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2000 DIGILAW 284 (ORI)

BUDHA BHOI v. PARSURAM BHOI

2000-06-19

P.K.TRIPATHY

body2000
P. K. TRIPATHY, J. ( 1 ) SECOND Party in Criminal Misc. Case No. 95 of 1981, a proceeding under Section 145, Cr. P. C. has filed this revision against the judgment dated 6th December, 1993 of the Sub-Divisional Magistrate, Titilagarh (in short SDM ). Cultivable lands in Plot Numbers 277, 278, 376 and 377 measuring an area of Ac. 2. 22 decimals of Holding number 51 of village Badgamada under Bangomunda Police Station in the district of Bolangir is the subject-matter of dispute Learned S. D. M. vide the above noted impugned judgment declared possession of the first party who are the opposite party in this revision. ( 2 ) IT reveals from the lower Court's record that the proceeding was initiated on the application of the first party members who were six in number. They claimed that the disputed case land is 'devottar' property belonging to the village deity "dharani Devta" and that the second party, who was the priest for the said deity, having failed to do the 'seva-Pooja' the Additional Assistant Commissioner of Endowment, Sambalpur vide his order No. 148 dated first September, 1981 appointed the first party members as the non-hereditary trustees and therafter they possessed the case land and grew crops but the second party attempted to remove the crop by use of force which gave riseto apprehension of breach of peace. ( 3 ) THE second party advanced his claim of possession on the ground that he is the 'sebayat' of the deity hereditarily and in lieu thereof he is possessing the case land and in that respect his status and possession has been noted in revenue records during settlement operations in 1936 and 1975 and the proceeding under the Orissa Estate Abolition Act finalised in 1977. He also stated that he had grown the crops in the year of dispute i. e. 1981. ( 4 ) IN the Court of the S. D. M. both the parties led both oral and documentary evidence in support of their respective claim of possession over the case land. The first party-opposite party examined five witnesses. Out of them P. W. No. 4 Parsuram Bhoi is one of the first party members. Four documents were exhibited from their side. Out of those Exts. 1 and 2 are the order of appointment of non-hereditary trustees, each for two years in 1981 and 1988 respectively and Exts. The first party-opposite party examined five witnesses. Out of them P. W. No. 4 Parsuram Bhoi is one of the first party members. Four documents were exhibited from their side. Out of those Exts. 1 and 2 are the order of appointment of non-hereditary trustees, each for two years in 1981 and 1988 respectively and Exts. 3 and 3/1 are two receipts showing payment of arrear contribution to the Endowment Department. Besides three witnesses, the second party-petitioner examined himself as O. P. W. No. 4 and relied upon settlement patta Exts. A and B respectively of 1936 and 1974, Ext. C the patta granted in 1977 by the O E A Collector-Cum-Tahasildar and six rent receipts marked Ext. D. series covering the period from 1983-84 to 1991-92. ( 5 ) LEARNED S. D. M. , on perusal of evidence, held that the fact remained undisputed that the subject-matter of dispute i. e. the disputed case land belongs to 'dharani Devata' and the first party members were appointed as managing trustee for two years in 1981 and again in 1988 wherein direction was issued to them to take charge of the religious institution and properties thereof. He further held that the Endowment Inspector (P. W. 3) has deposed regarding transfer of the case lands to the Trust Board which is managing the same, furnishing accounts and paying the dues. Accordingly he concluded that, when a Trust Board is functioning in the village Badgamada for the maintenance of the Deity 'dharani Devata' since the year 1981 and the lands which belong to the Deity 'dharani Devata' have already been transferred to the management of Trust Board by the Endowment Department, there is nothing to believe that the second party is in possession of the case land. Under the above circumstances, this Court comes to the conclusion that the Ist party was in possession of the case land on the date of preliminary order i. e. on 9-11-1981 and two months prior to that because the letter of appointment was issued on dt. 1-9-1981 i. e. 68 days before the preliminary order was passed. Therefore the possession of the Ist party namely Parsuram Bhoi. . . is hereby declared. xxxx xxxx xxxx xxxx xxxx. " ( 6 ) BEFORE dealing with the rival arguments of the parties it may be noted that first party members Nos. 2, 3, 4, and 6 viz. 1-9-1981 i. e. 68 days before the preliminary order was passed. Therefore the possession of the Ist party namely Parsuram Bhoi. . . is hereby declared. xxxx xxxx xxxx xxxx xxxx. " ( 6 ) BEFORE dealing with the rival arguments of the parties it may be noted that first party members Nos. 2, 3, 4, and 6 viz. Budhi Sagar Putel, Gopinath Bhoi, Paramanda Bachha and Chhelia Putel died during pendency of the proceeding in the Court below. Their respective date of death was neither stated nor available in the lower Court's record. Petition for substitution of legal representatives of first party members 2, 3 and 6 filed on 7-4-1984 was rejected on 26-5-1987 on the ground that the deceased first party members being not hereditary trustees, substitution of legal representatives, i. e. their personal heirs, is not necessary. However, in that respect nothing was indicated in the impugned order nor names of the said deceased first party members were deleted from the cause title and therefore, as argued by learned counsel for the second party-petitioner, such deceased persons have been described in the revision application as opposite party Nos. 2, 3, 4 and 6. The aforesaid factual position is not disputed by the learned counsel appearing for the opposite party. Thus it is ordered that names of the deceased opposite members be deleted from record. ( 7 ) COMING to the merit of the case, it was argued by learned counsel for the petitioner