Orissa High Court
Sri Sri Jhadeswar Mahaprabhu And Sri Sri ... vs Sukrasena Rana And Ors. on 11 October, 1985
Equivalent citations: 1985(II)OLR539
JUDGMENT G.B. Pattnaik, J.
1. This is an appeal under Section 44(2) of the Orissa Hindu Religious Endowments Act (hereinafter referred to as the 'Act'). The appellants have impugned the order of the Additional Assistant Commissioner of Endowments declaring the respondents to be hereditary trustees of the institution 'Sri Sri Jhadeswar Mahaprabhu and Sri Sri Mukteswar Mahaprabhu' of Kamagada in the district of Ganjam and the appellate order of the Deputy Commissioner of Endowments affirming the decision of the Additional Assistant Commissioner. The respondents filed an application under Section 41 of the Act claiming hereditary trusteeship over the institution on the allegation that the two deities were installed by the Raja of Dharakot and the founder granted the properties for the Bhograg and other festivals of the deities. It is the further case of the respondent that the said founder appointed the forefathers of the respondents as hereditary archaks to perform the sevapuja and management of the institution had been given to the forefathers of the respondents and in exercise of their said right, they are continuing in possession of the lands and are managing the affairs of the institution from generation to generation. The appellants are the members of the non-hereditary trust board appointed under Section 27 of the Act and they filed objection in the said, proceeding denying the allegations made by the respondents and further they challenged the maintainability of the proceeding in view of an earlier decision of the Commissioner of Endowments in O. A. No. 11 of 1981.
2. On these pleadings, the learned Additional Assistant Commissioner framed four issues and on Issue No. 3 recorded a finding that the proceeding before him was maintainable. On Issues Nos. 1 and 2, the said Additional Assistant Commissioner came to hold that the respondents were managing the institution and were in possession of the deities, properties from the time of foundation and hence a presumption arose that they were the hereditary trustees of the institution. Having reached the aforesaid conclusion, the learned Additional Assistant Commissioner ordered that the institution was public in nature and trusteeship was hereditarily held by the respondents. On an appeal being carried to the Commissioner of Endowments, the same was disposed by the Deputy Commissioner of Endowments who has affirmed the conclusions of the Additional Assistant Commissioner. Hence, the present appeal.
3. Mr. Das, the learned counsel for the appellants, challenges the conclusion of the two Courts below on the ground that the conclusions are contrary to the evidence on record. Mr. Das also further submits that the respondents have failed to establish that they are the hereditary trustees of the institution. The learned counsel for the respondents, on the other hand, contends that in view of the convincing nature of evidence indicating that the management of the institution vested in the forefathers of the respondents and continued by succession from generation to generation, the conclusions of the two Courts below are unassailable and, therefore, this appeal does not deserve any consideration.
4. There is no dispute between the parties, and it is well-settled that this being an appeal under Section 44(2) of the Act, this Court can go both into facts and law and is not subject to the limitations placed on a second appellate Court by Section 100 of the Code of Civil Procedure. Mr. Das, the learned counsel for the appellants, also does not challenge the correctness of the conclusion of the two forums below to the effect that the present petition filed under Section 41 is not barred by the principles of res judicata as well as the conclusion regarding the maintainability of the application under Section 41 of the Act. The only question, therefore, remains for consideration is whether on the evidence on record, the conclusion that the respondents have proved to be the hereditary trustees of the institution is sustainable or not.
5. Section 3(vi) of the Act defines 'hereditary trustee' to mean, "...the trustee of a religious institution succession to whose office devolves by hereditary right since the time of the founder or is regulated by custom or is specifically provided for by the founder, so long as such scheme of succession is in force".
The claim of the respondents here is not that there is any custom regulating their succession nor that the founder has specifically provided for such hereditary succession, but it is based on the ground that it has 'devolved by hereditary right since the time of the founder'. Section 41(1)(c) of the Act authorises the Assistant Commissioner to enquire into and decide a dispute as to whether a trustee holds or held office as a hereditary trustee. The proviso to the said section lays down that :
"...the burden of proof in all disputes or matters covered by Clauses (a) and (d) shall lie on the person claiming the institution to be private or the property or money to be other than that of a religious endowment or specific endowment, as the case may be. "
In this view of the matter, a persons who claims to be a hereditary trustee of an institution within the meaning of Section 41(1)(c) of the Act will have to establish the said fact and the burden lies on him. Section 3 (xvi) defines 'trustee' to mean.
"...a person by whatever designation known, in whom the administration of a religious institution and endowment are vested, and includes any person or body who or which is liable as if such person or body were a trustee."
This being the position of law it is to be found out whether the respondents have discharged the burden which lay on them to establish the right of hereditary trusteeship in relation to the institution, or not.
