[Cites 11, Cited by 0]
Orissa High Court
Purusottam Pradhan vs Deity Sri Sri Balunkeswar Mahadav on 23 December, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A. No.193 of 1992
(In the matter of an appeal under Section 100 of the Code of Civil
Procedure, 1908)
Purusottam Pradhan .... Appellant
-versus-
Deity Sri Sri Balunkeswar Mahadav .... Respondents
of village Bhaliapada, Phulbani and
others
Appeared in this case:-
For Appellant : Mr. A.K. Mishra, Advocate
appearing on behalf of Mr. S.
Mantry, Advocate
For Respondents : Mr. S.K. Senapati, Advocate
Appeared in this case:-
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 11.11.2025 / date of judgment :23.12.2025
A.C. Behera, J. This 2nd appeal has been preferred against the confirming
judgment.
// 2 //
2. The appellant in this 2nd appeal was the defendant no.1 before the
trial court in the suit vide T.S. No.06 of 1984 and appellant before the 1st
appellate court in the 1st appeal vide T.A. No.16 of 1987.
The respondent nos.2 to 10 in this 2nd appeal were the defendant
nos.2, 3 and 5 to 11 before the trial court in the suit vide T.S. No.06 of
1984 and respondent nos.2 to 10 before the 1st appellate court in the 1st
appeal vide T.A. No.16 of 1987.
The respondent no.1-deity in this 2nd appeal was the sole plaintiff
before the trial court in the suit vide T.S. No.06 of 1984 and respondent
no.1 before the 1st appellate court in the 1st appeal vide T.A. No.16 of
1987.
3. The suit of the plaintiff-deity vide T.S. No.06 of 1984 against the
defendants was a suit for declaration of title and recovery of possession
of the suit properties described in the Schedule-A of the plaint.
As per the case of the plaintiff-deity, the plaintiff-deity is the
village deity of village-Bhaliapada. The day-to-day affairs of the deity is
being managed by the villagers of Bhaliapada. The defendant no.2, out of
her spiritual feelings gifted her Schedule-A suit properties to the
plaintiff-deity Sri Sri Balunkeswar Mahadev in the year 1976 through
registered gift deed dated 29.05.1976 executing and registering the same
// 3 //
in favour of the plaintiff-deity Sri Sri Balunkeswar Mahadev and
delivered possession thereof to the plaintiff-deity and she(defendant no.2)
was divested from the ownership and possession of the same. Purna
Chandra Dehury being the pujari of the plaintiff-deity had accepted the
gift deed in respect of the suit properties on behalf of the plaintiff-deity
executed by the defendant no.2 in favour of the plaintiff-deity. After
taking possession of the 'A' Schedule gifted suit properties on behalf of
the plaintiff-deity, the villagers of village-Bhaliapada utilized the
usufructs thereof for the sevapuja of the plaintiff-deity.
In order to dispossess the plaintiff deity from the suit properties,
the defendant no.1 created disturbances illegally in the possession of the
plaintiff-deity over the suit properties and managed to start a proceeding
under Section 145 of the Cr.P.C. vide M.C. No.08 of 1977.
During the pendency of such proceeding under Section 145 of the
Cr.P.C., the defendant no.1 had managed to execute a sale deed in respect
of the suit properties on dated 24.04.1980 from the defendant no.2,
though, the defendant no.2 had no interest in the suit properties due to
execution and registration of the gift deed earlier in respect of the same
on dated 29.05.1976 in favour of the plaintiff-deity. The defendant no.1
also managed to execute the deed of cancellation of the gift deed dated
29.05.1976 through an unilateral deed of cancellation dated 18.06.1981
// 4 //
executed by the defendant no.2. Then, the defendant no.1 initiated an
another proceeding under Section 145 of the Cr.P.C. in respect of the suit
properties vide M.C. No.46 of 1981, wherein, the possession of the
defendant no.1 over the suit properties was declared.
Then, the defendant no.1 started one mutation proceeding in
respect of the suit properties vide Mutation Case No.1072 of 1981
against the plaintiff-deity as well as against the villagers of Bhaliapada,
wherein, the Tahasildar erroneously mutated the suit properties in favour
of the defendant no.1. For which, without getting any way, the plaintiff-
deity approached the civil court by filing the suit vide T.S. No.06 of 1984
against the defendants praying for declaration of the title of the plaintiff-
deity over the suit properties described in Schedule-A and also for
recovery of possession of the suit properties from the defendant no.1
arraying the defendant no.2 and other villagers of Bhaliapada as
defendants.
