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2018 DIGILAW 178 (ORI)

Rama Chandra Panda v. Loknath Panda

2018-02-12

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. 1. This appeal is by the plaintiff against a reversing judgment. 2. The plaintiff-appellant and his brother, Rama Kanta Panda (since dead) instituted the suit for declaration of title in respect of 12 days sebapalis of Sri Sri Bimala Thakurani in the temple of Lord Jagannath, Puri, confirmation of possession, recovery of possession in the event dispossession, permanent injunction and for a declaration that the deed of transfer executed by defendant no.5 in favour of defendant no.1 on 19.8.1975 is illegal and void. The case of the plaintiff is that the plaintiff and defendants no.1 to 10 are the sebayats in the temple of Sri Sri Bimala Thakurani installed inside the temple premises of Lord Jagannath, Puri. The disputed 12 days palis belonged to one Fakira Panda, who was also known as Naran Panda in the branch of Daru Panda. Fakira Panda had adopted one Narasingha Panda. Plaintiff is son of Narasingha Panda. The plaintiff inherited the disputed 12 days palis from his ancestors-Fakira Panda and Narasingha Panda. He is performing the said 12 days palis in his own right in the temple of Sri Sri Bimala Thakurani. Defendant no.5, Ratnamani Dibya, wife of late Gopabandhu Panda illegally transferred the disputed 12 days palis in favour of Lokanath Panda, defendant no.1 by means of a registered “Seva Samarpan Patra” on 19.8.1975. When the defendant nos.1 to 4 interfered with rights of the plaintiff over the disputed 12 days palis, the suit was instituted seeking the relief mentioned supra. 3. The defendants 1 to 4 filed the written statements denying the assertions made in the plaint. The case of the defendants 1 to 4 is that Gopabandhu Panda, husband of defendant no.5 was also known as Fakira Panda. The disputed 12 days palis were the self-acquired properties of the said Gopabandhu Panda. After his death, the said palis were inherited by his widow, defendant no.5 and his minor children, defendant nos.6 to 8. Thus, defendant no.5 was competent to transfer the said 12 days palis. She executed a registered “Seva Samarpan Patra” on 19.8.1975 in favour of defendant no.1 for self and on behalf of her minor children. It is further pleaded that Naran Panda @ Fakira Panda died in the year 1916. Thus, defendant no.5 was competent to transfer the said 12 days palis. She executed a registered “Seva Samarpan Patra” on 19.8.1975 in favour of defendant no.1 for self and on behalf of her minor children. It is further pleaded that Naran Panda @ Fakira Panda died in the year 1916. Since Gopabandhu @ Fakira Panda, husband of defendant no.5 was alive in the year 1937, his name was recorded with respect to 12 days palis in the R.O.R. as Fakira Panda’s palis. So on the strength of “Seva Samarpan Patra”, they have right, title and interest over the said 12 days palis in the temple of Sri Sri Bimala Thakurani. 4. Stemming on the pleadings of the parties, the learned trial court struck seven issues. Parties led evidence, oral and documentary to substantiate their case. The learned trial court came to hold that husband of defendant no.5 had no alias name as Fakira Panda and, as such, defendant no.5 after death of her husband had no right to transfer the disputed 12 days palis in favour of defendants 1 to 3 by means of a registered “Seva Samarpan Patra”. It further held that the disputed 12 days palis are not the self-acquired palis or the ancestral palis of husband of defendant no.5. The palis are the ancestral palis of the plaintiff. Held so, it decreed the suit. Assailing the said judgment and decree, defendants 1 to 3 filed appeal before the learned District Judge, Puri, which was subsequently transferred to the court of the learned Additional Subordinate Judge, Puri and renumbered as Title Appeal No.1/148 of 1985/1981. The learned appellate court came to hold that Fakira Panda whose palis appeared in the “Bedha Patra” of the year 1937 is the husband of defendant no.5. When Gopabandhu Panda @ Fakira Panda was performing the disputed 12 days palis in the temple of Goddess Bimal, transfer of 12 days palis after his death by defendant no.5 to defendant no.1 on the strength of a registered “Seva Samarpan Patra” of the year 1975 cannot be ignored. The defendant no.1 has not acquired any interest in the disputed 12 days Sebapalis. Held so, it allowed the appeal. It is apt to state here that during pendency of the suit, Rama Kanta Panda died. His name was deleted. The defendant no.1 has not acquired any interest in the disputed 12 days Sebapalis. Held so, it allowed the appeal. It is apt to state here that during pendency of the suit, Rama Kanta Panda died. His name was deleted. Similarly, during pendency of this appeal, respondent nos.2 and 15 died, whereafter their legal heirs have been substituted. Respondent no.9 also died leaving behind her legal heirs who are already on record. 