6. No document has been produced to indicate that the institution was founded by Raja of Dharakot or that he created the endowment and, therefore, inference has to be drawn from the oral evidence as well as certain documents including the old record-of-rights produced in this case. It is also amply clear that the respondents have not produced any document to prove that their forefathers were appointed as hereditary trustees by the founder. Ext. 1 is the appellate order of the Additional District Magistrate, Ganjam, in an estate abolition proceeding. In the said order, the order of the Tahasildar appointing the present respondents as marfatdars in the estate abolition proceeding was set aside on the ground that the order of the Assistant Commissioner of Endowments must be respected until it is set aside by a competent authority. This document does not throw much light in proving the claim of the respondents. The two forums below, namely, the Additional Assistant Commissioner as well as the Deputy Commissioner, of Endowments have relied upon Exts. A and B and the oral evidence of the parties on the principle that if a thing or set of things is shown to exist, for then an inference of continuity within the reasonably proximate time, both forward and backward, had to be drawn.
So far as Ext. A is concerned, it is the Inam Register of village Kamagada. The entries in Ext. A are not relatable to the disputed institution and I fail to understand as to how the Said document helps the respondents' case in any manner to prove their hereditary trusteeship. Another important document on which the forums below have placed reliance is Ext. 8. This is a copy of the Inam Register of village Kamagada wherein Mukteswar Mahaprabhu and Jhadeswar Mahaprabhu have been recorded in Column II. This is a document of the year 1951. The entries therein donot establish the fact that the Raja of Dharakot is the mafatdar of the deities. On the other hand, I find that in Ext. E, the Rent Schedule, the villagers have been recorded as marfatdars of the institution of the deities.
7. On consideration of the documentary evidence adduced in this case, it is clear that no conclusion can be arrived at as to whether the respondents have established a claim of hereditary trusteeship in respect of the institution. One would, therefore, have to fall back upon the oral evidence for the purpose. Before discussing the oral evidence, it would be profitable to take note of the decision of this Court in the case of Kasinath Mohanty and Ors. v. Dibakar Tripathy and Ors., I. L. R. 1961 Cuttack, 548, wherein a Bench of this Court held that in view of the narrow definition of the words 'hereditary trustee' given in the Act, the plaintiffs must affirmatively show that from the time of the founder succession to the office of the trustee had devolved by hereditary right, and it would not suffice for them merely to show that for a very long period their ancestors were holding office as hereditary trustees. It may be made clear at this stage that the fact that the institution is a public one is admitted to by both the counsels appearing in this case.
P. W. 1 though in his evidence in-chief states that the deity is being managed by Mali-archaks hereditarily and they are in possession of the deity's endowment, in cross-examination he states that he heard that King had created the endowment and has no direct knowledge of the same. Thus his evidence is of no assistance to come to the conclusion as to who was the founder of the institution and it only speaks of the possession of the properties for some time.
P. W. 2 in his evidence states that the institution was founded by the King of Athagarh and he created the endowment. This evidence runs contrary to the case of the respondents, since it is the positive case of the respondents that it is the Raja of Dharakot who had founded the institution. His evidence that Mali-archaks manage the institution and offer puja and effect timely repairs does not in any way prove the requirements of hereditary trusteeship within the meaning of Section 3(vi) of the Act.
P. W. 3 in his evidence also states that he heard that some king had founded the deities and further that Malis are in possession of the deities' lands. His evidence, therefore, speaks merely of possession of the deities' lands by the respondents.
P. W. 4, however, asserts in his evidence that it is the Zamindar of Dharakot who had installed the deities over one hundred years back and the endowment of the deities was created by the said Zamindar. According to him, the Malis are in possession of the deities endowment since the time of foundation. In his cross-examination, however, he has stated that though he has in his possession documents showing that Zamindar had donated the lands for the deities, yet he did not file the same. Non-production of such an important document goes against the respondents since that would have clinched the point in issue.
This being the nature of the oral evidence adduced on behalf of the respondents, I am of the opinion that the respondents have failed to establish that they are the hereditary trustees in respect of the deities' institution within the meaning of Section 3(vi) of the Act. There is inconsistency in the evidence adduced by the respondents with regard to the founder of the institution itself. On the vague assertion that Mali-archaks are possessing the lands for a long time, it cannot be said that the respondents have discharged the burden which lay on them to prove that they have acquired hereditary trusteeship in respect of the institution. In my view, therefore, the respondents have failed to establish their claim that they are the hereditary trustees and accordingly, the conclusions of both the Additional Assistant Commissioner of Endowments as well as the Deputy Commissioner of Endowments must be set aside. It must be held, therefore, that though the institution is public in nature, yet the respondents are not the hereditary trustees of the institution.
8. In the ultimate result, therefore, the judgments of the Deputy Commissioner of Endowments and the Additional Assistant Commissioner of Endowments are set aside and this appeal is allowed but in the facts and circumstances of the case, there would be no order for costs.