The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.44 of 2018 Sri Satyanarayan Dev Bije Badadeula, Puri & Another …. Appellants Mr. Bibekananda Bhuyan, Advocate -Versus- Sri Satyanarayan Dev Bije Badadeula, Puri & Others …. Respondents Mr. Tushar Kumar Mishra, Advocate CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:26.06.2023 1. Instant appeal in terms of Section 100 of the Civil Procedure Code, 1948 (hearing after referred to as ‘the Code’) read with Order XLII Rule 1 of the Code is at the behest of the appellants assailing the correctness, legality and judicial propriety of the impugned judgment and decree dated 23rd October, 2017 promulgated in Title Appeal No.77 of 1999 by the learned District Judge, Puri, whereby, the decisions and findings vis-à-vis the subject matter in dispute corresponding to TS No.126 of 1997 of the learned Civil Judge (JD), Puri was partly set aside which is in respect of the rights of the parties to perform Seva Puja of Sri Satyanarayan Dev Bije, Badadeula on the grounds inter alia that the same is without judicial application of mind and hence, liable to be set aside in the interest of justice. 2. The respondent Nos. 1, 2; father of respondent Nos.3 to 6; respondent No.7, power of attorney holder of father of respondent Nos. 8 (a) to (d); and father and wife of respondent
Legal Reasoning
Nos. 14 to 18 and 22 respectively as plaintiffs instituted the suit in RSA No.44 of 2018 Page 1 of 12 TS No.126 of 1997 before the court of 1st instance seeking declaration of rights with respect of Seva Puja of appellant No.1 (plaintiff No.1) and partition besides perpetual injunction on the subject against appellant No.2 and defendant Nos.2 to 4. In fact, appellant Nos.1 and five others filed the aforesaid suit demanding confirmation of the rights and partition of the same besides injunction against appellant No.2 and three others. The learned Civil Judge (JD), Puri taking into account the pleadings of the parties framed as many as seven issues prominent being whether the plaintiffs have acquired any interest over the suit schedule property on the strength of the sale deed and Seva Samarpana Patra; whether such right stands in favour of the plaintiffs and if so, to what extent; and whether the right of Seva Puja as claimed and Sevapali to be partiable in nature? Finally, the suit of the plaintiffs was preliminarily decreed declaring the individual and joint rights with respect to Sevapali vis-à-vis plaintiff Nos.2 to 6 and defendant No.1 with a direction to amicably partition it by metes and bounds within the stipulated time failing which any of them to be at liberty to apply for appointment of a Civil Court Commissioner for preparation of a scheme relating to Sevapali later to the drawal of final decree and also permanently injuncted defendant Nos.2 to 4 from interfering with the Sevapali assigned to plaintiff Nos.2 to 6 in respect of the deity Sri Satyanarayan Dev Bije Badadeula, Puri. Being aggrieved of the judgment and decree in TS No.126 of 1997, the defendants preferred an appeal before the learned District Judge, Puri in TA No.77 of 1999 which was
Decision
disposed of by a judgment dated 1st October, 2001 and the same was allowed in part by declaring half share of the plaintiff Nos.2 to 6 and rest half in favour of defendant No.1 with respect to Sevapali of deity modifying the decree of the court below. The above judgment of the lower Appellate Court in TA No.77 of 1999 was challenged before this Court in SA No.36 of 2002 and it RSA No.44 of 2018 Page 2 of 12 was decided vide judgment dated 2nd March, 2016 along with the cross-appeal setting aside the judgment and remanding the appeal for a fresh disposal in accordance with law since cross-objection which was filed was not duly considered and the grounds taken therein not to have been discussed. Later to the remand, the learned District Judge, Puri considered the appeal and cross- objection and finally disposed it of by the impugned judgment and decree dated 23rd October, 2017 but allowed the cross- objection and set aside the findings thereon of the learned Civil Judge (J.D.), Puri vis-à-vis issue No.2 declaring the rights of plaintiff Nos.2 to 6 and defendant No.1 to perform Seva Puja of the deity on the strength of sale deed and Seva Samarpana Patra in accordance with the Record of Rights prepared as per the