Calcutta High Court (Appellete Side)
(Ad 18) vs Shree Shree Durga Mata Thakuri on 5 July, 2022
Author: Soumen Sen
Bench: Soumen Sen
Court No. 8 SA 77 of 2021
05.07.2022 Sanat Kumar Dey & Ors.
(AD 18) Vs.
Shree Shree Durga Mata Thakuri
(S. Banerjee)
The second appeal appeared in the warning list
on 22nd June, 2022 and continued to appear in the list
until it was transferred to the daily cause list on 28 th
June, 2022.
The appellants are not present.
The second appeal is directed against a
judgement and decree of affirmation dated 5 th March,
2005 passed by the Additional District Judge, 1 st Court,
Suri, Birbhum in Title Appeal No. 213 of 1975 whereby
the learned first appellate court affirmed the decree and
order dated 29th December, 1975 passed by the
Subordinate Judge, Suri in Title Suit No. 70 of 1969.
The appellants/plaintiffs claim to be the Shebaits
and have prayed for eviction of the respondent's from
the suit property and claimed appointment of them as Shebaits to perform the Nityaseva puja and other religious performances of the daity Shri Shri Durgamata Thakurani. By an order of remand passed by the Hon'ble High Court, the second appeal, being SA 345 of 2 1979, the first appellate court directed to reconsider the matter after arriving at a finding that the plaintiffs have merely prayed for their Shebaiti right and for recovery of possession from the persons who did not have any right over such property by virtue of a deed executed by the erstwhile Shebaits. It was further held that the suit is purely for enforcing private right of Shebait and the deity against outsiders and as such beyond the purview of Section 92 of the Code of Civil Procedure. It was held further by the Hon'ble Court that the trust was of public nature and the primary object of the plaintiffs is to remedy the infringement of their individual right.
Learned trial court on remand examined the Arpannama and on the basis of the evidence on record arrived at a finding that although Umeshchandra Mudi and Brajendrabala were the absolute Prabartaks, they were illiterate persons. The dispute is with regard to the maintenance of the shebapuja of the deity after the death of Brajendrabala. The appellants contended that the terms of the said Arpannama are invalid and as such cannot be given effect to. Reliance was placed on the Niogpatra executed by Brajendrabala to argue that she had admitted in the deed as would be evident from the recital that she could not understand as to the line of succession of Shebait on her death. Brajendrabala undisputedly did not reserve any right to alter or modify the line of succession in the Arpannamas. The learned 3 appellate court on examination of the Arpannama and the Niogpatra observed that in the line of succession of office of Shebait was described by the founder, i.e., who was the Shebait. The said Brajendrabala during her lifetime by executing a Niogpatra appointed the Shebait and thereafter altered the law of Shebaitship as mentioned in the Arpannama which is illegal as she did not have any right to do so. As the founders were absolutely remediless, the founders divest themselves of all right and title thereto as in terms of the Arpannama Umeshchandra will be the Shebait and after his death Brajendrabala, his daughter, will be the Shebait of the deity. It was also provided in the deed that after the death of Brajendrabala the gentlemen of village of Nirbhayapur and 'Atmiyas and Kutumbas' of Suri town would be the Shebaits. When dedication to the deity is a compete and founder without any reservation has appointed the line of Shebaits, the founder himself becomes functus officio. Since Brajendrabala had no authority to appoint Shebait by executing Niogparta of 1967 in favour of the defendants, the defendants cannot make any claim on the basis of such document. Umeshchandra executed the deed of Arpannama on 10 th Chaitra 1336 B.S.. Admittedly when Brajendrabala executed the deed of Arpannama on 28 th Aswin 1333 B.S. none of the defendants/appellants were born. Brajendrabala was issue-less and Umeshchandra did 4 not have any son. The daughter Birajmohini predeceased her father Umeshchandra. So under the circumstances there was no necessity of making such recital by Brajendrabala and Umeshchandra in their deeds of Arpannamas fixing line of succession of shebaitship. The plea of ignorance of the recital of the deed of Arpannama in the subsequent deed of Neogpatra by Brajendrabala is of no consequence simply because at that time Brajendrabala had no authority to alter the line of succession. It was also not proved that Umeshchandra and Brajendrabala were not aware of the terms of the deeds. On the basis of such findings read with other facts and evidence on record we feel that the learned appellate court was justified in affirming the judgement passed by the learned trial court.
Moreover, no substantial question of law is also involved in the instant appeal and the same thus fails. The second appeal is accordingly not admitted and stands dismissed. However, there shall be no order as to costs.
(Soumen Sen, J.) (Siddhartha Roy Chowdhury, J.)