Kalia Sethy (Dead) And Others vs Sri Sri Balaji Mahaprabhu
2025 Latest Caselaw 6591 Ori

Orissa High Court

Kalia Sethy (Dead) And Others vs Sri Sri Balaji Mahaprabhu on 3 April, 2025

          IN THE HIGH COURT OF ORISSA AT CUTTACK
                        S.A. No.76 of 1997
   (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)

   Kalia Sethy (dead) and others                                    .... Appellants
                                        -versus-

   Sri Sri Balaji Mahaprabhu                                      ..... Respondent

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

                  For Appellants        -      Mr. S.S. Rao,
                                               Sr. Advocate.
                                               assisted by
                                               Mr. B.K. Mohanty,
                                               Advocate.

                  For Respondent-              None

                  CORAM:
                  HON'BLE MR. JUSTICE A.C.BEHERA

Date of Hearing :12.03.2025 :: Date of Judgment :03.04.2025

A.C. Behera, J. This second appeal has been preferred against the

reversing judgment.

2. The appellants in this second appeal were the defendants before the

Trial Court in the suit vide T.S. No.115 of 1973 and respondents before

the First Appellate Court in the First Appeal vide T.A. No.105 of 1977

(82/1980).

The respondent-Deity in this second appeal was the sole plaintiff

before the Trial Court in the suit vide T.S. No.115 of 1973 and appellant

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before the First Appellate Court in the First Appeal vide T.A. No.105 of

1977 (82/1980).

3. The suit of the plaintiff-Deity (respondent in the second appeal)

vide T.S. No.115 of 1973 against the defendants (appellants in the second

appeal) was a suit for injunction simpliciter.

4. According to the case of the plaintiff-Deity, the suit properties are

the properties of the plaintiff-Deity and the usufructs/products of the said

properties are used as the feeding of the "Abhyagats" from the "Prasad"

offered to the plaintiff-Deity.

In the year 1940, the father of the defendant Nos.1 & 2 and uncle

of the defendant No.3 i.e. Raghu Sethi was engaged as Bhag chasi (Bhag

tenant) in respect of the suit properties by the plaintiff-Deity and

accordingly, Raghu Sethi was cultivating the suit properties on Bhag

basis and he was providing the Bhag of the products of the suit properties

to the plaintiff-Deity. That Raghu Sethi died in the year 1962. After the

death of Raghu Sethi, the plaintiff-Deity through its marfatdar kept the

suit properties for personal cultivation of the Deity engaging labourers.

When in the year 1971, the marfatdar of the plaintiff-Deity became

ill and undergone treatments at Berhampur Hospital, during that time,

taking advantage of the absence of the marfatdar from the village, the

defendant No.3 tried to create disturbances in the suit properties. For

which, a proceeding under Section 144 of the Cr.P.C., 1973 was started

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and thereafter, the said proceeding under Section 144 of the Cr.P.C. was

converted to a proceeding under Section 145 of the Cr.P.C., 1973.

Subsequently, the said proceeding under Section 145 of the Cr.P.C. was

dropped and R.I., Jakar Firka was appointed as a receiver of the suit

properties. For which, the plaintiff-Deity filed the suit against the

defendants praying for restraining them (defendants) from entering into

the suit properties and from creating disturbances in the peaceful

possession of the plaintiff-Deity in the suit properties.

5. Having been noticed from the Trial Court in the suit, the

defendants challenged the same by filing their joint written statement

taking their stands inter alia therein denying the averments made by the

plaintiff-Deity in its plaint that, Raghu Sethi (father of the defendant

Nos.1 & 2) and Brundaban Sethi (father of the defendant No.3) were

cultivating the suit properties originally as raiyats having their occupancy

right in the same and they were in cultivating possession of the suit

properties throughout. After the death of Brundaban Sethi, his son i.e.

defendant No.3 Budhia Sethi inherited the tenancy right of his father

Brundaban Sethi in the suit properties and he (defendant No.3 Budhia

Sethi) jointly cultivated the suit properties with Raghu Sethi.

Subsequently, the suit properties were divided between them i.e. between

their two branches into two equal shares. Accordingly, the defendant

No.3 was cultivating half and the father of the defendant Nos.1 & 2 i.e.