provisions of the Shri Jagannath Temple Act, 1955 (in short ‘the Act’). The aforesaid decision and correctness of the findings have been challenged by the appellants (excluding defendant Nos.2 to 4) as against the dismissal of the appeal with the cross-objection being allowed on various grounds with the substantial questions of law to the effect that whether, the transfer of Seva Puja rights for pecuniary benefit is valid merely for the reason that the names of the purchaser stands recorded in the RoR; whether, the learned Civil Judge (JD), Puri did have the jurisdiction to partition the Seva Puja rights and confirmation of the same by the lower appellate court when the Act provides remedy for adjudication of such dispute relating to the entries in the Record of Rights; and whether, the deity since a Parswa Devata situate within the premises of the temple, whether to be governed by the provisions of the Act, when the dispute in question is covered under Section 41 of the Orissa Hindu Religious Endowment Act,1951 (in short ‘the OHRE Act’) besides if the Seva Puja of the deity is partiable and if an executable decree can be passed in respect thereof. RSA No.44 of 2018 Page 3 of 12 3. This Court by order dated 12th January, 2023 reformulated substantial question of law and substituted it by the following: “The deity in question being the Parswa Devata situated within the premises of the Temple of Lord Shri Jagannath, Puri when falls within the definition of the ‘temple’ as provided in Puri Shri Jagannath Temple (Administration) Act, 1952 whether the dispute, as has been raised in the present suit, which concerns with the entries in the Record of Right (RoR) published under the provision of Section 5 of Puri Shri Jagannath Temple (Administration) Act, 1952 at this stage is cognizable by the civil court in view of the provision contained in section 15-B of the Puri Shri Jagannath Temple Act, 1952?”. 4. Heard Mr. Bhuyan, learned counsel for the appellants and Mr. Mishra, learned counsel for the respondents. 5. Mr. Bhuyan, learned counsel for the appellants challenge the impugned judgment and decree of the lower Appellate Court and reiterated the grounds pleaded for. In so far as the grounds in appeal are concerned, it is stated that the learned lower Appellate Court committed gross error in law by reaching at a conclusion that plaintiff Nos.2 to 6 have acquired right to perform Seva Puja on the strength of sale deed, inasmuch as, failed to appreciate the fact that such Sebayati right is heritable but it lacks other incidents of proprietary right, such as, capacity to transfer and as such alienation of it is a transfer of duty contrary to public policy being delegation by a delegatee and therefore, the impugned decree is untenable in law. In other words, it has been pleaded that Sabayati right is not a property but a personal proprietary interest coupled with duty and as such, the same is not transferable and therefore, the decision of the learned lower Appellate Court is not sustainable in law which furthermore vitiated the Apex Court judgment in the case of Kali Kinkor Ganguly Vrs. Panna Banerjee RSA No.44 of 2018 Page 4 of 12 and Others (1974) SCC 563. The appellants have also raised the other grounds with regard to the jurisdiction of the civil court claiming that the relief sought for in the suit lies within the purview of Section 41 of OHRE Act. That apart, it is pleaded that the learned lower Appellate Court also fell into serious error and committed illegality by holding that plaintiff Nos. 2 to 6 have the right to Seva Puja to the extent of days acquired as per the sale deed and Seva Samarpana Patra and thus to be transferable and partiable only for the reason that the Record of Rights to have been prepared under the Act. Precisely stated, with the above grounds, the appellants questioned the legality of the impugned judgment and decree dated 23rd October, 2017 of the learned lower Appellate Court in TA No.77 of 1999. Mr. Bhuyan highlighted upon Section 2(d) of the Puri Shri Jagannath Temple (Administration), Act, 1952 which is with regard to the definition of temple while contending that the civil courts’ jurisdiction to adjudicate any such dispute inter se parties relating to rights, privileges, duties and obligation in respect of Seva Puja and nitis is to be adjudicated upon and decided by the