4. Having been noticed from the learned trial court in the suit vide
T.S. No.06 of 1984, the defendant nos.1 and 2 contested the suit of the
plaintiff-deity by filing their joint written statement, wherein, other
defendants, i.e., defendant nos.3 to 10 were set ex parte.
// 5 //
5. As per the pleadings of the defendant nos.1 and 2 in their joint
written statement, Purna Chandra Dehury(who is representing the
plaintiff-deity in the suit) is a salaried employee of the plaintiff-deity. For
which, he has no locus standi to file the suit on behalf of the plaintiff-
deity. The villagers of village-Bhaliapada have been managing the affairs
of the plaintiff-deity through a Trust Board. Under the management of
the said Trust Board 'Dandanancha' has been performing in 'Chaitra' of
each year for the cause of Hindu Religion and the general public have
interest in it.
The defendant no.2 is an illiterate, paradanasini poor lady and she
does not come out in public, but Purna Chandra Dehury and some other
rich influential persons of village Bhaliapada have managed to execute
the gift deed on dated 29.05.1976 in respect of the suit properties in
favour of the plaintiff-deity from the defendant no.2 and also have
managed to register the same by practicing fraud, misrepresentation and
coercion and they have obtained such gift deed from her(defendant no.2)
without making her(defendant no.2) aware about the contents of the said
gift deed. Subsequent to the execution and registration of the gift deed,
when the defendant no.2 came to know about the practice of fraud upon
her for the execution and registration of the said gift deed dated
29.05.1976, she(defendant no.2) cancelled that so-called gift deed
// 6 //
through an unilateral deed of cancellation in the year 1981 registering the
same before the Sub-registrar.
The specific case of the defendant nos.1 and 2 was that, the
defendant no.2 for her basic and legal necessities, mortgaged and
delivered the suit properties to the defendant no.1 about 15 to 16 years
prior to 24.04.1980. Thereafter, the defendant no.2 sold the suit
properties to the defendant no.1 on dated 24.04.1980 by executing and
registering the sale deed for a consideration amount of Rs.2,000/-(rupees
two thousand) vide sale deed No.122 and delivered possession thereof.
As such, since 24.04.1980, he(defendant no.1) is the owner of the suit
properties and he had/has been possessing the same being the exclusive
owner thereof, wherein the plaintiff-deity has no interest. After
purchasing the suit properties on dated 24.04.1980 from the defendant
no.2, he (defendant no.1) filed a mutation case vide Mutation Case
No.1072 of 1981 before the Tahasildar, Phulbani and the said mutation
case was allowed in his favour and on the basis of the order passed by the
Tahasildar, the record of the suit properties was changed to his name, i.e.,
to the name of the defendant no.1. In the major settlement, the suit
properties have been recorded in the name of the defendant no.1 and he
has been paying rent for the same. On the basis of the order passed in the
proceeding under Section 145 of the Cr.P.C., the possession of the suit
// 7 //
properties was delivered to him(defendant no.1). As such, he(defendant
no.1) is the exclusive owner and in possession over the suit properties,
wherein, the plaintiff-deity has no right, title, interest and possession.
Therefore, the suit of the plaintiff-deity is liable to be dismissed.
6. Basing upon the aforesaid pleadings and matters in controversies
between the parties, altogether eight numbers of issues were framed by
the learned trial court in the suit vide T.S. No.06 of 1984 and the said
issues are:-
ISSUES
1. Whether the defendant no.2 gifted away the suit land in
favour of the deity Sri Sri Balunkeswar Mahadev out of her
religious feeling and out of her free will?
2. Whether the registered sale deed executed by the defendant
no.2 in favour of the defendant no.1 dated 24.04.1980 is
valid and whether it conveys any title to the defendant no.1?
3. Whether the plaintiff has got right, title over the suit land
now?
4. Whether there is any cause of action for the suit?
5. Whether the suit is barred by limitation?
6. Whether the suit is bad for non-joinder and mis-joinder of
necessary parties?
7. Whether Purna Chandra Dehury has locus standi to file the
suit and whether the suit is maintainable?
8. Whether the plaintiff is entitled to the reliefs as prayed for?
7. In order to substantiate the aforesaid reliefs sought for by the
plaintiff-deity against the defendant nos.1 and 2, the plaintiff-deity had
examined two witnesses on its behalf, i.e., P.W.1 and 2 including Purna
// 8 //
Chandra Dehury as P.W.1 and relied upon the documents vide Exts.1 and
2.
On the contrary, in order to defeat/nullify the suit of the plaintiff-
deity, the contesting defendant no.1 examined two witnesses from his
side including him as D.W.1 and relied upon the documents vide Exts.A
to E.
