The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.193 of 1992 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Purusottam Pradhan …. Appellant -versus- Deity Sri Sri Balunkeswar Mahadav of village Bhaliapada, Phulbani and others …. Respondents Appeared in this case:- For Appellant : Mr. A.K. Mishra, Advocate appearing on behalf of Mr. S. Mantry, Advocate For Respondents : Mr. S.K. Senapati, Advocate Appeared in this case:- CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 11.11.2025 / date of judgment :23.12.2025 A.C. Behera, J. This 2nd appeal has been preferred against the confirming judgment. // 2 // 2. The appellant in this 2nd appeal was the defendant no.1 before the trial court in the suit vide T.S. No.06 of 1984 and appellant before the 1st appellate court in the 1st appeal vide T.A. No.16 of 1987. The respondent nos.2 to 10 in this 2nd appeal were the defendant nos.2, 3 and 5 to 11 before the trial court in the suit vide T.S. No.06 of 1984 and respondent nos.2 to 10 before the 1st appellate court in the 1st appeal vide T.A. No.16 of 1987. The respondent no.1-deity in this 2nd appeal was the sole plaintiff before the trial court in the suit vide T.S. No.06 of 1984 and respondent no.1 before the 1st appellate court in the 1st appeal vide T.A. No.16 of 1987. 3.
Legal Reasoning
The suit of the plaintiff-deity vide T.S. No.06 of 1984 against the defendants was a suit for declaration of title and recovery of possession of the suit properties described in the Schedule-A of the plaint. As per the case of the plaintiff-deity, the plaintiff-deity is the village deity of village-Bhaliapada. The day-to-day affairs of the deity is being managed by the villagers of Bhaliapada. The defendant no.2, out of her spiritual feelings gifted her Schedule-A suit properties to the plaintiff-deity Sri Sri Balunkeswar Mahadev in the year 1976 through registered gift deed dated 29.05.1976 executing and registering the same Page 2 of 18 // 3 // in favour of the plaintiff-deity Sri Sri Balunkeswar Mahadev and delivered possession thereof to the plaintiff-deity and she(defendant no.2) was divested from the ownership and possession of the same. Purna Chandra Dehury being the pujari of the plaintiff-deity had accepted the gift deed in respect of the suit properties on behalf of the plaintiff-deity executed by the defendant no.2 in favour of the plaintiff-deity. After taking possession of the ‘A’ Schedule gifted suit properties on behalf of the plaintiff-deity, the villagers of village-Bhaliapada utilized the usufructs thereof for the sevapuja of the plaintiff-deity. In order to dispossess the plaintiff deity from the suit properties, the defendant no.1 created disturbances illegally in the possession of the plaintiff-deity over the suit properties and managed to start a proceeding under Section 145 of the Cr.P.C. vide M.C. No.08 of 1977. During the pendency of such proceeding under Section 145 of the Cr.P.C., the defendant no.1 had managed to execute a sale deed in respect of the suit properties on dated 24.04.1980 from the defendant no.2, though, the defendant no.2 had no interest in the suit properties due to execution and registration of the gift deed earlier in respect of the same on dated 29.05.1976 in favour of the plaintiff-deity. The defendant no.1 also managed to execute the deed of cancellation of the gift deed dated 29.05.1976 through an unilateral deed of cancellation dated 18.06.1981 Page 3 of 18 // 4 // executed by the defendant no.2. Then, the defendant no.1 initiated an another proceeding under Section 145 of the Cr.P.C. in respect of the suit properties vide M.C. No.46 of 1981, wherein, the possession of the defendant no.1 over the suit properties was declared. Then, the defendant no.1 started one mutation proceeding in respect of the suit properties vide Mutation Case No.1072 of 1981 against the plaintiff-deity as well as against the villagers of Bhaliapada, wherein, the Tahasildar erroneously mutated the suit properties in favour of the defendant no.1. For which, without getting any way, the plaintiff- deity approached the civil court by filing the suit vide T.S. No.06 of 1984 against the defendants praying for declaration of the title of the plaintiff- deity over the suit properties described in Schedule-A and also for recovery of possession of the suit properties from the defendant no.1 arraying the defendant no.2 and other villagers of Bhaliapada as defendants. 