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IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.290 of 2002 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Khetrapal Gosthi Binodan Kendra …. Appellant -versus- Bhagirathi Dash & Others …. Respondents For Appellant - Mr.S.K. Padhi,Sr.Advocate Mr. S. Sharma, Advocate For Respondents - Mr. G.Mukherji,Sr.Advocate CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :07.03.2024:: Date of Judgment :24.04.2024 A.C. Behera, J. This Second Appeal has been preferred against the confirming judgment. 2. The appellant of this Second Appeal was the defendant before the Trial Court in the suit vide T.S. No.72 of 1989 and it was the appellant before the 1st Appellate Court in the first appeal vide T.A. No.96 of 1999. The respondents of this 2nd Appeal were the plaintiffs before the Trial Court in the suit vide T.S. 72 of 1989 and they were the respondents before the 1st Appellate Court in the 1st appeal vide T.A. No. 96 of 1999. 3. The suit of the plaintiffs (those are the respondents in this 2nd RSA No.290 of 2002 Page 1 of 20 // 2 // Appeal) against the defendant (appellant in the 2nd appeal) was a suit for declaration, recovery of possession and permanent injunction. The suit properties are the schedule A properties of the plaint i.e. consolidation Plot No.11, Ac.0.02 decimals and consolidation Plot No.10, Ac.0.04 decimals in total Ac.0.06 decimals (homestead land) under consolidation Khata No.115 which corresponds to part of M.S. Plot Nos. 119 and 120 under M.S. Khata No.12. 4. As per the story narrated in the plaint, the M.S. Plot Nos.119 and 120 under M.S. Khata No.12 corresponds to consolidation Plot Nos.10 and 11 under Khata No.115. The suit properties have been recorded in the
Legal Reasoning
name of their family deity Sri Madan Mohan Dev and its Marfatdar as Artatrana Dash in the settlement R.o.R as well as in the consolidation R.o.R. Artatrana Dash died in the year 1973 leaving behind the plaintiffs as his successors and after the death of Artatrana Dash, the plaintiffs being his successors continued as Sebayats as well as Marfatdars of their family deity Sri Madan Mohan Dev. For which, they (plaintiffs) filed the suit in their personal capacities as well as on behalf of the deity Sri Madan Mohan Dev. RSA No.290 of 2002 Page 2 of 20 // 3 // Their predecessor, who was the Marfatdar of the deity i.e. Sri Artatrana Dash had constructed a house on the front portion of the suit Plot No.10 facing to village road, because the village road is running to the adjacent southern side of suit Plot No.10. The remaining portion of that suit plot No.10 along with the suit Plot No.11 are situated at the backside of that constructed house. The adjacent Plot No.8 to the west of suit plot No.10 belongs to the defendant-Association. There are structures on Plot No.8. As the defendant is an association, for which, the activities of the defendant-association has been performing inside the house on Plot No.8. In the year 1974-75, the plaintiff No.1 became a member of the defendant-association and subsequently, he was elected as a member of the executive committee and also he became the Treasurer of the defendant-Association in the month of May 1977. The then President and Secretary of the defendant-Association requested plaintiff No.1 to permit them to use the house over the suit Plot No.10 for the purpose of children’s reading room. Accordingly, as per the permission of the plaintiffs, the defendant- association used the house situated on the suit Plot No.10. But, subsequent thereto, when, there was final publication of the consolidation R.o.R. in respect of the suit properties in the month of June, RSA No.290 of 2002 Page 3 of 20 // 4 // 1990, it came to the knowledge of the plaintiffs that, though the suit properties vide consolidation Plot Nos.10 and 11 under consolidation Khata No.115 have been correctly recorded in the name of their family deity Sri Madan Mohan Dev indicating the name of their predecessor i.e. Artatrana Das as the Marfatdar of their family deity, but, there was entry of the note of possession of the defendant-Association in respect of the suit consolidation Plot Nos.10 and 11 as a wrongful possessor of the same since 1967 in the remarks column thereof erroneously, for which, in order to correct the said wrong entry of the noting of possession of the defendant-Association in the remarks column of the suit consolidation Plot Nos.10 and 11, the