The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK AFR MSA No.6 of 2016 Gajendra Chandra Singh Appellant Mr.S.K.Padhi, Senior Advocate along with Mr. Satya Smruti Mohanty, Advocate …. -Versus- Rameswar Prasad Singh & others …. Respondents Mr. A.K. Mohapatra-1, Advocate for Respondent No.1 Mr. A.K. Nath, Advocate for Respondent No.2 Mr. Milan Kanungo, Senior Advocate for Respondent Nos.5, 7 & 8 CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:07.08.2025 1. Instant appeal under Section 44(2) of the Odisha Hindu Religious Endowments Act, 1941(hereinafter referred to as ‘the OHRE Act’) is at the behest of the appellant assailing the impugned judgment dated 31st October, 2016 at Annexure-10 passed in connection with F.A. No. 10 of 2016 by the learned Commissioner of Endowments, Odisha, Bhubaneswar confirming the decision and order of the learned Assistant Commissioner of Endowments, Odisha dated 23rd June, 2016 MSA No.06 of 2016 Page 1 of 27 i.e. Annexure-8 in O.A. Case No. 12 of 2013 on the grounds stated. 2. In the case at hand, respondent No.1 filed an application under Section 41(e) of the OHRE Act registered as O.A. Case No. 12 of 2013 praying therein to allow him to perform the ‘chhera pahanra seva’ on the chariots of Lord Jagannath Jew, Lord Balabhadra Jew and Devi Subhadra on the occasion of Rath Yatra and Bahuda Yatra at Nayagarh and learned Assistant Commissioner of Endowments, Odisha, Bhubaneswar by judgment dated 23rd June, 2016 allowed the same as per Annexure-8. Being aggrieved of the aforesaid decision, the appellant preferred an appeal under Section 44(1) of the OHRE Act in F.A. No. 10 of 2016 before the learned Commissioner of Endowments, Odisha, Bhubaneswar but the same stood dismissed vide Annexure-10 confirming the order as at Annexure-8. As against the confirmation order and the judgment vide Annexure-10, the present appeal under Section 44(2) of the OHRE Act is filed on the grounds inter alia that the impugned decisions of the learned authorities below while dealing with the customary rights adversely claimed are not legally tenable and hence, liable to be set aside. 3. It is pleaded on record by the appellant that prior to independence, his late grandfather, namely, Krushna Chandra Singh Mandhata was the Ruling Chief of Nayagarh Estate and the Memoranda of the Indian Estates, 1938 corrected up to then and published by the Government of India reveals the hierarchy of the Rulers of the Estate. It is further pleaded that the appellant’s grandfather was born on 15th August, 1911 and MSA No.6 of 2016 Page 2 of 27 married to Rani Sahiba, namely, Homarajya Laxmi, the daughter of the second son of late Prime Minister of Nepal held on 29th January, 1931, whereas, his father was born on 4th September, 1933 out of the said wedlock. It is also pleaded that the grandfather of the appellant was installed on the throne with the coronation performed on 20th July, 1933. A copy of the Memoranda as at Annexure-1 is referred to in support of such claim. It is pleaded that the Directory showing up to date details of the princely States of India and Burma reveals that the late grandfather of the appellant was the Ruler of the Nayagarh Estate and his father, namely, Brajendra Kishore Singh as the heir-apparent and the same is also referred to as at Annexure-2. It is claimed that after the death of the King on 24th June, 1983, as the successor and being the prince, the appellant’s father was coronated as Raja of Nayagarh Estate as per the custom and tradition and thereafter, the latter performed the chhera pahanra seva during the car festival being invited by the local Administration and in support of such claim, Annexure-6 series is placed reliance on. The further claim is that late grandfather of the appellant developed intimacy with one Soubhagya Manjari Devi of Hindol, who was his maternal uncle’s daughter and on account of such relationship, a male child was born, who is the father of respondent No.1, but as the marriage was not lawful, hence, the British Crown did not approve the same. It is pleaded that respondent No.1’s father, namely, Amarendra Kishore Singh claiming himself to be the Raja of Nayagarh Estate started creating disturbance, as a result of which, a suit was instituted by the father of the appellant registered as T.S. No. 72 of 1988 before the court of learned Civil Judge (Senior MSA No.6 of 2016 Page 3 of 27 Division), Nayagarh seeking declaration that he is the sole owner of the schedule properties and the father of respondent No.1 does not have any semblance of right, title and interest over the same and also for a decree of permanent injunction restraining the said respondent’s father in exercising rights over the properties involved and therein, while dealing with the dispute, it was held that the father of the appellant to be the legitimate son born out of the marital wedlock between the Raja Krushna Chandra Singh Mandhata and his wife Homarajya Laxmi but by judgment dated 23rd April, 1997 dismissed it, challenging which, the father of the appellant preferred appeal in F.A. No. 190 of 1997 before this Court and it was also dismissed and at last, the SLP was filed before the Apex Court and it also resulted in dismissal. But, the pleading is to the effect that though the suit and appeal have been dismissed but the finding of fact that the father of the appellant was the
