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2017 DIGILAW 1351 (ORI)

Bhagabat Dev v. Narayan Jena

2017-11-24

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. The defendants are the appellants against a reversing judgment. 2. The plaintiffs-respondents instituted the suit for declaration of title, confirmation of possession and perpetual injunction. The case of the plaintiffs was that they had purchased schedule-A property by means of a registered sale deed dated 9.3.1971. After purchase they constructed one storied building and an alter (Chautara) measuring 15ft. x 7½ft. over plot no. 215. The defendants, who are marfatdars of village deity, Sri Sri Bhagabat Dev wanted to allow them to use the alter for public purpose. They did not agree. The defendants are the owners of adjacent plot nos.216 and 217. The defendants claimed that the alter and part of the plaintiffs house stands on their purchased plot no.216. With this factual scenario, they instituted the suit seeking the relief mentioned supra. 3. The defendants 2 to 6, who are the marfatdars of the village deity Sri Sri Bhagabat Dev, filed written statement denying the assertions made in the plaint. They pleaded that the suit schedule area forms a part of plot no. 216, which belongs to the deity. The plaintiffs have no semblance of right, title and interest over the same. 4. Stemming on the pleadings of the parties, the learned trial court framed six issues. Parties led evidence. The learned trial court came to hold that there is no cause of action for the plaintiffs to file the suit. The plaintiffs have failed to prove definitely on which plot the disputed land stands. Held so, it dismissed the suit. The plaintiffs challenged the judgment and decree of the learned trial court before the learned Sub-Judge, Khurda in Title Appeal No. 8 of 1986. The learned appellate court held that the plaintiffs have cause of action to institute the suit. The alter (Chautara) stands over the disputed area. Held so, it allowed the appeal. 5. Heard Mr. N.C. Panigrahi, learned Sr. Advocate along with Ms. Diptimayee Dhal, learned Advocate for the appellants. None appeared for the respondents. 6. Mr. Panigrahi, learned Senior Advocate for the appellants submitted that since defendant no.1 is a village deity, notice was required to be issued to the Commissioner of Endowment under Section 69 of the Orissa Hindu Religious Endowment Act 1951. The procedure having not been followed, the suit is liable to be dismissed. He further submitted that the suit land is indefinite. Panigrahi, learned Senior Advocate for the appellants submitted that since defendant no.1 is a village deity, notice was required to be issued to the Commissioner of Endowment under Section 69 of the Orissa Hindu Religious Endowment Act 1951. The procedure having not been followed, the suit is liable to be dismissed. He further submitted that the suit land is indefinite. The plaintiffs are the owners of plot no.215. The defendants are the owners of plot nos.216 & 217, which are adjacent to plot no.215. The evidence of P.W.1 and C.W.1 are contradictory. There is no satisfactory evidence as to which plot the suit land belongs. A portion of the land from plot no.216 has been amalgamated with plot no.215. 7. The dispute pertains to a small piece of land measuring an area 15ft x 7 ½ft.. There is an alter (Chautara) over it. There is no pleading with regard to acquisition of title by way of adverse possession. The courts below committed a manifest illegality in rendering the findings with regard to adverse possession. There is no material on record that the deity is an indexed institution. In view of the same, it is difficult to accept the submissions of Mr. Panigrahi, learned Senior Advocate that notice under Section 69 of the Orissa Hindu Religious Endowment Act, 1951 is a sine qua non before institution of the suit. 8. During pendency of the suit, a Civil Court Commissioner was appointed. He submitted the report. He was examined as C.W.1. He stated that the suit land appertains to plot no.215. His report has been marked as Ext.VI. C.W.1 in his cross-examination has stated that some portion of plot no.216 has been amalgamated with plot no.215 and the plaintiff is in possession of the same. In the Court C.W.1 was asked to prepare a sketch map of the disputed area with reference to the field book. The said map has been exhibited as Ext.A. Placing reliance on Ext.A, the learned appellate court held that the disputed area is in plot no.215. Once a Civil Court Commissioner is appointed and submitted the report, the Court has to evaluate the same with other evidence on record. The Court below committed a series of illegality and impropriety in directing C.W.1 to prepare another report in the Court, merely because the earlier report was not palatable to the plaintiff. Once a Civil Court Commissioner is appointed and submitted the report, the Court has to evaluate the same with other evidence on record. The Court below committed a series of illegality and impropriety in directing C.W.1 to prepare another report in the Court, merely because the earlier report was not palatable to the plaintiff. No credence can be given to the said report. The report, Ext.VI, clearly shows that some portion of plot no. 216 has been amalgamated with plot no.215. Plot no.216 belongs to the defendants. The learned appellate court is not correct in placing reliance on Ext.A and upset the findings of the learned trial court. The substantial questions of law are answered accordingly. 9. A priori, the impugned judgment is set aside. The appeal is allowed. Consequently, the suit is dismissed. No costs.