Lingaraj Mohapatra & Others vs Deity Sri Gramadevati Thakurani
2021 Latest Caselaw 10905 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK
                     Second Appeal No.265 of 1987
In the matter of an appeal under section 100 of the Code of Civil
Procedure assailing the judgment and decree dated 17.08.1987 and
01.09.1987 respectively passed by the learned Subordinate Judge,
Parlakhemunid in Title Appeal No.01 of 1985 setting aside the judgment
dated 22.02.1985 passed by the learned Munsif, Parlakhemundi in T.S.
No.15 of 1978.

     Lingaraj Mohapatra & Others             ....            Appellants

                                 -versus-

     Deity Sri Gramadevati Thakurani         ....          Respondents

& Others

Appeared in this case by Hybrid Arrangement Arrangement (Virtual/Physical Mode):

      For Appellants     -     Mr.S.K. Padhi, Sr. Advocate.
                               Mr.S.S. Das & Mr.P.K.Mishra-2
      For Respondents -          Miss. P. Naidu, Advocte
                                 For Commissioner of Endowments

CORAM:
MR. JUSTICE D.DASH

               Date of Hearing & Judgment :25.10.2021

D. Dash, J

1. The Appellants, by filing this Second Appeal filed under Section 100 of the Civil Procedure Code (for short, 'the Code') have assailed the judgment and decree dated 17.08.1987 and 01.09.1987 respectively passed by the learned Subordinate Judge, Parlakhemunid (as then it was) in Title Appeal No.01 of 1985.

These Appellants were the Defendants in T.S. No.15 of 1978 in the Court of the learned Munsif, Parlakhemundi (as then it was). The Respondents, as the Plaintiffs, claiming to be the hereditary trustees of the

Deity, Sri Gramadebati Thakurani Bije at village-Budura, PS-Kasinagar in the district of Ganjam, had filed the Suit seeking the relief of a declaration that the Deity is and has been the owner-rayat of the suit lands at all relevant times and now entitled to possession of the suit land which is under attachment in a proceeding under section 145 of the Code of Criminal Procedure.

The Suit having been dismissed, those unsuccessful Plaintiffs have filed the Appeal under Section 96 of the Code. The First Appellate court has allowed the Appeal and accordingly the judgment and decree passed by the Trial Court have been set aside.

It is pertinent to state here that the Respondent No.1 who had been arraigned as Defendant No.1 in the Trial Court having died during pendency of this Appeal, his legal representatives have come to be substituted and some other parties having also died during the currency of the litigation uptil now, their names have been so expunged.

2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.

3. The Plaintiffs' case is that the Deity Sri Gramadebati Thakurani Bije at Village-Budura, PS-Kasinagar in the district of Ganjam is the private Deity and they are the hereditary trustees. According to them, about a century ago, their ancestors had installed the Deity endowing some lands, houses and other properties as better described in the schedule of the plaint in favour of the Deity. It is stated that seven members of the family as the hereditary trustees were exercising the rights of management of the Deity. They used to remain in cultivating possession of the land owned by the Deity while looking after the seva- puja and performance of all other rituals and special functions. It is also

stated that the Deity has acquired the rayati status in respect of the suit land and land revenue for those lands is being paid to the State for those land regularly.

The allegation against the Defendant No.1, namely, Laxman Mohapatra, stands on the score that he being the Archak had been removed from his service as it was found that he misappropriated the funds of Deity and attempting to interfere with the possession of the suit land by the Deity through its trustees.

4. The Defendants, in their written statement, while traversing the plaint averments have averred that the Plaintiffs are styling themselves as the hereditary trustees of the Deity, which is not a fact. It is also said that they have not been appointed as the trustees by any Authority or the villagers. The Defendant claiming their status as hereditary Archakas of the Deity state that such duty attached to the Deity was being exercised by their ancestors since long. The Defendants have also disputed the claim of the Plaintiff that their ancestors had installed the Deity endowing the suit property which were being managed by them. It is their case that they are in khas possession of the suit land and it is in lieu of the service that they are rendering to the Deity.

5. On the above rival pleadings, the Trial Court in all has framed 18 issues. Taking up Issue Nos.1, 4, 13, 14 and 18 together as those are interlinked, the court below has first of all held that it lacks the jurisdiction to entertain the Suit for the reliefs claimed. Further saying that the jurisdiction for the main relief claimed in the Suit remains with the Statutory Authorities as per the provisions of Hindu Religious Endowments Act, 1951 (for short, 'the OHRE Act'), the other findings rendered by the Trial Court which run are also against the Plaintiffs.

6. The lower Appellate Court being moved by the unsuccessful

Plaintiffs has gone to allow the Appeal in passing the order as under:-

"that the appeal is allowed on contest without cost in the peculiar circumstance of this case. The judgment and decree of the learned Munsif is set aside. Lawyer's fee is assessed at Rs.30/- "

As required under Order 41 Rule 35 of the Code, the lower Appellate Court, while passing the order that the Appeal is allowed and the judgment and decree passed by the Trial Court are set aside has not given any indication as to the relief(s) thereby to the Plaintiffs.

7. The Appeal has been admitted on the following substantial questions of law:-

"(a) Whether the appellate court had the jurisdiction to give the finding that the deity is not a public one. Whether the this issue is to be decided under Section-41 of the Endowment Act or by the Civil Court; and

(b) If the plaintiffs 1 to 7 are not competent to file the suit, can the suit be still maintainable as the deity is perpetual heir."

8. I have heard Mr.L. Panigrahi, learned counsel for the Appellants. I have also heard Miss.P.Naidu, learned counsel who has entered appearance on behalf of the commissioner of Endowments pursuant to the order passed by this Court on 24.02.2018. None appears on behalf of the Respondents despite the opportunities right from the year 1987.