8. After conclusion of hearing and on perusal of the materials,
documents and evidence available in the record, the learned trial court
answered all the issues in favour of the plaintiff-deity and against the
defendant nos.1 and 2 and basing upon the findings and observations
made by the learned trial court in all the issues in favour of the plaintiff-
deity and against the defendant nos.1 and 2, the learned trial court
decreed the suit of the plaintiff on contest against the defendant nos.1 and
2 and ex parte against the rest other defendants and declared the right,
title and interest of the plaintiff over the suit properties described in
Schedule-A and directed the defendant no.1 to restore the possession of
the suit properties in favour of the plaintiff-deity as per its judgment and
decree dated 10.11.1987 and 20.11.1987 respectively assigning the
reasons that,
"Purna Chandra Dehury has the locus standi to institute the suit
as the representative of the plaintiff-deity for the protection of the deity's
// 9 //
property and defendant no.2 being the exclusive owner of the suit
properties as per the RoR vide Ext.2, she had voluntarily gifted to the suit
properties in favour of the plaintiff-deity by executing and registering the
gift deed on dated 29.05.1976 intentionally and voluntarily and the said
gift was accepted by the plaintiff-deity through Purna Chandra Dehury
and after executing and registering the gift dated 29.05.1976, the
defendant no.2 was divested from the suit properties and after execution
and registration of the gift deed 29.05.1976 in respect of the suit
properties by the defendant no.2, the defendant no.2 had no interest in
the suit properties for transferring through sale deed on dated
24.04.1980 in favour of the defendant no.1, for which, as per law, no
interest was created in favour of the defendant no.1 through sale deed
dated 24.04.1980., Because, there was no interest with the defendant
no.2 in the suit properties for transferring the same in favour of the
defendant no.1. Therefore, the plaintiff-deity is entitled for the
declaration of title over the suit properties. For which, the defendant
no.2 was directed to deliver the possession of the suit properties to its
rightful owner, i.e., plaintiff-deity."
9. On being dissatisfied with the aforesaid judgment and decree
passed in T.S. No.06 of 1984 by the learned trial court in favour of the
plaintiff-deity and against the defendant nos.1, the defendant no.1
// 10 //
challenged the same preferring the 1st appeal vide T.A. No.16 of 1987
being the appellant against the plaintiff-deity arraying the plaintiff-deity
as respondent no.1 and also arraying the other defendants as other
respondents.
After hearing from both the sides, the learned 1st appellate court
dismissed that 1st appeal vide T.A. No.16 of 1987 of the defendant no.1
on contest, but, without cost concurring / confirming the findings and
observations made by the learned trial court against the defendant no.1
as per its judgment and decree dated 30.06.1992 and 15.07.1992
respectively passed in T.A. No.16 of 1987.
10. On being aggrieved with the aforesaid judgment and decree of the
dismissal of the 1st appeal of the defendant no.1 vide T.A. No.16 of
1987, he (defendant no.1) challenged the same preferring this 2nd appeal
being the appellant against the plaintiff-deity arraying the plaintiff-deity
as respondent no.1 and also arraying the other defendants as other
respondents.
11. This 2nd appeal was admitted on formulation of the following
substantial questions of law :-
(i) Whether, Ext.1 (certified copy of the gift deed) is
admissible in evidence in absence of an explanation
for non-production of the original gift deed?
// 11 //
(ii) Whether, the suit is maintainable in view of the
Sections 41 and 25 r/w Section 73 of the Orissa
Hindu Religious Endowments Act, 1951?
(iii) Whether the suit of the plaintiff is liable to be
dismissed in view of Section 69 of the Orissa Hindu
Religious Endowment Act, 1951?
12. I have already heard from the learned counsel for the
appellant(defendant no.1) and the learned counsel for the respondent
no.1(plaintiff-deity).
13. Learned counsel for the appellant(defendant no.1) relied upon the
following decisions, i.e., :-
(i) 2021(I) OLR-855
(ii) Civil Appeal Noi.522 of 1959 decided on 09.04.1962
14. In order to ascertain the sustainability and justifiability of the
impugned judgments and decrees passed by the learned trial court and
the learned 1st appellate court, the aforesaid three formulated substantial
questions of law are required to be discussed and analyzed serially and
chronologically one after another.
15. So far as the 1st formulated substantial question of law, i.e.,
whether the Ext.1(certified copy of the gift deed dated 29.05.1976) is
admissible in evidence in absence of an explanation for non-production
of the original gift deed is concerned,
// 12 //
It is the concurrent findings of the learned trial court as well as the
learned 1st appellate court that, the execution and registration of the gift
deed dated 29.05.1976 (Ext.1) by the defendant no.2 in favour of the
plaintiff-deity in respect of the suit properties is not under dispute.