plaintiff No.1 brought the said wrong entry to the notice of the President and Secretary of the defendant-association for correction of the same. But, though they (President and Secretary) of the defendant-association assured the plaintiff No.1 for correction of the same and also assured the plaintiff No.1 to vacate the possession of the part of suit Plot No.10 in favour of the plaintiffs, but, subsequently the President and Secretary of the defendant-Association denied to vacate, instead of which, the President and Secretary of the defendant- Association claimed title of the defendant over the suit properties and they (President and Secretary of the defendant-Association) started digging out plinth at the rest vacant portion of suit Plot No.10 and 11 for Page 4 of 20 RSA No.290 of 2002 // 5 // construction of the houses therein forcibly and collected building materials for the said purpose. For which, without getting any way, the plaintiffs approached the Civil Court by filing the suit vide T.S. No.72 of 1989 against the defendant-Association through its President and Secretary praying for declaration of the right, title and interest of the plaintiffs over the suit properties and for recovery of possession of the suit properties from the defendant-Association and to injunct the defendant-association permanently from creating any sort of disturbance in the possession of the plaintiffs over the suit properties. 5. Having been noticed from the Trial Court in T.S. No.72 of 1989 filed by the plaintiffs, the defendant-association challenged the same by filing its written statement denying the allegations alleged by the plaintiffs in their plaint by taking its stands specifically that, one Agadhu das and Naranabandhu Patnaik were the owners of the Plot No.4 having an area of Ac.0.38 decimals as per Sabik settlement of the year 1927. One Sadasiva Rath acquired interest of Naranabandhu. The said Plot No.4 and its adjoining eastern side Plots were lying fallow and unproductive. Therefore, the villagers constructed structures on Plot No.4 as well as on its adjoining eastern side Plots i.e. on Plot Nos.119 and 120 in the year 1954. Agadhu Das transferred Ac.0.04 decimals out of Ac.0.19 of RSA No.290 of 2002 Page 5 of 20 // 6 // Plot No.4 to the State of Orissa and he also transferred rest Ac.0.15 decimals to the defendant-association on dated 18.10.1960. The western portion of that Plot No.4, which was the property of Sadasiva Rath and which was under the possession of the defendant, the same was allowed to be recorded in the name of the defendant-association with the consent of the heirs of Sadasiva Rath. Out of total Ac.0.38 decimals, a portion thereof has been left to its southern side as a road and the remaining area thereof, has been recorded as consolidation Plot Nos.7 and 8. The defendant-Association is in possession over the eastern side of suit Plot Nos.119 and 120 since 1954, which corresponds to consolidation suit Plot Nos.10 and 11 respectively. So, the rest area of the suit Plots were not under the possession of the plaintiffs and the same is under the continuous possession of the defendant-association, for which, the defendant-association has perfected its title over the portions of Plot Nos.119 and 120, which is under the possession of the defendant’s Association by way of adverse possession. Therefore, the suit of the plaintiffs is not maintainable against the defendant-Association and the same is barred by law limitation. The consolidation R.o.R. of the suit properties in the name of the plaintiffs is RSA No.290 of 2002 Page 6 of 20 // 7 // incorrect. Rather, the Consolidation Authorities were not empowered under law to decide the question of title in respect of non-consolidable homestead land i.e. suit properties. The Consolidation Authorities have noted the possession of the defendant-Association in the remarks column of the suit Plot Nos.10 and 11, as the defendant-Association has perfected its title by way of adverse possession over the suit plots. The plaintiffs have never brought such entry to the notice of the Secretary of the defendant-Association. The plaintiff No.1 was/is not at all a member of the defendant-Association. As the defendant-Association has its title and possession over the suit properties, for which, the plaintiffs have no right, title, interest and possession over the same. Therefore, the suit of the plaintiffs is not maintainable under law. The suit of the plaintiffs is also bad for non-joinder of necessary parties. Therefore, the plaintiffs are not entitled for any relief against the defendant-Association and as such, the suit of the plaintiffs is liable to be dismissed against the defendant. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether eight numbers of issues were framed by the Trial Court in the suit vide T.S. No. 72 of 1989 and the said issues are:- RSA No.290 of 2002 Page 7 of 20 // 8 // 1. 2. 3. 4. 5. 6. 7. 8. I s s u e s Is the suit maintainable? have the plaintiffs any cause of action to file the suit? Whether the plaintiffs have any right, title, interest over the suit property? Whether the defendants have perfected their title to the suit land by adverse possession? Are the plaintiffs entitled for recovery of possession over the suit property? Whether the plaintiffs are entitled for permanent injunction against the defendant from making any sort of construction over the suit property? Whether the suit is bad for non-joinder of necessary parties? To what other relief, or reliefs the plaintiffs are entitled? 7. In order to substantiate the aforesaid relief(s), sought for by the plaintiffs against the defendant, they (plaintiffs) examined 3 witnesses from their side including the plaintiff No.1 as P.W.1 and relied upon the documents vide Exts.1 to 9/a. On the contrary, in order to nullify/defeat the suit of the plaintiffs, the defendant-Association examined five witnesses on its behalf including its Secretary as P.W.3 and relied upon the documents vide Exts.A to J. 8. After conclusion of hearing and on perusal of the materials, evidence and documents available in the record, the Trial Court answered RSA No.290 of 2002 Page 8 of 20 // 9 // all the issues in favour of the plaintiffs and against the defendant- Association and basing upon the findings and observations made by the Trial Court in all the issues in favour of the plaintiffs, the Trial Court decreed the suit of the plaintiffs vide T.S. No.72 of 1989 against the defendant-Association on contest as per its judgment and decree dated 24.08.1999 and 06.09.1999 respectively assigning the reasons that, as the suit properties have been recorded in the consolidation R.o.R. by the Consolidation Authorities in the name of the deity Sri. Madan Mohan Dev, indicating the name of the father of the plaintiffs i.e. Artatrana Dash as the Marfatdar of the deity, for which, the Trial Court declared the title of the plaintiffs over the suit properties and directed the defendant- Association to handover the vacant possession of the suit properties to the plaintiffs and injuncted the defendant-Association permanently from raising any construction over the suit land. 9. On being dissatisfied with the aforesaid judgment and decree passed on dated 24.08.1999 and 06.09.1999 respectively in favour of the plaintiffs and against the defendant-Association in the suit vide T.S. No.72 of 1989, the defendant-Association challenged the same by preferring the 1st Appeal vide T.A. No.96 of 1999 being the appellant against the plaintiffs by arraying them (plaintiffs) as respondents. RSA No.290 of 2002 Page 9 of 20 // 10 // 10. After hearing from both the sides, the 1st Appellate Court dismissed that first Appeal vide T.A. No.96 of 1999 of the defendant-association concurring/accepting the findings and observations made by the Trial Court in favour of the plaintiffs and against the defendant as per its judgment and decree dated 25.11.2002 and 06.12.2002 respectively. 11. On being aggrieved with the aforesaid judgment and decree of the dismissal of the 1st Appeal vide T.A. No.96 of 1999 of the defendant- Association, the defendant-Association challenged the same by preferring this 2nd appeal being the appellant against the plaintiffs by arraying them (plaintiffs) as respondents. 12. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e.:- 1. Whether the suit was not maintainable at the first instance as it was instituted by the plaintiffs in their personal capacity and in the decree also the title of the plaintiffs (and not the deity) was declared? 2. Whether the suit was bad in law due to the non- joinder of the deity as a necessary party? 3. Whether the courts below have taken an erroneous approach which goes to the root of the matter by not taking into consideration the admission of P.W.3 that the defendants are in possession since 20 years? 