5. The Second Appeal was admitted on the substantial questions of law enumerated in grounds no. B, C, D & K of the appeal memo. The same are: “B. For that the real disputes between the parties being the suit 12 palis which are ancestral palis belong to either branch of Gangadhar, the ancestor of the plaintiff or of Nitei the ancestor of the defendants the learned trial court correctly went into the earlier Bedhapatras viz. Ext.1, Ext.2, Ext.4, Ext.5, Ext.6 and Ext.25 which show that the disputed palies having been recorded in the name of Gangadhar Panda, his son Basudev Panda or Narasingh Panda the father of the plaintiff which conclusively shows that the disputed pali belong to the branch of plaintiff and not that of the defendants but the learned lower appellate court has not at all referred to that decisive aspect of the documentary evidence nor has he considered the reasons given by the learned trial court relying upon the said documents which amounts to total ignoring vital aspect the evidence adduced in the case which has a direct bearing on the point at issue. viz. whether the disputed palis which are recorded in the name of Fakira Panda belonged to the branch of plaintiff or that of the defendant, in other wards whether the Fakira Panda in whose name the disputed palis are recorded is the same Fakira Panda alias Naran Panda son of Basudev Panda and grandfather of plaintiff or whether he is alias Gopabandu Panda the husband of defendant no.5 and the son of Gobind alias Somini Panda. C. For that the learned lower appellate court committed a serious error of law and procedure in referring to and accepting the contentions raised before him on behalf of the appellants before him (Respondents) and without taking into consideration either the findings recorded by the learned Trial Court or the reasons he has advanced or the contentions raised by the Respondents before him (appellants). D. For that the learned lower appellate court committed a serious error of law and procedure in not considering some of the vital documents i.e., exhibit-9, 10, 14, 15 and out of those documents exhibit 9 which is a deed of adoption of the year 1916 executed by Chandramani Debya the wife of Fakira alias Narayan Panda, and in the said document Chandramani Debya has been described as the wife of Fakira alias Narayan Panda, Ext.14 the certified copy of a compromise petition filed in Money Suit No.156 of 1937 whereas Narasingh Panda the father of Fakira Pana has been described as the S/o Fakira alias Narayan Panda, Ext.15 is the Sananda where in Chandramani the adoptive mother of Narasingh Panda has been described as the wife of Fakira Panda alias Narayan Panda. After considering all these documents along with the evidences P.W.1, 2 and 3 the learned trial court came to the finding that :- Fakira Panda alias Narayan Panda is the grandfather of the plaintiff. The learned lower appellate court having not considered the aforesaid documents and without considering the correctness of finding given by the trial court jumped to a conclusion that :- Fakira Panda “Might be” the husband of defendant no.5 (Ratnamani Debya) which is not only an erroneous legal approach but also contrary to the evidence on records. K. For that the lower appellate court committed a serious error of law and procedure in reversing the finding of the trial Court ignoring the well settled position of law that the power of the appellate court is subject to certain inherent limitations in relation to a conclusion of fact. While the trial court has not only read the evidence of witnesses on record but has also read their evidence in their faces, looks and demeandar, the appellate Court is confined to their evidence on record. However the appellate court may interfere only if the trial court is shown to have over looked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial Court. However the appellate court may interfere only if the trial court is shown to have over looked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial Court. In the instant case the lower appellate Court not having come to a conclusion the trial court has overlooked any material feature, in the evidence of any of the witness on the other hand the learned trial Court having judged each of the evidence adduced by both the parties, the judgment passed by the lower appellate Court is contrary to law.” In course of hearing, the following substantial question of law was formulated : “Whether the learned trial court has jurisdiction to entertain the suit for declaration of Seva Palis in the temple of Maa Bimala situated in the premises of Shri Jagannath Mahaprabhu, Puri in view of specific provision contained in Section 15(1) & Sec.21(2)(g) of Shri Jagannath Temple Act, 1955 ?” 6. Heard Mr.N.K.Sahu, learned Advocate along with Mr.Manoj Das, learned Advocate for the appellant and Mr.Bijan Ray, learned Senior Advocate along with Mr.R.C.Rath, learned Advocate for the respondents. 