Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK SECOND APPEAL NO.233 OF 1993 From the judgment and decree dated 27.7.1993 and 7.8.1993 respectively passed by Shri G.N. Panda, Second Additional District Judge, Bhubaneswar in T.A. No.82/3 of 1990/88 confirming the judgment and decree dated 27.1.1988 and 11.2.1988 respectively passed by Sri S.K. Pradhan, Subordinate Judge, Bhubaneswar in O.S. No.163 of 1982 (I). __________ Binod Behari Panda (dead) after him, his L.Rs. Balamani Panda and others …… Appellants V e r s u s Mrugeswar Dev, Bije at village Ogalapada & another … … Respondents For Appellants : M/s. A. Mukherji, G. Mukherji, D.D.Mohanty & P. Mukherji For Respondents : M/s. C.A. Rao, S.K. Purohit, P.S. Panda, S.C. Dash, S.K. Behera & P.K. Sahoo P R E S E N T : THE HONOURABLE MR. JUSTICE RAGHUBIR DASH Date of hearing : 18.9.2013 Date of judgment : 10.10.2013 R. DASH, J. This Second Appeal is against the judgment and decree dated 27.7.1993 and 7.8.1993, respectively, passed by the learned Second Additional District Judge, Bhubaneswar in T.A. No.82/3 of 1990/88 confirming the judgment and decree dated 27.1.1988 and 11.2.1988, respectively, passed by the learned Subordinate Judge, Bhubaneswar in O.S. No.163 of 1982 (I). 2 2. The Respondent Nos.1 and 2 are the plaintiffs and the deceased-appellant No.1, appellant No.2 and proforma respondent No.3 are the defendants in the trial Court. Respondent No.1/plaintiff No.1 is a public deity represented by its Managing Trustee-
Facts
Respondent No.2/ plaintiff No.2. The case of the plaintiffs is that the plaint scheduled landed property was originally owned by one Narayanabandhu Maharana who by a registered deed of gift bearing No.2503 dated 29.5.1923 endowed the same in favour of the deity with one Gangadhar Panda as the Sebayat/Marfatdar of the deity. Subsequently, in the year 1962 the Managing Trustee of the deity got delivery of possession of the land in a proceeding under section 68 of the Orissa Hindu Religious Endowments Act, 1951 (for short, the “Act”). The Managing Trustee used to get the land cultivated by hired labour and the usufructs of the property got to be used for the Seba Puja of the deity. When the matter stood thus, on 25.10.1978, the defendants claiming themselves to be the Marfatdars of the deity forcibly cut and removed standing paddy crop from a portion of the land for which a criminal case bearing I.C.C No.160 of 1978 was initiated in the court of the learned S.D.J.M., Bhubaneswar. As there was dispute with regard to possession over the suit properties the police, apprehending serious breach of peace, initiated a proceeding under section 144, Cr.P.C. which was subsequently converted into a proceeding under section 145 Cr.P.C., in which the learned Executive 3 Magistrate, Bhubaneswar by his order dated 18.8.1980 held the defendants to be in possession of the property. Because of such an erroneous order, a cloud with regard to title and possession of the plaintiff deity in respect of the suit land got created. Therefore, the suit was filed for declaration of title and recovery of possession. 3. Defendant No.2 filed written statement separately admitting the plaintiffs’ claim that under an order of the Asst. Endowment Commissioner, Bhubaneswar possession of the suit land was delivered to the then Managing Trustee of the deity and since then the non-hereditary trustees have been in cultivating possession of all the immovable properties of the deity including the suit land. 4. Defendant No.1 and Defendant No. 3 in their joint written Statement have contended that the original owner of the suit land had gifted the property to Gangadhar Panda with condition that the said Gangadhar Panda and his successors would offer “Pitha and Khiri” Bhog to the deity and in lieu thereof continue to remain in possession of the land on hereditary basis. According to these defendants delivery of possession in respect of the suit land was not given to the Managing Trustee of the deity. The suit land has all along been in possession of the defendants on hereditary basis. Their further claim is that in a proceeding under section 41 of the Act which ended in a compromise, 4 it was decided that the defendants would continue to remain in possession of the suit land on hereditary basis. Despite of such compromise, the plaintiffs have filed a series of litigations against the defendants but being unsuccessful in all those litigations, they have filed the present suit only to harass the defendants. 5. On the pleadings of the parties, the learned trial Court framed the following issues:- 1. Is the suit maintainable ? 2. Is there any cause of action to file the suit ? 3. Whether any proceeding U/s 41 of the O.H.R.E. Act was filed by the defendants against the trustees which ended in compromise and it was decided that the defendants would possess the suit land on hereditary basis ? 4. Whether the defendants are all along in possession of the suit property till to-day ? 5. Whether the plaintiffs have got any right, title over the suit land ? 6. To what relief, if any, is the plaintiff entitled ? 6. After considering the pleadings and evidence on the issues, the trial court decreed the suit holding that possession of the suit property was delivered to the Managing Trustee of the deity as per the order passed in the proceeding under section 68 of the Act but, subsequently, the defendants trespassed into the land in 1978 and thereafter continued to remain in unlawful possession of the suit land. The defence plea that the proceeding under section 41 of the Act had ended in a compromise, agreeing that the defendants would 5 remain in possession of the land, was held to be not proved. The suit was decreed declaring the right, title and interest of the deity and directing the defendants to deliver possession of the suit land to the plaintiffs. 