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2003 DIGILAW 513 (ORI)

BALUNKESWAR MAHADEV v. BRAJESWARI MOHAPATRA

2003-08-20

B.P.DAS

body2003
B. P. DAS, J. ( 1 ) APPEAL though this matter was listed today for admission, with the consent of the learned counsel for the parties, the appeal was taken up for hearing and final disposal. ( 2 ) HEARD Shri S. Misra for the appellants and Shri K. R. Mohapatra for respondent No. 1 and Shri A. K. Rath for respondent No. 2, i. e. the Commissioner of Endowments. ( 3 ) THIS appeal under Section 44 (2) of the orissa Hindu Religious Endowments Act, 1951 (in short the Act) is directed against the judgment passed by the Deputy commissioner of Endowments, Orissa, bhubaneswar, in F. A. No. 8 of 1997, reversing the judgment dated 30-12-1996 passed by the Addl. Asst. Commissioner of endowments, Sambalpur, in O. A. No. 4 of 1995 and remanding the matter to him for a fresh disposal in accordance with the provision of law from the stage of issuance of the notice under Order 1, Rule 8 of the Code of Civil procedure, (C. P. C. in short ). ( 4 ) THE facts leading to the present appeal, as transpire from the record, are as follows: the present appellant No. 1 Sri Sri balunkeswar Mahadev Bije at Nandapara. Sambalpur, and appellant No. 2 the managing Trustee of the aforesaid deity, as the petitioners filed an application under Section 41 (l) (d) of the Act to declare the suit schedule properties as public religious endowment within the meaning of Section 3 (12) of the act. The case of the appellant-petitioners in the aforesaid proceeding u/s. 41 (l) (d) of the act is that the deity Sri Sri Balunkeswar mahadev has been installed in a temple and the institution is a public religious institution within the meaning of Section 3 (13) and (15) of the Act and petitioner No. 2 (appellant no. 2 herein) is the Managing Trustee of a non-hereditary Trust Board formed under section 27 (1) of the Act for the managemenl and administration of the said religious institution. The deity owns and possesses lands appertaining to Sabik Nazul Plot No. 1168 and Plot No. 1169 which is adjacent and. contiguous to the east of Plot No. 1168. The main temple of Sri Sri Balunkeswar Mahadev situates over Plot No. 1168 whereas next to the temple situates the deity, viz. , Sri Pancha bakta. The deity owns and possesses lands appertaining to Sabik Nazul Plot No. 1168 and Plot No. 1169 which is adjacent and. contiguous to the east of Plot No. 1168. The main temple of Sri Sri Balunkeswar Mahadev situates over Plot No. 1168 whereas next to the temple situates the deity, viz. , Sri Pancha bakta. and Balunkeswar Dharmasala and five kutcha Khaparli houses over Sabik Plot no. 1169, which, since time immemorial was being used as a flower garden of the deity and locally called Malibadi. During the year 1925, Kartika Mohapatra and Jashoda mohapatra, the widow of Rama Krishna mohapatra. were two Mali-sevaks of the suil institution, and were rendering religious service to the deity. It is pleaded, inter alia, that to accommodate those Mali-sevaks near the suit temple for the convenience of seva puja, two Khaparli houses were constructed on the northern fringe of the aforesaid flower garden at the outset and accordingly the malisevaks were in possession of such houses as the servants of the suit institution. Smt. Anuchhaya Mohapatra was the widow of kartika Mohapatra, who died some time in june, 1928 and on his death, his widow anuchhaya Mohapatra succeeded her deceased husband as Sevak and continued to render religious service to the deity through her brother Duryodhan Mohapatra. and after him, she engaged the husband of the opp. party-Brajeswari Mohapatra as her deputy and continued to render such sendee while living in that house initially allotted to her husband. Petitioners further case before the addl. Asst. Commissioner was that on the death of Jashoda Mohapatra, who died issueless, the deceased Anuchhaya Mohapatra became the sole Mali Sevak of the deity till she was removed from such office by the trust Board of the suit institution in 1990. Under the above circumstances. Kartika mohapatra, and after him. Anuchhaya mohapatra-opp. party were in possession of one such Katcha Khaparli house built over an area of about Ac. 0. 03 decs, appertaining to Plot No. 1169. According to the petitioners, the entire sabik Plot No. 1169 measuring an area of ac. 0. 