Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1134 (ORI)

Sangram Kumar Mohapatra v. Annapurna Sethi

2017-10-11

D.DASH

body2017
JUDGMENT : 1. This appeal under section 100 of the Code of Civil Procedure has been filed impeaching the judgment and decree passed by the learned Ad hoc Additional District Judge, Balasore in Title Appeal No.63/2012 of 2005-02. By the said judgment and decree, the lower appellate court has set aside the judgment and decree passed by the learned Additional Civil Judge (Jr. Division), Nilgiri in Title Suit No.30/1990. The appellants as the plaintiffs having filed the suit for eviction, recovery of possession and realization of mesne profit from the respondent no.1 (defendant no.1), the suit had been decreed directing the respondent no.1 (defendant no.1) to deliver the possession of the suit land to the appellant-plaintiffs within a stipulated period, with liberty to the plaintiff to execute the decree on the failure of the respondent no.1 (defendant no.1) to do so. Thus being under the sufferance of the judgment and decree of the trial court, present respondent no.1 (defendant no.1) had moved the lower appellate court by filing the above noted First Appeal. The lower appellate court has turned, the judgment and decree passed by the trial court upside down which has resulted dismissal of the suit. The appellant-plaintiffs having thus been non-suited, they now challenge the dismissal of their suit in this appeal. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Plaintiffs case is that the suit land is the property of the family deities, Sri Sri Raghunath Jew, Sri Sri Radhemohan Jew and Sri Sri Ganesh Jew. The defendant no.2, namely, Gopinath Mishra (since dead) now represented by his legal representatives was the Sevayat Marfatdar of the deities. It is stated that the defendant no.2 had sold the suit land to one Balaram Raj, the father of defendant no.3 by registered sale deeds dated 31.05.1969 and 06.06.1969. Balraram Raj having purchased the property possessed the suit land and thereafter sold the suit land to the plaintiffs on 02.03.1970. It is stated that the plaintiffs have purchased the suit land from out of their own funds and possessed the same through their father, the defendant no.2. So it is stated that the property having thus come to their hands, it is their separate property. It is stated that the plaintiffs have purchased the suit land from out of their own funds and possessed the same through their father, the defendant no.2. So it is stated that the property having thus come to their hands, it is their separate property. It is stated that their father-defendant no.2 having come in contact with some bad associations and turning to be an addict of many bad habits, squandered away properties measuring about 60 manas and also sold away some of his movables. The plaintiffs further state that the major settlement operation was finalized in the year 1976. The plaintiff no.1 having attained majority in the year 1979 when began to look after the property, he found the defendant no.1 to be in possession of the suit property. When he asked defendant no.1 as to how she came into possession, her husband told that the property has been purchased by defendant no.1 from the said defendant no.2. The plaintiff no.1 therefore asked the defendant no.1 to hand over the possession of the suit property, as her purchase was illegal. The request being finally turned down, the suit has come to be filed. Further case of the plaintiffs is that their grandfather alienated the suit property in favour of the family deities Sri Sri Raghunath Jew, Sri Sri Radhamohan Jew and Sri Sri Ganesh jew by executing the deed of gift on 28.01.1960. The responsibility and duty of performance of sevapuja of the deities was then entrusted to one Chintamani Mishra, for which the grandfather of the plaintiffs had also executed a registered ‘Seva Samrapan Patra’ on 29.01.1960. This entrustment was with a condition that the legal heirs of the donor namely Kesab Mohapatra, the grandfather of the plaintiffs would continue to retain the power to appoint any other personas deemed fit and proper if they find any dereliction in the performance of the sevapuja of the deities by said Chintamani Mishra who was also given the liberty to relinquish said duty of performing the sevapuja on his own and accordingly withdraw from enjoying the property anymore. It is next stated that Chintamani relinquished the sevapuja of the deities in the year 1968. So, the legal heirs of Kesab Mohapatra had to make alternative arrangement for the sevapuja of the deities. It is next stated that Chintamani relinquished the sevapuja of the deities in the year 1968. So, the legal heirs of Kesab Mohapatra had to make alternative arrangement for the sevapuja of the deities. In the major settlement though the suit land stood recorded in the name of the family deities, erroneously