Sarbojanin Sree Sree Sitala Puja ... vs Sri Tulshi Charan Naskar
2022 Latest Caselaw 526 Cal

Dl.   February
6.    14, 2022
                                         S.A. 33 of 2021

                        Sarbojanin Sree Sree Sitala Puja Committee

                                                  Vs.

                                    Sri Tulshi Charan Naskar

                              Mr. Pinaki Ranjan Mitra,
                                               ...for the appellant.


                              The appellant is aggrieved by the judgment and decree

                 dated September 2, 2019 passed by the learned Additional District

                 Judge, First Court at Howrah, in Title Appeal No. 83 of 2017

                 reversing the judgment and decree dated May 31, 2017 passed by

                 the learned Civil Judge (Junior Division), Sixth Court at Howrah, in

                 Title Suit No. 47 of 2005 filed by the plaintiff/appellant seeking

                 declaration and injunction.



                              The plaintiff/appellant is an unregistered organization

                 claimed to have support of the people of Anandanagar. It is claimed

                 that the suit property is being used as debasthan for last 50 (fifty)

                 years by the villagers of Anandanagar and that the villagers

                 contributed money for the development of the temple. The record of

                 rights shows that the property in suit is a public debasthan of Sitala

                 Mandir for the use of Hindu community. It is further claimed that

                 the defendant/respondent had no right, title and interest over the

property in suit and that the defendant was creating disturbance to

the villagers in performing their religious activities.

The defendant, in his written statement, has alleged that

the land revenue record of rights was wrongfully made in the name

of Sitala Mandir by some miscreants and neither the defendant nor

the predecessor-in-interest of the defendant has gifted or sold out

any portion of the property in suit by way of any instrument. It was

alleged that the local people were occasionally allowed to worship

the deity and that the defendant had taken steps to rectify the wrong

recording in the land revenue record of rights.

It appears from the impugned judgement that the

defendant had preferred a earlier suit being Title Suit No. 57 of

1995 for declaration and injunction in respect of the property in suit

before the learned Civil Judge (Junior Division), Sixth Court at

Howrah and obtained a decree of declaration in respect of the

property in suit.

The trial court, after recording that neither the plaintiff

nor the defendant produced any document in support of their

respective title, decreed the suit on the basis of the finally published

land revenue record of rights, particularly, on the basis of the entry

in the comment section wherein it has been described as a temple to

be used by the public.

The lower appellate court reversed the said judgment

and decree on the ground that the trial court erred in not taking into

consideration the judgment and decree passed in Title Suit No. 57

of 1995 and also giving not much emphasize on the finally

published record of rights wherein the name of the defendant

appears as raiyat.

It is significant to mention that the suit was filed in a

representative capacity. After paper publication, none had come to

join as plaintiff. It is submitted that some of the members of the

unregistered organisation were defendants in the earlier suit. Those

persons were not named in the present suit.

Be that as it may, from the earlier proceeding, it

appears that one Tulshi Naskar filed a suit being Title Suit No. 57 of

1995 against Ayodhya Naskar and others mentioning that the suit

property belonged to his predecessor, namely, Prasanna Kumar

Naskar, who died leaving behind his widow and onely son,

Surendra Nath Naskar. The widow of Prasanna Naskar, namely,

Brijbala Devi, established the deity of Sitala Maa in the property in

suit. In the cadastral settlement record of rights, the property in suit

has been recorded as debasthan, but in the revisional settlement

record of rights it has been recorded erroneously. Though it is a

private deity, Brijbala Devi allowed the villagers to worship the

deity. In the earlier proceeding, the right, title and interest of the

defendant were not established and the decree passed in the said suit

was never challenged. The said decree is binding on the members of

the unregistered society as it is claimed that Ayodhya Naskar and

others were the defendants and similar claims made by the

defendants cannot be accepted by the trial court. Although the

earlier decree was passed ex parte, we declare that the deity in the

suit property belongs to Naskar family. The said decree remains

valid unless it is set aside.

There is also a discrepancy in the description o the

debasthan as recorded in the record of rights. Though the appellant

has heavily relied upon entry in the latest record of rights, but that

entry in the comment portion is also not in the name of the

appellant/committee but it recorded as Hindu Sitala temple for the

use of public. The appellants are not representing Hindu public at

large but they are simply an unregistered Puja Committee. The

aforesaid decree is binding on the members of the unregistered

association so long it is set aside. The relevancy and the evidentiary

value of the earlier decree was not considered by the trial court in

the proper perspective. The plaintiff has also not taken any step for

correction of the last published record of rights.

A civil suit is required to be decided on preponderance

of evidence. Preponderance of evidence suggests that the plaintiff

has right and interest in the suit property in view of the last

published record of rights which described him as raiyat and suit

plot as his own plot. In a suit the court is required to accept one of

the versions over the others on the basis of the cogent evidence has

evidentiary value.

On the basis of the evidence of record, it cannot be said

that the lower appellate court has committed any error in the eye of

law in not accepting the plaintiff's case taking into consideration the

aforesaid facts.

In view of the aforesaid, we do not find any substantial

question of law involved in this appeal for which the same is

required to be admitted.

The second appeal is, therefore, summarily dismissed

under Order XLI Rule 11 of the Code of Civil Procedure.

In view of dismissal of the appeal, the connected

application for appropriate order filed under CAN 12485 of 2019

becomes infructuous and the same is also dismissed.

There will be no order as to costs.

( Soumen Sen, J. )

( Ajoy Kumar Mukherjee, J. ) dns