29 which includes the Hal Plot No. 1546 was being used for the purpose and benefit of the institution and the income derived therefrom was being used for the Seba puja of the deity since time immemorial. 03 decs, appertaining to Plot No. 1169. According to the petitioners, the entire sabik Plot No. 1169 measuring an area of ac. 0. 29 which includes the Hal Plot No. 1546 was being used for the purpose and benefit of the institution and the income derived therefrom was being used for the Seba puja of the deity since time immemorial. The petitioners claimed the Schedule A land as public Religious Endowment within the meaning of Sec. 3 (12) of the Act and prayed for such a declaration. In the written statement so filed by the opp. party Brajeswari Mohapatra, i. e. , the present respondent No. 1, who had been substituted on the death of Anuchhaya mohapatra during the proceeding, has claimed that she is in actual possession of one such Khaparli house said to have been allotted to Kartika Mohapatra as Sebak. She supported the plea of Anuchhaya and resisted the application and claim that schedule A land being a Nazul land and was in occupation of Kartika Mohapatra and anuchhaya Mohapatra as Basti Dweller of nandapada since generation and such occupation being not in their status as Sebak of the suit religious institution and Sabik Plot no. 1169 being never used for any purpose or benefit of the suit religious institution at any time and it was never a, public religious endowment as claimed. ( 5 ) THE Addl. Asst. Commissioner framed as many as five issues, which are as follows:"1. Whether the Asst. Commissioner of endowments has got jurisdiction to decide the present matter/dispute u/s. 41 (l) (d) of the Act? 2. Whether the present proceeding is hit by the principle of constructive res judicata? 3. Whether the Schedule A land is a. public religious endowment within the meaning of the Act? 4. Whether there is any cause of action for filing of this suit? 5. To what relief the petitioners are entitled for?"while answering the issues, the Addl. Asst. Commissioner recorded his findings and ultimately came to the conclusion that there being evidence that Schedule A land was being used for the purpose and for the beneficial interest of the suit institution and when the deceased opp. 5. To what relief the petitioners are entitled for?"while answering the issues, the Addl. Asst. Commissioner recorded his findings and ultimately came to the conclusion that there being evidence that Schedule A land was being used for the purpose and for the beneficial interest of the suit institution and when the deceased opp. party after her dismissal as Mali sebak did not vacate the suit house and instead put forth a claim that it was not a religious endowment but her private property, basing on publication of M. S. R. O. R. in her favour, the Addl. Asst. Commissioner was of the view that there was cause of action to file the suit and found that the suit schedule A land is a public religious endowment of the suit institution within the meaning of Section 3 (12) of the act, and the same is being used for the purpose and benefit of the suit institution and not a private property as claimed by the opp. party. Accordingly, order was passed allowing the application u/s. 41 (l) (d) of the Act. ( 6 ) THE aforesaid order passed by the Addl. Asst. Commissioner of Endowments was assailed in appeal before the Commissioner of endowments, who subsequently transferred the case to the Deputy Commissioner of endowments, Bhubaneswar, whereafter the appeal was numbered as F. A. No. 8 of 1997 under Section 44 (1) of the Act. The Deputy commissioner, after hearing the parties exhaustively and recording the facts of the respective parties, instead- of going into the merits of the rights and contentions of the parties, relying upon a Division Bench decision of this Court, reported in (1992) 74 CLT 309, Purna Chandra Panigrahi v. Baidya jani, thought it proper to remand the case to the trial Court to the stage of issuance of notice under Order 1, Rule 8, C. P. C. The sum and substance of the decision so arrived at by the lower appellate Court is that before deciding the lis between the parties, the Addl. Asst. Commissioner should have issued notice under Order 1, Rule 8, C. P. C. and in the absence of issuance of such a notice, the order of the Addl. Asst. Commissioner is vitiated. The aforesaid appellate