Chintamani has been shown to be the sevayat of said deities therein. In view of that Chintamani at that time being in death bed authorized defendant nos.5 and 6 who are his sons to execute a deed of relinquishment of sevapuja of the deities which they did. It is stated that defendant no.2 after became major in the year 1981, on 10.07.1984 asked defendant no.1 to vacate the suit land. She denied to abide by it in view of her purchase. The plaintiffs further claims to have learnt from their father that he had executed one Biswasi Kabala in respect of the suit land towards the security for the loan of Rs.1,000/- availed by him and it was with a condition that defendant no.1 would cultivate the land and appropriate the usufructus thereof towards the interest upon the said loan amount. The plaintiffs further state that their father had paid a sum of Rs.1230/- and had given 60 Gaunis of paddy to the husband of defendant no.1 towards repayment of the said loan dues. Still defendant no.1 demanded further sum of Rs.3719/- in writing through her husband. The plaintiffs claim that the suit land is their purchased property and defendant no.1 has no right, title and interest over the same by virtue of her so-called purchase. The plaintiffs have filed the suit in view of scramble over the possession of the suit land within a period of 12 years of attainment of majority by the plaintiff no.3. They have prayed for eviction of defendant no.1 from the suit property and have further claimed the mesne profit. 4. The defendant no.1 in her written statement has stated that defendant no.2 required money for repair of the temple of the deities and so he proposed to sale the suit land for raising funds for the purpose. After negotiation, defendant no.1 purchased the property for a consideration of Rs.1000/- which was paid to defendant no.2 before the registration of the sale deed. After negotiation, defendant no.1 purchased the property for a consideration of Rs.1000/- which was paid to defendant no.2 before the registration of the sale deed. The defendant no.2 having executed the registered sale deed is said to have also delivered possession of the suit land to defendant no.1. So, it is stated that she is in possession of the suit land as its owner having purchased the same from defendant no.2. Alternatively a case has been projected that by virtue of such long, continuous and peaceful possession since the said purchase, she has acquired title over the property by adverse possession having remained in possession for all the period as owner exercising all such rights. The defendant no.1 also claims to have been paying land revenue to the Government though he has not been able to mutate the land in her favour. 5. Defendant nos.3 and 4 in their written statement asserts that the defendant no.2 had sold the suit land along with other land to their ancestor Balaram Raj by registered sale deed and has delivered possession of the property covered there under. Balaram Raj is said to have sold the land to the plaintiffs which include the suit land and that was for the purpose of meeting the requirement of funds for the purpose in the election since Balaram Raj was in active politics. It is stated that the plaintiffs have purchased the suit land with their own funds on payment of agreed consideration and then had been delivered with the possession of the suit land and other purchased land. So, they stated that the sale deed said to have been executed by defendant no.2 in favour of defendant no.1 is illegal. 6. The rest of the legal representatives of defendant no.2 in their written statement have stated that Gopinath had executed the sale deed in respect of the properties being addicted to liquor and other bad habits though he had no saleable right over the property after selling the same to Balaram Raj. 7. On the above rival pleadings, the trial court framed as many as eight issues. 7. On the above rival pleadings, the trial court framed as many as eight issues. Taking up issue nos.4,5 and 6 together for decision which appears to be the right approach as the issues concern with the plaintiffs right over the property in suit by virtue of their registered sale deed said to have been executed by Balaram Raj as also the claim of title of defendant no.1 by virtue of her purchase from the father of the plaintiffs and the alternative claim of acquisition of title by adverse possession; upon analysis of evidence in the backdrop of the pleadings, the answer has been given in favour of the plaintiffs. 8. Next going to issue no.3 on the point of limitation, the plaintiff no.3 having been found to have attained majority in the year 1986, the answer has been rendered in favour of the plaintiffs that the suit is within the period of limitation. The other issue with regard to maintainability of the suit, without the prayer to declare the sale deed standing in favour of the defendant, Ext.A to be void, in view of the prayer for eviction and recovery of possession based on title, has been answered in favour of the plaintiffs and the trial court has found the suit to be maintainable. These answers have paved the way for the trial court to decree the suit finding the plaintiffs to be entitled to recover of possession of the suit land from defendant no.1 and accordingly passing the decree. 