4. Whether assuming that it was a lease of immovable property, the suit was barred for non- RSA No.290 of 2002 Page 10 of 20 // 11 // compliance of statutory notice under Section 106 of the Transfer of Property Act? 13. I have already heard from the learned counsels for the appellant and respondents. 14. In order to have a better appreciation and so also for just decision of this 2nd appeal, it is pertinent to answer the above formulated substantial questions of law serially and chronologically one after another according to the materials available in the record. 15. So far as, the first formulated substantial question of law i.e. Whether the suit was not maintainable at the first instance, as it was instituted by the plaintiffs in their personal capacity and in the decree also the title of the plaintiffs (and not the deity) was declared is concerned; Though, there is no indication in the cause title of the plaint about the filing of the suit by the family deity of the plaintiffs Sri Madan Mohan Dev in whose favour the suit properties have been recorded by the Consolidation Authorities, but in the plaint, they (plaintiffs) have specifically stated/averred that, they (plaintiffs) have filed the suit in their personal capacity and on behalf of the deity as well. 16. It is the undisputed case of the parties that, the consolidation R.o.R. of the suit Khata No.115 containing Plot Nos.10 and 11 vide Ext.2 RSA No.290 of 2002 Page 11 of 20 // 12 // has been published in the name of the deity Sri Madan Mohan Dev. The previous M.S. R.o.R. of the suit properties vide M.S. Khata No.12 has also been published in the year 1967 in the name of the deity Sri Madan Mohan Dev. The plaintiffs have filed the suit for no other reason, but in order to protect the properties of the deity Sri Madan Mohan Dev praying for recovery of possession of the properties of the deity i.e. the suit properties from the defendant-Association alleging that, the defendant- Association is a stranger to the suit properties. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions of the Hon’ble Courts and Apex Court:- (i) AIR 1978 (I) 199: Balaji Mahaprabhu & Another Vrs. Narasingha Kar & Others—CPC,1908—Section 9— Worshiper has right to institute thesuit to protect the interest of the deity. (ii) AIR 1967 (SC) 1044—Biswanath & Another Vrs. Sri Thakur Radha Ballabhji & Others—A person interested in the worship of the Idol can certainly be clothed with an ad-hoc power of representation to protect its interest. (iii) 2018(II) CLR 748: (Sri) Sri Brahmeswar Mohadev, Bije and others Vrs. Baishnab Charan Biswal and others— CPC, 1908—Section 9—Locus standi to file the suit— Plaintiffs alleging to be persons interested in safeguarding the interest of the deity for declaring the sale deed in favour of the RSA No.290 of 2002 Page 12 of 20 // 13 // defendant No.1 to be void—Plaintiffs have no locus standi to file the suit. (iii) (2020) 1 SCC 1—M.Siddiq (dead) through legal representatives (Ram Janmabhumi Temple case) Vrs. Mahant Suresh Das & Others—Para-451—A worshiper can institute a suit to protect the interests of the deity against a stranger. (iv) 38 (1972) CLT 1164: Kasi Maharana and Another Vrs. Pandit Radhakrishna Chowdhury and another— C.P.C.,1908— Section 9 read with Order 1 Rule 1—suit for protecting the properties and safeguarding the interest of the Math by the person—Son of the founder of the Math is entitled to file the suit. 17. When, the M.S. R.o.R.and consolidation R.o.R. of the suit properties are in the name of the deity Sri Madan Mohan Dev and the plaintiffs have prayed for recovery of possession of the suit properties from the defendant-Association alleging that, the defendant-Association is a stranger to the suit properties and also for permanent injunction against the defendant-Association for no other reason, but only in order to protect the interest of the deity Sri Madan Mohan Dev, then at this juncture, by applying the principles of law enunciated in the ratio of the aforesaid decisions of the Hon’ble Courts and Apex Court, it cannot at all RSA No.290 of 2002 Page 13 of 20 // 14 // be held that, the suit of the plaintiffs was not maintainable without impleading the deity Sri Madan Mohan Dev as party. Therefore, the findings and observations made by the Trial Court as well as by the 1st Appellate Court that, the suit of the plaintiffs was maintainable under law, cannot be held as erroneous. 