7. Learned lower appellate court concurred with the findings of the learned trial court and confirmed the impugned judgment and decree. 8. The Second Appeal has been admitted on the following substantial question of law: Whether the Courts below erred in decreeing the suit ignoring the Consolidation Record-of-right issued in favour of the defendants-appellants ? Here it is worth mentioning that after filing of the suit and during its pendency, Consolidation ROR in respect of the suit land (Ext.4) was finally published in which the suit land got recorded in the name of the deity, Marfat its Trust Board, with a note in the remarks column that the successors of late Gadadhar Panda are in possession on hereditary basis. While adducing evidence, the plaintiffs exhibited the R.O.R. There is neither any pleadings nor any issue on the Consolidation record-of-right. It appears, no contention was raised before the learned trial Court on the entries made in the 6 R.O.R. However, in the First Appeal the defendants-appellants contended that the note of possession in their favour having not been challenged before the appellate/ revisional authority under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Lands Act, 1972 (for short, ‘the Consolidation Act’), the trial court had no jurisdiction to entertain the suit. Learned lower appellate court in its judgment made a reference to that contention as well as the reply of the other side that the note of possession in the R.O.R. is meaningless. But it did not record its own findings on that contention. 9. Parties are not in dispute on the following matters: (1) The deity is a public deity and the suit lands are endowed to the deity (In the W.S. the defendants claim that the suit land was gifted to Gadadhar Panda. But at the time of adducing evidence they have admitted that it belongs to the deity). (2) While the defendants were in possession of the suit land, in the year 1961-62 a proceeding under Section 68 of the Act bearing O.A. No.123/61-62 was initiated at the instance of the Managing Trustee of the deity for delivery of possession of the temple as well as the properties of the deity including the suit land and in that proceeding final order was passed on 17.11.1962 by the then Assistant Endowment Commissioner 7 allowing the prayer. Writ of delivery of possession was issued under order marked Ext.1. That order was never challenged in any higher forum. Thus, it was allowed to reach its finality. (3) Another proceeding under Section 41 of the Act was initiated before the learned Assistant Endowment Commissioner registered as O.A. No.42 of 1962-63 at the instance of the defendants-appellants and some others but that proceeding stood dismissed for default. A Misc. Case was filed for its restoration but that was also dismissed for default of the parties. Thereafter, no attempt was made by the parties to that proceeding for its restoration and disposal on merit. (4) In the year 1978 dispute between the parties over possession of the suit land arose, criminal case and counter case were filed and a proceeding under Section 144 Cr.P.C. was initiated which subsequently got converted into one under Section 145 Cr.P.C. and in that proceeding the defendants’ possession over the suit land was confirmed. (5) At the time of filing of the suit defendants were in possession of the suit land. (6) During pendency of the suit, Consolidation R.O.R. (Ext.4) was finally published recording the land in the name of the deity 8 with note of possession on hereditary basis made in favour of the appellants. 10. Thus, the deity’s right, title and interest in the suit land is not in dispute. However, the defendants claim that they are entitled to remain in possession of the suit land on hereditary basis till they and their successors-in-interest continue to offer “Khiri Pitha Bhog” to the deity in terms of their ancestor’s registered undertaking (Ext.3). But that right was never established in a proceeding under Section 41 of the Act. As it appears, the defendants and some others had initiated a proceeding under Section 41 of the Act but that was dismissed for default. The defendants have attempted to prove their plea that in the said S.41 proceeding, the parties entered into a compromise (Ext.B) and under the terms of the compromise the defendants’ right to continue in possession has been decided. Ext.9 is the certified copy of the entire of the orders passed in the proceeding under Section 41 of the Act. The order sheets do not reflect that this compromise was accepted by the Assistant Endowment Commissioner and that the terms of the compromise were recorded and the dispute between the parties to that proceeding was decided in terms of the compromise. It is forthcoming from the orders that on 18.1.1964 the proceeding was dismissed for default and some time thereafter a petition was filed for its restoration and to “record the petition of compromise”. On that petition, a Misc. Case was registered 9 and after few adjournments, the Misc. Case also was dismissed for default of the parties. Thus, the compromise, if any, did not get the approval either of the Assistant Endowment Commissioner or the Commissioner of Endowments. The terms of the compromise were never recorded in the said proceeding and the dispute was not decided in terms of the compromise. Therefore, the learned Courts below have rightly refused to accept the compromise petition. 