Legal Reasoning
legitimate son born out of marriage of the King with the first queen has not been disturbed by any court including the Supreme Court of India. 4. The dispute arose between the parties during the car festival of 2013 for performing chhera pahanra seva by the appellant since a rival claim was advanced and in that connection, the matter was brought before the learned Endowment Commissioner, Odisha, Bhubaneswar, who referred the same to the concerned Sub-Collector for a adjudication and at that time, it was learnt that a decision has been taken by the learned Collector, Nayagarh authorizing the Sub-Collector, Nayagarh to perform the seva on the chariots MSA No.6 of 2016 Page 4 of 27 during such festival and after that, the matter reached this Court in W.P.(C) No. 13857 of 2013 to quash such decision and to allow him to perform the chhera pahanra seva and it was permitted for the car festival of that year and at the same time, both the parties were directed to approach the Endowment Authority claiming respective rights and in view of such order dated 9th July, 2013, he was allowed to perform the seva and also for the year 2014-15 by the order of the Endowment Commissioner, Odisha, Bhubaneswar as at Annexure-7. But, thereafter, in 2016, it was informed to the appellant that respondent No.1 claiming to be the grandson of late Raja Krushna Chandra Singh Mandhata has filed an application under Section 41(e) of the OHRE Act and lastly, it was
Decision
disposed of vide O.A. No. 12 of 2013 allowing him to perform the chhera pahanra seva during the car festival. It has been pleaded that despite the fact that the appellant is the son of the late Brajendra Kishore Singh and grandson of late Raja Krushna Chandra Singh Mandhata of Nayagarh Estate, respondent No.1 was allowed to perform the chhera pahanra seva on the chariots thereby confirming the order dated 23rd June, 2016 of the learned Assistant Commissioner of Endowments, Odisha. 5. The final decision against the appellant is under challenge on the grounds as follows: (i) The impugned decision as per Annexures-8 & 10 are illegal, perverse and arbitrary, hence, liable to be set aside and the same is against the weight of evidence on record. MSA No.6 of 2016 Page 5 of 27 (ii) The learned Assistant Commissioner of Endowments, Odisha failed to appreciate the facts pleaded on record that till the death of Brajendra Kishore Singh, namely, father of the appellant in 2012, it was him, who was performing the chhera pahanra seva on the occasion of car festival and after his death, the appellant succeeded and performed such seva for the year 2013, 2014, 2015 & 2016 and as such, clearly established the right since the time of their ancestor. (iii) Both the learned courts below in a mechanical manner overlooking the fact that the Ruling King and his son are entitled to perform the chhera pahanra seva as per the prevailing custom and tradition more so when Kingship of late Brajendra Kishore Singh remained challenged, inasmuch as, the father of respondent No.1 was never the King and the appellant, as the son of the reigning King has all the rights to perform the seva puja, hence, the finding in that regard is grossly erroneous. (iv) Learned courts below lost sight of the fact and the assertion that the father of respondent No.1 to be the illegitimate child in absence of any proof of second marriage, hence, the relationship has no valid basis and thus, the impugned orders at Annexures-8 & 10 are to be set aside. 6. Heard Mr. Padhi, learned Senior Advocate for the appellant, Mr. Mohapatra, learned counsel for respondent No.1 and Mr. Nath, learned counsel for respondent No.2, namely, Endowment Commissioner, Odisha, Bhubaneswar MSA No.6 of 2016 Page 6 of 27 besides Mr. Kanungo, learned Senior Advocate appearing for respondent Nos. 5,7 & 8. 7. As per the appellant, the following is the genealogy: GENEALOGY Krushna Chandra Singh Mandhata (King of Nayagarh State) Rani Sahiba Homarjya Laxmi Soubhagya Manjari Devi (Queen) (Second Queen) Brajendra Kishore Singh Amarendra Kishore Singh Gajendra Chandra Singh Rameswar Prasad Singh (Appellant) (Respondent No.1) 8. The copies of the depositions in O.A. No. 12 of 2013 are made available to the Court at the time of hearing and the same are perused. 9. Mr. Padhi, learned Senior Advocate for the appellant submits that respondent No.1 performed the chhera pahanra seva of the deities during the time of car festival falsely claiming him to be the king of Nayagarh after the death of Brajendra Kishore Singh and thereafter, even raised an objection before the learned Assistant Endowment MSA No.6 of 2016 Page 7 of 27 Commissioner, Odisha. It is further submitted that the question of declaration of Kingship was not an issue in T.S. No. 72 of 1988 but it has been concluded at the end that Brajendra Kishore Singh to be the legitimate son of Raja Krushna Chandra Singh Mandhata. Referring to a copy of the judgment in the suit, such a claim is put forth from the side of the appellant. The further contention of Mr. Padhi, learned Senior Advocate is that the Executive Officer filed a written statement before the learned Assistant Endowment Commissioner, Odisha in the O.A. proceeding and admitted that from 1978 to 1982, the chhera pahanra seva during car festival was being performed by Rajguru Samantnarayan Rajguru Mohapatra as Krushna Chandra Singh Mandhata was ill by then and after the latter’s death in the year 1983, Brajendra Kishore Singh performed the same till 2012 barring 2005. It is, hence, contended that Brajendra Kishore Singh was performing chhera pahanra seva from 1983 till 2012 for about twenty nine years and Amarendra Kishore Singh, son of the King through second wife and father of respondent No.1 never performed it till his death in 2002. The submission is that after the death of Brajendra Kishore Singh, the dispute was raised by respondent No.1 and as a result, W.P.