9. The appeal has been admitted on the following substantial questions of law: “(a) When the property in question is claimed to have been dedicated in favour of private family deities and the sebayat have sold the property as per Ext.1 and 2 and the subsequent transaction has taken place in favour of the plaintiffs and the suit has been filed without impleading the deities as parties, whether the learned lower appellate court is justified in saying the suit is bad for non-joinder and mis-joinder of parties, in the absence of the deities when their presence is absolutely is not necessary for effective adjudication of the suit? (b) When the plaintiffs as per Ext.10 the deed of relinquishment of sevapujas of the deities executed by the sons of Chintamani Mishra clearly shows that Chintamani Mishra had surrendered his right of sebayatship in favour of Gopinath Mohapatra, the son of Keshab Mohapatra, the original recorded owner who had dedicated the property in faovur of the deities and evidence has been led to that effect, whether the learned lower appellate court is justified in discarding Ext.10 and disbelieve the question of surrender of sebayatship by Chintamani Mishra? (c) When Ext.1 and 2 has been proved to be a valid transaction and Ext.3 and 4, the subsequent transactions clearly established that the property has been re-conveyed in favour of the plaintiffs, whether the learned lower appellate court is justified in holding that the transactions are void as the deity was not a party to the transaction? (d) When it is clear from the recital of the sale deed vide Ext.1 and 2 that the property has been sold for construction of the of temple which is within the permissible limit of sebayat to transfer the property, whether the learned lower appellate court is justified in ignoring the same while holding that the transactions are void? (e) When the defendant no.1 claims title over the suit land on the plea of adverse possession, he had indirectly admitted the title of the plaintiffs and on that ground alone the title of the plaintiffs should have been declared, by the learned lower appellate court? 10. Learned counsel for the appellants submits that when admittedly the plaintiffs as well as the defendant no.1 have been claiming title over the land by virtue of respective sale made by the defendant no.2, the lower appellate court ought not to have gone to examine the authority of defendant no.2 in selling the property and that was not at all necessary to decide the rival claims of the parties. It is further submitted that the finding recorded by the lower appellate court to the effect that the plaintiffs and defendant no.2 are bound by the deed executed by their ancestor-dour Kesab Mohapatra in favour of Chintamani Mishra is erroneous. It is also submitted that the lower appellate court’s view that the sale made in favour of Balaram Raj and subsequently the sale in turn made by said Balaram Raj in favour of the plaintiffs are void is unsustainable. It is also submitted that the lower appellate court’s view that the sale made in favour of Balaram Raj and subsequently the sale in turn made by said Balaram Raj in favour of the plaintiffs are void is unsustainable. It is further submitted that when the recitals of the sale deeds (Exts.1 and 2) are clear on the point that the lands had been sold for the purpose of meeting the expenditure in order to construct the temple which clearly falls within the sweep of the authority of the sevayat, the lower appellate court is not justified in ignoring the same. He lastly submits that since the defendant no.1 has failed to establish her claim of title and as such to have the legal right to possess the suit land, therefore, the plaintiffs ought to have been held entitled to the decree for eviction as they as per the admitted position are the present Marfatdars of the properties of the deities by way of succession, the deities being their family deities. 