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2005 DIGILAW 569 (ORI)

Baikuntha Nath Das v. Nrusinghanath Mahaprabhu

2005-09-28

A.S.NAIDU

body2005
JUDGMENT A. S. NAIDU, J. — The judgment dated 24th February, 1990 passed by the Deputy Commissioner of Endowments, Orissa, Bhuba¬neswar is assailed by the opposite party-appellants in this appeal filed U/s.44 (2) of the Orissa Hindu Religious Endowments Act. 2. Respondents 1 to 5 as petitioners filed an application before the Addl. Assistant Commissioner of Endowments, Cuttack Zone, Cuttack U/s.41 of the Orissa Hindu Religious Endowment Act, 1951 (for short O.H.R.E. Act, 1951) which was registered as O.A. No.16/83, inter alia, praying to declare the Institution of Nrusinghanath Mahaprabhu Bije Archulli, Post Office- Somepur, District- Cuttack as a public deity being managed by Non-heredi¬tary Trust Board and its lands as belonging to public religious endowments. According to the said respondents the foundation of the said Institution has been lost in antiquity and the villagers have been managing its affairs treating it as a public deity. The villagers out of their own contribution constructed a temple and installed the deity thereon about 40 years back. They also ap¬pointed the ancestors of the present appellants to do the Seva Puja of the deity as Pujaks. It is asserted that the entire man¬agement of the deity and its properties was in the hands of the villagers and in accordance with the instructions and supervision of the villagers and the ancestors of the respondents used to do the Seva Puja to the deity. 3. The opposite party-appellants appeared and filed their written statement strongly repudiating the averments made in the petition. According to the opposite parties the deity, Nrusingha¬nath Mahaprabhu, is their private deity. They admit that the date of foundation of the deity and the name of the founder are not known due to ancient character of the Institution, yet they assert that the deity is their family deity and was installed by some of this remote ancestors. It was also their case that the villagers since the foundation of the deity treated it as public deity and offered Bhoga and took part in Jani Yatras of the deity, but then, they use to do so after obtaining permission. It is alleged that the ancestors of the opposite parties and there¬after the opposite parties are in exclusive management of the affairs of the deity and they used to do Seva Puja of the deity from out of the usufructs of the lands and also perform the Jani Yatras. It is alleged that the ancestors of the opposite parties and there¬after the opposite parties are in exclusive management of the affairs of the deity and they used to do Seva Puja of the deity from out of the usufructs of the lands and also perform the Jani Yatras. It was further alleged that the deity was previously in a thatched house and they from their own funds constructed a pucca temple for the deity and kept the deity inside the said temple years back. According to them, from the date of installation, the villagers were never in management of the affairs of the deity, which vested with the respondents. 4. On the basis of the pleadings the Addl. Asst. Commis¬sioner of Endowments framed seven issues. The petitioners got examined six witnesses and exhibited six documents to substanti¬ate their case. At the other hand, the opposite parties got exam¬ined three witnesses and exhibited as many as eighteen documents. The Addl. Asst. Commissioner by judgment dtd.28.5.87 declared the deity, Sri Nrusinghanath Mahaprabhu, as a public deity and its place as a place of public religious worship and the Institution as a temple as defined under the O.H.R.E. Act, 1951. It was further declared that the lands in the name of the deity measuring Ac.9.09 decimals belong to public religious endowments and the Institution is managed by a Non-hereditary Trust Board and that the opposite party-appellants are not the hereditary trustees.It was further declared that the opposite party-appellants are to remain in possession of the lands of the deity in lieu of their doing Seva Puja of the deity, but in case of default in doing Seva Puja they were to be dispossessed from the lands as per the provisions of the O.H.R.E. Act, 1951. Being aggrieved by the aforesaid judgment the appellants preferred an appeal before the Deputy Commissioner of Endowments, which was registered as F.A. No.13/1987. Learned Deputy Commis¬sioner of Endowments confirmed the findings arrived at by the Addl. Asst. Commissioner of Endowments that the Institution in question was a public religious Institution. The Deputy Commis¬sioner on the basis of the evidence of O.P.W.1. further held that the findings of the Addl. Asst. Commissioner to the effect that the opposite-party appellants were not the hereditary trustees needed no interference. Being aggrieved, the appellants have preferred this appeal. 5. Mr. Asst. Commissioner of Endowments that the Institution in question was a public religious Institution. The Deputy Commis¬sioner on the basis of the evidence of O.P.W.1. further held that the findings of the Addl. Asst. Commissioner to the effect that the opposite-party appellants were not the hereditary trustees needed no interference. Being aggrieved, the appellants have preferred this appeal. 