(C) No. 13857 of 2013 was filed and it was disposed of by order dated 9th July, 2013 allowing the appellant to perform the seva puja with a finding that it was being managed by late Brajendra Kishore Singh till he passed away on 13th August, 2012. In such view of the matter and for the fact that the proceeding before the learned Assistant Commissioner of Endowments, Odisha could not be properly MSA No.6 of 2016 Page 8 of 27 looked after and as the appellant failed to take adequate steps and hence, it was disposed of ex-parte but the decision has been arrived at without any independent enquiry and it has also resulted in dismissal of the appeal by the learned Commissioner of Endowments, Odisha, Bhubaneswar, before whom, a fresh hearing was sought for with a remand and adjudication providing him an opportunity to contest the claim of respondent No.1 by filing a written statement but it was not entertained and ultimately, was dismissed, the contention of Mr. Padhi, learned Senior Advocate is that as against the aforesaid backdrop, the impugned judgment at Annexure-10 should be set aside paving the way for an adjudication since such a customary right to perform chhera pahanra seva is claimed adversely and also a matter of public interest involving emotion and sentiment of the citizens of Nayagarh with the following pleading on record that the father of respondent No.1 never ever performed chhera pahanra during his life time, whereas, the appellant’s father performed it all along ever since 1983 till his death in 2012 except for a single year and in view of the finding of the civil court about the legitimacy of late Brajendra Kishore Singh as the son of Raja Krushna Chandra Singh Mandhata and real successor of the Nayagarh Estate and also in view of the order dated 1st July, 2016 in W.P.(C) No. 11269 of 2016 allowing the appellant to perform chhera pahanra for the year 2016 pending disposal of the appeal before the learned Commissioner of Endowments, Odisha. Narrating the above facts, Mr. Padhi, learned Senior Advocate highlighted upon the facts relevant and the dire need of a detailed and MSA No.6 of 2016 Page 9 of 27 independent enquiry with evidence on record by the learned Assistant Commissioner of Endowments, Odisha for a definite finding and conclusion on the rights of chhera pahanra seva at Nayagarh. 10. In fact, respondent No.1 moved the learned Commissioner of Endowments, Odisha, Bhubaneswar under Section 41(e) of the OHRE Act allowing him to perform the chhera pahanra seva of Shri Jagannath Jew during the car festival as it was received from respondent No.4 to answer the reference and while dealing with the same in O.A. No.12 of 2013, as pleaded by the appellant, it has been admitted by him at the time of examination that late Brajendra Kishore Singh, the father of the appellant, was born on 4th September, 1933, however, deposed that he cannot be treated as the son of late Raja Krushna Chandra Singh Mandhata through Rani Sahiba Homarajya Laxmi in view of the judgment dated 23rd April, 1997 in T.S. No.72 of 1988 of the learned Civil Judge (Senior Division), Nayagarh having discarded his paternity and declared the right, title and interest of the properties involved in favour of late Soubhagya Manjari Devi, namely, second queen and grandmother of respondent No.1. It is further pleaded for the appellant that in the said suit being a part of the record before the learned Assistant Commissioner of Endowments, Bhubaneswar and the decree as at Annexure-13 of the additional affidavit dated 2nd December, 2024, the question of declaration as the King of Nayagarh was not the subject matter in dispute contrary to the claim and evidence in O.A. No.12 of 2013 and that, such paternity MSA No.6 of 2016 Page 10 of 27 of late Brajendra Kishore Singh was discarded, rather, it is clearly manifest that Brajendra Kishore Singh is the legitimate son of Raja Krushna Chandra Singh Mandhata born out of the marital wedlock with Rani Sahiba Homarajya Laxmi. The further pleaded that the learned Assistant Commissioner of Endowments, Bhubaneswar in spite of a written statement received from the Executive Officer, wherein, it was deposed that from 1978 to 1982, the chhera pahanra seva during car festival was being performed by Rajguru Samanta Narayan Rajguru Mohapatra as the King was unwell by then and thereafter, Brajendra Kishore Singh did perform such seva till 2012 barring 2005, when Mandir Parichha performed, it reached at a flawed conclusion that respondent No.1 is eligible and entitled to be declared for the said seva oblivious of the fact that late Brajendra Kishore Singh performed the seva for nearly 29 years and that apart, Amarendra Kishore Singh, namely, the father of respondent No.1 born through second queen never performed it till his death in 2002. It is reiterated that the appellant filed W.P.