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Raghu Sethi was cultivating half of the suit properties according to the

distributions made between them.

When Raghu Sethi died, his sons i.e. defendant Nos.1 & 2

succeeded to the half share of their father Raghu Sethi in the suit

properties and cultivated the same like their father. Accordingly, the

defendants have their occupancy rights in the suit properties. Their such

rights in the suit properties under the Tenancy Act are statutorily

protected. The defendant No.4 (Anadi Sethi) is the son of the defendant

No.3, though he (defendant No.4) is entitled to his tenancy right in the

suit properties, but he is staying away from the village of the suit

properties due to his employment as a teacher in Phulbani District. The

plaintiff-Deity is not at all in possession and enjoyment over the suit

properties. For which, the plaintiff is not entitled to the relief i.e.

permanent injunction or any other relief against them (defendants).

Therefore, the suit filed by the plaintiff-Deity is not maintainable

under law.

The further case of the defendants was that, the suit filed by the

plaintiff-Deity is not maintainable before the civil Court, because the

proper Court for adjudication of the disputes between the parties is the

Revenue Court. The right of the plaintiff-Deity in the suit properties has

already been extinguished as per the provisions of Orissa Estates

Abolition Act as well as Orissa Land Reforms Act. For which, they

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(defendants) are the occupancy raiyats of the suit properties and they

(defendants) are in possession over the same. The plaintiff-Deity has no

interest or possession in the suit properties. For which, the suit of the

plaintiff-Deity is liable to be dismissed against them (defendants).

6. Basing upon the aforesaid pleadings and matters in controversies

between the parties, altogether 6 (six) numbers of issues were framed by

the Trial Court in the suit vide T.S. No.115 of 1973 and the said issues

are:-

ISSUES

(i) Whether the plaintiff is in possession over the suit land?

(ii) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?

(iii) Whether the defendants are tenants and they are in cultivating possession of the suit land as claimed by them?

(iv) Whether the Court has jurisdiction to entertain this suit?

(v) Whether the suit is not maintainable?

(vi) To what other relief?

7. In order to substantiate the aforesaid relief i.e. injunction sought for

by the plaintiff against the defendants before the Trial Court in the suit

vide T.S. No.115 of 1973, altogether 7 numbers of witnesses were

examined on behalf of the plaintiff-Deity as P.Ws.1 to 7 and series of

documents were exhibited from the side of the plaintiff-Deity as Exts.1 to

8/d.

On the contrary, in order to nullify/defeat the suit of the plaintiff,

the defendants examined 6 (six) witnesses from their side including

defendant No.3 as D.W.6 and exhibited series of documents on their

behalf vide Exts.A to Y/2.

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8. After conclusion of hearing and on perusal of the materials,

documents and evidence available in the Record, the Trial Court

answered all the issues against the plaintiff-Deity and in favour of the

defendants and basing upon the findings and observations made by the

Trial Court in all the issues against the plaintiff-Deity and in favour of the

defendants, the Trial Court dismissed the suit of the plaintiff on contest

against the defendant Nos.1 to 3 & 5 and ex parte against the defendant

No.4 as per its judgment and decree dated 13.10.1977 and 04.11.1977

respectively assigning the reasons that,

the plaintiff-Deity is not in possession over the suit properties, but

the defendants are cultivating the said suit properties as tenants under

the plaintiff-Deity. For which, the plaintiff-Deity is not entitled for the

relief i.e. permanent injunction against the defendants.

9. On being dissatisfied with the aforesaid judgment and decree of the

dismissal of the suit of the plaintiff-Deity vide T.S. No.115 of 1973

passed by the Trial Court on dated 13.10.1977 and 04.11.1977

respectively, the plaintiff-Deity challenged the same preferring the First

Appeal vide T.A. No.105 of 1977 (82/1980) being the appellant against

the defendants arraying them (defendants) as respondents.

