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2021 DIGILAW 153 (ORI)

Srikar Patra v. Gopinath Dev

2021-03-30

KRUSHNA RAM MOHAPATRA

body2021
JUDGMENT : Krushna Ram Mohapatra, J. 1. This appeal under Section 100 of Code of Civil Procedure, 1908 has been filed assailing the judgment and decree dated 24.01.1992 and 11.02.1992 respectively passed by learned Additional District Judge, Puri in Title Appeal No. 50/114 of 1986/1984, whereby he dismissed the appeal and confirmed the judgment and decree dated 27.08.1984 and 15.05.1984 respectively passed by learned Sub-ordinate Judge, Khordha in OS No. 6 of 1983. 1.1. By order dated 02.12.1992, the appeal was admitted on the following substantial questions of law. "Whether the suit is barred under Section 73 read with Section 41 of the Orissa Hindu Religious Endowments Act, 1951?" Subsequently, vide order dated 04.11.2020, some additional substantial questions of law have been framed for adjudication of the appeal, which are as follows; "i) Whether in view of Section 73 read with Section 25 of the Orissa Hindu Religious Endowments Act, 1951, the suit for recovery of possession of property of public deity is maintainable? (ii) Whether in view of dismissal of petition under Section 25 of the Orissa Hindu Religious Endowment Act, 1951 (OA No. 85/82), a suit for recovery of possession is maintainable? (iii) Whether in absence of any notice to the Commissioner of Endowments under Section 69(1) of the Orissa Hindu Religious Endowments Act, 1951, the judgment and decree passed by the court below is a nullity?" 2. Short narration of fact necessary for adjudication of the aforesaid substantial questions of law are as follows: 2.1 The parties herein are described as per their status in the trial Court. The defendant No. 1 is the appellant and plaintiffs are respondent Nos. 1 to 3 in this appeal. The name of defendant No. 2-proforma respondent No. 4 has been deleted vide order No. 24 dated 07.08.1995. 2.2 The case of the plaintiffs in OS No. 6 of 1983 (I) filed in the Court of learned Sub-Ordinate Judge, Khordha was that the plaintiff No. 1 is a public deity and plaintiff No. 2 and 3 and proforma defendant No. 2 (proforma respondent No. 4 herein) were the Marfatdars of the Deity. Suit land under Schedule- 'A' and 'B' belonged to the Deity and was recorded in the name of the Deity as "Dharma Sambandhiya Minha" in the Record of Right after vesting of the estate. Suit land under Schedule- 'A' and 'B' belonged to the Deity and was recorded in the name of the Deity as "Dharma Sambandhiya Minha" in the Record of Right after vesting of the estate. Plaintiff No. 2 was residing in a three roomed thatched house standing over the 'A' schedule land. There was also a well over 'B' schedule land of the plaint and water from the said well was being used for the purpose of Seva Puja of the Deity. Defendant No. 1 purchased the schedule land from late Gobinda Das Adhikari, the father of plaintiff No. 3 and one of the Marfatdars of the deity without obtaining permission as required under Section 19 of the Orissa Hindu Religious Endowments Act, 1951 (for short, 'the Endowments Act'). Thereafter, defendant No. 1 (present appellant) treating the plaintiff No. 2 as a tenant filed O.S. 104 of 1979-1 for her eviction from the suit land and for realization of arrear rent in respect of house standing thereon. Upon receipt of the summons of the said suit, the plaintiff No. 2 came to know about the transaction between late Gobinda Das Adhikari and the defendant No. 1, which had taken effect on 07.09.1970 by virtue of registered sale deed (Ext. J). The said suit was ultimately withdrawn by defendant No. 1. The dispute with regard to possession over the suit property was also the subject matter of dispute in a proceeding under 144 Cr.P.C. But, the defendant No. 1 was successful in forcibly evicting the plaintiff No. 2 and demolishing the residential house standing over schedule 'A' land and to construct a house of his own. As such, the plaintiffs filed the suit for recovery of possession of 'A' schedule land by evicting the defendant no. 1, for mandatory injunction for removal of construction raised by defendant No. 1 on the schedule 'A' land and also for permanent injunction restraining the defendant No. 1 from entering upon the suit land. 2.3 Defendant No. 1 contested the suit by filing a written statement and resisted the claim of the plaintiffs. Along with other averments, the defendant No. 1 contended that the suit is hit by Section 41(d) and 73 (1) of the Endowments Act. 2.3 Defendant No. 1 contested the suit by filing a written statement and resisted the claim of the plaintiffs. Along with other averments, the defendant No. 1 contended that the suit is hit by Section 41(d) and 73 (1) of the Endowments Act. The 'A' schedule land having been settled in his favour in Vesting Case No. 248 of 1970 by the O.E.A. Collector, the suit is also hit under Section 3-A, 8-A (1)(3) read with Section 39 of the Orissa Estate Abolition Act, 1951. Alternatively, the defendant No. 1 had taken a plea in the written statement that he had acquired title over 'A' schedule land by adverse possession. So far as, 'B' schedule land is concerned, the defendant No. 1 only claimed the right of user of the well existing thereon as a worshipper of the plaintiff-deity. 