11. In the proceeding under Section 68 of the Act, order was passed by the Assistant Endowment Commissioner (Ext.1) directing delivery of possession of the case land and other properties of the deity to the non-hereditary trustees appointed under Section 27 of the Act. To prove the factum of delivery of possession, plaintiffs exhibited the reports of the Inspector of Endowment, Bhadrak to whom the writ of delivery of possession was issued by the Assistant Endowment Commissioner. It is urged before the learned Courts below, so also before this Court, that the factum of actual delivery of possession could not be proved by the plaintiffs mainly on the ground that the Inspector of Endowments who was still in service and who could have been brought to the witness box to prove his reports, was withheld by the plaintiffs. Learned lower Courts accepted the reports of the Inspector along with other evidences on the factum of delivery of possession and concluded that actual delivery of possession had, in fact, taken place. 10 12. Here, it may be stated that in their W.S. the defendants- appellants have made no mention about the proceeding under Section 68 of the Act. They have not taken the specific plea that actual delivery of possession did not take place. However, their contention is that they were all along in possession of the suit land. It is true that the Inspector of Endowment could have been brought to the witness box to adduce evidence on the actual delivery of possession. But no authority is cited in support of the contention that to prove actual delivery of possession, examination of the Inspector of Endowment was sine qua non. In this case P.W.2 has claimed that the Inspector took possession from the defendants and put the Managing Trustee in possession. He claims that he is one of the signatories to the report on the delivery of possession (Ext.2). No cross-examination was taken up on this assertion except a suggestion that no such delivery of possession took place. It is not disputed that P.W.2 is a signatory to Ext.2. So, non-examination of the Inspector of Endowment was rightly ignored by the learned lower Courts. That apart, the defendants themselves were to be dispossessed from the deity’s agricultural land. So, symbolical delivery of possession is good enough and after such symbolical delivery of possession, their continuance in possession was that of a trespasser. Therefore, the findings of the learned Courts below that the defendants are rank trespassers is sustainable. 11 13. A careful perusal of the written statement would make it clear that the main plank of defendants’ case is their acquiring right to possess the suit land in terms of the compromise “effected long back by the ancestors of both the parties of the village which has been proved as exhibit-I in a proceeding under Section 41 of the O.H.R.E. Act and thereby the right of defendant to the property has been well established which is beyond challenge by anybody much less, by the plaintiff …” (Para 12 of the W.S.). That compromise is Ext.B about which discussion has been made in para-10 of this judgment. It appears, the defendants remained rest content with the mere filing of the compromise petition before the Assistant Endowment Commissioner in the proceeding under Section 41 of the Act. Without being careful to see that the proceeding got restored to file and the terms of the compromise recorded, the defendants remained under an impression that by dint of the compromise they acquired right to possess the suit land on hereditary basis. But the learned Courts below have rightly rejected this plea of the defendants on the ground that no compromise was recorded in O.A. No.42 of 62-63. 14. Now, let it be examined as to whether the learned Courts below went wrong in decreeing the suit ignoring the Consolidation R.O.R. As already stated, the remarks column of the R.O.R. contains an entry to the effect that the defendants are in possession of the suit 12 land on hereditary basis. The fact that they are in possession of the suit land is not in dispute. The suit land has been endowed for the purpose of the deity and under an order passed in a proceeding under Section 68 of the Act the trustees of the deity were directed to be put in possession which was never challenged by the defendants. Consolidation authorities cannot decide the defendants’ right to possess any endowed property. In Sundarmani Bewa and another v. Dasarath Parida (dead) and after him Labanya Dei and others, 65 (1988) C.L.T. 440 (F.B.), a Full Bench decision of this Court, their Lordships have observed that recording title to the property with one person and possession with another does not serve the intent and purpose of the Consolidation Act and, therefore, ought not to be undertaken by the Consolidation authorities under that Act. The consolidation authorities are therefore not vested with the power to note possession with a party other than the person recorded as the owner thereof. Consequently, the entry in the Consolidation R.O.R. which is in favour of the appellants is rightly argued to be meaningless. Therefore, the learned Courts below cannot be said to have erred in decreeing the suit ignoring the Consolidation R.O.R. 15.