10. After hearing from both the sides, the First Appellate Court

allowed that First Appeal of the plaintiff-Deity vide T.A. No.105 of 1977

(82/1980) on contest against the defendants/respondents and set aside the

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judgment and decree of the dismissal of the suit passed by the learned

Trial Court as per its judgment and decree dated 20.01.1997 and

04.02.1997 respectively on the ground that,

though the predecessor of the defendants i.e. Raghu Sethi was the

Bhag tenant in respect of the suit properties under the plaintiff-Deity, but

after the death of Raghu Sethi, the defendants were not inducted as Bhag

tenants in the suit properties on behalf of the plaintiff-Deity, for which, as

per law, the plaintiff-Deity is the owner of the suit properties and the

plaintiff-Deity is also in possession over the suit properties, for which, the

plaintiff-Deity is entitled for the decree of permanent injunction against

the defendants and accordingly, the learned First Appellate Court

decreed the suit vide T.S. No.115 of 1973 of the plaintiff-Deity against the

defendants and restrained them (defendants) permanently from

interfering into the peaceful possession of the plaintiff-Deity in the suit

properties.

11. On being aggrieved with the aforesaid judgment and decree dated

20.01.1997 and 04.02.1997 respectively passed by the First Appellate

Court in T.A. No.105 of 1977 (82/1980) in favour of the plaintiff-Deity

and against the defendants, they (defendants) challenged the same by

preferring this second appeal being the appellants against the plaintiff-

Deity arraying plaintiff-Deity as respondent.

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12. This Second Appeal was admitted on formulation of the following

substantial questions of law i.e.-

(i) Whether the materials available in the records are going to show that, the defendants are possessing the suit properties as Bhag tenants under the plaintiff-Deity and whether they (defendants) are in lawful possession over the suit properties?

(ii) Whether the learned First Appellate Court has acted illegally and with material irregularity in holding that, the defendants are not in possession over the suit properties, as Bhag tenants under the plaintiff-Deity?

(iii) Whether the judgment and decree passed by the First Appellate Court is contrary to the law and evidence available in the record?

(iv) Whether the judgment and decree passed by the First Appellate Court in passing the decree of the suit in favour of the plaintiff and against the defendants is sustainable under law?

13. I have already heard only from the learned counsel for the

appellants (defendants), as none appeared from the side of the respondent

(plaintiff-Deity) for hearing of the second appeal.

14. When, all the above four formulated substantial questions of law

are interlinked having ample nexus with each other according to the

pleadings of the parties and judgments and decrees passed by the Trial

Court and First Appellate Court, then all the four formulated substantial

questions of law are taken up together analogously for their discussions

hereunder.

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15. It is the concurrent findings of the Trial Court and First Appellate

Court on facts after appreciation of oral and documentary evidence of the

parties that, the plaintiff-Deity is the owner of the suit properties.

It was the findings of the learned Trial Court in its judgment and

decree that, the defendants are the Bhag tenants of the suit properties

under its landlord i.e. the plaintiff-Deity, to which, the First Appellate

Court reversed in its judgment and decree and held that, the defendants

have not become able to establish that, they are the Bhag tenants of the

suit properties under the plaintiff-Deity. For which, the learned First

Appellate Court passed the decree i.e. permanent injunction against the

defendants.

16. Now the question arises, whether the defendants are cultivating the

suit properties as Bhag tenants under its landlord i.e. the plaintiff-Deity or

not?

As per the Section 2(21) of the Orissa Land Reforms Act, 1960, a

minor land owner comes within the purview i.e. "person under

disability".

It is the settled propositions of law that, Deity is a perpetual minor.

17. Here in this suit/appeal at hand, when the plaintiff is a Deity, then

as per law, the plaintiff (Sri Sri Balaji Mahaprabhu) is a perpetual minor.

It is very fundamental in law that, when a Deity is a perpetual

minor, then in a suit or in a proceeding, the Deity is to be represented

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through some or by human agency. Because, the Deity is a juristic

person.

18. The properties belonging to a minor like Deity requires protection.

For which, it is the obligation of the State and its instrumentalities as well

as the Court to protect the interest of the Deity, as the Deity is a perpetual

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) In a case between Sri Mangala Thakurani Bije, Kakatpur and others Vrs State of Orissa and others reported in 2010 (Supp.- II) OLR 992 & 110 (2010) CLT 574 (at Para 5), deity is a perpetual minor and it has to be represented through some human agency. Land belong to the deity & not to the Marfatdars.