9. Keeping in view the submissions made and in the backdrop of the rival case of the parties, the judgments of the Courts below being completely gone through, it stands clear that only in the event the substantial question of law as at (a) is answered in the affirmative, then only this Court would be called upon to answer the other substantial question of law.

10. Learned counsel for the Appellants submits that taking into account the rival case of the parties and the main relief as prayed for by the Plaintiffs, the Trial Court having analyzed the provision of statutory provision as contained in the OHRE Act, had rightly held that it lacks jurisdiction to adjudicate the main issue upon which the fate of the Suit depends. It is submitted that the First Appellate court has been confused in the matter and having arrived at two conclusions which are in conflict with one another, has ultimately committed the mistake in setting aside the said finding which according to him, is unsustainable. It is submitted that in view of the provisions contained in section 41 of the OHRE Act, the Civil Court lacks the jurisdiction to decide as to whether the Deity private Deity or not. He further submits that said jurisdiction exclusively lies with the Authority created under that special statute, i.e, the OHRE Act and the jurisdiction of the Civil Court has been completely outstated thereby. In this connection, he has placed reliance upon the decisions in cases of reported in Bhramarbar Santra & Others -V- State of Orissa & Others; AIR 1970 Orissa 141 and Brundaban Samartha & Others -V- Shiba Samartha & Others AIR 1999 Orissa 185.

11. Miss. P.Naidu, learned counsel for the Commissioner of Endowments standing to support the finding recorded by the Trial Court, submits that the Trial court has rightly dismissed the Suit having arrived at the right conclusion that it had no jurisdiction to entertain the Suit for the reliefs claimed.

12. The Plaintiffs, by filing the Suit, have prayed for grant of a decree declaring that the plaintiff-Deity is and has been the owner-rayat of the suit lands, at all relevant times and now entitled to possession of the suit lands from the Court of Sub-Divisional Magistrate, Paralakhemundi attached and kept under Revenue Inspector's receivership in Misc. Case

No.61 of 1978 in the proceeding under section 145 of the Code of Criminal Procedure being under attachment in exercise of power under section 146 of the Code of Criminal Procedure.

The above noted prayer if at all to be allowed has to be preceded by a conclusive finding that Deity in question is a private Deity and the Plaintiffs being the descendents of the founder ancestors are the hereditary turstuees.

13. The Provision of Section 41 of the OHRE Act reads as under:-

"41. Assistant Commissioner to decide certain disputes and matters :-

(1) In case of a dispute the Assistant Commissioner shall have power to enquire into and decide the following disputes and matters:-

(a) whether an Institution is a Public or Religious Institution;

(b) whether an Institution is a Temple or a Math;

(c) whether a Trustee holds or held Office as a hereditary Trustee;

(d) whether any property or money is of a Religious endowment or specific endowment;

(e) whether any person is entitled, by custom or otherwise, to any honour, emolument or perquisite in any Religious institution and what the established usage of a Religious Institution is in regard to any other matter;

(f) whether any institution or endowment is wholly or partly of areligious or secular character, and whether any property or money has been given wholly or partly for religious or secular uses; and

(g) where property or money has been given for the support of aninstitution or the performance of a charity, which is partly of Religious and partly of a secular Character or when any property or money given is appropriated partly to

Religious and partly to secular uses, as to what portion thereof shall be allocated to Religious uses:

Provided that the burden of proof in all disputes or matters covered by Clauses (a) and (d) shall lie on the person claiming the institution to be privateor the property or money to be other than that of a Religious endowment or specific endowment, as the case may be."

The case in hands concerns with the above provision contained in clauses (a), (c) and (d).

The next provision as to the bar of suits as provided in Section 73 of the OHRE Act reads as under:-

"73. Bar of suits in respect of administration of Religious Institutional:-

(1) 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 this Act shall be instituted in any court of law, except under, and in conformity with, the provision of this Act.

(2) Nothing contained in this Section shall affect the right of the Trustee appointed under the Act of a Religious institution to institute a suit to enforce the pecuniary or property rights of the institution or the rights of such institution as a beneficiary."

The lower Appellate court at page-10 of its judgment has first of all said that the Plaintifff-Deity is a public one. Having said so, it has next said that the Plaintiffs are the hereditary trustees of the Deity and as such being in possession of the suit land are entitled to possess the same.

Placing the factual settings of the case as projected in the rival pleadings to test in the touchstone of the above provisions of law, this Court is of the considered view that the Suit as laid for the reliefs claimed had been rightly dismissed by the Trial Court by not entertaining the same on the ground of lack of jurisdiction and the lower Appellate Court has

erred in law by annulling the said finding and further proceeding to decide the status of the Plaintiffs vis-à-vis the Deity as also their right of possession over the property in question.

14. The above discussion thus provides answer to the substantial question of law in favour of the Defendants in finally holding that the Suit is liable to be dismissed.

15. Having held as above, this court finds no further necessity to touch upon the other two substantial questions of law as those would merely be of academic interest. While parting, it is, however, made clear that whatever have been observed or stated in all the judgments concerning the rival claims as placed although in the present lis, would have no bearing in the proceeding before the Competent Authority under the OHRE Act, if it so arises in future.

16. Resultantly, the Second Appeal stands allowed. The judgment and decree passed by the First Appellate Court in Title Appeal No.01 of 1985 are hereby set aside and accordingly, those passed by the Trial Court in Title Suit No.15 of 1978 dismissing the Suit stands restored. In the peculiar facts and circumstances of the case, the parties are directed to bear their respective cost all throughout.

(D. Dash) Judge

Basu