4. Having been noticed from the learned trial court in the suit vide T.S. No.06 of 1984, the defendant nos.1 and 2 contested the suit of the plaintiff-deity by filing their joint written statement, wherein, other defendants, i.e., defendant nos.3 to 10 were set ex parte. Page 4 of 18 // 5 // 5. As per the pleadings of the defendant nos.1 and 2 in their joint written statement, Purna Chandra Dehury(who is representing the plaintiff-deity in the suit) is a salaried employee of the plaintiff-deity. For which, he has no locus standi to file the suit on behalf of the plaintiff- deity. The villagers of village-Bhaliapada have been managing the affairs of the plaintiff-deity through a Trust Board. Under the management of the said Trust Board ‘Dandanancha’ has been performing in ‘Chaitra’ of each year for the cause of Hindu Religion and the general public have interest in it. The defendant no.2 is an illiterate, paradanasini poor lady and she does not come out in public, but Purna Chandra Dehury and some other rich influential persons of village Bhaliapada have managed to execute the gift deed on dated 29.05.1976 in respect of the suit properties in favour of the plaintiff-deity from the defendant no.2 and also have managed to register the same by practicing fraud, misrepresentation and coercion and they have obtained such gift deed from her(defendant no.2) without making her(defendant no.2) aware about the contents of the said gift deed. Subsequent to the execution and registration of the gift deed, when the defendant no.2 came to know about the practice of fraud upon her for the execution and registration of the said gift deed dated 29.05.1976, she(defendant no.2) cancelled that so-called gift deed Page 5 of 18 // 6 // through an unilateral deed of cancellation in the year 1981 registering the same before the Sub-registrar. The specific case of the defendant nos.1 and 2 was that, the defendant no.2 for her basic and legal necessities, mortgaged and delivered the suit properties to the defendant no.1 about 15 to 16 years prior to 24.04.1980. Thereafter, the defendant no.2 sold the suit properties to the defendant no.1 on dated 24.04.1980 by executing and registering the sale deed for a consideration amount of Rs.2,000/-(rupees two thousand) vide sale deed No.122 and delivered possession thereof. As such, since 24.04.1980, he(defendant no.1) is the owner of the suit properties and he had/has been possessing the same being the exclusive owner thereof, wherein the plaintiff-deity has no interest. After purchasing the suit properties on dated 24.04.1980 from the defendant no.2, he (defendant no.1) filed a mutation case vide Mutation Case No.1072 of 1981 before the Tahasildar, Phulbani and the said mutation case was allowed in his favour and on the basis of the order passed by the Tahasildar, the record of the suit properties was changed to his name, i.e., to the name of the defendant no.1. In the major settlement, the suit properties have been recorded in the name of the defendant no.1 and he has been paying rent for the same. On the basis of the order passed in the proceeding under Section 145 of the Cr.P.C., the possession of the suit Page 6 of 18 // 7 // properties was delivered to him(defendant no.1). As such, he(defendant no.1) is the exclusive owner and in possession over the suit properties, wherein, the plaintiff-deity has no right, title, interest and possession. Therefore, the suit of the plaintiff-deity is liable to be dismissed. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether eight numbers of issues were framed by the learned trial court in the suit vide T.S. No.06 of 1984 and the said issues are:- I S S U E S 1. Whether the defendant no.2 gifted away the suit land in favour of the deity Sri Sri Balunkeswar Mahadev out of her religious feeling and out of her free will? 2. Whether the registered sale deed executed by the defendant no.2 in favour of the defendant no.1 dated 24.04.1980 is valid and whether it conveys any title to the defendant no.1? 3. Whether the plaintiff has got right, title over the suit land now? 4. Whether there is any cause of action for the suit? 5. Whether the suit is barred by limitation? 6. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? 7. Whether Purna Chandra Dehury has locus standi to file the suit and whether the suit is maintainable? 