(ii) In a case between Sri Brajabandhu Pati Vrs Collector-cum-

Trustee, Debattar, Dhenkanal and others reported 2010 (Supp.-I) OLR 734 and 2010 (I) CLR 27 (at Para 10), deity is a perpetual minor and the property belonging to a minor requires protection, it is the obligation of the authorities to protect the interest of the minor.

(iii) In a case between Arnapurna Dibya Vrs Anadi reported in 45 (1977) CLT 461 (B.R.), the lands belong to deity of which a widow was the Marfatdar. Held for purposes of determination of the resumable and non-resumable land sit is immaterial whether the marfatdar is a widow or a person under disability. It is the deity and not the marfatdar who is the land lord.

(iv) In a case between Niranjan Mekap and others Vrs. State of Orissa and others reported in 2015(I) CLR 998 (at Para 34), deity being a perpetual minor, it is the primary duty of the State and its authorities to protect the interest of the deity. In case of any allegation of failure on the part of the State and its instrumentalities

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to do so, finally, the Court has to protect the interest of the deity, who is a perpetual minor.

19. The defendants have not pleaded in their pleadings (written

statement) projecting them as the Bhag tenants of the suit properties

under its landlord i.e. plaintiff-Deity, rather they (defendants) have

claimed their ownership in their written statement over the suit properties

taking their stands in their pleadings that, their predecessors i.e. Raghu

Sethi and Brundaban Sethi were originally cultivating the suit properties

as raiyats having their occupancy rights in the suit properties and after

their death, the occupancy rights of their predecessors i.e. Raghu Sethi

and Brundaban Sethi devolved upon them (defendants), as they

(defendants) are their successors. For which, according to the pleadings

of the defendants, they (defendants) are the occupancy raiyats of the suit

properties and they (defendants) are the owners of the same and as such,

they (defendants) are possessing the suit properties as owners.

20. When, it is the concurrent findings of both the Courts i.e. Trial

Court and First Appellate Court on facts in their respective judgments and

decrees after thorough appreciation of the pleadings as well as oral and

documentary evidence of the parties that, the plaintiff-Deity is the owner

of the suit properties and when the defendants have not claimed/pleaded

in their pleadings (written statement) that, they are the Bhag tenants of

the suit properties under the plaintiff-Deity, then at this juncture, the

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findings/observations made by the First Appellate Court in its judgment

and decree reversing the findings and observations of the Trial Court and

held that, the defendants are not the Bhag tenants of the suit properties

under the plaintiff-Deity. So, it cannot be held that, the aforesaid findings

and observations made by the First Appellate Court reversing the findings

and observations made by the Trial Court are unreasonable.

21. As per the discussions and observations made above, when it is

held that, the plaintiff-Deity is the owner of the suit properties, for which,

the possession of the plaintiff-Deity over the suit properties is not

unlawful. Therefore, the suit for injunction simpliciter filed by the

plaintiff-Deity against the defendants cannot be held as not maintainable

under law.

For which, in other words, it can be held that, the suit for

injunction filed by the plaintiff-Deity against the defendants is

maintainable under law.

On this aspect, the propositions of law has already been clarified

by the Hon'ble Courts in the ratio of the decision between Rekhaben Vrs

Patel Baldev Amrutlal reported in 2023 (3) CCC 2 (Gujarat), once the

possession is lawful, suit for injunction simpliciter is maintainable.

22. When, as per the discussions and observations made above, it is

held that, the suit for injunction simpliciter filed by the plaintiff-Deity

against the defendants in respect of the suit properties is maintainable

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under law and when the findings and observations made by the First

Appellate Court in its judgment and decree are not unreasonable, then at

this juncture, the question of interfering with the same through this

second appeal filed by the appellants (defendants) does not arise.

Therefore, there is no merit in the appeal of the appellants

(defendants). The same must fail.

23. In result, the second appeal filed by the appellants (defendants) is

dismissed on merit, but without cost.

The judgment and decree passed by the First Appellate Court in

T.A. No.105 of 1977 (82/1980) setting aside the judgment and decree

passed by the Trial Court in T.S. No.115 of 1973 is confirmed.

(A.C. Behera), Judge.

Orissa High Court, Cuttack.

03.04.2025//Utkalika Nayak// Junior Stenographer