order is under challenge in this appeal. Asst. Commissioner should have issued notice under Order 1, Rule 8, C. P. C. and in the absence of issuance of such a notice, the order of the Addl. Asst. Commissioner is vitiated. The aforesaid appellate order is under challenge in this appeal. ( 7 ) SHRI S. Misra, learned Senior Counsel appearing for the appellants, submits that there is no necessity of issuing a public notice under Order 1, Rule 8, C. P. C. because there is no dispute regarding the status of the institution. Further, it is admitted by the parties that it is a public religious endowment and the lis is between the deity and a private party regarding the property over which the deity claims its right so also the private party, i. e. , respondent No. 1, brajeswari Mohapatra. Shri K. R. Mohapatra, learned counsel appearing for respondent No. 1, draws my attention to the decision in Purna Chandra panigrahis case (supra) so relied upon by the lower appellate Court and submits that the object of Order 1, Rule 8, C. P. C. apparently being to avoid multiplicity of proceedings and a determination which can effectively take care of the Us involved, for which the judgment and order passed by the lower appellate Court is legal and correct and, therefore, the appeal filed by the appellants is devoid of any merit. Shri A. K. Rath, learned counsel appearing for the respondent-Commissioner of endowments, supports the contention of Shri misra and submits that it is a lis between the deity vis-a-vis a private party, i. e. , respondent no. 1, for which notice under order 1, Rule 8, C. P. C. is absolutely not necessary. ( 8 ) AS it appears the appellants filed the application before the Addl. Asst. Commissioner of Endowments under Section 41 (l) (d) of the Act. Section 41 (l) (d) of the Act provides:"41. Assistant Commissioner to decide certain disputes and matters (1) In case of a dispute the Assistant commissioner shall have power to enquire into and decide the following disputes and matters (a) to (c ). . . . . . . . . . . . . . . . . . (d) whether any property or money is of a religious endowment or specific endowment; (e) to (g ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (d) whether any property or money is of a religious endowment or specific endowment; (e) to (g ). . . . . . . . . . . . . . . . . . Provided that the burden of proof in all disputes or matters covered by Clauses (a) and (d) shall lie on the person claiming the institution to be private or the property or money to be other than that of a religious endowment or specific endowment, as the case may be. "on perusal of the facts of the case, I find that there is no dispute regarding the nature of the institution and admittedly it is a public religious institution and the application has been filed only to decide whether a particular property belongs to religious endowment or a specific endowment. To be more specific the dispute revolves round the property measuring Ac. 0. 12 decs. of land over which some Khaparli houses are standing. The question raised before this court regarding non-issuance of notice under Order 1, Rule 8, C. P. C. was not an issue before the trial Court. This point was not pleaded by either party, but the same being an issue involving question of law can be raised and examined by this Court. Law is well settled that the provisions of order 1, Rule 8, C. P. C. are mandatory in nature and Shri Mohapatra for the respondent has rightly cited a decision of this Court, reported in 1971 (1) CWR 699, Brundaban thakurani v. Hari Biswal, wherein it was held thus:". . . . . . . . . . IT is well settled that to attract the application of O. 1, R. 8, C. P. C. the requisite conditions are; (1) the parties must be numerous; (2) they must have the same interest in the suit: (3) the Courts permission under the rule must be obtained and (4) notice must be given to the parties whom it is proposed to represent in the suit. " ( 9 ) NOW let me see whether the facts and circumstances of the present case satisfy the pre-conditions required to attract the mandatory provisions of Order 1, Rule 8, C. P. C. Here is a case where the parties are not numerous. " ( 9 ) NOW let me see whether the facts and circumstances of the present case satisfy the pre-conditions required to attract the mandatory provisions of Order 1, Rule 8, C. P. C. Here is a case where the parties are not numerous. But