(C) No.13587 of 2013 before this Court when dispute was raised by respondent No.1 and therein, it is held that till the death of Brajendra Kishore Singh, he was admittedly performing the chhera pahanra seva but unfortunately, the learned Assistant Commissioner of Endowments, Bhubaneswar ignoring all such facts declared respondent No.1 instead as eligible to perform the seva during the car festival. 11. The contention is that the appellant could not take adequate steps in O.A. No.12 of 2013 and the decision is MSA No.6 of 2016 Page 11 of 27 entirely based on the averments of respondent No.1 and others close to him without any independent inquiry as required under the OHRE Act. It is contended that the appellant filed F.A. No.10 of 2016 but the learned Commissioner of Endowments, Bhubaneswar confirmed the order in the O.A. and therein, the reason behind the default in taking steps before the learned Assistant Commissioner of Endowments, Bhubaneswar was described stating that the appellant’s brother, namely, Hemendra Kumar Singh was looking after the matter and he suddenly died during its pendency and hence, no written statement could be filed and lastly, on 12th April, 2016, he was set ex-parte and since by then, his place of residence was at Ranchi in the State of Jharkhand, upon receiving the information about the ex-parte order, filed the appeal and even requested a remand for fresh adjudication providing opportunity to him with a defence filed pleading that if it was not allowed, there would be substantial prejudice but correspondingly assailed the decision on merit but the appeal was dismissed without any remand as learned Commissioner of Endowments, Bhubaneswar declined such request and proceeded to dispose of the appeal. It is contended that it is a fit case where the matter deserves a fresh adjudication with evidence received from the appellant and others as it is also a question of honour and deals with secular rights and a matter of great public interest concerning the people of Nayagarh and such remand is really needed, all the more when, learned Assistant Commissioner of Endowments, Bhubaneswar without a proper inquiry disposed of the O.A. as such an inquiry is MSA No.6 of 2016 Page 12 of 27 contemplated in Section 41 of the OHRE Act. Essentially, the argument advanced by Mr. Padhi, learned Senior Advocate is that it was incumbent upon the learned Assistant Commissioner of Endowments, Bhubaneswar to conduct an independent inquiry to arrive at a definite conclusion but the entire exercise was accomplished in a mechanical manner and not only that, the learned court below also lost sight of all such admitted facts regarding the chhera pahanra seva being performed by late Brajendra Kishore Singh for a quite long period and therefore, the concurrent findings of the learned authorities below are required to be interferred with. 12. On the contrary, Mr. Mohapatra, learned counsel for respondent No.1 vehemently opposed the claim of the appellant and justified the decision under challenge with reference to the evidence received before the learned Assistant Commissioner of Endowments, Bhubaneswar. It is contended that the appellant though entered appearance in the O.A. did not file the written statement or show cause nor participated in the hearing and was ultimately set ex parte on 12th April, 2016 and since ample opportunity was provided to him, the matter does not deserve a remand as the said plea was duly taken judicial notice of by the learned Lower Appellate Court. It is further contended that as per the age- old tradition and custom, the King of Nayagarh used to perform the chhera pahanra seva on the occasion of car festival and after the State of Nayagarh merged in 1948 and consequent upon such merger, though, the King was divested of the power with regard to the management and MSA No.6 of 2016 Page 13 of 27 administrative control of the affairs of the temple but continued to perform the chhera pahanra seva till 1983. Reiterating the facts pleaded before the learned authorities below, it is contended that the King initially married the first queen and grandmother of the appellant in 1931 but their relationship got strained as the latter chose to lead an immoral life and kept extra-marital relationship with her Personal Assistant and deserted the King in the year 1939 and settled in Calcutta and thereafter, at Ranchi, for which, she was divested of the status as a queen and since, the King had no issue through her, had executed a Deed of Authority on 29th April, 1936 to adopt a son as a successor to the Royal family and the proposal was sent to the Political Agent of British Crown for approval but it was not accepted, rather, disapproved on 26th June, 1936 and thereafter, the King married the second queen and grandmother of respondent No.1 and out of that marriage, late Amarendera Kishore Singh and three daughters were born and after the death of the King, son Amarendera Kishore Singh was the heir apparent to the throne of Nayagarh as he was formally coronated and became the King of the ex-State of Nayagarh for the purpose of discharging the traditional and customary duties and functions of the Royal family including, the chhera pahanra seva. Referring to the above facts, Mr. Mohapatra, learned counsel for respondent No.1 submits that learned authorities below did not commit