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2018 DIGILAW 86 (ORI)

Sairendri Devi v. Kamuna @ Kamrunisha

2018-01-16

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. This is plaintiff’s appeal against a confirming judgment in a suit for eviction. 2. The case of the plaintiff was that in the year 1961-62, he purchased the suit land from the original owner by means of a registered sale deed for a consideration of Rs.9,000/-. He is in possession of suit land. The land was mutated in his name. R.O.R. was issued in his favour. He used to pay rent. Taking advantage of his helpless condition, the defendant unauthorisedly occupied the suit land and constructed a temporary structure. With this factual scenario, he instituted the suit seeking the relief mentioned supra. 3. The defendant filed a written statement denying assertions made in the plaint. It was pleaded that the suit land belonged to the deity, Sri Sri Ramaswamy Mahaprabhu Bije Bhawanipatna. The plaintiff had not purchased the suit land. He prevailed upon the settlement authorities, whereafter R.O.R. was issued in favour of the plaintiff. The sale deed is a fabricated one. He is in possession of the suit land for the last twenty years. He has constructed a house thereon. He has acquired title by way of adverse possession. 4. On the, inter se, pleadings of the parties, the learned trial court struck seven issues. Both the parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that the suit property originally belonged to the deity, Sri Sri Ramaswamy Mahaprabhu Bije Bhawanipatna. The plaintiff has not substantiated the plea of sale. Settlement entry does not create title. Held so, it dismissed the suit. Felt aggrieved, the plaintiff filed T.A. No. 13 of 1987 in the court of the learned District Judge, Kalahandi-Nuapada at Bhawanipatna, which was eventually dismissed. It is apt to state here that during pendency of the appeal, the plaintiff-appellant died and his legal representatives have been substituted. 5. The Second Appeal was admitted on the substantial questions of law enumerated in the ground nos.1 and 2 of the appeal memo. The same are:- “(1) If in view of Exts.1, 2 and 3 which have been marked, Exhibits without objection coupled with the oral evidence of P.Ws., the learned courts below should have held that the plaintiff has possessory title over the suit land and should have decreed the suit ? The same are:- “(1) If in view of Exts.1, 2 and 3 which have been marked, Exhibits without objection coupled with the oral evidence of P.Ws., the learned courts below should have held that the plaintiff has possessory title over the suit land and should have decreed the suit ? (2) If the judgments of the courts below are vitiated in absence of any specific finding relating to the possession of the parties ?” 6. Heard Mr. Budhiram Das, learned advocate on behalf of Mr. N.C. Pati, learned advocate for the appellants, Ms. Soumya Mishra, learned advocate on behalf of Mr. S.N. Mishra, learned advocate for the respondents and Ms. Pratyusha Naidu, learned advocate for Commission of Endowments. 7. Mr. Das, learned advocate for the appellants submits that the plaintiff has purchased the suit property from the original owner by means of a registered sale deed for a consideration of Rs.9,000/-. He is in possession of the suit property. Defendant has no semblance of right, title and interest over the suit schedule land. Leaned trial court committed a manifest illegality and impropriety in not considering the sale deed. 8. Per contra, Ms. Mishra, learned advocate for the respondents submits that the sale deed is a fabricated one. The suit land was recorded in the name of the deity, Sri Sri Ramaswamy Mahaprabhu Bije Bhawanipatna. The sale deed has not duly proved that the defendant was in possession of the suit land. 9. On 02.01.2018, this Court directed Ms. Pratyusha Naidu, learned advocate for Commission of Endowments to obtain instruction as to whether the deity Sri Sri Ramaswamy Mahaprabhu Bije Bhawanipatna is an index institution. Ms. Naidu, learned advocate for Commission of Endowments, on instruction, submits that the deity, Sri Sri Ramaswamy Mahaprabhu Bije Bhawanipatna is an index institution and covered under the Orissa Hindu Religious Endowments Act, 1951 (in short, “the O.H.R.E. Act”). She files a memo to that effect. 10. Registered sale deed vide Ext.1 shows that the Suratharangani Devi Marfatdar of the deity Sri Sri Ramaswamy Mahaprabhu Bije Bhawanipatna alienated the suit land in favour of the plaintiff on 23.12.1951 by means of a registered sale deed. There is no evidence on record that the Commissioner of Endowments accorded permission under Sec.19 of the O.H.R.E. Act, 1951 to sell the land. 11. There is no evidence on record that the Commissioner of Endowments accorded permission under Sec.19 of the O.H.R.E. Act, 1951 to sell the land. 11. Sub-Sec. 1 of the Sec. 19 of the O.H.R.E. Act, 1951 provides: “notwithstanding anything contained in any law for the time being in force no transfer by exchange, sale or mortgage and no lease for a term exceeding five years of any immovable property belonging to, or given or endowed for the purpose of, any religious institution, shall be made unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution and no such transfer shall be valid or operative unless it is so sanctioned.” The so-called alienation by the person styling herself as the Marfatdar shall not be valid or operative. Thus the plaintiff has no title over the suit property. Reliance placed on Ext.2 is totally misplaced. The R.O.R. neither creates title nor extinguishes title. 12. In view of the same, the suit for eviction is not maintainable. The substantial questions of law are answered accordingly. 13. Resultantly, the appeal fails and is dismissed. There shall be no order as to costs.