5. Mr. S. Misra-2, learned counsel appearing for the appellants, invited attention of this Court to the evidence of P.W.2 and stated that O.P.W.1 clearly admitted in paragraph-7 of is deposition that till 1989 from the date of the foundation of the deity the appellants were managing the Institution and doing Seva Puja of the deities. According to him, in view of the afore¬said admission, the Courts below acted illegally and with materi¬al irregularity in coming to the conclusion that the opposite party-appellants were not in management of the Institution and/or not the hereditary trustees. He strongly argued that the appellate Court, which is the final Court of facts, not only failed to analyse the oral evidence but also did not refer to several documents filed by the opposite party-appellants like R.O.Rs of 1930 and 1977 filed as Exts.C to C/3 and Ext.D, Ext.G, the letter issued by the Endowment Department on 10.2.1949, Exts.H to H/4, the demand notices issued by the Endowment Depart¬ment demanding contribution, Exts.J to J/3 and Exts.K to K/12, the receipts showing payment of contribution and several other documents, a perusal of which would clearly reveal that the oppo¬site party-appellants were in active management of the Institu¬tion from the time of their ancestors. 6. Mr. S. P. Mishra, learned counsel appearing for the respondents 2,4 and 5, at the other hand, forcefully submitted that the appellants have totally failed to establish that they were in management of the Institution. It was further submitted that the evidence clearly reveals that though the appellants are performing the Seva Puja of the deity, there is no iota of evi¬dence that they were managing the Institution. According to him, the Institution is all along managed by the villagers and the opposite party-appellants are only Pujaks continuing as such from the time of their ancestors and the claim to the effect that they are the hereditary trustees and the Institution is their private deity cannot be accepted. 7. According to him, the Institution is all along managed by the villagers and the opposite party-appellants are only Pujaks continuing as such from the time of their ancestors and the claim to the effect that they are the hereditary trustees and the Institution is their private deity cannot be accepted. 7. I have heard learned counsel for the parties at length and also examined the materials meticulously. The finding of Addl. Asst. Commissioner of Endowments and the Deputy Commission¬er of Endowments that the Institution of Nrusinghanath Mahaprabhu is a public religious endowment needs no interference. The mate¬rials available on record clearly reveal that the public in general have free-excess to the temple and they have a right to worship and pay Darshan. The materials available further reveal that the Institution is a temple. Thus, the finding that the Institution of Sri Nrusinghanath Mahaprabhu, is a public religious temple is confirmed. 8. The only other point which needs to be determined in this appeal is with regard to management of the Institution. The opposite parties-appellants claimed that they are the hereditary trustees and both Seva Puja and management blend with them. At the other hand, according to the opposite parties, the Institu¬tion was all along managed by the villagers. Perusal of the judgment of the Deputy Commissioner of Endowments reveals that this aspect has not been properly considered by the said Court. As has been stated earlier neither the Deputy Commissioner has taken pain to scan through the oral evidence and discuss the same nor refer to several documents, which were exhibited and threw some light with regard to management of the Institution. 9. In the aforesaid facts, this Court has no hesitation to set aside the judgment passed by the Deputy Commissioner of Endow¬ments in F.A. No.13/1987 and remand the matter to the said Court for fresh disposal with an observation that the Deputy Commis¬sioner shall decide Issue No.2, i.e., “whether the opposite parties held the office of the trusteeship as hereditary trus¬tees” de novo. To shorten the span of litigation, I direct the parties to appear before the Deputy Commissioner on 2nd November, 2005. On the said date the Deputy Commissioner of Endowments shall post the said case for hearing according to his convenience and dispose of the same as expeditiously as possible. With the aforesaid observations/directions the Misc. Appeal is disposed of. To shorten the span of litigation, I direct the parties to appear before the Deputy Commissioner on 2nd November, 2005. On the said date the Deputy Commissioner of Endowments shall post the said case for hearing according to his convenience and dispose of the same as expeditiously as possible. With the aforesaid observations/directions the Misc. Appeal is disposed of. Lower Court records be sent back immediately. Parties to bear their own cost. Appeal disposed of.