any serious error or illegality in not recognizing the appellant as the successor of the King through late Brajendra Kishore Singh. It is also submitted that late Brajendra Kishore Singh instituted the suit MSA No.6 of 2016 Page 14 of 27 in T.S. No.72 of 1988 against the father of respondent No.1 and others seeking a declaration that he was the owner of the schedule properties left behind by the King as per the rule of Primogeniture on the plea that he was born on 4th September, 1933 to the King and Rani Sahiba Homarajya Laxmi and by claiming that he forcibly performed the chhera pahanra seva, to which, respondent No.1 could not object being busy in litigations with the State Government to protect the properties and status as the King and it was dismissed by a judgment dated 23rd April, 1997 and confirmed in F.A. No.190 of 1997 being dismissed on 6th November, 2002, in such view of the matter, as according to Mr. Mohapatra, learned counsel and for the fact that respondent No.1 has been duly recognized as the heir apparent and successor to the Royal family of Nayagarh, the learned authorities below rightly declared him so, while dealing with the O.A., morefully when, neither the appellant nor his father had ever been coronated with any such customary rights performed and hence, the appeal is liable to be dismissed. 13. Recorded the submission of Mr. Kanungo, learned Senior Advocate appearing for respondent Nos.5, 7 and 8 and also Mr. Nath, learned counsel for respondent No.2 with reference to the materials on record in juxtaposition to the decision of learned Assistant Commissioner of Endowments, Bhubaneswar finally affirmed in F.A. No.10 of 2016. 14. Regard being had to the pleadings on record, the Court formulates the following substantial questions of law summarized herein below: MSA No.6 of 2016 Page 15 of 27 (i) Whether the learned authorities below have been justified to reach at a decision with concurrent findings in favour of respondent No.1 declaring him to have the rights to perform the chhera pahanra seva on the occasion of car festival? (ii) Whether, the exercise of power conferred under the OHRE Act rightly invoked by learned courts below while dealing with the contentious issue with proper verification and examination of records followed by an enquiry as contemplated under law? 15. Admittedly, the appellant failed to file the defence by way of a show cause in the O.A. and the explanation offered was to the effect that the litigation was being pursued by his brother late Hemendra Singh, who suddenly died during the pendency of the same. It is admitted that the decision of learned Assistant Endowment Commissioner, Bhubaneswar was not sought to be revoked under Order 9 Rule 13 C.P.C., instead the appeal was filed for a decision on merit, of course, with a plea seeking remand for a fresh adjudication. As previously stated, the appeal was dismissed by the learned Commissioner of Endowments, Bhubaneswar, Odisha without any such remand, considering the fact that the appellant was at default in not filing the show cause despite series of adjournments and hence, miserably failed to avail the opportunity and therefore, not entitled to a fresh hearing and referring to the evidence on record in absence of any challenge to the same concluded that respondent No.1 being the son of late Amarendra Kishore Singh, the grandson of the King of Nayagarh is entitled to perform the chhera pahanra MSA No.6 of 2016 Page 16 of 27 seva of the deities during car festival having declined to take a different view than the learned Assistant Commissioner of Endowments, Bhubaneswar. 16. Before the learned authorities below, it was claimed by respondent No.1 that he is the real successor of the Royal family and hence, eligible to perform the seva on the occasion of the car festival as the de jure traditional King of the erstwhile State of Nayagarh. The pleading of respondent No.1 in the O.A. was that he was under a bonafide impression that late Brajendra Kishore Singh was authorized by the State Government to perform the chhera pahanra seva of Lord Jagannath Jew during car festival and Bahuda Yatra. Such pleading is revealed from the record and reiterated by respondent No.1 while being examined as P.W.1 in the O.A. It is also pleaded that in view of the Deed of Authority dated 29th April, 1936 executed by the King in favour of Rani Sahiba Homarajya Laxmi and letter dated 26th June, 1936 addressed to the British Crown by the Political Agent, late Raja Krushna Chandra Singh Mandhata had no issue till 29th April, 1936, whereas, late Brajendra Kishore Singh, the father of the appellant was born on 4th September, 1933 and therefore, he cannot be treated as the son of the King. The said Deed of Authority or any such material with contemporaneous documents has not been produced before the learned authorities below. Under what circumstances, such a request was moved by the Political Agent of British Crown in 1936 in spite of the fact that late Brajendra Kishore Singh was born on 4th September, 1933 is not revealed from MSA No.6 of 2016 Page 17 of 27 the record nor it has been dealt with and discussed, while disposing of the O.A. and even by the learned court below in appeal. The fact remains, late Brajendra Kishore Singh apparently as the successor of the King through the first marriage perform the chhera pahanra seva for a