8. Whether the plaintiff is entitled to the reliefs as prayed for? 7. In order to substantiate the aforesaid reliefs sought for by the plaintiff-deity against the defendant nos.1 and 2, the plaintiff-deity had examined two witnesses on its behalf, i.e., P.W.1 and 2 including Purna Page 7 of 18 // 8 // Chandra Dehury as P.W.1 and relied upon the documents vide Exts.1 and 2. On the contrary, in order to defeat/nullify the suit of the plaintiff- deity, the contesting defendant no.1 examined two witnesses from his side including him as D.W.1 and relied upon the documents vide Exts.A to E. 8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the learned trial court answered all the issues in favour of the plaintiff-deity and against the defendant nos.1 and 2 and basing upon the findings and observations made by the learned trial court in all the issues in favour of the plaintiff- deity and against the defendant nos.1 and 2, the learned trial court decreed the suit of the plaintiff on contest against the defendant nos.1 and 2 and ex parte against the rest other defendants and declared the right, title and interest of the plaintiff over the suit properties described in Schedule-A and directed the defendant no.1 to restore the possession of the suit properties in favour of the plaintiff-deity as per its judgment and decree dated 10.11.1987 and 20.11.1987 respectively assigning the reasons that, “Purna Chandra Dehury has the locus standi to institute the suit as the representative of the plaintiff-deity for the protection of the deity’s Page 8 of 18 // 9 // property and defendant no.2 being the exclusive owner of the suit properties as per the RoR vide Ext.2, she had voluntarily gifted to the suit properties in favour of the plaintiff-deity by executing and registering the gift deed on dated 29.05.1976 intentionally and voluntarily and the said gift was accepted by the plaintiff-deity through Purna Chandra Dehury and after executing and registering the gift dated 29.05.1976, the defendant no.2 was divested from the suit properties and after execution and registration of the gift deed 29.05.1976 in respect of the suit properties by the defendant no.2, the defendant no.2 had no interest in the suit properties for transferring through sale deed on dated 24.04.1980 in favour of the defendant no.1, for which, as per law, no interest was created in favour of the defendant no.1 through sale deed dated 24.04.1980., Because, there was no interest with the defendant no.2 in the suit properties for transferring the same in favour of the defendant no.1. Therefore, the plaintiff-deity is entitled for the declaration of title over the suit properties. For which, the defendant no.2 was directed to deliver the possession of the suit properties to its rightful owner, i.e., plaintiff-deity.” 9. On being dissatisfied with the aforesaid judgment and decree passed in T.S. No.06 of 1984 by the learned trial court in favour of the plaintiff-deity and against the defendant nos.1, the defendant no.1 Page 9 of 18 // 10 // challenged the same preferring the 1st appeal vide T.A. No.16 of 1987 being the appellant against the plaintiff-deity arraying the plaintiff-deity as respondent no.1 and also arraying the other defendants as other respondents. After hearing from both the sides, the learned 1st appellate court dismissed that 1st appeal vide T.A. No.16 of 1987 of the defendant no.1 on contest, but, without cost concurring / confirming the findings and observations made by the learned trial court against the defendant no.1 as per its judgment and decree dated 30.06.1992 and 15.07.1992 respectively passed in T.A. No.16 of 1987. 10. On being aggrieved with the aforesaid judgment and decree of the dismissal of the 1st appeal of the defendant no.1 vide T.A. No.16 of 1987, he (defendant no.1) challenged the same preferring this 2nd appeal being the appellant against the plaintiff-deity arraying the plaintiff-deity as respondent no.1 and also arraying the other defendants as other respondents. 11. This 2nd appeal was admitted on formulation of the following substantial questions of law :- (i) Whether, Ext.1 (certified copy of the gift deed) is admissible in evidence in absence of an explanation for non-production of the original gift deed? Page 10 of 18 // 11 // (ii) Whether, the suit is maintainable in view of the Sections 41 and 25 r/w Section 73 of the Orissa Hindu Religious Endowments Act, 1951? (iii) Whether the suit of the plaintiff is liable to be dismissed in view of Section 69 of the Orissa Hindu Religious Endowment Act, 1951? 12. I have already heard from the learned counsel for the appellant(defendant no.1) and the learned counsel for the respondent no.1(plaintiff-deity).
