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Orissa High Court

Ankura Charana Sahoo vs Sarat Chandra Majhi And Others on 20 February, 2026

                            IN THE HIGH COURT OF ORISSA AT CUTTACK

                                             R.S.A. No.393 of 2024

                     (In the matter of an appeal under Section 100 of the Code of Civil
                   Procedure, 1908)

                    Ankura Charana Sahoo                          ....            Appellant

                                                      -versus-
                    Sarat Chandra Majhi and others                ....          Respondents



                   Appeared in this case:-
                         For Appellant            :               Mr. S.K. Nayak, Advocate

                         For Respondents          :              Mr. A. Moharana, Advocate


                    Appeared in this case:-

                    CORAM:
                    JUSTICE A.C. BEHERA

                                            JUDGMENT

Date of hearing : 21.01.2026 / date of judgment : 20.02.2026

A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment.

2. The appellant in this 2nd appeal was the sole plaintiff before the

leaned trial court in the suit vide C.S. No.259 of 2014-I and respondent

no.1 before the learned 1st appellate court in the 1st appeal vide R.F.A.

No.30 of 2019.

3. The respondents in this 2nd appeal were the defendants before the

learned trial court in the suit vide C.S. No.259 of 2014-I and the

appellant along with respondent nos.2 and 3 before the learned 1st

appellate court in the 1st appeal vide R.F.A. No.30 of 2019.

The suit of the plaintiff(appellant in this 2nd appeal) against the

defendants(respondents in this 2nd appeal) vide C.S. No.259 of 2014-I

was a suit for declaration and permanent injunction.

4. The suit properties are M.S. Khata No.288, Plot No.437 A.1.47

decimals and M.S. Plot No.430 A.0.40 decimals in Mouza-Anandapur

under Dhamnagar Tahasil in the district of Bhadrak, which corresponds

to C.S. Khata No.469, Plot No.454 A.1.48 decimals and C.S. Plot No.465

Plot No.457 A.0.034 decimals, which corresponds to mutated Khata

No.384/230.

As per the case of the plaintiff, the suit properties, i.e., C.S. Khata

No.469 Plot No.454 and C.S. Khata No.465 C.S. Plot No.457 were

recorded originally in the Sabik Settlement in the name of the deities, i.e.,

Shri Rasika Ray Thakura and Shri Laxmijanardan Thakura Bije,

Anandpur Marfat Mahendra Nath Dutta, S/o-Jagannath Dutta.

The deities Shri Rasika Ray Thakura and Shri Laxmijanardan

Thakura Bije, Anandpur were the family deities of Shri Mahendra Nath

Dutta. The Marfatdar of the suit properties, i.e., Mahendra Nath Dutta

sold the suit properties to the father of the plaintiff, i.e., Bhikari Charan

Sahoo through RSD No.5172 dated 25.08.1967(Ext.5) indicating his

status therein as Sebayata of the deities for the maintenance of the temple

of the deities and delivered possession thereof to the father of the

plaintiff. Accordingly, since the date of above purchase, i.e., since

25.08.1967, the father of the plaintiff possessed the suit properties being

the exclusive owner thereof and paid the rents for the same to the

Government through valid rent receipts.

As such, the father of the plaintiff, i.e., Bhikari Charan Sahoo was

the owner and in possession over the entire suit properties, in which, the

defendants have no right, title, interest and possession. The father of the

plaintiff died leaving behind the plaintiff as his sole successor. For

which, the suit properties left by the father of the plaintiff, devolved upon

the plaintiff. Therefore, he(plaintiff) is the exclusive owner and in

possession over the suit properties like his father, in which, the

defendants have no right, title, interest and possession.

During the Major Settlement Operation, the father of the plaintiff

was very old and he(plaintiff) was working at Kolkata for earning

livelihood for his family. For which, the plaintiff could not take proper

steps during Major Settlement Operation for recording the suit properties

in the name of his father. Therefore, the suit properties were erroneously

recorded in the name of the deities Shri Rasika Ray Thakura and Shri

Laxmijanardan Thakura Bije, Anandapur Marfatdar Mahendra Nath

Dutta son of Jagannath Dutta like the Sabik RoR reflecting the note of

forcible possession of the father of the plaintiff, i.e., Bhikari Charan

Sahoo in its remarks column.

The defendant nos.2, 3 and 4 are the members of one family.