that learned SDM, not only applied double standard in appreciating the evidence adduced by the parties but also failed to properly appreciate the fact and evidence and wrongly held exhibits 1 and 2 to be the documents in support of possession and in that respect mis-read the evidence of P. W. No. 3 (Endowment Inspector) while arriving at the decision that the first party was in possession on the date of preliminary order. He further argued that learned S. D. M. did not at all consider the factum that pursuant to the order of the Addl. Assistant Endowment Commissioner (Ext. He further argued that learned S. D. M. did not at all consider the factum that pursuant to the order of the Addl. Assistant Endowment Commissioner (Ext. 1) delivery of possession of the case land was not handed over to the members of the first party nor there is evidence to the effect that the trustees passed any order in accordance withsection 32 of the Orissa Hindu Religious Endowments Act, 1951 dismissing or removing the second party from the hereditary sevayatship nor communicated any such order, if any, to him and therefore learned S. D. M. should not have held that merely on the basis of Ext. 1 it amounted to deemed eviction. He also argued that cultivation of the paddy land starts in the month of May-June and the formation of the non-hereditary trust board was ordered in September 1981 and therefore there can not be any dispute that the second party had cultivated and grown crops, before passing of the preliminary order, in 1981. Highlighting the aforesaid points learned counsel for the second party-petitioner argued that the factual finding of learned S. D. M. is contrary to the facts and evidence and therefore illegal and it be set aside and possession of the second party be declared. Learned counsel for the first party-opposite party on the other hand argued that reassment of evidence need not be done by this Court while exercising the revisional jurisdiction and more so when the view taken by learned SDM does not suffer from perversity. He further argued that when the case of the first party has not been disputed relating to appointment of non-hereditary trustees and taking over management of the religious institution including 'seva Pooja' of the deity, there appears no flow in the impugned order regarding the factum of actual possession of the case land by the first party members when the case land, according to the admitted position in the record of rights, is a service tenure land attached to the deity and not to the sevayat. ( 8 ) NO authority is needed on the proposition of law that a revisional Court shall not interfere with the finding on fact unless such finding is illegal or perverse. ( 8 ) NO authority is needed on the proposition of law that a revisional Court shall not interfere with the finding on fact unless such finding is illegal or perverse. It is also the well settled position of law that when two views are possible on reading the evidence on record and one of the two views has been accepted by the trial Court/court of fact, then the revisional Court need not impose its assessment of the evidence constituting the other view. In such a case the view expressed by the Court of fact be respected and maintained. It is also a clear position of law that appreciation of evidence should be made by a Court properly, systematically, unbiasely and having a realistic or rational approach besides remaining alive to the relevant provision of law. Thus it is not mere reading of the evidence and accepting one view can be regarded as proper assessment of evidence unless, the evidence is not only perused but also considered for appreciation and acceptance with due application of mind being remaining alive to the factual background and the legal requirements. Keeping in view the aforesaid salient point of law contention of the parties are to be considered appropriately. ( 9 ) ON perusal of the written statements filed by both the parties and the evidence led by them it appears that claim of possession over the case land by the first party is on the basis of their appointment as non-hereditary trustee on 1-9-1981. Though the first party No. 1/opposite party No. 1 in his evidence as P. W. No. 4 stated that possession of the case land had been taken over by the first party members before constitution of trust board but that bald assertion of the first party is not acceptable having remained uncorroborated besides absence of such a plea in the written statement. The Endowment Inspector (P. W. 3) though categorically stated in his evidence that he had no knowledge of which party is in possession of the case land yet learned S. D. M. read his evidence as proof of possession in favour of the first party members which is undoubtedly a case of mis-reading the evidence. P. Ws. The Endowment Inspector (P. W. 3) though categorically stated in his evidence that he had no knowledge of which party is in possession of the case land yet learned S. D. M. read his evidence as proof of possession in favour of the first party members which is undoubtedly a case of mis-reading the evidence. P. Ws. 1 and 2 for the 1st party have stated that after appointment of the non-hereditary trustees the 1st party possessed the disputed case land whereas the 2nd party and his witnesses stated that the 2nd party all along remained in possession till the date of preliminary order. With respect to the question of actual possession corroborative evidence is totally lacking from the side of the first party whereas corroborative evidence through documents and circumstances are available from the side of the second party. Therefore, on assessment of the evidence it is found that two views are not possible relating to proof of the factum of possession. In other words if the evidence shall be properly assessed with due prudence and consideration of corroboration and relevant circumstances, which is necessary in a case of this nature, only one view is possible. Learned S. D. M. committed illegality while assessing the oral evidence. He also mis-read the evidence of P. W. 3 and