7. Mr.Sahu, learned Advocate for the appellant submitted that if a finding of fact had been recorded by the first appellate court without any evidence, the same can be questioned under Section 100 C.P.C. The first appellate court is to see whether the evidence taken as a whole can reasonably justify the conclusion with the trial court arrived at. Elaborating the submission, he submitted that the learned trial court on scanning of the evidence, oral and documentary, came to a conclusion that the entry of the name ‘Fakira’ in the ROR under Ext.4 is actually the name of the grandfather of the plaintiff and, accordingly held that in respect of the disputed 12 days palis, the plaintiff has the title over the same. The learned appellate court had not assigned any reason but reversed the findings of the learned trial court. He further submitted that the findings of the learned appellate court are based on non-consideration of vital documentary evidence available on record i.e.. Exts. 1, 2, 3, 3/a, 5, 6, 8, 9, 10, 14, 15, 19, 20, 26, 26/A and Ex.28 as well as the evidence of P.Ws.2, 3, 4 and 7. He further submitted that the findings of the learned appellate court are based on non-consideration of vital documentary evidence available on record i.e.. Exts. 1, 2, 3, 3/a, 5, 6, 8, 9, 10, 14, 15, 19, 20, 26, 26/A and Ex.28 as well as the evidence of P.Ws.2, 3, 4 and 7. He further submitted that the learned appellate court laid much emphasis on the name of the husband of defendant no.5 mentioned in the plaint in O.S.No.30 of 1971-I and came to a conclusion that Gopabandhu Panda had the alias name as Fakira Panda. The plaintiff was not a party to the said suit. He further submitted that the Civil Court has jurisdiction to grant declaratory relief. The suit is maintainable. 8. Per contra, Mr.Ray, learned Senior Advocate assisted by Mr.Rath, learned Advocate for the respondents submitted that the suit is barred under Section 29 of the Jagannath Temple Act, 1952. The Civil Court has no jurisdiction to entertain the suit. He further submitted that the dispute between the parties pertains to 12 days sevapalis of Sri Sri Bimala Thakurani. The same has been recorded as Fakira Panda’s palis in the ROR of Sri Jagannath Temple of the year 1937, Ext.4, prepared on the basis of “Bedha Patra”. Ext.9 is the deed of adoption of Narasingha Panda, father of the plaintiff, executed by Chandramani Dibya, the widow of Fakira @ Naran Panda on 14.6.1916. Ext.9 reveals that Fakira @ Naran Panda died in the year 2016. Thus there was no occasion to record his name in the “Bedha Patra” of the year 1937 or in the R.O.R., which was prepared on the basis of that “Bedha Patra”. In view of the same, Fakira Panda whose name has been recorded in the “Bedha Patra” of the year 1937 is not the grandfather of the plaintiff, but was the husband of defendant no.5. He is also otherwise known as Gopabandhu. Plaintiff was born in the year 1937 when “Bedha Patra” was prepared. His name finds place in the R.O.R. of Sri Jagannath Temple. The R.O.R. reveals that he performs “Sri Matangini Besa” of Goddess Bimala. He is also otherwise known as Gopabandhu. Plaintiff was born in the year 1937 when “Bedha Patra” was prepared. His name finds place in the R.O.R. of Sri Jagannath Temple. The R.O.R. reveals that he performs “Sri Matangini Besa” of Goddess Bimala. If actually that Fakira Panda whose name finds place in the “Bedha Patra” of 1937 was the grandfather of the plaintiff, then the plaintiff could not have been recorded in the R.O.R. O.S.No.30 1971-I filed by one of the co-sharers against Gopabandhu Panda, husband of defendant no.5 and others. Gopabandhu Panda was described as Gopabandhu Panda @ Fakira Panda. The plaintiff of the present suit was defendant no.9 in that suit. He had not contested the suit nor disputed the cause title or genealogy. The necessary corollary is that Gopabandhu Panda was also known as Fakira Panda. Ext.B is the deposition of Fakira Panda, son of Gobinda @ Somani Panda made before the Administrator of Sri Jagannath Temple, Puri on 3.2.1969. From Ext.B, it is crystal clear that Gobinda @ Somani Panda had a son, who was also known as Fakira Panda. There was no dispute between the parties for performance of the disputed 12 days palis at that point of time. The evidence on record shows that Fakira Panda mentioned in the R.O.R. of the temple is the husband of defendant no.5. After death of her husband, Gopabandhu alias Fakira Panda, defendant no.5 executed the “Seva Samarpan Patra” on 19.8.1975, Ext.E, in respect of the said 12 days palis in favour of defendant no.1 and, as such, the defendants have acquired title over the same. Non-consideration of certain documents, i.e., Exts.1, 2, 4, 5, 6, 9, 10, 14, 15 and 25 do not vitiate the judgment, since the documents have no material bearing on the issue. He relied on the decisions of the apex Court in the case of Raja Ram Kumar Bhargava (dead) by LRs. v. Union of India, AIR 1988 SC 752 , The Premier Automobiles Ltd. v. Kamalakar Shantaram Wadke and others, AIR 1975 SC 2238 and Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor, AIR 1999 SC 864 . 