Gopal Bhattacharya & Ors vs S.S. Isswar Kalimata Thakurani ...
2023 Latest Caselaw 1081 Cal

35      09.02.2023                        SAT 16 of 2011
          D Hira
Ct-08
                                       Gopal Bhattacharya & Ors.
                                                  Vs.

S.S. Isswar Kalimata Thakurani Reptby Ava Bhattacharya & Ors.

None appears on behalf of the parties, nor any accommodation is prayed for on behalf of the appellants.

No affidavit-of-service has been filed showing compliance of the order dated 10th November, 2023.

The appellate decree dated 16th August, 2020 affirming the judgment and decree passed by the trial court on 31st March, 2008 is the subject matter of challenge in this second appeal.

The suit was filed on behalf of the Shree Shree Thakurani Kalimata by its shebaits. The bargadar of the suit property (debottar property) is the defendant no.2. The Collector and B.L. & L.R.O. Memari are the other defendants.

The case of the plaintiffs was that the suit property mentioned in the schedule to the plaint ultimately vested and belonged to one Naba Kumari Devi. During her life time she dedicated the suit property in the name of said Kali Mata Thakurani. As per oral instruction of said Naba Kumar Debi, the plaintiffs and original defendant no. 1 'KA' were appointed as shebaits of the said Deity and they have been performing the duties of shebaits. One Title Suit being no. 16 of 1978 was filed on behalf of the said Deity praying for a declaration that those properties were Debattar properties of the said idol. In the said Title Suit the present plaintiffs, defendant no. 1KA and the predecessor of defendant no. 1 KHA to JA appeared and that suit was ended in a Solemnama and it was decided that

the suit property would be considered again as Debottar property and they would go on performing the Seba Puja and few of the shebaits voluntarily gave up their right. Defendant no.2 was the Bargadar of the suit property. As per agreement defendant no.2 used to give the usufructs of the land to the father of defendant no. KHA and others and he used to hand over the same to the plaintiffs and the plaintiffs used to defray the expenses of the 'Nitya Seba' of the Deity out of such usufructs. In the year 1982 defendant no. KHA filed a Title Suit being no. 111 of 1982 agianst the defendant no. KA on the self same property praying for a declaration that suit property was their personal and secular property.

The defendants contested the suit, but on 9th February, 1990 while the suit was fixed for hearing the plaintiff of the suit did not turn up and the suit was dismissed for default. Since 1982 defendant no. KHA to JA were not giving income of the suit property to the plaintiff for defraying the 'Nitya Seba'. The L.R.R.O.R. of the suit property erroneously stood in the name of defendant no. 1GA to JA and those defendants did not perform the duty of shebaits, on the contrary they were misappropriating the income of the suit property. The plaintiffs prayed for a decree for removal of those defendant nos. KHA to JA from the shebaitship so that they could not collect the income of the property from the defendant no. 2 and for other reliefs.

The defendant no.3, State of West Bengal, appeared before the ld. Trial Court and contested the suit stating therein that the L.R.R.O.R. of the suit property are collect and those are secular property and prays for dismissal of the suit.

Defendant no. 1 KA, who died during the pendency of the suit, filed a written statement stating therein the similar case, as stated by the plaintiff.

Defendant no. 2 being the recorded Bargadar of the suit property, filed a written statement stating therein that the property was all along is secular property. He is Bargadar of the suit property excepting plot no. 91, measuring 25 acres. It was possessed by Tarapada Bhattacharyya and thereafter his son and all along he is giving the produce of the land to the defendant no. 1KHA. Defendant no. 1 KHA has sold plot no. 91 to one Jagat Ghosh.