learned counsel for the respondent relies upon the decision of. this Court in purna Chandra Panigrahis case (supra) and strenuously argues that this decision squarely applies to the facts and circumstances of the present case dealing with a matter relating to Hindu Public. So, the provisions of Order 1, Rule 8, C. P. C. are necessary to be followed. Shri Misra for the appellants also relies upon the same decision in Purna Chandra panigrahis case so also Shri Rath, learned counsel appearing for the Commissioner of endowments. On a thorough reading of the aforesaid decision of this Court, I find that the observation made in paragraph 4 is relevant. The said paragraph 4 runs as follows:". . . . . . . . . . . . The object for which Order 1, Rule 8, C. P. C. has been enacted is really to facilitate the decision of question in which a large body of persons are interested without recourse to ordinary procedure where each individual has to maintain an action by a separate suit. Where there is community of interest amongst numerous persons to avoid expenses, trouble and multiplicity of proceedings, few of them are allowed to represent the whole. In a proceeding for a declaration that a particular institution does not have a hereditary trustee or has one, if the members of Hindu Public are neither impleaded, nor the suit framed under Order 1, Rule 8, C. P. C. there can be no adjudication of the question whether the institution is a hereditary or not. It will be futile to declare that the public have no right in the institution without impleading the members of ihe public under Order 1, Rule 8, C. P. C. . . "from the above it is clear that the object of Order 1, Rule 8, C. P. C. apparently being to avoid multiplicity of proceedings and a determination, which can effectively take care of the lis involved, it would not be proper to throw out the applicants case merely on the ground that on merits applicants were not able to substantiate their plea. Had the public appeared, they might have thrown some light which the applicants in this case had not done. Whether they would have supported the case of the applicant is not known. Therefore, it is appropriate that the applicants must have a determination of their lis on merits which would bind all the parties. The case so cited above pertaining to the matter where a declaration was sought for under Section 4 (l) (d) of the Act wherein a claim was made to declare the said appellant to be a hereditary trustee of the deity which is a temple. So, in order to ascertain the nature of the endowment, the Division bench of this Court in Purna Chandra panigrahis case arrived at a finding that public notice is required and the general public are to be made parties in terms of order 1, Rule 8, C. P. C. while deciding such issue. But the case at hand does not call for to decide an issue of above nature for which i do not foresee any multiplicity of litigations, because the lis is between the respondent and the deity, which claims the property to be its own, which has been resisted by the respondent, treating it to be her own property. The dispute is in no way concerned with the nature of endowment and no other person having common interest to sue and to be sued together. The Division Bench decision of this Court in Purna Chandra panigrahis case is of no help to the respondent, rather it supports the case of the appellants. Considering the nature of the dispute, in my opinion, the appellate Court went wrong because instead of deciding the case on its own merit has remanded the matter to the trial Court on the finding that the judgment of the trial Court is bad as no notice had been issued under Order 1, Rule 8. C. P. C. impleading the Hindu Public as parties in the proceeding. C. P. C. impleading the Hindu Public as parties in the proceeding. ( 10 ) FOR the foregoing reasons, 1 allow the appeal and set aside the judgment passed by the Deputy Commissioner of Endowments in F. A. No. 8 of 1997 and remand the matter to the Deputy Commissioner of Endowments for a fresh disposal for which the parties are directed to appear before him on 8-9-2003 and on their appearance the Deputy commissioner shall fix a date of hearing and dispose of the matter in accordance with law by end of October, 2003. The Deputy commissioner shall act upon production of the certified copy of this order. There shall be no order as to cost. Appeal allowed.