They(defendant nos.2, 3 and 4) are projecting them as the successors of

Mahendra Nath Dutta. The defendant nos.2, 3 and 4 have not resided at

any point of time in the suit village Anandapur. They(defendant nos.2, 3

and 4) are the permanent residents of Cuttack.

The defendant no.1(Sarat Majhi) is a rich, influential as well as a

shrewd and clever person in village Anandapur. The said defendant

no.1(Sarat Majhi) established a Girls‟ High School in village Anandapur

namely as Sukadevi Balika Ucha Vidyalaya, Anandapur. In order to

arrange properties for the grant-in-aid of the said Sukadevi Balika Ucha

Vidyalaya, Anandapur, the defendant no.1(Sarat Majhi) managed to

execute a gift deed vide registered Gift Deed No.10281300309 dated

25.03.2013(Ext.8) in respect of the suit properties in favour of Sukadevi

Balika Ucha Vidyalaya, Anandapur illegally from the defendant nos.2, 3

and 4 without obtaining the required permission under law from the

Commissioner of Endowment, though in fact, the defendant nos.2, 3 and

4 had no right, title, interest and possession over the suit properties.

Because, the plaintiff is the owner and in possession over the suit

properties. Therefore, the said so-called Gift Deed No.10281300309

dated 25.03.2013(Ext.8), which was executed by the defendant nos.2, 3

and 4 in favour of Sukadevi Balika Ucha Vidyalaya in respect of the suit

properties is illegal, void and non-est in the eye of law. On the basis of

the above illegal gift deed dated 25.03.2013 vide Ext.8, the defendant

no.1 managed to record the suit properties illegally in the name of

Sukadevi Balika Ucha Vidyalaya, Anandapur as per the order passed in a

mutation case behind the back of the plaintiff and after mutation, a

separate RoR vide Khata No.384/230 has been prepared illegally in

respect of the suit properties in the name of Sukadevi Balika Ucha

Vidyalaya, Anandapur. So, the RoR of the suit properties after mutation

vide Khata No.384/230 in the name of Sukadevi Balika Ucha Vidyalaya

is illegal and non-est in the eye of law.

5. When, the defendant no.1 claimed his possession over the suit

properties on the basis of the aforesaid illegal gift deed dated 25.03.2013

as well as illegal RoR vide Khata No.384/230 and tried to dispossess the

plaintiff from the suit properties, then, without getting any way, the

plaintiff approached the civil court by filing the suit vide C.S. No.259 of

2014-I against the defendants praying for declaration of his title over the

suit properties and also to declare the registered gift deed

No.10281300309 dated 25.03.2013(Ext.8) said to have been executed by

the defendant nos.2, 3 and 4 in favour of the Sukadevi Balika Ucha

Vidyalaya, Anandapur in respect of the suit properties as well as the RoR

thereof after mutation vide Khata No.384/230 as illegal, to injunct the

defendant no.1 permanently from creating any sort of disturbances in his

possession over the suit properties and to pass such other relief(s) in his

favour, to which, he(plaintiff) is entitled for as per law and equity.

6. Although, none of the defendants filed any written statement in the

suit, still then, for the just decision of the suit, the leaned trial court

framed four numbers of issues in the suit vide C.S. No.259 of 2014-I and

the said issues are:-

ISSUES i. Whether there is cause of action for the suit?

ii. Whether the suit land needs to be declared in the name of the plaintiff?

iii. Whether the Gift Deed bearing No.10281300309 dated 25.03.2013 is null and void?

iv. To what relief the plaintiff is entitled to?

7. In order to get the aforesaid reliefs sought for by the plaintiff

against the defendants, he (plaintiff) examined two witnesses from his

side including him as P.W.1 and relied upon the documents vide Exts.1

to 10.

Though, none of the defendants including the defendant no.1 had

filed their written statements, but, the defendant no.1(Sarat Majhi)

participated in the hearing of the suit and cross-examined the witnesses

of the plaintiff including the plaintiff.