3. Taking into consideration the rival pleadings of the parties, learned Subordinate Judge framed as many as nine issues which are as follows; 1. Is the suit as laid maintainable? 2. Is the suit barred by limitation? 3. Is the suit suitable to be dismissed being barred u/s. 73 read with sec. 41 (1) (d) of Orissa Hindu Religious Endowments Act? 4. Is the suit barred under Sec. 8-A (1) and (3) of Orissa Estate Abolition Act? 5. Is the schedule-A property a "religious Endowment" of the plaintiff No. 1? 6. Is the suit liable to be dismissed for non-joinder and mis-joinder of parties? 7. Has the Deft. No. 1 any right to use the well on schedule -B land as a worshipper and also as a villager of the plaintiff No. 1? 8. To what other relief the parties are entitled to? 9. Whether the plaintiff No. 2 has got right, title and interest over the property? 4. Learned Subordinate Judge taking into consideration the materials on record, decreed the suit on contest against defendant No. 1 and ex-parte against defendant No. 2 holding that the plaintiffs are entitled to recover possession of the suit property after evicting defendant No. 1 from the schedule 'A' property by removing the structure thereon. Assailing the same, the defendant No. 1 preferred appeal under Section 96 of the Code, which was registered as Title Appeal No. 50/114 of 1986/1984. Learned Additional District Judge, Puri, dismissed the appeal and thereby confirmed the judgment and decree passed by the trial Court. Assailing the same, the defendant No. 1 preferred appeal under Section 96 of the Code, which was registered as Title Appeal No. 50/114 of 1986/1984. Learned Additional District Judge, Puri, dismissed the appeal and thereby confirmed the judgment and decree passed by the trial Court. Assailing the same, this Second Appeal has been filed. 5. Mr. Mishra, learned counsel for the defendant No. 1 (the appellant) submitted that admittedly the plaintiffs had filed O.A. No. 85 of 1980 under Section 25 of the Endowments Act before learned Commissioner of Endowments, which was dismissed as withdrawn vide order dated 16.10.1981 (Ext. A). Thus, the suit filed by the plaintiffs is hit by the principle of res judicata. He further submitted that in view of the provisions under Section 25 of the Endowments Act, a suit in respect of the suit schedule properties is barred under Section 73 of the Endowments Act. 5.1. For ready reference, the provisions of Section 73 of the Endowments Act is reproduced hereunder: "73. Bar of suits in respect of administration of religious institutions; (1)- No suit or other legal proceeding in respect of the administration of a religious institution or in respect of any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of law, except under, and in conformity with, the provisions of this Act. (2) Nothing contained in this section shall affect the right of the trustee appointed under the Act of a religious institution to institute a suit to enforce the pecuniary or property rights of the institution or the rights of such institution as a beneficiary." 5.2. It is his submission that in view of provisions under Section 73 (1) of the Endowments Act no suit for eviction or recovery of possession of the property of the public deity, which has been unlawfully alienated, is maintainable, in view of Section 25 of the Endowments Act. As such, plaintiff No. 1 is a public deity and plaintiff Nos. 2 and 3 are the hereditary trustees, a suit for recovery of possession at the instance of the plaintiffs for recovery of 'A' schedule property is not maintainable, more particularly when the proceeding under Section 25 of the Endowments Act has already been disposed of vide Ext. As such, plaintiff No. 1 is a public deity and plaintiff Nos. 2 and 3 are the hereditary trustees, a suit for recovery of possession at the instance of the plaintiffs for recovery of 'A' schedule property is not maintainable, more particularly when the proceeding under Section 25 of the Endowments Act has already been disposed of vide Ext. A. The alienation made in favour of the defendant No. 1 has been held to be in contravention of Section 19 of the Endowments Act, as observed by learned trial Court at