9. Shri Jagannath Temple Act, 1955 (‘the Act, 1955’) was enacted to provide for better administration and governance of Shri Jagannath Temple at Puri and its endowments. 9. Shri Jagannath Temple Act, 1955 (‘the Act, 1955’) was enacted to provide for better administration and governance of Shri Jagannath Temple at Puri and its endowments. Section 3 of the Act, 1955 provides that the Puri Shri Jagannath Temple (Administration) Act, 1952 shall be deemed to be a part the Act, 1955 and all or any of the powers and the functions of the State Government under the said Act shall be exercisable by the Committee under this Act from such date or dates as the State Government may by notification direct. 10. Before adverting to the contentions raised by the learned counsel for both parties, it will be necessary to set out some of the provisions of the Act, 1955. “15. Duties of the Committee – Subject to the provisions of this Act and the rules made thereunder, it shall be the duty of the Committee- (1) to arrange for the proper performance of Seva-Puja and of the daily and periodical Nitis of the Temple in accordance with the record-of-rights; xxx xxx xxx 21. Powers and duties of (Chief Administrator)- (1) xxx xxx xxx (2) Notwithstanding anything in Subsection (1) or in Section 5(Chief Administrator) shall be responsible for the custody of all records and properties of the Temple, and shall arrange for proper collections of offerings made in the Temple and shall have power xxx xxx xxx (g) to decide disputes relating to the rights, privileges, duties and obligations of sevaks, of rice-holders and (employees) in respect of seva-puja and Nitis, whether ordinary or special in nature; 29. Bar to suits or proceedings-Save as otherwise expressly provided in this Act no suit or proceeding shall lie in any Court against the State Government or against the Committee or (Chief Administrator) for anything done or purported to be done by any of them under the provisions of this Act”. 11. On a bare perusal of Sec.15(1), it is evident that it shall be the duty of the Committee to arrange for the proper performance of seva-puja and of the daily and periodical Nitis of the Temple in accordance with the record-of-rights. Sec.21 deals with the powers and duties of the Chief Administrator. Sub sec.2 of Sec.21 contains a non-obstante clause. On a bare perusal of Sec.15(1), it is evident that it shall be the duty of the Committee to arrange for the proper performance of seva-puja and of the daily and periodical Nitis of the Temple in accordance with the record-of-rights. Sec.21 deals with the powers and duties of the Chief Administrator. Sub sec.2 of Sec.21 contains a non-obstante clause. Under Sec.21(2)(g), the Chief Administrator has been vested with jurisdiction to decide disputes relating to the rights, privileges, duties and obligations of sevaks, of rice-holders and (employees) in respect of seva-puja and Nitis, whether ordinary or special in nature. Neither the Committee nor the Chief Administrator have been vested with power to decide the validity of “Seva Samarpan Patra”. Sec.29 provides that no suit or proceeding shall lie in any Court against the State Government or against the Committee or (Chief Administrator) for anything done or purported to be done by any of them under the provisions of this Act. The words “for anything done or purported to be done by of them under the provisions of this Act” shall mean the act done by the State Government or the Committee or the Chief Administrator. The plaintiff has not challenged the action taken by the Government or the Committee or the Chief Administrator. The Chief Administrator of Shri Jagannath Temple de hors its jurisdiction in setting aside the “Seva Samarpan Patra”. He cannot grant any declaratory relief. Under Section 34 of the Specific Relief Act, the Civil Court has jurisdiction to grant relief. 12. Secretary of State v. Mask & Co., AIR 1940 PC 105 is a locus classicus on the subject. The Privy Council held: “….It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.” 13. Much water has since flown under the bridge, but then there has been no corrosive effect on the decision. Much water has since flown under the bridge, but then there has been no corrosive effect on the decision. Mask and Co.(supra) continue to hold the field with the result that law as to the jurisdiction of the Civil Court in entertaining a suit. The decision has been subsequently referred to and followed by the Constitution Bench of the apex Court in the case of Dhulabahi etc. and others v. State of Madhya Pradesh and another, AIR 1969 SC 78 . Notwithstanding the bar contained in Section 29 of the Act, 1955, the Civil Court has jurisdiction to entertain the suit and grant declaratory relief. 14. After survey of the earlier decisions, the apex Court in the case of B.V.Nagesh and another v. H.V. Sreenivasa Murthy, 2010 (13) SCC 530 held: “3. How regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate Court shall state: (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. 