Calcutta High Court (Appellete Side)
Dipak Dogra vs Ashok Kumar Dogra & Ors on 12 March, 2024
Author: Shampa Sarkar
Bench: Shampa Sarkar
12.03.2024
Court No. 19
Item no.15
CP
C.O. No. 408 of 2024
Dipak Dogra
Versus
Ashok Kumar Dogra & Ors.
Mr. Rabindranath Mahato
Mr. Aritra Shankar Ray
...for the Petitioner.
Mr. Krishna Das Poddar
Mr. Sujit Bhunia
...for the Opposite Parties.
1. The revisional application arises out of an
order dated December 19, 2023, passed by the
learned Additional District Judge, First Court
at Midnapore, District - Paschim Midnapore in
Misc. Appeal No. 16 of 2020. By the order
impugned, the learned court reversed the order
dated August 30, 2019, passed by the learned
Civil Judge (Senior Division), 2nd Court, at
Midnapore in Title Suit No. 565 of 2018.
2. The learned Trial Judge, upon perusal of the L.
R. records arrived at the conclusion that the
plaintiff had a prima facie case. When the suit
property was a debutter property, regular seba
puja should be offered to the deity. Thus, on
the basis of the prima facie case of the plaintiff,
arising from the presumption with regard to
the L. R. records, status quo in respect of 'ka'
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and 'kha' schedule property of the plaint was
granted.
3. The defendant nos. 6 to 13, i.e., the opposite
party nos. 6 to 13 preferred the Misc. Appeal
which was registered as Misc. Appeal No. 16 of
2020. The appeal was filed on the ground that
the suit property was a public debuttar
property and not the raiyati property of the
plaintiff. The learned Trial Judge had erred in
relying on the record of rights. That 'kha'
schedule property was a pond which could not
be partitioned. That the debutter property
could not be partitioned. That the defendant
nos. 7 to 12 were also the heirs of the original
shebaits whose names transpired in the
solenama decree.
4. The learned appellate court decided the issues
raised by the appellants and allowed the
appeal, thereby setting aside the order of the
learned Trial Judge. The learned appellate
court was of the view that the record of rights
was in the name of the deity. Title Suit No. 168
of 1960 was decreed on the basis of a
solenama. Shyamapada Dogra was the
predecessor of the respondents in the appeal.
Prima facie, the court was of the view that partition of the suit property was not 3 maintainable and there was a doubt with regard to prayer 'a' of the plaint. The court held that a shebait was in the position of a trustee and the property vested in the idol and not on the shebait. Thus, the balance of convenience and inconvenience was not in favour of the plaintiff/petitioner. The observation of the trial court that the property was a debutter property itself would indicate that partition of the suit property could not be claimed. On such finding, the appeal was allowed and the order of the learned Trial Judge was set aside.
5. Mr. Mahato, learned advocate appearing for the plaintiff, submits that the learned appellate court proceeded on a misconception that only the defendant nos. 1 to 5 were the heirs of Shyamapada Dogra. The plaintiff also claims through Shyamapada Dogra. Moreover, the defendant nos. 6 to 13 were villagers and rank outsiders who did not have any interest either in the shebaitship or in the debutter property. It is next submitted that the properties were being encumbered by the defendants and an order of injunction would be necessary to protect the debutter property. Finally, it is submitted that when the plaintiff was continuing with the seba puja, a protection 4 should be given in respect of the shebaitship, as also the 'pala'.
6. Mr. Bhunia, learned advocate for the opposite party nos. 6 to 13, submits that the defendant nos. 7 to 12/opposite party nos. 7 to 12 were also heirs of the shebaits whose names had been recorded in the solenama which formed a part of the decree of an earlier suit. They were also shebaits by inheritance on the basis of the deed and they could not be injuncted from performing their duties as shebaits.
7. Having heard the learned advocates for the respective parties. This court finds that the plaint case was that the 'ka' and 'kha' schedule property belonged to Shyamapada Dogra who had installed Dharma Thakur Temple, 'Maa Manasa' and 'Maa Sitala' and had been performing seba puja. The Dharma Thakur was an absolute debutter property of Shyamapada Dogra. After the death of Shyamapada Dogra, the defendant nos. 1 to 5 transferred 'ka' schedule property to the plaintiff by a registered deed of gift. When the plaintiff was performing the seba puja, the defendants started disturbing the plaintiff. 'kha' schedule property was also an absolute debutter property. The same was dedicated to 5 the family deity of the plaintiff and the defendant nos. 1 to 5. The defendant nos. 6 to 13 did not have any right and possession over the property and were trying to grab the property. On the other hand, the defendant nos. 6 to 13 who were the appellants before the learned appellate court claimed that the property belonged to 'Shri Shri Dharmathakur Jew'. In 1960, the shebaits, namely, Shyam Chandra Dogra, Surendranath Ghosh, Bhabataran Bhunia, Bhagirath Bhunia and Haripada Dogra had filed Title Suit No. 168 of 1960 against Kalipada Bhattacharya, the then priest of the deity. The suit was decreed on the basis of a solenama and in the decree the names of the ancestors of the defendant nos. 7 to 12 had been listed as shebaits. The contention of the plaintiff that the defendant nos. 6 to 13 were the rank outsiders is not supported by any document.
8. The learned courts have proceeded on the basis that the property belonged to the deity. The solenama decree reveals that the predecessors of the parties were shebaits. The learned appellate court was of the, prima facie, view that as the property was recorded in the name of the deity, there could not be any 6 partition. There was also a question with regard to the maintainability of the suit. Under such circumstances, the order of status quo with regard to the 'ka' and 'kha' schedule property was set aside.
9. Whether the suit property is a private debutter created by Shyamapanda or a public debutter will be decided in the suit. The status of the parties will also be decided. The plaintiff cannot, in my prima facie view, claim to be the sole shebait of the debutter property on the basis of the L.R. records. It prima facie appears that the ancestors of the defendant nos. 7 to 12 were listed as shebaits in the solenama decree. Moreover, the question whether a debutter property was partible or not, was also an issue.
10. Under such circumstances, there cannot be any injunction or status quo on the performance of the seba puja and the 'pala' as also on the enjoyment of the debutter property by the respective parties. However, the parties will be restrained from alienating, encumbering and selling the property till the disposal of the suit.
11. The revisional application is accordingly disposed of.
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There shall be no order as to costs. Parties are to act on the server copy of this order.
(Shampa Sarkar, J.)