authority concerned in view of Section 21(2)(g) of the Act and hence a bar operates and against such a decision, an appeal under Section 24 of the Act lies before the Shri Jagannath Temple Managing Committee (in short ‘the Committee’) and only after ventilating the grievances and exhausting the remedies, any of the persons aggrieved may approach the civil court to establish his right and in the present case, the respondents have not done so as according to law. Mr. Bhuyan also questioned the decision as to the transferability of the right by placing reliance of the decision in Kali Kinkor Ganguly (supra). Besides the above grounds, the observation with regard to the partition of temple income, donations from Jajamana and decision thereon by the learned courts below has been challenged with reference to Section 28(e) of the Act which is administered RSA No.44 of 2018 Page 5 of 12 by the Committee constituted under Section 5 thereof and as such, the civil court has no authority to partition it. 6. On the contrary, Mr. Mishra, learned counsel for the respondents raised a preliminary question with respect to whether a single appeal against dismissal of the suit and cross-objection having been allowed can be maintained. In other words, it is contended that the appellants preferred a single second appeal against the judgment and decree in appeal so also cross-objection which is not permissible in law in view of the authority of the Apex Court in the case of Premier Tyres Limited Vrs. Kerala State Road Transport Corporation 1993 Supp (2) SCC 146 and reiterated in Sri Gangai Vinayagar Temple and Another Vrs. Meenakshi Ammal and Others (2015) 3 SCC 624 for the reason that the counter claimed has the effect of the suit and hence separate appeal is to be filed. With regard to the applicability of the OHRE Act, Mr. Mishra would submit that the Puri Shri Jagannath Temple (Administration) Act, 1952 came into force on 5th September, 1952 (hence to be referred as the Act, 1952), wherein, by virtue of Section 2(d), the expression ‘temple’ is defined as the temple of Lord Jagannath at Puri and other temples within its premises, all their appurtenant and sub-ordinate shrine, others sacred places and tanks and any additions which may be made thereto after the commencement of the said Act. Furthermore, the expression ‘endowment’, as according to Mr. Mishra, is defined in Section 2(a) of the Act, 1952 and thereafter, the Act came into being with effect from 17th October, 1960 and therein as per Section 4(1)(g), the words and expression defined in the Act, 1952 and used in the Act shall have the same meaning as attributed to them. By referring to Section 2 of the Act, Mr. Mishra would further submit that the provisions of the OHRE Act shall cease to apply to the said temple except with just exceptions RSA No.44 of 2018 Page 6 of 12 and therefore, on the advent of the Act which is to apply to all the temples situate within the premises of the temple of Lord Jagannath at Puri in view of Section 2 (d) of the Act, 1952, the OHRE Act shall not be applicable anymore. It is contended by Mr. Mishra that the Sevapali is partiable and in so far as the judgment in Kali Kinkor Ganguly (supra) is concerned, it has no application to the present case for the reason that Section 31(b) of the Act deals with the regulation and procedure for transfer of Seva Puja, chuti or panti in the temple. So to say, Mr. Mishra submits that Sevapali is partiable and also transferable and on the right of partition, he cites the following decisions, such as, Panchanan Vrs. Laxmidhar Vol-33 1957 ILR Cuttack 712 and Laxmidhar Pattanaik and Others Vrs. Rangabati Bewa and Others Vol-33 (1967) CLT 779. 7. Mr. Mishra would contend that plaintiff Nos.2 to 5 are Sevaks as per the Record of Rights of Lord Jagannath in view of Section 4(1)(d-1) of the Act and when the Record of Rights stands prepared as per the Act, 1952 and that the respondents did not challenge or apply for correction of it or ever raise any objection in that regard, therefore, there was no any scope or occasion so to say to approach the Revisional Authority and hence Section 15- B of the Act inapplicable. At last, Mr. Mishra submits that with regard to the Record of Rights of Lord Jagannath, notification dated 26th April, 1955 was published under Section 5 of the Act, 1952 read with Rules 12 