11. Learned counsel for the respondent no.1 submits all in favour of the findings recorded by the lower appellate court. According to him the lower appellate court has rightly found the suit filed by the plaintiffs founded on the claim of their purchase as not maintainable since they cannot be said to have derived title from Balaram who had derived no title by his so called purchase as there is no evidence that the sale was with prior permission of the concerned authority prescribed under the special statute nor the legal necessity of the deities for the first sale has been proved by them being under legal obligation to discharge the burden of proof in so far as those aspects are concerned. He lastly contends that the suit being based on the claim of title unto the suitors, the claim as is now submitted in the alternative cannot be taken cognizance of. 12. In order to address the rival submission and simultaneously to find out the answers to the substantial questions of law, some important facets as have been culled out of the rival case of the parties need to be kept in mind. 12. In order to address the rival submission and simultaneously to find out the answers to the substantial questions of law, some important facets as have been culled out of the rival case of the parties need to be kept in mind. The plaintiffs case is that their grandfather Kesab donated the suit property in favour of the family deities by a deed of gift dated 28.01.1960 and it was for the purpose of ensuring proper sevapuja of the deities. It is for this purpose that he had entrusted one Chintamani Mishra for performing the Sevapuja of the deities by another registered ‘Seva Samarpana Patra’, dated 29.01.1960 on the condition that his legal heirs would have the authority to appoint any other fit person to perform the sevapuja of the deities in case they find any such indiscipline in the sevapujas to the sufferance of the deities necessitating termination. Chintamani Mishra being thus conferred with the right to perform the sevapujas had also been given the liberty to recues from the said responsibility by relinquishing the same if being not so interested to continue in performing the sevapujas which obviously has to be on his own desire and volition. It is nobody’s case that said deities are public deities. Here the parties do not dispute that the deities are the family deities founded by Kashinath. It is stated by the plaintiffs that Chintamani Mishra delivered the document as also the possession of the land, in question, to the father of the plaintiffs in the year 1968 as he was no more willing to perform the Sevapuja. It is the further case of the plaintiffs that defendant nos.5 and 6 then executed a deed of relinquishment in favour of their father, the defendant no.2 vide Ext.4 which finds mention of said facts of unwillingness on the part of Chintamani who is the father of defendant nos.5 and 6 and who would have normally assumed the said power, to perform the sevapuja of the deities not thus interested anymore and the same being the compelling reason of its coming into being. 13. The lower appellate court as is seen from its judgment has proceeded to examine the plaintiff’s case and viewed the whole subject matter from an angle neither placed by the parties in the suit nor taken as a ground in the first appeal. 13. The lower appellate court as is seen from its judgment has proceeded to examine the plaintiff’s case and viewed the whole subject matter from an angle neither placed by the parties in the suit nor taken as a ground in the first appeal. The angle however is that since no permission was taken for sale of the property of the deities at the first instance by the defendant no.2 in favour of Balaram Raj, the transaction is void, hence the subsequent transaction upon which the plaintiffs base their claim is nonest. No doubt, there was no issue of this score as such and a question was not raised by the defendant no. 1, nonetheless these are all admitted facts. So no fault is seen with the lower appellate court to have taken up the examination in that direction and it cannot be taken by the parties as surprise. Furthermore, this being considered in its proper perspective, with the acceptance of the answer as given by the lower appellate court, it is seen to be only serving the defendant no.1’s purpose to cling upon in continuing with the enjoyment of the property in view of the dismissal of the suit and the same does neither go in any way so as to favour for a declaration of the claim of defendant no.1 over the property nor it benefits the deities even in any remote manner, rather it is wholly detrimental to the interest of the deities. When it is the admitted case of the parties that the deities are private deities and the property had been gifted in favour of the deities by the ancestor of the plaintiffs for due performance of sevapujas of the deities reserving the right of overseeing that the sevapuja of the deities get duly performed by way of enjoyment of the property through a sevayat, the lower appellate court even after whittling down their claim of ownership by virtue of their purchase from the vendee of their father for a moment ought to have next turned due attention to the fact that the person/s now in enjoyment of the property whether has been bearing the burden and shouldering the responsibility of performance of the sevapuja of the deities; and if they can so thwart the suit filed by admitted Marfatdars of the deities being