long period commencing from 1983 and continued till 2012. It is not denied that the father of respondent No.1, who is the son of the King through 2nd marriage ever performed such seva till his death in 2002. The explanation of respondent No.1 is that the chhera pahanra seva by late Brajendra Kishore Singh went unopposed due to pending litigations with the Government and for such other reasons. But, the admitted fact is that the appellant’s father performed the seva for nearly 29 years, except when, he was sick. 17. It is pleaded on record that in the O.A., no show cause could be filed and it was on account of the death of the appellant’s brother, who was busy in the general election and subsequently, elected as an M.P. and hence, could not diligently pursue the same before the learned Assistant Commissioner of Endowments, Bhubaneswar, Odisha and he passed away in 2016, while it was pending disposal. The impugned judgment at Annexure-10 reveals that there had been twenty seven adjournments but still the appellant failed to file the written statement and hence, was finally set ex parte with the appeal being dismissed confirming the decision of the learned Assistant Commissioner of Endowments, Bhubaneswar. Of course, such default on the part of the appellant left the learned Assistant Commissioner MSA No.6 of 2016 Page 18 of 27 of Endowments, Bhubaneswar with no option except to proceed to dispose of the O.A. However, the question is, whether, the decision in the proceeding, which is entirely based on the evidence of respondent No.1 and oral testimony of few others without any documents referred to regarding the succession as the heir apparent to the throne and King of Nayagarh is justified and legal? Whether, the customary rights of the appellant including the chhera pahanra seva during car festival have been taken away in view of the decree in T.S. No.72 of 1988 affirmed in F.A. No.190 of 1997 instituted by the late father of the appellant? Referring to the additional affidavit, it is made to suggest by the appellant that he happens to be the successor of the King duly accepted and recognized by the local and hence, the decision in favour of respondent No.1 is erroneous. Mr. Mohapatra, learned counsel for respondent No.1 seriously objects to the acceptance of any such additional affidavit, while dealing with the second appeal when the appellant was grossly at default to file defence in the O.A and even failed to defend the same. Admittedly, the appellant failed to turn up and did not file the show cause in the O.A. despite numbers of adjournments allowed, the fact, which perhaps weighed the mind of the learned court below, while dealing with the appeal ultimately deciding the issue in favour of respondent No.1 even though said to considered the issue on merit. Of course, the appellant had pleaded for a remand since the dispute is over a right to perform the chhera pahanra seva and as it involves a contentious issue as to who is the real King of Nayagarh and eligible to perform such seva and other rights MSA No.6 of 2016 Page 19 of 27 but it has not been found favour with learned court below dismissing the appeal on merit confirming the findings based on the evidence adduced by respondent No.1 and others discarding the reply of respondent No.4. 18. As regard, the decree in the suit instituted by late Brajendra Kishore Singh, it was against the father of respondent No.1 and four others seeking a declaration him as the sole owner in respect of the schedule properties with the defendants therein having no any right, title and interest and for rendition of accounts vis-à-vis the usufructs thereof and for a permanent injunction restraining the latter and their agents/servants in exercising rights over the same in any manner whatsoever, even from withdrawing the compensation amounts payable out of the land acquisition proceedings. So, it is clear that no such question as to the successor of the King of the Royal family was ever a subject matter in the suit i.e. T.S. No.72 of 1988, rather, it was with regard to the claim of the title over the properties succeeded by the 2nd wife of the King. On a reading of the judgment dated 23rd April, 1997 as at Annexure-13 to the additional affidavit, which, as earlier stated, has been a part of the record in the O.A. proceeding, it is made to reveal that the suit was so instituted by the father of the appellant claiming ownership in respect of schedule ‘A’ & ‘B’ properties morefully described therein by pleading rule of Primogeniture. In fact, it was held by learned Civil Judge (Senior Division), Nayagarh in the suit that schedule ‘A’ properties were not available with the father of the appellant MSA No.6 of 2016 Page 20 of 27 as it had already been gifted to the 2nd wife of the King in the year, 1949 and therefore, such rule of Primogeniture is not attracted with a conclusion that there is no evidence that the King had any intention or ever treated the properties as a part of the impartible estate in his hand. In fact, the schedule ‘A’ properties were claimed to have been gifted by the King in favour of his 2nd wife on 7th March, 1949 through a registered deed and in the suit, it was held to be a valid one and duly acted upon in absence of any further evidence that the gift was stage managed exercising undue influence or fraud. The suit was also held to be barred by limitation