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 and against the

defendants and basing upon the findings and observations made by the

learned trial court in the issues in favour of the plaintiff and against the

defendants, the learned trial court decreed the suit of the plaintiff vide

C.S. No.259 of 2014-I on contest against the defendant no.1 and ex parte

against other defendants and declared the right, title and interest of the

plaintiff over the suit properties and injucted the defendants permanently

from entering into the suit properties as per its judgment and decree dated

19.01.2019 and 02.02.2019 respectively assigning the reasons that,

"Mahendra Nath Dutta being the exclusive owner of the suit

properties, he has transferred the same to the father of the plaintiff, i.e.,

Bhikari Charan Sahoo through registered Sale Deed No.51723 dated

25.08.1967(Ext.5) for a consideration amount of Rs.500/- and delivered

possession thereof and the father of the plaintiff, i.e., Bhikari Charan

Sahoo and Bhikari Charan Sahoo was in possession over the suit

properties on payment of rents to the Government. For which, the

subsequent Gift Deed No.10281300309 dated 25.03.2013(Ext.8) said to

have been executed by the defendant nos.2, 3 and 4 in respect of the suit

properties in favour of Sukadevi Balika Ucha Vidyalaya, Anandapur as

well as the RoR thereof as per order passed in the mutation case on the

basis of the above gift deed dated 25.03.2013 vide Ext.8 are held as

illegal and void. When, the plaintiff has been possessing the suit

properties since the time of his father, then, the plaintiff is entitled for the

declaration of his right, title and interest over the suit properties in his

favour and he(plaintiff) is also entitled to get the decree for permanent

injunction against the defendants in order to restrain them(defendants)

permanently from entering into the suit properties."

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

19.01.2019 and 02.02.2019 respectively passed in C.S. No.259 of 2014-I

by the learned trial court in favour of the plaintiff and against the

defendant, the defendant no.1 challenged the same preferring the 1st

appeal vide R.F.A. No.30 of 2019 being the appellant against the plaintiff

arraying him(plaintiff) as respondent no.1 and also arraying the other

defendants as proforma respondents.

10. After hearing from both the sides, the learned 1st appellate court

allowed that 1st appeal vide R.F.A. No.30 of 2019 of the defendant

no.1(appellant) and set aside the judgment and decree passed by the

learned trial court and dismissed to the suit of the plaintiff vide C.S.

No.259 of 2014-I as per its judgment and decree dated 09.08.2024 and

23.08.2024 respectively assigning the reasons that,

"when the Sabik and Hal RoR of the suit properties were

published in the name of the deities Shri Rasika Ray Thakura and Shri

Laxmijanardan Thakura and when, the said deities have not been

impleaded as parties in the suit vide C.S. No.259 of 2014-I filed by the

plaintiff and when, as per law, the marfatdar of the deity has no right to

alienate the properties of the deities in his individual capacity without

taking permission from the Endowment Commissioner as per Hindu

Religious Endowment Act, 1951 and when, the gift deed dated

25.03.2013 vide Ext.8 in respect of the suit properties has been executed

by the defendant nos.2, 3 and 4 in favour of Sukadevi Balika Ucha

Vidyalaya, Anandapur and the present RoR of the suit properties after

mutation is in the name of Sukadevi Ucha Balika Vidyalaya and when,

Syukadevi Ucha Balika Vidyalaya has not been arrayed as a party in the

suit, then at this juncture, the suit of the plaintiff for declaration of title is

not entertainable under law in absence of the necessary parties thereof,

i.e., deities Shri Rasika Ray Thakura and Shri Laxmijanardan Thakura

as well as Sukadevi Balika Ucha Vidyalaya, Anandapur. That apart, both

the deities are the public deities. Because, the deities Shri Rasika Ray

Thakura and Shri Laxmijanardan Thakura Bije are the village deities of

Anandpur. For which, in absence of the above deities and Sukadevi

Balika Ucha Vidyalaya, Anandapur, the suit of the plaintiff for

declaration is not adjudiciable under law. Therefore, the impugned

judgment and decree passed by the learned trial court in the suit vide

C.S. No.259 of 2014-I is set aside."

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

09.08.2024 and 23.08.2024 respectively passed by the learned 1st

appellate court in R.F.A. No.30 of 2019, in dismissing the suit of the

plaintiff vide C.S. No.259 of 2014-I, he(plaintiff) challenged the same

preferring this 2nd appeal being the appellant against the defendants

arraying them(defendants) as respondents.

12. This 2nd appeal was admitted on formulation of the following

substantial questions of law, i.e.:-

(i) Whether the learned 1st appellate court is justified in dismissing the suit on the ground that, Sukadevi Balika Vidyalaya has not been arrayed as party to the suit, when, the suit schedule land was gifted and in favour of the school Marfat-Secretary, namely,

Sarat Chandra Majhi, who is impleaded as a defendant no.1 in the suit?