and 12-A of the Rules framed under the said Act and since the rights have been so declared according to law, the learned courts below did not err to hold the Sebayati interest to be transferable and partiable and in such view of the matter, the appeal filed by the appellants sans merit and hence deserves to be dismissed. RSA No.44 of 2018 Page 7 of 12 8. Section 2(a) of the Act, 1952 explains ‘endowment’ means all property belonging to or given or endowed for the support of the Temple or given or endowed for the performance of any service including the service of offerings to the deity or charity connected therewith and includes the institution concerned and also the premises thereof, but does not include gifts or property made as personal gifts to the Sevak or Pujari or other employee of the Temple. In the said Act, as earlier stated, the meaning of temple’ stands defined in Section 2(d) thereof. The Act came into force on 17th October, 1960 later to the Act, 1952 and as earlier mentioned, the words and expressions defined in the Act, 1952 as well as the Act shall have the same meaning in view of Section 4(1)(g) of the Act. In so far as the provisions of OHRE Act and its applicability are concerned, the same shall cease to apply to the temple of Lord Jagannath and other temples situate within its premises in view of Section 2 of the Act and therefore, it has to be held that the OHRE Act shall have no application to the case at hand which is governed by the Act in place and rightly therefore the substantial question of law was reformulated by this Court vide order dated 12th January, 2023. In other words, the contention of the appellants that the suit is hit by the provisions of the OHRE Act being covered under Section 41 thereof and thus ousts the jurisdiction of the civil court to entertain the suit and adjudicate it cannot be sustained. Furthermore, the dispute does not relate to the Record of Rights prepared under Act, 1952 and rules framed thereunder and hence, there was no scope for any such appeal or revision to be filed before the authorities concerned under the Act. In fact, the dispute between the parties in the present case and pleadings in respect thereof never related to the rights, privileges, duties and obligations in respect of Seva Puja and nitis and therefore, the respondents did not approach the concerned authority under the Act rather knocked the doors RSA No.44 of 2018 Page 8 of 12 of the civil court seeking partition of rights and its declaration besides injunction against defendant Nos.2 to 4. Save and except the jurisdiction of the civil court, the reliefs sought for could not have been entertained by the authorities under the Act, inasmuch as, a declaration as to the Sebayati rights, its partition was claimed besides injunction, so therefore, rightly the suit was entertained by the learned Civil Judge (J.D.), Puri, who proceeded to define and apportion the shares between plaintiff Nos.2 to 6 and defendant No.1 confirmed in appeal by the learned lower Appellate Court. 9. As to the contention of Mr. Bhuyan, learned counsel for the appellants regarding the challenges to the transfers made in lieu of cost referring to the decision in Kali Kinkor Ganguly (supra), it is alleged that the same as such to be void since its inception. However, as it is rightly argued by Mr. Mishra, learned counsel for the respondents, the aforesaid decision is not applicable to the present case in view of the provisions contained in Section 31 of the Act wherein under Clause (b), the Committee has been confirmed with power to make regulations and rules under the Act which is with regard to the procedure for transfer of Seva Puja etc. in the temple. That apart, Section 4(1)(d-1) of the Act includes any such person as a Sevak, who is recorded as such in the Record of Rights or is recognized by a competent authority as a Sevak or his substitute or has acquired the rights of a Sevak by means of any recognized mode of transfer besides a person appointed to perform any niti and Seva under Section 21(2)(i) thereof. Hence, therefore, when there is a statutory recognition with regard to the mode of transfer of any such rights of a Sevak in view of the provisions of the Act, the transfers made in favour of the plaintiffs concerned and subsequent preparation of Record of Rights under the Act, 1952 categorically