Because, the defendant no.2(executant of the said gift deed) has admitted
in the pleadings as well as in the documentary evidence, i.e., cancellation
deed about the execution of the said Ext.1.
In the joint written statement of the defendant nos.1 and 2, they
(defendant nos.1 and 2) have not denied the execution and registration of
the gift deed dated 29.05.1976 vide Ext.1 in respect of the suit
properties, as they had taken their stands in their joint written statement
that, the so-called gift deed dated 29.05.1976 (Ext.1) was managed to
have been executed by Purna Chandra Dehury in the name of the
plaintiff-deity from the defendant no.2 by practising fraud,
misrepresentation and coercion and the defendant no.2 had cancelled the
said gift deed dated 29.05.1976 through a registered deed of cancellation
by her(defendant no.2) on dated 18.06.1981.
16. So, on the basis of the aforesaid pleadings and unilateral deed of
cancellation dated 18.06.1981, the executant of the deed of gift dated
29.05.1976 has not denied the execution and registration of the said gift
deed dated 29.05.1976(Ext.1) by her(defendant no.2).
// 13 //
At the time of marking of the certified copy of the said gift deed as
Ext.1 by the P.W.1 during trial of the suit, there was no objection from
the side of the defendant nos.1 and 2 against its making as Ext.1. Rather,
without objection of the defendant nos.1 and 2, the certified copy of the
gift deed dated 29.05.1976 was marked as Ext.1 during Examination-in-
Chief of P.W.1(Purna Chandra Dehury).
17. During cross-examination to the P.W.1 on behalf of the defendant
nos.1 and 2, not even a single question was asked on their behalf raising
any objection about the admissibility of the certified copy of the gift
deed vide Ext.1.
On this aspect, the propositions of law has already been clarified
in the ratio of the following decision:-
(i) In a case between Dhruba Sahu and others vrs.
Paramananda Sahu : reported in 54(1982) CLT-560 that, if no
objection was taken by the defendants with regard to the mode of
proof of the deed of gift, when it was exhibited by the trial court, the
defendants cannot now be heard to object that, the document has not
been duly proved raising the same at appellate stage.
18. Here, in this matter at hand, when the certified copy of the gift
deed dated 29.05.1976 has been marked as Ext.1 during the trial of the
suit through P.W.1 without any objection from the side of the defendant
nos.1 and 2 and when, the said Ext.1 was admitted into evidence without
any objection from the side of the defendant nos.1 and 2, then at this
// 14 //
juncture, in view of the principles of law enunciated in the ratio of
aforesaid decision, the defendant nos.1 and 2 including the
appellant(defendant no.1) are precluded / estopped under law to raise a
question that, Ext.1 is not admissible, only for the reason that, Ext.1 was
marked without objection of the defendant no.1 and 2.
For which, it is held that, the defendant nos.1 and 2 had waived
their right of objection available to them in view of the principles of law
enunciated in the ratio of the aforesaid decision.
19. So far as the 2nd and 3rd formulated substantial questions of law,
i.e., whether the suit filed by the plaintiff-deity is maintainable in view of
Sections 41 and 25 r/w Section 73 of The Orissa Hindu Religious
Endowments Act, 1951 and whether the suit of the plaintiff is liable to
be dismissed in view of Section 69 of the Orissa Hindu Religious
Endowments Act, 1951 are concerned,
Section 25 of The Orissa Hindu Religious Endowments Act, 1951
provides for recovery of immovable trust property unlawfully alienated.
Section 41 of the said Act, 1951 empowers to the Assistant
Commissioner of Endowment to decide certain disputed matters coming
under the purview of that Section of the Act, 1951.
Section 69 of the Act, 1951 clarifies about the issuance of prior
notice to the Commissioner before commencement of hearing of a suit
// 15 //
whenever the trustee or any religious institution is sued in any civil or
revenue court in respect of any property belonging to or given or
endowed for the purpose of any religious institution.
Section 73 of The Orissa Hindu Religious Endowments Act, 1951
bars the suits in respect of administration of religious institution, which
clarifies that, "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 the
Act, 1951 shall be instituted in any court of law, except under and in
conformity with the provision of the Act, 1951.
20. The law concerning the manner of institution of a suit for eviction
from the property of the deity has already been clarified in the ratio of
the following decisions :-
(i) In a case between Phalgunan N.K. and others vrs. Wilson
Joseph and others : reported in 2017(2) CCC-261 (Kerala) that,
deity being a juristic person, had to act through human agency.