(ii) Whether the learned lower appellate court is justified in dismissing the suit on the ground that no permission under Section 19 of the Orissa Hindu Religious Endowment Act was obtained for alienation of suit properties, when neither of the parties are claiming the deities as public deities, rather the deities are family deities?

13. I have already heard from the learned counsel for the appellant and

learned counsel for the respondents.

14. In order to assail the impugned judgment and decree passed by the

learned 1st appellate court, the learned counsel for the appellant (plaintiff)

relied upon the following decisions:-

(i) In a case between Thangam and another vrs. Navamani Ammal : reported in 2024(I) OLR (SC)-904

(ii) In a case between Tamala Das vrs. State of Odisha and others : reported in 2023(II) CLR-310

(iii) In a case between Naba Kishore Panda vrs. Bulendra @ Bulla Das and others : reported in 18(1974) CLT-1152

(iv) In a case between Kuldeep Kumar Dubey and others vrs.

Ramesh Chandra Goyal(D) th Lrs. : reported in 2015(I) CLR(SC)-

On the contrary, in support of the impugned judgment and decree

passed by the learned 1st appellate court, the learned senior counsel for

the Respondent No.1(defendant no.1) relied upon the following

decisions:-

(i) In a case between Jogendra Nath Naskar vrs. Commissioner of Income-Tax, Calcutta : reported in AIR 1969(SC)-1089 and In a case between Ram Janki Ji and others vrs. State : reported in AIR 1992(Patna)-135

(ii) In a case between Sri Nrusingha Charan Sahoo and others vrs. State of Odisha and another : reported in 2016(II) OLR-850

(iii) In a case between State of Orissa and another vrs. Sukuru Polai and others : reported in 2018(I) CLR-572

(iv) In a case between Ch. Subrat Singh (Dead) and others vrs.

Manohar Lal and others : reported in AIR 1971(SC)-240

(v) In a case between Shaikh Saffiquiddin vrs. Gulei alias Gopal Samal and nine others : reported in 2009(I) CLR-64

(vi) In a case between Udit Narain Singh Malpaharaia cvrs. Addl. Member, Board of Revenue, Bihar : reported in AIR 1963(SC)-786

(vii) In a case between Executive Officer, Sri Baldev Jew Bije, Keinjhar vrs. Orissa Hindu Religious Endowment Act : reported in 2005(II) CLR-729

(viii) In a case between Sri Mangala Thakurani Bije, Kakatpur and others vrs. State of Orissa and others : reported in 2010(II) CLR-1139

(ix) In a case between Sri Brajabandhu Pati vrs. Collector-cum- Trustee, Debuttor, Dhenkanal and others : reported in 2010(I) CLR-27

(x) In a case between Collector, Koraput vrs. Sunadhar Pujari and others : reported in 2025(I) OLR-384

15. When, both the aforesaid formulated substantial questions of law

are interlinked according to the findings and observations made by the

learned trial court and the leaned 1st appellate court, then, both the

aforesaid formulated substantial questions are taken up together

analogously for their discussions hereunder:-

16. The plaintiff(P.W.1) has specifically deposed in his depositions

answering to the questions of the learned counsel for the defendant no.1

during the trial of the suit that,

"In both C.S. and M.S. Settlement, the suit properties were

recorded in the names of the deities Shri Rasika Ray Thakura and Shri

Laxmijanardan Thakura Bije, Anandapur. His father Bhikari Charan

Sahoo had not obtained any permission from Endowment Commissioner

to purchase the suit properties. Mahendra Nath Dutta had executed the

sale deed in respect of the suit properties on dated 25.08.1967(Ext.5) in

favour of his father Bhikari Charan Sahoo as the Marfatdar of Shri

Rasika Ray Thakura. The sale deed dated 25.08.1967 in favour of his

father does not reveal the name of the deity Shri Laxmijanardan Thakura.

Both in C.S. and M.S. RoRs the suit properties were recorded in the

names of Shri Rasika Ray Thakura and Shri Laxmijanardan Thakura

Bije, Anandpur."

17. In the C.S. and M.S. RoRs, the suit properties were recorded in the

names Shri Rasika Ray Thakura and Shri Laxmijanardan Thakura Bije

Nijgan.