the successors of the donor. Without this consideration, the very purpose behind the gift and the objective sought to be achieved thereby clearly get frustrated. So the lower appellate court having rightly taken up that angle, as it appears has however left it half way without further proceeding to examine the matter keeping the interest of the deities as paramount consideration. Thus the lower appellate court’s view as taken though at the first blush appears to be very much appealing in finding out the anxiety to safe guard the interest of the deities and even being not allowed to be in any way tinkered with by the Marfatdars or the successors of the founders, yet at the end of the day its seen to be wholly contractive in the absence of any attempt or endeavour herein within the frame work of law to safe guard the interest of the deities and serve the same in reality. The exercise is thus incomplete. It also appears that further consideration has not been made on the score that the defendant no.1 is in no way connected with the deities either being the successor of the original owner of the property who had gifted the same in favour of the deities or the marfatdar or as the beneficiary of the property in shouldering the responsibility of performance of sevapuja of the deities. The defendant no.1 has also failed to prove the factum of legal necessity in existence at the time of her purchase of the property from the defendant no.2 by any independent evidence barring the recital in the deed which is not enough. 14. The specific case of defendant no.1 is that the property has been purchased from defendant no.2 who was in need of money for repair of temple of the deities and she being the purchaser and delivered with the possession of the property by the defendant no. 2 has the right to possess the same being its owner and in the alternative having so possessed for much more than the period of 12 years from the date of purchase i.e. 22.10.1971, she has perfected her title over the property by virtue of adverse possession. 2 has the right to possess the same being its owner and in the alternative having so possessed for much more than the period of 12 years from the date of purchase i.e. 22.10.1971, she has perfected her title over the property by virtue of adverse possession. Basing upon that very view of the lower appellate court as regards prior permission for sale of deity’s property as the need, the purchase of the property by the defendant no.1 as projected puts her nowhere and her claim of title and enjoyment of the property as its owner bites dust. Furthermore, the admitted position being that the properties belonged to the deities, perpetual minors, the plaintiffs had the legal obligation to prove the legal necessity behind the sale by their father to Balaram Raj. In this case it is seen from evidence that they have failed to prove that factual aspect by independent evidence. Even though for a moment it is taken to have been established, yet the properties of the deities having come back to the hands of Marfatdars be it in any mode, the same would only enure to the benefit of the deities and cannot become their exclusive property as they were and also the successors-Marfatdars in waiting at the time of purchase. So when they upon the death of their father became the marfatdars, this property in their hands stands as the property of the deities and under their care and custody as such for being utilized for the purpose of sevapuja of the deities. They are also stopped from asserting their claim as exclusive owners other than as the comarfatdars. 15. Admittedly, property stood gifted from the very beginning by the ancestor of the plaintiffs in favour of the deities. It has to be thus accepted that the defendant no. 2 had no right to sell the property being the Marfatdar of the deities and he had no authority to so proceed without being backed by the legal requirements and so neither that Balram Raj nor this defendant no. 1 can be said to have acquired any title over the property belonging to the deities. On the other hand, the plaintiffs together with defendants 2 (ka) to 2 (jha) are none other than the successors of the original Marfatdars representing the deities. 