paragraph-10 of its judgment. As such, the suit is barred under Section 73 (1) of the Endowments Act and is also hit by Explanation-VIII to Section-11 CPC. 5.3. He further submitted that Section 73 (2) of the Endowments Act is of no avail to the plaintiffs as it has been declared ultra vires in view of the case law decided in the case of Prasanna Kumar Praharaj and another vs. Sri Jagannath Jew and others, reported in 37 (1971) CLT 503 (FB), relevant portion of which reads as follows; "12. The Act purports to provide for the better administration and governance of the Hindu Religious Institutions and the endowments, and with that end in view has vested in the Commissioner the general superintendence of all religious institutions and endowments and has authorised the Commissioner to do all things which are reasonable and necessary to ensure that the religious institutions and endowments are properly administered and their income is duly appropriated for the purposes for which they are founded or exist. The purpose or object of the statute being this, the endowments admit of no classification on the basis of their being managed by hereditary or non-hereditary trustees and no rational relation is manifest between the classification underlying the provision in sub-section (2) of section 73 and the object sought to be achieved by the Act. 13. We find that the provision of Sub-section (2) of Section 73 of the Act does not pass the second test laid down by their Lordships of the Supreme Court in their various decisions and thus is hit by Article 14 of the Constitution. We accordingly answer question No. 2 by holding that sub-section (2) of Section 73 of the Act is ultra vires the Constitution." 5.4. He, thus prayed for answering the substantial questions of law in favour of the defendant No. 1. We accordingly answer question No. 2 by holding that sub-section (2) of Section 73 of the Act is ultra vires the Constitution." 5.4. He, thus prayed for answering the substantial questions of law in favour of the defendant No. 1. 6. Mr. Panigrahi, learned counsel for the respondent, on the other hand, submitted that in view of Section 73 (2) of the Endowments Act, a religious institution can institute a suit to enforce pecuniary or property right of the institution or right of institution as a beneficiary. In support of his case Mr. Panigrahi relied upon the case of Sanjay Kumar Sahu vs. Sri Sri Laxminarayan Mahaprabhu Bije reported in 2017 Supp-1) OLR 713. Referring to the findings of the learned 1st appellate Court, Mr. Panigrahi, learned counsel for the plaintiffs (respondent Nos. 1 to 3 herein) submitted that plaintiff No. 1 is a public deity and the suit schedule properties are absolute Debottar properties. Therefore, the alienation of the schedule 'A' land in favour of the defendant No. 1 by one of the Marfatdars without sanction as required under Section 19 of the Endowments Act is void ab initio. He, further submitted that although the plaintiff No. 3 had filed a petition under Section 25 of the Endowments Act before learned Endowment Commissioner for recovery of the suit land, the same was subsequently withdrawn on 16.10.1981 (Ext. A) with a liberty to file a fresh petition when occasion so arises. As such, the withdrawal of the application under Section 25 of the Endowments Act will not operate as a res judicata in respect of the present suit. He further submitted that the proceeding under Section 25 of the Endowment Act before learned Commissioner of Endowments is summary in nature. The suit was filed not only for the relief of recovery of possession, but also for permanent prohibitory as well as mandatory injunction. The relief of injunction under the provisions of the Specific Relief Act could not have been granted in a summary proceeding under Section 25 of the Endowments Act. As such, the suit is maintainable. 6.1. Section 41 (d) of the Endowments Act confers a power on the Assistant Commissioner of Endowments to decide as to whether the property or money is a religious endowment or specific endowment. As such, the suit is maintainable. 