In a case between Niranjan Barik vrs. Sri Jambeswar Mahadev,

Bije, Jamara, Kendrapara and others decided on 26.08.2025 in W.P.(C)

No.3020 of 2024 : reported in 2026(I) CLR-23 at Para No.14, it has been

clarified that, when the RoR of the suit properties is prepared in the name

of any deity reflecting/indicating that, the „Bijesthali‟ of the said deity is

Nijgan, the said reflections prima facie clarify, unless contrary is proved

that, the deity in whose name the RoR stands is the village deity, but, not

a private deity. The said deity is worshiped by all the villagers of that

village, but, not by any individual family members. Because, the

„Bijesthali‟ of the deity is in that village, but, not in the house of

anybody."

18. So, taking the reflection to the „Bijesthali‟ of the deity in the C.S.

and Hal RoR of the suit properties into account, it is held that, Shri

Rasika Ray Thakura and Shri Laxmijanardan Thakura are the village

deities of village Anandapur under Dhamnagar Tahasil, but, the said

duties were/are not the private family deities of the Marfatdar Mahendra

Nath Dutta.

When, the deities Shri Rasika Ray Thakura and Shri

Laxmijanardan Thakura Bije, Anandapur are the public deities being the

deities of village Anandapur and the Marfatdar of the said deities, i.e.,

Mahendra Nath Dutta was representing the deities as Marfatdar on behalf

of the villagers of Anandapur and when, as per law, Mahendra Nath

Dutta had no alienable right in the suit properties, as the suit properties

belong to the deities Shri Rasika Ray Thakura and Shri Laxmijanardan

Thakura and when, the suit properties were not the properties of

Marfatdar Mahendra Nath Dutta, then at this juncture, in order to

ascertain the power and jurisdiction of the Marfatdar of the deities like

Mahendra Nath Dutta to deal with the suit properties, I thought it proper

to place it on record to the following decisions on this aspect.

On this aspect, the propositions of law has already been clarified 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 110(2010) CLT-574 that,

Deity is to be represented through some human agencies. The land belongs to the deity, but, the same not belong to the Marfatdar or Marfatdars.

(ii) In a case between Temple of Thakurji Village Kansar vrs.

State of Rajasthan and others : reported in AIR 1998(Rajasthan)- 85 that,

Lands belong to the deity cannot be subject to alienation in violation of statutory requirement.

(iii) In a case between Biswanath Choudhury and others vrs. Shyam Sundar Choudhury and after him Narayan Chowdhury and others : reported in 1993(I) OLR-249 (Para-11) that,

A Sebait or Marfatdar is a trustee of the religious institution, the properties belonging to the institution vests in the deity, who is a juristic person and not on the Marfatdar or Sebait.

(iv) In a case between Sarata Chandra Mohanty and another vrs. Administrator of Jagannath Temple, Puri : reported in 42(1976) CLT-1241 that,

The deity being an inanimate person capable of holding property, has to act in all matters only through its Marfatdars.

The word "Marfatdar" is applied to those, who look-after the management and routine duties in connection with the endowment. The marfatdars, therefore, cannot take up the position that, the said

properties are their own properties. So, Marfatdars are neither the owners nor in actual possession over the properties of the deity. For which, they have no alienable right in the properties of the deity.

19. As per the pleadings and evidence of the plaintiff, it is his own

case that, the suit and properties were the properties of the deities Shri

Rasika Ray Thakura and Shri Laxmijanardan Thakura Bije, Anandapur

under Dhamnagar Tahasil. Sabik and Hal RoR of the suit properties vide

Exts.1, 2 and 3 were prepared in the name of the above deities indicating

the name of Mahendra Nath Dutta as Marfatdar.

The plaintiff(appellant in this 2nd appeal) has claimed his title and

possession over the suit properties on the basis of the sale deed No.5172

dated 25.08.1967(Ext.5) stating in his pleadings that, his father had

purchased the same from the deities through its Marfatdar Mahendra

Nath Dutta and he(plaintiff) has prayed for declaration that, the Gift

Deed No.10281300309 dated 25.03.2013(Ext.8) said to have been

executed by the defendant nos.2, 3 and 4 in favour of Sukadevi Balika

Ucha Vidyalaya, Anandapur as void.