4. The appellate Court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put-forth, and pressed by the parties for decision of the appellate Court. Sitting as a court of appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari vs. Purushottam Tiwari, (2001) 3 SCC 179 = JT (2001) 2 SC 407 and Madhukar and others vs. Sangram and others, (2001) 4 SCC 756 ) 5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate Court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the Court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law.” 15. Reverting to the facts of the case at hand and keeping in view the enunciation of law laid down in B.V.Nagesh (supra), this Court finds that the dispute pertains to 12 days seva palis in the temple of Goddess Bimala installed inside the temple of Lord Jagannath, Puri. The plaintiff asserts that the same belong to his grandfather-Fakira Panda, whereas defendant no.5 asserts that the same belongs to her husband, Fakira @ Gopabandhu. On an anatomy of the pleadings and evidence on record, the learned trial court rendered a finding, but then the learned appellate court ignored the documentary as well as oral evidence adduced by the parties. The impugned judgment does not reveal that the learned appellate court considered Exts. 1, 2, 3, 3/a, 5, 6, 8, 9, 10, 14, 15, 19, 20, 26, 26/A and Ext.28 as well as the evidence of P.Ws.2, 3, 4 and 7. Whether the same clinches the issue or not, it is for the appellate court to decide. Non-consideration of the aforesaid oral as well as documentary evidence on record vitiates the judgment. 1, 2, 3, 3/a, 5, 6, 8, 9, 10, 14, 15, 19, 20, 26, 26/A and Ext.28 as well as the evidence of P.Ws.2, 3, 4 and 7. Whether the same clinches the issue or not, it is for the appellate court to decide. Non-consideration of the aforesaid oral as well as documentary evidence on record vitiates the judgment. Furthermore, the learned appellate court came to a conclusion that “Fakira Panda whose palis appearing in the “Bedha Patra” in the year 1937, which is the subject matter of dispute, might be the husband of defendant no.5, Ratnamani Dibya. In view of the evidence and circumstances stated above, the possibility of defendant no.5, Gopabandhu Panda had an alias name cannot be ruled out”. The words “might be” connote that the finding is based on mere surmises and conjectures. 16. The decisions in the case of Raja Ram Kumar Bhargava (dead) L.Rs.(supra), The Premier Automobiles Ltd.(supra) and Dnyanoba Bhaurao Shemade (supra) are distinguishable on facts. In Premier Automobiles Ltd. the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute have been enumerated. In Raja Ram Kumar Bhargava, the judgment in the case of the Premier Automobiles Ltd. has been followed. The apex Court held that generally speaking, the broad guiding considerations are that wherever a right, not pre-existing in common law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno-flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the civil courts' jurisdiction is impliedly barred. If, however, a right pre-existing in common-law is recognized by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the civil courts' jurisdiction, then both the common-law and the statutory remedies might become concurrent remedies leaving open on element of election to the persons of inherence. To what extent, and on what areas and under what circumstances and conditions, the civil courts' jurisdiction is preserved even where there is an express clause excluding their jurisdiction, are considered in Dhulabhai's case. There is no quarrel over the proposition of law laid down in the said case. To what extent, and on what areas and under what circumstances and conditions, the civil courts' jurisdiction is preserved even where there is an express clause excluding their jurisdiction, are considered in Dhulabhai's case. There is no quarrel over the proposition of law laid down in the said case. In Dnyanoba Bhaurao Shemade (supra), the apex Court held that whether a finding of fact reached by courts below is against the weight of evidence or not is a question which will remain in the realm of appreciation of evidence and does not project any question of law, much less, any substantial question of law which can enable the High Court in second appeal to upset such a finding of fact. But then in the instant case, the learned appellate court has not taken into consideration of the oral as well as documentary evidence mentioned supra. 17. In the wake of the aforesaid, the impugned judgment is set aside. The matter is remitted back to the learned appellate court to decide the appeal on merit. In order to avoid further delay, the parties shall appear before the learned District Judge, Puri on 5th March, 2018. The learned appellate court shall dispose of the appeal by end of August, 2018. Since the matter is remitted back to the appellate court, this Court refrains from answering the substantial questions of law.