1 can be said to have acquired any title over the property belonging to the deities. On the other hand, the plaintiffs together with defendants 2 (ka) to 2 (jha) are none other than the successors of the original Marfatdars representing the deities. So the purchase by plaintiffs from Balaram Raj when is not accepted in law, then also being the co-marfatdars of the deities, they have the right to possess the property on behalf of the deities, when the survivors of Chintamani Mishra, the erstwhile appointed sebayat i.e. defendant nos. 4 and 5 are not objecting the move by asserting that Chinatamani had performed the sevapuja till his death and thereafter they are so discharging and they also do not dispute/contest the relinquishment. Moreover, though this relinquishment as is said to have not been proved, the same in no way goes in favour of the case of the defendant no.1 and rather in the absence of that, the defendant no.1’s case is blown over from the entry point instead of being alive to be further considered. The stumbling block on the path of the plaintiffs has been said to be that Seva Samarpana Patra entrusting Chintamani Mishra for the said purpose and accordingly to enjoy the property till he so desires. The plaintiffs’ case as also the P.W. 7’s evidence is that Chintamani Mishra having left the sevapuja, died way back in the year 1968 and had delivered possession of the said land to the father of the plaintiffs in whose favour, a registered deed of relinquishment under Ext. 4 had been executed. The defendant no. 1 being a purchaser from that defendant no.2 is estopped to say otherwise as regards the ways the property has changed hands. Defendant nos. 5 and 6 in that documents have clearly stated that their father Chintamani had so relinquished the Seva Puja and had requested the defendant no. 2 to make alternative arrangement. The defendant nos. 5 and 6 having executed the documents being instructed by Chintamani who was then on death bed, they have chosen to remain absent and are not staking their claim in any manner. 2 to make alternative arrangement. The defendant nos. 5 and 6 having executed the documents being instructed by Chintamani who was then on death bed, they have chosen to remain absent and are not staking their claim in any manner. For the aforesaid discussion and reasons, I find that the reasonings given by the lower appellate court being accepted, the plaintiffs ought to have been held entitled to a decree for eviction and recovery of possession of the suit land from the defendant no.1 being the co-Marfatdars of the deities along with defendant nos. 2(a) and 2(jha) but not as of their own in extinguishment of the right of the deities in whose favour the land had been gifted for the particular purpose. The plaintiffs rely on the gift by their grandfather. The plaintiffs being the successors of the donor and the gift of the land being for the specific purpose of due performance of the deities, their claim of ownership of the property unto themselves has no leg to stand even accepting their own case. 16. Even otherwise, if we look at their final purchase the plaintiffs now being the co-marfatdars of the deities, regaining the properties have to be taken in the eye of law to have so received only to benefit the deities, because the enjoyment of the property has the direct linkage with the performance of sevapuja of the deities so as to make a meaningful existence of the deities and as in view of the present status as the marfatdars with others, they cannot even levy any claim of their own over the said property. The discussion as made above accordingly provide the answers to the substantial questions of law though not favouring the basis of the claim of the plaintiffs yet those run in their favour in a modified form than their claim as laid. 17. With all these above, this Court declares the judgment and decree passed by lower appellate court as unsustainable in the eye of law and sets those aside. This consequentially leads to decree the suit holding that the plaintiffs and defendant nos. 2(ka) to (jha) are the Marfatdars of their family deities; the plaintiffs being the co-marfatdars are entitled to a decree for eviction of defendant no. This consequentially leads to decree the suit holding that the plaintiffs and defendant nos. 2(ka) to (jha) are the Marfatdars of their family deities; the plaintiffs being the co-marfatdars are entitled to a decree for eviction of defendant no. 1 from the suit property and for recovery of possession of the same in the interest and for the benefit of the deities and not on their claim as its exclusive owners on the strength of their purchase. The defendant no.1 is thus directed to deliver possession of the suit property within a period of three (3) months hence failing which the plaintiffs are at liberty to execute the decree for eviction of defendant no. 1 and recovery of possession of the suit property in their favour as co-Marfatdars of the deities being the successors of the original donor for scrupulously carrying out the cherished wish and desire as have been so expressed in the deed of gift executed by the grandfather of the plaintiffs. In view of the case as projected by the defendant no.1, this Court finds that the aforesaid acceptance of the claim of the plaintiffs as established from the evidence and the finding leading to pass said the decree in no way can be put the defendant no.1 to surprise and she is also in no way being prejudiced thereby. 18. The appeal is hereby allowed as aforesaid. The parties are to bear their respective cost of litigation though out.