20. It is curious enough that, in the aforesaid Sale Deed No.5172 dated

25.08.1967(Ext.5), the name of the deity, i.e., Shri Laxmijanardan

Thakura has not been uttered or indicated. As such, the own document

vide Ext.5 through which, the plaintiff is claiming title on the suit

properties does not contain the name of one joint owner of the suit

properties, i.e., deity Shri Laxmijanardan Thakura. For which, the claim

of the plaintiff is that, his father has purchased the suit properties from

the recorded deities has been failed to be established.

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

held that, Shri Rasika Ray Thakura and Shri Laxmijanardan Thakura are

the village deities of village Anandapur and they are the are public

deities, then at this juncture, without permission of the Endowment

Commissioner as per Section 19 of the Hindu Religious Endowment Act,

1951, the Marfatdar of the said deities, i.e., Mahendra Nath Dutta had no

right to alienate the suit property through the Sale Deed No.5172 dated

25.08.1967(Ext.5) in favour of the father of the plaintiff.

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

the ratio of the following decisions:-

(i) In a case between Temple of Thakurji Village Kansar vrs.

State of Rajasthan : reported in AIR 1998(Rajasthan)-85 that,

The lands belonging to the deity cannot be subjected to alienation in violation of statutory requirement.

(ii) In a case between Smt. Basanti Kumari Sahu vrs. State of Orissa and others : reported in 81(1996) CLT-571(F.B.) that,

The provisions of law envisaged under Section 19 of Orissa Hindu Religious Endowment Act, 1951 are mandatory in nature. Any alienation made in contravention of the said provision is void.

22. So, in view of the propositions of law enunciated in the ratio of the

aforesaid decisions, when one of the co-owners of the suit properties, i.e.,

deity Shri Laxmijanardan Thakura is a complete stranger to the sale deed

vide Ext.5 and when, the said sale deed vide Ext.5 has been executed

without obtaining permission from the Endowment Commissioner as per

Section 19 of the Orissa Hindu Religious Endowment Act, 1951, for the

alienation of the same, then at this juncture, the said Sale Deed No.5172

dated 25.08.1967 vide Ext.5 relied by the plaintiff in respect of the suit

properties in favour of his father cannot be held as a valid sale deed and

on the basis of that sale deed vide Ext.5, the plaintiff is not entitled under

law to get declaration of title over the suit properties in his favour.

23. When, it is own case of the plaintiff that, the suit properties were

properties of the deities Shri Rasika Ray Thakura and Shri

Laxmijanardan Thakura Bije, Anandapur and when, the Sabik and Hal

RoR of the suit properties were in the name of the said deities and when

the Gift Deed No.10281300309 dated 25.03.2013 vide Ext.8 has been

executed by the defendant nos.2, 3 and 4 in favour of Sukadevi Balika

Ucha Vidyalaya, Anandapur and when the plaintiff has prayed for a

declaration to the gift deed(Ext.8) and the RoR of the suit properties in

the name of Sukadevi Balika Ucha Vidyalaya, Anandapur after mutation

vide Khata No.384/230 as illegal and void, then, the deities, i.e., Shri

Rasika Ray Thakura and Shri Laxmijanardan Thakura Bije, Anandapur

as well as Sukadevi Balika Ucha Vidyalaya, Anandapur were the

necessary parties to the suit of the plaintiff vide C.S. No.259 of 2014-I. In

their absence, the suit for declaration of title filed by the plaintiff was/is

not maintainable under law. Because, the deity Shri Rasika Ray Thakura

and Shri Laxmijanardan Thakura as well as Sukadevi Balika Ucha

Vidyalaya, Anandapur are the necessary parties to the suit.

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

the ratio of the following decisions :-

(i) In a case between State of Orissa and another vrs. Sukuru Polai and others : reported in 2018(1) CLR -572 that,

Suit property has been recorded in the name of deity Sri Sri Kasi Viswanath Mahaprabhu. The deity is a perpetual minor. In absence of the deity, the suit is not maintainable.(Para-8)

(ii) In a case between Ishwar Samal. vrs. Keshab Samal and others : reported in 2018(1) CLR -576 (Para No.10) that,

Section 69(1) of the Orissa Hindu Religious Endowment Act, 1951 postulates that, whenever, the trustee or any religious institution is issued in any Civil or Revenue Court in respect of any property belonging to or given or endowed for the purpose of any religious institution, notice of such suit shall be given by the court concerned to the Commissioner at least a month before commencement of the hearing. It is the bounden duty of the court to issue notice to the Commissioner Endowments.