6.1. Section 41 (d) of the Endowments Act confers a power on the Assistant Commissioner of Endowments to decide as to whether the property or money is a religious endowment or specific endowment. That being not the issue in the present suit, the provisions of Section 41 cannot stand as a bar for the plaintiffs to institute the suit for the aforesaid reliefs. Referring to Section 69 (1) of the Endowments Act, Mr. Panigrahi submitted that when the trustee or any religious institution is sued in any civil or revenue Court in respect of any property belonging to or given or endowed for the purpose of any religious institution, notice of such suit or proceeding shall be given by the Court concerned to the Commissioner of Endowments. In the instant case, the suit is not filed against the religious institution or the trustees. On the other hand, the suit has been filed by the religious institution along with the trustees. Thus, Section 69 (1) of the Endowments Act has no application to the case at hand. 6.2. In support of his case, he relied upon a decision in the case of Brahman Nijog vs. Badu Nijog reported in 94 (2002) CLT 755 and submitted that in view of the nature of dispute involved in this suit, notice under Section 69 (1) of the Endowments Act is not necessary. Mr. Panigrahi concluded his argument submitting that the questions of law raised by Mr. Mishra, are not substantial questions of law as the same have already been adjudicated and are no more res integra. Since learned Courts of facts taking into consideration the materials on record have concurrently held that the plaintiff is entitled to the reliefs sought for in the suit, the appeal is devoid of any merit and is liable to be dismissed answering the substantial questions of law against the defendant No. 1 and in favour of the plaintiffs. 7. Heard learned counsel for the parties and perused the materials on record. 7.1. The subject matter of dispute in the suit is with regard to immovable property of the deity-plaintiff No. 1, which is a public deity. Section 41 of the Endowments Act empowers the Assistant Commissioner to enquire into and decide certain disputes, which includes the following: "41. Assistant Commissioner to decide certain disputes and matters xx xx xx (d). 7.1. The subject matter of dispute in the suit is with regard to immovable property of the deity-plaintiff No. 1, which is a public deity. Section 41 of the Endowments Act empowers the Assistant Commissioner to enquire into and decide certain disputes, which includes the following: "41. Assistant Commissioner to decide certain disputes and matters xx xx xx (d). whether any property or money is of a religious Endowment or specific endowment." 7.2. In view of the submissions of Mr. Mishra, learned counsel for the defendant No. 1 (present appellant) and questions of law framed for adjudication, vide order dated 04.11.2020, there remains no iota of doubt that the suit properties are religious endowment. The questions of law raised by the defendant No. 1 indicate that he has accepted the suit properties to be public religious endowment. The dispute involved in the suit cannot also be remedied under Section 41 of the Endowments Act. Thus, Section 41 (d) of the Endowments Act has no application to the facts and circumstances of this case. 7.3. Section 25 of the Endowments Act deals with recovery of immovable trust property unlawfully alienated. In fact, the plaintiff No. 3 had instituted a proceeding under Section 25(1)of the Endowments Act for recovery of the schedule 'A' properties from defendant No. 1, which was registered as O.A. No. 85 of 1980. Ultimately, the OA was disposed of vide order dated 16.10.1981 (Ext. A) with the following orders: "...... Later: Advocate for the petitioner files a petition to withdraw the case with undertaking to affix court fees on the next date. Copy Served. Advocate for the O.P. files certain documents. It appears from the documents of the O.P. that the Rent Schedule in respect of the disputed lands has been granted in favour of the O.P. u/s. 6 and 7 of the O.E. Act. Thus, the petitioner does not appear to have good cause of action. At this stage, the petitioner files a petition to withdraw the case with the right to file a fresh case. There cannot be any objection to the prayer of the petitioner. Hence, the petition stands withdrawn and the right to file a fresh petition u/s. 25, when there is occasion for the same, is reserved to the petitioner." 7.4. It appears from Ext. There cannot be any objection to the prayer of the petitioner. Hence, the petition stands withdrawn and the right to file a fresh petition u/s. 25, when there is occasion for the same, is reserved to the petitioner." 7.4. It appears from Ext. A that the withdrawal of petition under Section 25 of the Endowments Act was not absolute and it was with a liberty to file a fresh petition, when cause of action arises. 