(ii) In a case between Deoki Nandan vrs. Murlidhar and others
: reported in AIR 1957 SC-133 and in a case between Bishwanath
and others vrs. Thakur Radhaballabhji and others : reported in
AIR 1967 SC-1044 that, a worshiper of a deity has empowered to
protect the interest of the deity, because, an idol is in the position of
a minor and when the person representing it, leaves in the lurch, a
person interested in the worship of the idol can certainly be clothed
with an ad hoc power of representation to protect its interest.
// 16 //
21. When, the suit is not in respect of the administration of the affairs
of the deity and the religious institution, then, the suit filed by the deity
to get back physical possession of the property of the deity is
maintainable.
On this aspect, the propositions of law has already been clarified
in the ratio of the following decisions:-
(i) In a case between Binod Behari Panda(dead) after him, his
L.Rs. Balamani Panda and others vrs. Mrugeswar Dev, Bije at
village Ogalapada and another : reported in 2013(2) CLR-974 that,
suit for ejectment of the defendant from the property belonging to
the Deity is not covered under Section 41(1) of The Orissa Hindu
Religious Endowments Act, 1951. The jurisdiction of the Civil Court
is not barred by Section 73 of The Act, 1951, for which, the suit is
maintainable.(Para-16)
(ii) In a case between Pooranchand vrs. The Idol, Sri
Radhakrishnaji and others : reported in AIR 1979 M.P.-10 -An
idol or deity can sue through a real friend.
(iii) In a case between (Sri) Sri Bramheswar Mohadev, Bije and
others vrs. Baishnab Charan Biswal and another : reported in
2018(2) CLR-748 that, plaintiffs alleging to be persons interested in
safeguarding the interest of the deity for declaring the sale deed in
favour of the defendant no.1 to be void held that, they have locus
standi to file the suit.(Para-13)
22. When, the suit has been filed by the deity on being represented
through human agency, i.e., Purna Chandra Dehury and when, in the
concurrent findings of the learned trial court as well as the learned 1st
appellate court in their respective judgments and decrees, it has been
// 17 //
held that, Purna Chandra Dehury is the friend of the plaintiff-deity and
when the suit vide T.S. No.06 of 1984 has been filed by the plaintiff-
deity against the defendants, i.e., specifically against the defendant no.1
for the recovery of the possession of the suit properties on being
represented through Purna Chandra Dehury, for no other reason, but,
only in order to safeguard/protect the interest of the plaintiff-deity and
when, as per law, the plaintiff-deity being a perpetual minor, its property
requires protection and when, a real friend or worshiper of the deity has
the power to represent and protect the interest of the deity by filing suit
against the defendants for recovery of possession of the properties of the
plaintiff-deity and when, the suit vide T.S. No.6 of 1984 filed by the
plaintiff-deity is not for the administration of the plaintiff-deity, but, in
order to recover possession of the properties of the plaintiff-deity for the
benefit, protection and safeguard of the plaintiff-deity, then at this
juncture, in view of the principles of law enunciated in the ratio of the
aforesaid decisions of the Hon'ble Courts and Apex Court, it cannot be
held that, the suit filed by the plaintiff-deity was not maintainable being
hit and barred under Sections 25, 41, 69 and 73 of The Orissa Hindu
Religious Endowments Act, 1951. For which, in other words, it is held
that, the suit filed by the plaintiff-deity against the defendant nos.1 and 2
was maintainable under law.
// 18 //
So, the decisions relied by the appellant(defendant no.1) indicated
in Para No.13 of this judgment have become inapplicable to this appeal
at hand on facts and as discussed of above.
23. As per the discussions and observations made above, when all the
above formulated substantial questions of law have been answered
against the appellant(defendant no.1), then at this juncture, it cannot at
all be held that, the judgments and decrees passed by the learned trial
court as well as learned 1st appellate court in favour of the plaintiff-
deity(respondent no.1) are erroneous.
For which, the question of interfering with the same through this
2nd appeal filed by the appellant(defendant no.1) does not arise.
24. Therefore, there is no merit in this 2nd appeal filed by the
appellant(defendant no.1). The same must fail.
25. In result, the 2nd appeal filed by the appellant (defendant no.1) is
dismissed on contest, but without cost.
26. The judgments and decrees passed by the learned trial court in
T.S. No.06 of 1984 and by the learned 1st appeal court in T.A. No.16 of
1987 in dismissing the suit of the plaintiff/appellant are confirmed.
( A.C. Behera )
Designation: Personal Assistant
Judge
Reason: Authentication Orissa High Court, Cuttack
Location: OHC, CUTTACK
The 23rd of December, 2025/ Jagabandhu, P.A.
Date: 26-Dec-2025 11:06:20
