are confirmed. Orissa High Court, Cuttack. 16th May, 2024//Utkalika Nayak// Junior Stenographer (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-May-2024 11:14:35 Page 15 of 15