Neither the math nor the Commissioner Endowments are the party to the suit. No notice was issued by the learned trial court to the Commissioner of Endowments before hearing of the suit. In their absence, suit must fail.

(iii) In a case between Jagtu vrs. Suraj Mal and others : reported in AIR 2010(SC)-3490(D.B.) that,

Plaintiffs filed the suit seeking declaration of certain rights over the suit land admitting the factual position that, the land belonged to the State.

State is a necessary party. In absence of the owner of the land, no such declaration could be granted.

(iv) In a case between P.S. Radhakrishnan vrs. A. Indu :

reported in 2018(4) Civ.CC-213(Kerala)(D.B.) that,

The plaintiff cannot expect to receive discretionary relief of declaration without impleading person against whom declaration is sought or will be effected by declaration or person against whom declaration is directed.

(v) In a case between Executive Officer Arulmigu Chokkanatha Swamy Koil Trust Virudhunagar vrs. Chandra : reported in 2017(2) Civ.CC-48(SC) that,

When plaintiff himself in a suit for declaration and injunction admitted that, one of the Survey Number(RoR) of the suit properties stood in the name of one person, the said person having not been impleaded, suit is hit by non-joinder of necessary party.

(vi) In a case between Choudury Surat Singh and others vrs.

Mohan Lal and others : reported in AIR 1971(SC)-240 that,

In a suit for declaration that, a particular person has no interest in the suit premises cannot be gone into in his absence.

(vii) In a case between Asim Ranjan Das(D) By LRS vrs. Shibu Bodhak and others : reported in 2018(2) CCC(SC)-2 that,

In a suit for declaration without impleading necessary party (in whose name Patta has been prepared) and without giving opportunity to him cannot be sustained.

(viii) In a case between District Collector, Srikakulam and others vrs. Bagathi Krishna Rao and another : reported in 2010(2) CLR(SC)-98 that,

When suit is filed claiming title over forest land, State Government not impleaded as party. Non-joinder of necessary party being fatal, the suit was not maintainable.(Para-4)

(ix) In a case between Shiv Kumar Tiwari(D) by Lrs. vrs. Jagat Narain Rai and others : reported in (2001) 10 SCC-11 that,

Suit filed without making the affected person as a party. Such judgment could not be pressed into service to the detriment of the rights of a party, who was not a party.

(x) In a case between Rattna Oil Mills/Rice Mills vrs. Paramjit Singh and others : reported in 2008(1) CCC-40 that,

In a suit for declaration, whose name is in the RoR, he should have been given opportunity of hearing. In his absence, no declaratory decree can be passed in favour of the plaintiff.

(xi) In a case between Raj Chandra Bhowmick vrs. Nawab K. Habibulla and others : reported in AIR 1930 Calcutta-693(D.B.) that,

absence of necessary party is a good cause to refuse declaration.

(xii) In a case between Asim Ranjan Das(D) by L.Rs. vrs. Shibu Bodhak and others : reported in 2018(2) CCC(SC)-02 that,

Order passed without impleading necessary party and without giving opportunity to him cannot be sustained.

(xiii) In a case between Kalyan Kumar Bera vrs. Milan Kumar Khuntia and others : reported in 2023(1) CCC-93 (Calcutta) that,

Once it is established that, the person is a necessary party to the suit, it becomes a question of law, the same can be raised for 1st time in appeal.

24. Here, in this suit/appeal at hand, the recorded deities, i.e., Shri

Rasika Ray Thakura and Shri Laxmijanardan Thakura and Sukadevi

Balika Ucha Vidyalaya, Anandapur have not been arrayed as parties and

no notice has been given by the learned trial court to the Endowment

Commissioner as per the provisions of Section 69(1) of the Orissa Hindu

Religious Endowment Act, 1951, then at this juncture, the suit of the

plaintiff was bad for non-joinder of necessary parties.

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

held that, the deity Shri Rasika Ray Thakura and Shri Laxmijanardan

Thakura as well as Sukadevi Balika Ucha Vidyalaya, Anandapur were

the necessary parties to the suit vide C.S. No.259 of 2014-I filed by the

plaintiff, then at this juncture, even in absence of any written statement of