Legal Reasoning
for the purpose of the deity over which there is no dispute between the parties. It is the parties who, in their respective pleadings, have claimed that under Ext.3 the suit land was gifted by the original owner. The plaintiffs have pleaded that the suit land was gifted to the deity whereas defendants-appellants asserted that it was gifted to late Damodar Panda. Ext.3 is not a gift deed and it was never executed by the original owner Narayanbandhu Moharana. It is an undertaking in writing made by late Gadadhar Panda to offer Khiri Pitha Bhog to the deity to enable himself and his successors-in-interest to possess the land on hereditary basis. Taking note of such an undertaking, the learned Courts below have decided the matter. Therefore, this cannot be a substantial question of law. 16. Further submission made by the learned counsel for the appellants is that in view of Section 73 (1) of the Act, read with Section 9 of the C.P.C., the suit is not maintainable. It is argued that in the absence of any proof that in the proceeding under Section 41 of the Act the defendants had admitted the suit property to be of religious endowment, the plaintiffs cannot claim that the suit is covered by Section 73 (2) of the Act. That apart, it is submitted, the 14 relief sought for by the plaintiffs being available under Section 41(d) of the Act, the suit is a bar even under Section 73 (1) of the Act. The above point of law was raised before the First Appellate Court, but relying on the following observations of a decision of this Court in Gadadhar Mohapatra and another v. Puna Bewa and others, AIR 1971 Orissa 155, the learned lower Court rejected the contention:- “ The scope of Section 41 (1) (e) of the Hindu Religious Endowments Act, according to me, cannot cover the present dispute. It has been laid down upon good authority that it is the stand taken in the plaint that really would decide the maintainability of an action. In the present case it has been clearly stated that defendants 1 and 2 were trespassers having no right or interest in the property. The contention raised by defendants 1 and 2 that they had a share has been clearly negatived as the courts have found that defendants 1 and 2 had failed to prove the partition as alleged, and have determined their character to be that of encroachers. Therefore, taking either view it must be held that it was not a case where a dispute squarely within the purview of Section 41 (1) (e) of Orissa Act 2 of 1952 was raised for determination. On the aforesaid analysis the conclusion must follow that the civil court has jurisdiction.” Plaintiffs have filed the suit for declaration of title and delivery of possession. It is not in dispute that the suit property has been endowed for the deity. The actual dispute is over possession of the property. Under Section 73 of the Act, a trustee appointed under the Act can institute a suit to enforce property rights of the religious institution. In a Full Bench decision of this Court (Prasanna Kumar 15 Praharaj and another v. Sri Jagannath Jew and others) ‘OLR’ Full Bench (1971) 174, Sub-Section (2) of Section 73 of the Act has been declared ultra vires. However, it is observed that suits to enforce the three types of rights enumerated in Sub-Section (2) of Section 73 are matters covered by Sub-Section (1) of Section 73 of the Act. Since it is decided by this Court in Gadadhar Mohapatra’s case (supra) that suit for ejectment of the defendants from property belonging to deity is not covered under Section 41 (1) of the Act and jurisdiction of the Civil Court is not barred by Section 73 of the Act, the question raised on the maintainability of the suit is also not considered to be a substantial question of law. 17.
Arguments
In course of argument learned counsel for the appellants submitted that other substantial questions of law exist which could have been framed at the time of admission of the Second Appeal. It is pointed out that the learned Courts below misconstrued the 13 document marked Ext.3 as a deed of gift. But this point need not be thrashed out inasmuch as the learned Courts below have not based their findings on the alleged gift. They have proceeded under the assumption that the property referred to in Ext.3 has been endowed
Decision
In the result, the Second Appeal fails and the same is, accordingly, dismissed but in the facts and circumstances without cost. ………………………… R. Dash, J. Orissa High Court, Cuttack The 10th October, 2013/A.K.Kar, Secretary