Legal Reasoning
13. Learned counsel for the appellant(defendant no.1) relied upon the following decisions, i.e., :- (i) 2021(I) OLR-855 (ii) Civil Appeal Noi.522 of 1959 decided on 09.04.1962 14. In order to ascertain the sustainability and justifiability of the impugned judgments and decrees passed by the learned trial court and the learned 1st appellate court, the aforesaid three formulated substantial questions of law are required to be discussed and analyzed serially and chronologically one after another. 15. So far as the 1st formulated substantial question of law, i.e., whether the Ext.1(certified copy of the gift deed dated 29.05.1976) is admissible in evidence in absence of an explanation for non-production of the original gift deed is concerned, Page 11 of 18 // 12 // It is the concurrent findings of the learned trial court as well as the learned 1st appellate court that, the execution and registration of the gift deed dated 29.05.1976 (Ext.1) by the defendant no.2 in favour of the plaintiff-deity in respect of the suit properties is not under dispute. Because, the defendant no.2(executant of the said gift deed) has admitted in the pleadings as well as in the documentary evidence, i.e., cancellation deed about the execution of the said Ext.1. In the joint written statement of the defendant nos.1 and 2, they (defendant nos.1 and 2) have not denied the execution and registration of the gift deed dated 29.05.1976 vide Ext.1 in respect of the suit properties, as they had taken their stands in their joint written statement that, the so-called gift deed dated 29.05.1976 (Ext.1) was managed to have been executed by Purna Chandra Dehury in the name of the plaintiff-deity from the defendant no.2 by practising fraud, misrepresentation and coercion and the defendant no.2 had cancelled the said gift deed dated 29.05.1976 through a registered deed of cancellation by her(defendant no.2) on dated 18.06.1981. 16. So, on the basis of the aforesaid pleadings and unilateral deed of cancellation dated 18.06.1981, the executant of the deed of gift dated 29.05.1976 has not denied the execution and registration of the said gift deed dated 29.05.1976(Ext.1) by her(defendant no.2). Page 12 of 18 // 13 // At the time of marking of the certified copy of the said gift deed as Ext.1 by the P.W.1 during trial of the suit, there was no objection from the side of the defendant nos.1 and 2 against its making as Ext.1. Rather, without objection of the defendant nos.1 and 2, the certified copy of the gift deed dated 29.05.1976 was marked as Ext.1 during Examination-in- Chief of P.W.1(Purna Chandra Dehury). 17. During cross-examination to the P.W.1 on behalf of the defendant nos.1 and 2, not even a single question was asked on their behalf raising any objection about the admissibility of the certified copy of the gift deed vide Ext.1. On this aspect, the propositions of law has already been clarified in the ratio of the following decision:- (i) In a case between Dhruba Sahu and others vrs. Paramananda Sahu : reported in 54(1982) CLT-560 that, if no objection was taken by the defendants with regard to the mode of proof of the deed of gift, when it was exhibited by the trial court, the defendants cannot now be heard to object that, the document has not been duly proved raising the same at appellate stage. 18. Here, in this matter at hand, when the certified copy of the gift deed dated 29.05.1976 has been marked as Ext.1 during the trial of the suit through P.W.1 without any objection from the side of the defendant nos.1 and 2 and when, the said Ext.1 was admitted into evidence without any objection from the side of the defendant nos.1 and 2, then at this Page 13 of 18 // 14 // juncture, in view of the principles of law enunciated in the ratio of aforesaid decision, the defendant nos.1 and 2 including the appellant(defendant no.1) are precluded / estopped under law to raise a question that, Ext.1 is not admissible, only for the reason that, Ext.1 was marked without objection of the defendant no.1 and 2. For which, it is held that, the defendant nos.1 and 2 had waived their right of objection available to them in view of the principles of law enunciated in the ratio of the aforesaid decision. 19. So far as the 2nd and 3rd formulated substantial questions of law, i.e., whether the suit filed by the plaintiff-deity is maintainable in view of Sections 41 and 25 r/w Section 73 of The Orissa Hindu Religious Endowments Act, 1951 and whether the suit of the plaintiff is liable to be dismissed in view of Section 69 of the Orissa Hindu Religious Endowments Act, 1951 are concerned, Section 25 of The Orissa Hindu Religious Endowments Act, 1951 provides for recovery of immovable trust property unlawfully alienated. Section 41 of the said Act, 1951 empowers to the Assistant Commissioner of Endowment to decide certain disputed matters coming under the purview of that Section of the Act, 1951. Section 69 of the Act, 1951 clarifies about the issuance of prior notice to the Commissioner before commencement of hearing of a suit Page 14 of 18 // 15 // 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. Section 73 of The Orissa Hindu Religious Endowments Act, 1951 bars the suits in respect of administration of religious institution, which clarifies that, “no suit or other legal proceeding in respect of the administration of a religious institution or in respect of any other matter or dispute for determining or deciding, which provision is made in the Act, 1951 shall be instituted in any court of law, except under and in conformity with the provision of the Act, 1951. 