7.5. Section 73(1) of the Endowments Act bars a suit or other legal proceedings in respect of administration or any other dispute of a religious institution for which provisions have been made in the said Act. Section 25 of the Endowments Act provides for recovery of immovable trust property unlawfully alienated. In the case at hand, suit schedule properties are trust property of plaintiff No. 1-deity. The same has been unlawfully alienated in favour of defendant No. 1. Thus, the remedy of provision of Section 25(1) of the Endowments Act is an efficacious remedy for the trust to recover the suit property from defendant No. 1. As discussed earlier, the plaintiff No. 3 had in fact initiated the proceeding under Section 25(1) of the Act for recovery of the suit property, but it was subsequently withdrawn with liberty to approach the Commissioner of Endowments afresh when cause of action arises. In the case of Inacio Martins (deceased through LRs.) Vs. Narayan Hari Naik and others, reported in (1993) 3 SCC 123 , the Hon'ble Supreme Court held that when a special machinery is set up under the Act to adjudicate upon a dispute, the Civil Court will not be competent to adjudicate upon the said issue. But where a special machinery/Court has adjudicated upon the issue, the Civil Court under Section 9 of the Act will be competent to pass consequential order/decree there upon. In view of the Full Bench decision of this Court (supra), Section 73(2) of the Endowments Act cannot be resorted to by the plaintiffs to maintain a suit for recovery of the suit land. In view of the Full Bench decision of this Court, the case law in Sanjay Kumar Sahu (supra) has no application to this case. 7.6. In view of the Full Bench decision of this Court (supra), Section 73(2) of the Endowments Act cannot be resorted to by the plaintiffs to maintain a suit for recovery of the suit land. In view of the Full Bench decision of this Court, the case law in Sanjay Kumar Sahu (supra) has no application to this case. 7.6. In the case at hand, when an efficacious remedy under Section 25(1) of the Endowments Act is available to the plaintiffs, the Civil Court will not be competent to adjudicate upon and grant relief for recovery of possession of the property of the deity unlawfully alienated. The plaintiffs have to take shelter under Section 25(1) of the Endowments Act, for recovery of the suit land from defendant No. 1. Section 11 of the Code will not stand as a bar to initiate a further proceeding under Section 25(1) of the Act in view of liberty granted by the Commissioner of Endowments in OA No. 85 of 1980 vide order dated 16.10.1981 in OA No. 85 of 1981. It is only after recovery of possession of the suit land is granted by the Commissioner of Endowments; the plaintiffs can maintain the suit for injunction if necessary. 7.7. Section 69(1) of the Endowments Act reads as follows:- "69. Notice by Court and cost of proceedings- (1) Whenever the trustee or any religious institution is sued in any Civil or Revenue Court in respect of any property belonging to or given or endowed for the purpose of any religious institution notice of such Suit shall be given by the Court concerned to the Commissioner at least a month before commencement of the hearing." The above provision makes it clear that whenever a religious institution or its trustee is sued in any Civil or Revenue Court, the Commissioner of Endowments should be noticed by the said Court and be given an opportunity of hearing. In the instant case, the suit is neither against the religious institution nor against its trustees. On the other hand, the suit was filed by the religious institution (plaintiff No. 1) along with its trustees (plaintiff Nos. 2 and 3). Section 69(1) of the Act has been incorporated in the statute book with an object to safeguard the interest of the deity who is a perpetual minor. The Commissioner of Endowments is the guardian of the perpetual minor. 2 and 3). Section 69(1) of the Act has been incorporated in the statute book with an object to safeguard the interest of the deity who is a perpetual minor. The Commissioner of Endowments is the guardian of the perpetual minor. Thus, the guardian, namely, the Commissioner of Endowments is required to be given notice and opportunity of hearing when a suit is filed against a deity. But, when the religious institution institutes a suit or legal proceeding through its Marfatdars or the trustees, it can be safely said that the interest of the deity is well-protected by such Marfatdars or the trustees. Thus, Section 69(1) of the Endowments Act has no application to the case at hand. The case laws relied upon by Mr. Panigrahi, learned counsel for the plaintiffs in Brahman Nijog (supra) is not applicable to the case at hand, as the same was passed in a different context. Hence, in the instant case, notice under Section 69(1) of the Endowments Act will not be a requirement before hearing the suit, which was instituted by the Marfatdars. 8. In view of the above, the impugned judgment and decree of the Courts of facts are set aside and the substantial questions of law are answered accordingly. The appeal is allowed to the extent stated above, but in the circumstances there shall be no order as to costs. Registry is directed to send back the LCR immediately.