18. So far as, the 2nd formulated substantial question of law i.e. whether the suit was bad in law due to the non-joinder of the deity as a necessary party is concerned; As per the findings and observations made above in the forgoing paragraph in answering the 1st substantial question of law, it cannot be held that, the suit of the plaintiffs was not maintainable under law due to non-joinder of the deity Sri Madan Mohan Dev as a party in the suit. 19. So far as, the third formulated substantial question of law i.e. whether the courts below have taken an erroneous approach, which goes to the root of the matter by not taking into consideration the admission of P.W.3 that, the defendants are in possession since 20 years is concerned; Undisputedly, on the basis of the unchallenged settlement R.o.R. as well as consolidation R.o.R. vide Exts.1 and 2, the suit properties are the properties of the deity Sri Madan Mohan Dev. The defendant-Association has claimed its title over the suit properties i.e. over the properties of the Page 14 of 20 RSA No.290 of 2002 // 15 // deity through adverse possession alleging its possession for more than 20 years. It is the settled propositions of law that, deity is a perpetual minor. As per law, there could not be adverse possession against a minor. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the following decisions:- (i) (ii) 2007 (II) CCC 111 (MP): Dinesh Kumar & Others Vrs. Kaushal Chand Jain & Others—Para-16—There could not be adverse possession against a minor. 2014 (I) CLR—830: Chittaranjan Sahoo Vrs. Collector, Khurdha & Others—(Para-38)—Adverse possession—Indian Limitation Act, 1963—Article 112—Land belonging to the deity—transfer by the Sevayats—transferee in possession for more than statutory period of limitation—Cannot claim title by adverse possession. 20. Here in this suit at hand, when, the M.S. R.o.R. as well as consolidation R.o.R. of the suit properties stand in the name of deity Sri Madan Mohan Dev and when as per law, the Consolidation Authorities have prepared the R.o.R. of the suit properties in the name of the deity Sri Madan Mohan Dev after deciding the title of the suit properties in favour of the deity Sri Madan Mohan Dev, then at this juncture, any admission of P.W.3 regarding the possession of the defendant-Association over the suit properties cannot culminate such admission of the P.W.3 concerning the possession of the defendant-Association to a adverse possession, RSA No.290 of 2002 Page 15 of 20 // 16 // because, the suit properties are the properties of the deity Sri Madan Mohan Dev and the deity Sri Madan Mohan Dev is a perpetual minor. That apart, the necessary essentials of the adverse possession i.e. from which date, the possession of the defendant-association over the suit properties became adverse or the date on which, the adverse possession of the defendant-Association ripen to title are not available in the pleadings and evidence of the defendant-Association. In addition to that, the defendant-Association is not claiming its plea of adverse possession against the true owner of the properties i.e. against the deity Sri Madan Mohan Dev, but against its Marfatdars. When, the pleadings and evidence on behalf of the plaintiffs is going to show that, the defendant-Association is in permissive possession over the suit properties and when, it is the settled propositions of law that, a permissive possession can never become adverse unless hostile animus is expressed from any particular time to the knowledge of the owner of the suit properties and when, it is the settled propositions of law that, heavy burden lies upon the defendant to establish that, when its possession over the suit properties became adverse, because a mere possession for long time does not convert permissive possession into adverse possession, then by applying the above principles of law RSA No.290 of 2002 Page 16 of 20 // 17 // enunciated in the ratio of the above decisions to this suit/appeal at hand, it cannot at all be held that, the admission of P.W.3 that, the defendant- Association is in possession over the suit properties since 20 years has established the title of the defendant-Association over the suit properties through adverse possession. 