20. The law concerning the manner of institution of a suit for eviction from the property of the deity has already been clarified in the ratio of the following decisions :- (i) In a case between Phalgunan N.K. and others vrs. Wilson Joseph and others : reported in 2017(2) CCC-261 (Kerala) that, deity being a juristic person, had to act through human agency. (ii) In a case between Deoki Nandan vrs. Murlidhar and others : reported in AIR 1957 SC-133 and in a case between Bishwanath and others vrs. Thakur Radhaballabhji and others : reported in AIR 1967 SC-1044 that, a worshiper of a deity has empowered to protect the interest of the deity, because, an idol is in the position of a minor and when the person representing it, leaves in the lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest. Page 15 of 18 // 16 // 21. When, the suit is not in respect of the administration of the affairs of the deity and the religious institution, then, the suit filed by the deity to get back physical possession of the property of the deity is maintainable. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:- (i) In a case between Binod Behari Panda(dead) after him, his L.Rs. Balamani Panda and others vrs. Mrugeswar Dev, Bije at village Ogalapada and another : reported in 2013(2) CLR-974 that, suit for ejectment of the defendant from the property belonging to the Deity is not covered under Section 41(1) of The Orissa Hindu Religious Endowments Act, 1951. The jurisdiction of the Civil Court is not barred by Section 73 of The Act, 1951, for which, the suit is maintainable.(Para-16) (ii) In a case between Pooranchand vrs. The Idol, Sri Radhakrishnaji and others : reported in AIR 1979 M.P.-10 –An idol or deity can sue through a real friend. (iii) In a case between (Sri) Sri Bramheswar Mohadev, Bije and others vrs. Baishnab Charan Biswal and another : reported in 2018(2) CLR-748 that, plaintiffs alleging to be persons interested in safeguarding the interest of the deity for declaring the sale deed in favour of the defendant no.1 to be void held that, they have locus standi to file the suit.(Para-13) 22. When, the suit has been filed by the deity on being represented through human agency, i.e., Purna Chandra Dehury and when, in the concurrent findings of the learned trial court as well as the learned 1st appellate court in their respective judgments and decrees, it has been Page 16 of 18 // 17 // held that, Purna Chandra Dehury is the friend of the plaintiff-deity and when the suit vide T.S. No.06 of 1984 has been filed by the plaintiff- deity against the defendants, i.e., specifically against the defendant no.1 for the recovery of the possession of the suit properties on being represented through Purna Chandra Dehury, for no other reason, but, only in order to safeguard/protect the interest of the plaintiff-deity and when, as per law, the plaintiff-deity being a perpetual minor, its property requires protection and when, a real friend or worshiper of the deity has the power to represent and protect the interest of the deity by filing suit against the defendants for recovery of possession of the properties of the plaintiff-deity and when, the suit vide T.S. No.6 of 1984 filed by the plaintiff-deity is not for the administration of the plaintiff-deity, but, in order to recover possession of the properties of the plaintiff-deity for the benefit, protection and safeguard of the plaintiff-deity, then at this juncture, in view of the principles of law enunciated in the ratio of the aforesaid decisions of the Hon’ble Courts and Apex Court, it cannot be held that, the suit filed by the plaintiff-deity was not maintainable being hit and barred under Sections 25, 41, 69 and 73 of The Orissa Hindu Religious Endowments Act, 1951. For which, in other words, it is held that, the suit filed by the plaintiff-deity against the defendant nos.1 and 2 was maintainable under law. Page 17 of 18 // 18 // So, the decisions relied by the appellant(defendant no.1) indicated in Para No.13 of this judgment have become inapplicable to this appeal at hand on facts and as discussed of above. 23. As per the discussions and observations made above, when all the above formulated substantial questions of law have been answered against the appellant(defendant no.1), then at this juncture, it cannot at all be held that, the judgments and decrees passed by the learned trial court as well as learned 1st appellate court in favour of the plaintiff- deity(respondent no.1) are erroneous. For which, the question of interfering with the same through this 2nd appeal filed by the appellant(defendant no.1) does not arise. 24. Therefore, there is no merit in this 2nd appeal filed by the appellant(defendant no.1). The same must fail. 25. In result, the 2nd appeal filed by the appellant (defendant no.1) is dismissed on contest, but without cost. 26. The judgments and decrees passed by the learned trial court in T.S. No.06 of 1984 and by the learned 1st appeal court in T.A. No.16 of 1987 in dismissing the suit of the plaintiff/appellant are confirmed. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 26-Dec-2025 11:06:20 Judge Orissa High Court, Cuttack The 23rd of December, 2025/ Jagabandhu, P.A. ( A.C. Behera ) Page 18 of 18