Ext. 1 for recording the finding of possession in favour of the 1st party. Thus, while exercising revisional power this Court thinks it proper to set aside the finding on possession and to reassess the same in accordance with law and rationality. ( 10 ) IT is the admitted case of both theparties that second party is the hereditary sebayat (priest) of the deity 'dharani Devata'. That fact also has been consistently noted in the revenue records which is apparent from the pattas granted in the two settlements, as noted above, besides the patta granted by the O. E. A. Collector in the year 1977. According to provision under Section 32 of the Hindu Religious Endowment Act, 1951 a hereditary sebayat can be removed from his office by the trust board and such order of the trust board is appealable before the Assistant Commissioner of Endowment. According to provision under Section 32 of the Hindu Religious Endowment Act, 1951 a hereditary sebayat can be removed from his office by the trust board and such order of the trust board is appealable before the Assistant Commissioner of Endowment. Though it is alleged that second party neglected in the 'seva puja' of the deity yet the trust board i. e. , the members of the first party have not stated that after formation of the non-hereditary trust board they decided the matter in accordance with the provision of law for removal of the second party from the post of sebayat and served him with such an order. It may be noted here that such is not the case of either of the parties. Thus, when the second party has not been removed from the office of the sebayat the land which he possesses in lieu of the service rendered to the deity by doing 'seva puja' could not have been disturbed without any lawful orders. In that way there is a wide gap between the plea taken by the first party and the actual fact. ( 11 ) IT is a well known saying that 'man may lie but circumstance never be lie'. That has absolute application so far as the present case is cosncerned. As stated above first party claimed possession over the disputed case land on the basis of Ext. 1 by which on 1-9-1981 the Additional Assistant Endowment Commissioner, Sambalpur passed order constituting the non-hereditary trust board. It is also their (1st party's) case that they claimed possession after formation of the trust board. Therefore the members of the 1st party could not have possessed the land prior to that date i. e. 1-9-1981. If at all they acquired possession of the case land prior to that date then such a claim is absolutely absent in the plea taken in their written statement. Apart from that in their evidence P. Ws. 1, 2 and 5 have also deposed relating to obtaining of the possession of the case land by 1st party members after appointment of the trustees. On the other hand, the second party deposed that he possessed the case land in the year of dispute by cultivating and growing paddy crops. P. W. 5, in his cross-examination has admitted that cultivation of paddy is being done in the month of 'ashacha'. On the other hand, the second party deposed that he possessed the case land in the year of dispute by cultivating and growing paddy crops. P. W. 5, in his cross-examination has admitted that cultivation of paddy is being done in the month of 'ashacha'. There is no evidence from the side of the first party that cultivation operation was undertaken only in September, 1981 i. e. after appointment of the trustees. Thus, the aforesaid circumstances belie the claim of possession of the case land by the 1st party members in the year of dispute i. e. 1981. On the other hand, the aforesaid circumstance read with the evidence led by the second party corroborates to each other that second party had cultivated the land in 1981. ( 12 ) THE provision in Sec. 145 is clear and unambiguous that in a proceeding under that provision the relevant point for consideration is the factum of actual possession on the date of preliminary order or two months prior to that if within that period the party in possession was disposed wrongfully. In this case preliminary order was passed in the month of November, 1981 and about two months before that the trust board had been constituted and about two to three months before that the party in possession had already cultivated the land and grown the crops. Besides that in the Ext. 1 there is nothing to indicate that possession of the case land was obtained from the second party and was delivered to the 1st party members. Thus, the aforesaid facts and evidence clearly proves that by the date of preliminary order the second party was in possession of the case land. ( 13 ) IT may be indicated here that if the second party being the hereditary priest is not doing the 'seva puja' then the trust board as well as the Endowment authorities should proceed against him in accordance with law not only to remove him from his office but also to take away the possession of the land. If, however, he is doing the 'seva puja' and is a victim of the petty village politics then the concerned authority in the Endowment Department should not only set the matter right but also pass appropriate order to protect his interest. If, however, he is doing the 'seva puja' and is a victim of the petty village politics then the concerned authority in the Endowment Department should not only set the matter right but also pass appropriate order to protect his interest. The above observation is made only with a view that no undue advantage be allowed to be taken of this judgment and lawful action be taken against the wrong doers in accordance with law. ( 14 ) AS noted above, on proper assessment of evidence it is found that the finding on possession recorded by the S. D. M. is not only incorrect but also illegal and therefore the same is set aside. Since the second party has proved the factum of possession in his favour as on the date of preliminary order his possession is accordingly declared and he is to continue in such possession until evicted indue process of law. ( 15 ) THE criminal revision is allowed accordingly. Petition allowed.