by challenging such a gift. The decision in the suit was ultimately upheld in F.A. No.190 of 1997. With the above discussion, it has to be concluded that the question of succession as the heir apparent to the throne was not an issue for a decision in the suit and it was concerning the properties succeeded by the 2nd queen of the King of Nayagarh and the father of the appellant lost it out while claiming ownership thereof. But, the learned Assistant Commissioner of Endowments, Bhubaneswar even though considered such an evidence received from the side of respondent No.1 apparently proceeded on the premise that the appellant in view of the dismissal of the suit and F.A. No.190 of 1997 having failed to establish as the real successor of the King of Nayagarh cannot be allowed to perform the chhera pahanra seva. At the cost of the repetition, it has to be held that the decision in T.S. No.72 of 1988 has no bearing in so far as the issue at hand is concerned which relates to performing the chhera pahanra seva on the eve of the car festival. The father of the appellant though lost the MSA No.6 of 2016 Page 21 of 27 rights in respect of the properties, over which, he had extended a claim by pleading the rule of Primogeniture but the same having been acquired by the 2nd queen of the King of Nayagarh, it cannot influence the decision regarding the exercising the rights by him or for that matter, respondent No.1 including the chhera pahanra seva. In other words, such a right has to be independently examined without being overwhelmed by the decree in T.S. No.72 of 1988. Rather, it is made to reveal that the learned Civil Judge (Senior Division), Nayagarh had taken cognizance of the status of the late father of the appellant having him the locus standi to institute the suit though found to be time barred. 19. In course of hearing, Mr. Mohapatra, learned counsel for respondent No.1 submits that the learned authorities below received evidence and concluded that the appellant is not the real successor. It is also submitted that such an exercise has been undertaken by the learned Assistant Commissioner of Endowments, Bhubaneswar, in the manner in which, an inquiry is to be held as provided in Section 74 of the OHRE Act. In that connection, a decision of this Court in Bhramarbar Santra & others Vrs. State of Orissa & others AIR 1970 Ori 141 is referred to by Mr. Mohapatra, learned counsel for respondent No.1 to contend that it has been duly followed, while dealing with the application under Section 41(e) of the OHRE Act. That apart, it has been alleged that the appellant having not assigned any sufficient cause or justiciable reason for being not diligent while pursuing the O.A., for such deliberate and willful default, he MSA No.6 of 2016 Page 22 of 27 is not entitled to any such equitable relief, even remand of the matter for a fresh decision, more so when, nothing is placed on record to satisfy the reason for the alleged default. It is contended by Mr. Padhi, learned Senior Advocate for the appellant that even after the default, it was the bounden duty of the learned authorities below to hold an inquiry instead of outrightly accepting the evidence of respondent No.1. A reference has been made to Section 41 of the OHRE Act regarding the jurisdiction conferred on the learned Assistant Commissioner of Endowments, Bhubaneswar to enquire into and decide any such issue regarding entitlement of a person to any honour and emolument or perquisite in any religious institution and what the established usage of the religious institution. The decision (supra) deals with Section 41 of the OHRE act and it has been held therein that it is made applicable to all Hindu public religious institutions and endowments. On a reading of the said provision, it is conveyed that the learned Assistant Commissioner of Endowments, Bhubaneswar has the power to deal with all such disputes and matters specified therein including the one related to the entitlement by custom or otherwise vis-à-vis honour etc. in respect of a religious institution. 20. Admittedly, no any evidence from the side of the appellant was allowed or received by the learned Lower Appellate Court or to consider remand of the matter for a fresh adjudication. In the humble view of the Court, learned Commissioner of Endowments, Bhubaneswar, even though, was not in favour of condoning the alleged default of the MSA No.6 of 2016 Page 23 of 27 appellant, could have held an inquiry to ascertain as to who was coronated as the King of Nayagarh as against the rival claims advanced. The Court is also of the view that the learned Assistant Commissioner of Endowments, Bhubaneswar was required to hold a threadbare inquiry on the issue involved while exercising powers under Section 74 of the OHRE Act and ought not to have proceeded in disposing of the O.A. with a decision entirely rested on the oral testimony of respondent No.1 and others. The same was mistake was repeated by the learned Lower Appellate Court. The fact of coronation should have been examined and unearthed with an independent inquiry even in the absence of the appellant. It is a matter of public importance and also a question of honour dealing with the secular and customary rights of the parties involved and while exercising any such power, it was for the learned Assistant Endowment Commissioner, Bhubaneswar to hold a