defined the rights as such which is, therefore, transferable and as a necessary corollary partiable too. RSA No.44 of 2018 Page 9 of 12 Thus, the conclusion would be that the decision of the Apex Court in Kali Kinkor Ganguly (supra) does not have application to the instant case. It is not in dispute that the Record of Rights have never been challenged before and therefore, plaintiff Nos.2 to 6 can be said to have acquired the rights of Seva Puja as Sevaks of Sri Satyanarayan Dev Bije Badadeula, Puri. Hence, it is also to be concluded that the learned lower Appellate Court did not commit any error or illegality while interfering with the findings of the learned Civil Judge (JD), Puri on and with respect to issue No.2. In other words, the Court reaches at a final conclusion that the plaintiff Nos. 2 to 6 rightly acquired interest over the subject matter on the strength of the sale deed and Seva Samarpana Patra. At the cost of repetition, it is held that the ratio decided in Kali Kinkor Ganguly (supra) as relied on by the appellants is inapplicable to the dispute in hand as therein the subject was not regulated by any statue vis-à-vis the deity of the temple in question, whereas, in the case at hand, appellant No.1 and its affairs is governed by the provisions of the Act which recognizes partition and transfer of rights. 10. On the strength of the Act, RoRs have been prepared on the report of the Special Officer under the Act, 1952 so published by a notification of the State Government, wherein, in respect of Sri Satyanarayan Dev Temple situate over plot No.113, the respective shares of plaintiff Nos.2 to 6 and defendant No.1 stand described. It is also stated therein that the deity does not have Kotha Khanja and Sevaks have to perform Seva Puja at their own cost and shall appropriate the income among themselves. It is further recorded that the said arrangement has been made by the Temple Administration by virtue of a decision in OS No.188 of 1924 by the Munsif Court, Puri corresponding to dispute No.XIV. So therefore, considering the Record of Rights so prepared and RSA No.44 of 2018 Page 10 of 12 published in the Orissa Gazette, there remains no doubt that Seva Puja of the deity has been assigned in favour of the predecessor- in-interest of the defendant No.1 with half share and leaving the remainder in favour of the father of plaintiff Nos.2 to 4, predecessor-in-interest of plaintiff No.5 and plaintiff No.6 in fact, the Record of Rights was challenged before the learned District Judge, Puri to delete the name of the father of plaintiff Nos.2 to 4, father of plaintiff No.5 and plaintiff No.6 by one Parbati Devi and Bhubana Mohan Panda in Case No.35 of 1956 as has been pleaded for by the respondents was dismissed on 3rd December, 1960 which attained finality as no one challenged it thereafter. Apart from above, OS No.188 of 1924 decreed on 18th July, 1925 was also not challenged which is not disputed by the appellants either. Against the aforesaid backdrop, the Court is of the considered view that the impugned judgment and decree dated 23rd October, 2017 of the learned lower Appellate Court suffers from no legal infirmity. As a consequence thereof, it has to be held that the suit for partition was maintainable and the parties accordingly acquired rights to perform Seva Puja of Sri Satyanarayan Dev Bije Badadeula, Puri on the strength of sale deed and Seva Samarpana Patra according to the Record of Rights prepared and published under the Act, 1952. 11. As regards the single second appeal filed by the appellants and its maintainability with reference to the decisions in Premier Tyres Limited and Sri Gangai Vinayagar Temple (supra) which is to the effect that appeal preferred against the decision recorded in one suit having been challenged without questioning the findings in another would be barred by res judicata, in view of the conclusion so reached at by the Court that the rights of the parties are to be assigned according to the Record of Rights, the issue has become merely academic and hence, needs no discussion. RSA No.44 of 2018 Page 11 of 12 12. Accordingly it is ordered. 13. In the result, the appeal stands dismissed. (R.K. Pattanaik) Judge TUDU Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Reason: Authentication Location: OHC,CTC Date: 27-Jun-2023 15:21:19 RSA No.44 of 2018 Page 12 of 12