21. So far as, the last substantial question of law i.e. whether assuming that, it was a lease of immovable property, the suit was barred for non- compliance of statutory notice under Section 106 of the Transfer of Property Act, 1882 is concerned; There is no pleadings and evidence on behalf of the defendant- Association about the leasing out of the suit properties by the deity Sri Madan Mohan Dev. There is also no document in the record about the creation of any lease in respect of the suit properties in favour of the defendant-Association. For which, the suit of the plaintiffs cannot be held as bad for non-serving of the notice under Section 106 of the T.P. Act, 1882. When, all the formulated substantial questions of law are answered above against the defendant/appellant-association and the findings and observations made by the Trial Court and 1st Appellate Court for passing the decree of recovery of possession and permanent injunction against the RSA No.290 of 2002 Page 17 of 20 // 18 // defendant-Association are not erroneous and when it is held that, the suit properties are the properties of the deity Sri Madan Mohan Dev, but not the properties of the plaintiffs, then at this juncture, the decree of declaration of title of the plaintiffs over the suit properties passed by the Trial Court and 1st Appellate Court cannot be sustainable under law, but the decree for recovery of possession and permanent injunction passed in favour of the plaintiffs and against the defendant-association are sustainable under law. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts. (i) (ii) (iii) 1993(I) OLR 249: Biswanath Chowdhury & Others Vrs. Shyam Sundar Chowdhury and after him Narayan Chowdhury and others—(Para-11)—A Sebait or a Marfatdar is a trustee of the religious institution, the properties belonging to the institution vests in the deity, who is a juristic person and not on the Marfatdar or Sebait. 110 (2010) CLT 574: Sri Mangala Thakurani Bije, Kakatpur & Others Vrs. State of Orissa & Others— Deity vis-à-vis Marfatdar—Land belong to the deity & not to the Marfatdars. 42 (1976) CLT 1241—Sarat Ch. Mohanta & Another Vrs. Administrator of Jagannath Temple—The Marfatdars cannot take up the position, that the properties are their own properties. 22. As the Trial Court and 1st Appellate Court have declared the title of the plaintiffs over the suit properties and as the suit properties are the RSA No.290 of 2002 Page 18 of 20 // 19 // properties of the deity Sri Madan Mohan Dev, but, as per law, the Marfatdars of the deity are not the owners of the properties of the deity because, the properties belong to the deity, then, at this juncture, in view of the principles of law enunciated in the ratio of the aforesaid decisions, the declaration of title of the plaintiffs over the suit properties by the Trial Court and the confirmation of the same by 1st Appellate Court cannot be sustainable under law. For which, the said portion (part) of the judgment and decree passed by the Trial Court and confirmation of the same by the 1st Appellate Court concerning the declaration of title of the plaintiffs over the suit properties is interfereable through this 2nd appeal filed by the appellant/defendant. Whereas, the other parts of the decree passed by the Trial Court and confirmation of the same by the 1st Appellate Court concerning the decree for recovery of possession of the suit properties against the defendant-Association and the decree for permanent injunction against the defendant-Association are not interfereable through this 2nd appeal filed by the appellant/defendant, for which, there is justification under law for making some interference with the judgment and decree passed by the Trial Court and 1st Appellate Court, through this 2nd appeal filed by the appellant (defendant-Association). RSA No.290 of 2002 Page 19 of 20 // 20 // Therefore, the appeal of the appellant/defendant shall succeed in part. In result, the 2nd appeal filed by the appellant (defendant- Association) is allowed in part on contest against the respondents(plaintiffs), but without cost. 23. The judgments and decrees passed by the Trial Court and 1st Appellate Court concerning the declaration of title of the plaintiffs over the suit properties are set aside. The judgments and decrees passed by the Trial Court and the confirmation of the same by the 1st Appellate Court concerning the decree for recovery of possession and permanent injunction in favour of the plaintiffs and against the defendant-Association in respect of the suit properties are confirmed. Orissa High Court, Cuttack 24th of April, 2024/ Binayak Sahoo// Junior Stenographer (A.C. Behera), Judge Signature Not Verified Digitally Signed Signed by: BINAYAK SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Aug-2024 16:08:26 RSA No.290 of 2002 Page 20 of 20