comprehensive inquiry by calling such records to test the veracity of the claims to the throne of the erstwhile Kingdom. In any case, the locus standi of the father of the appellant is no more in dispute in view of the judgment in T.S. No.72 of 1988 and for having reached finality upon disposal of F.A. No.190 of 1997 but in view of the fact that late Brajendra Kishore Singh performed the chhera pahanra seva for about 29 years with no real break except once and succeeded by the appellant, a duty was cast upon the learned authorities below to examine such an issue with all sincerity holding a detailed inquiry in view of Section 41 of the OHRE Act. Since the honour of the Royal family is involved, which is also of utmost public MSA No.6 of 2016 Page 24 of 27 importance, in order to set it at rest the controversy, learned Assistant Commissioner of Endowments, Bhubaneswar, while dealing with the O.A., should have conducted a roving inquiry as permissible under law, a power which is exercisable by him having all the trappings of a civil court. It is to reiterate that an authority under the OHRE Act, while dealing with a proceeding, shall have the powers vested in the court under the Code of Civil Procedure, 1908 when trying a suit like discovery and inspection, enforcing attendance of witnesses, even compelling production of documents, so on and so forth by issuing Commissions as well for examination of witnesses specified in Section 74 thereof. A party is at default does not mean that the learned Assistant Commissioner of Endowments, Bhubaneswar or the Endowment Commissioner, for that matter, is absolved of any such responsibility in holding an inquiry under the OHRE Act, rather, to insist upon such evidence necessary by following the procedure prescribed therein demanding inspection and production of records necessary to adjudicate upon the dispute. The Court is of the conclusion that the learned Commissioner of Endowments, Odisha, Bhubaneswar, while exercising powers under the OHRE Act, is a court of fact and law, hence, should have exercised the jurisdiction as contemplated under law even directing the appellant to lead evidence or holding an inquiry by himself, the purpose being to ascertain as to who has the rights to perform the chhera pahanra seva during the car festival. A decision on the issue was really needed as it has a serious repercussion since both the sides are at loggerhead claiming MSA No.6 of 2016 Page 25 of 27 each as the real successor of the King of Nayagarh. Notwithstanding, any such decision in the suit, as it cannot prevail upon the learned authorities below, not being a decision over the customary rights, a detailed inquiry was essential but none of them exercised the jurisdiction in the manner expedient and merely accepting the oral evidence of respondent No.1 and others rendered the decision dismissing the O.A. and also the appeal finally. It is not about condoning the default of the appellant, which matters the most, but what is relevant is, an issue claiming the seva puja rights as a successor of the King of Nayagarh and hence, a proper and detailed investigation was the need of the hour and expected from the learned Assistant Commissioner of Endowments, Bhubaneswar but the power as such for inquiry was never really exercised as envisaged in Section 41 of the OHRE Act nor any purposeful enquiry was conducted by the learned Lower Appellate Court, as it could not have been avoided simply for the default of the appellant. The claim of coronation by respondent No.1, the fact of late Brajendra Kishore Singh performing the chhera pahanra seva for 29 years and such other plea regarding the Deed of Authority of 1936 and seva puja was being performed by the appellant after 2012 and of course in view of the recent arrangement in view of the Court’s order dated 28th June, 2018 in I.A. No.8 of 2018 allowing respondent No.1 to perform the seva and since the learned authorities below failed to exercise the power conferred under the OHRE Act with a detailed inquiry, as it was anticipated, looking at the above facts, the irresistible conclusion of the Court is that the matter needs a MSA No.6 of 2016 Page 26 of 27 remand for a fresh decision considering the fact that the issue is one of customary rights involving the Royal family of Nayagarh notwithstanding any such default of the appellant in O.A. No.12 of 2013, rather, for failing to hold a proper enquiry according to law. 21. On account of the above conclusion, the substantial questions of law formulated by the Court stand answered. 22. Hence, it is ordered. 23. In the result, the appeal is allowed. As a logical sequitur, the impugned orders as at Annexures-8 and 10 are set aside. Consequently, the proceeding in O.A. Case No. 12 of 2013 is hereby restored to the file with a direction to the learned Assistant Commissioner of Endowments, Odisha, Bhubaneswar to hold a detailed and meaningful enquiry and at the same time, to receive such further evidence from both the sides allowing the appellant to file the defence and thereafter, to dispose it of as per and in accordance with law at the earliest soon after receiving a copy of this judgment keeping in view the discussions and observations made hereinabove. (R.K. Pattanaik) Judge Kabita/Balaram Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 08-Aug-2025 17:26:53 MSA No.6 of 2016 Page 27 of 27