Defendant no. 1KHA to JA contested the suit and denied all allegations contended therein and their specific case is that the suit property was never Debottar property and initially belonged to Debandra Nath Bhattacharyya and after his death it was inherited by his wife Naba Kumar Debi. She died leaving Tara Pada Bhattacharyya as her only heir, who was happened to be the son of her husband's sister namely Ulangini Debi and thereby Tarapada Bhattacharyya inherited the suit property and he died leaving his seven heirs and each inherited 1/7th share therein and after the Family Settlement and respective relinquishment all shares amongst his heirs. Gopal Bhattacharyya become the absolute owner of the property and Gopal Bhattacharyya has been possessing and enjoing the suit property since the time of his father. They have prayed for dismissal of the suit. The Trial Court upheld the solemnama decree as terms and conditions of the said solemnama was not illegal and was never challenged in the earlier proceeding and in the appeal by either of the

parties or their representatives in interest. It was observed that through the solemnama decree no right was created and hence there was no requirement to register the said decree. It was observed that RORs records of the suit property (exhibit A to D/1) would not be of any benefit to the defendants since in terms of the agreement between the parties, it was previously decided that the property belonged to the deity. In terms of the solenama agreement the defendant no.2 as bargadar was in possession and all the person including the plaintiffs and defendants are possessing their land constructively through the defendants.

In view thereof, the case of adverse possession was rejected.

Before the First Appellate Court the appellants urged the following points :

(a ) After the enactment of Land Reforms Act any dedication of the property to the Deity or anybody should be registered and without any registered Deed of Transfer, it cannot be held or said that the property was transferred accordingly.

(b) The Solenama decree was not at all binding as it reveals from the decree itself that the Ld. Trial Court dismissed the suit and thereafter that agreement was entered into. Accordingly, this Agreement or Solenama is not anyhow a compromise decree and it has got no binding force and it is not matter of adjudication in any manner.

(c) In case of dedication of properties to Deity there should be written Arparnnama and there should be specific and usual ceremonies of sankalpa and utsarga. The plaintiffs failed to state and proved all those necessary things and their stand on that point there case and stand evasive

and not specific.

A compromise decree is a contract between the partner to which the court's imprimatur is affixed to give it the sanctity of an executable court. Recording of the compromise is judicial act. In view of the Order 23 Rule 3 compromise may be done between the same parties even in respect of the subject matter, which is beyond of the suit. It is clear for the solanama in question what was intended there, what has been accorded and made part of the decree and what has been declared therein.

Ld. Trial Court has discussed on the solanama decree and rightly concluded that since the terms and condition of the solenama are legal and the same had not been annulled by any court of law the decree is legal binding upon both the parties of the solenama and their successors.

The parties of that suit have admitted there that the properties were dedicated to the Deity. That means the predecessor of the contesting defendants admitted against his interest. That predecessor is no more in the world. "Declaration" oral or written, made by deceased persons as to facts within his personal knowledge and consciously against his pecuniary or proprietary interests is admissible in proof of the matters stated.

Defendant no. 3 was party of the solenama and admitted the same and his position as the bargadar of the land was one of the cases of the suit and that was made part of the solenama. He is alive and saying almost against that compromise, in which he was party. That admission may not create any title but they should be definitely stopped him from saying contrary or altering their position. The appellants are before the appellate court

that usually the founder prescribed the mode of succession as to the office of Shebait and not deviation therefrom is permissible. If there is no such direction from the founder or where the direction is not possible to be continued for the peculiar facts and circumstances. The line of succession will be the original successor land of the founder. It was the case of the plaintiff that there is no document or evidence to establish at all that there was no dedication or founder or prescribed mode of inheritance of shebaits. However, the appellants are heirs of the founder of the Deborttar. In the alternative line of claim they would be owners of the property. The evidence on record would show that it was a kind of intended Shebaitship and that has been the case of the plaintiff in the suit. It was found that the intended line of succession is not opposed to the Hindu Law. Evidently these appellants are taking the income of the Deborttor property and they are claiming the properties as their own. They got their names recorded in settlement records. They are setting interest adversely to the objectives of the endowment. Active collusion with the Bargadar of the properties has been surfaced in course of trial. This endeavour in setting their title against the endowment amount to serious dereliction of duty and breach of trust. It more than justiciable ground for removal them from the shebaitship learned trial Court is found justified, in context of the facts and material on record and law, to place reliance in that existing compromise decree. It's ultimate conclusion as to fate of the suit and removable of the appellants from shebaitship is proper.

Under such circumstances, we do not find any

reason to admit the second appeal.

The appeal stands dismissed.

There shall be no order as to costs.

(Uday Kumar, J.)                   (Soumen Sen, J.)