Orissa High Court
Ishwar Samal vs Keshab Samal And Others on 18 August, 2017
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
S.A.No.461 of 2001
From a judgment and decree dated 7.12.2001 and 14.12.2001
respectively passed by Shri J.P.Mishra, learned District Judge,
Cuttack in T.A.No.97 of 1997 reversing the judgment and decree
dated 25.8.1997 and 10.9.1997 passed by the learned Civil Judge
(Sr.Division), 1st Court, Cuttack in T.S.No.919 of 1988.
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Ishwar Samal .... Appellant
Versus
Keshab Samal and others .... Respondents
For Appellant -- Mr.Prasanta Kumar Satpathy,
Advocate
For Respondents -- Mr.Maheswar Mohanty,
Advocate
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of Hearing & Judgment: 18.8.2017
Dr.A.K.RATH, J.This is a plaintiff's appeal against a reversing judgment in a suit for partition.
2. The following genealogy would show the relationship of the parties.
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Late Nidhi Samal
Late Baida Samal Late Mohan Samal
Late Padan Samal Late Madan Samal Late Dhani Samal
Keshab Samal Ishwar Samal (Plff.)
Basu Mangu (Defendant no.1)
(Deft.No.2) (Deft. No.3)
3. The case of the plaintiff is that Nidhi Samal was the owner of the schedule A, B and C properties. The same was inherited by his successors. The entire property, being Ac.0.92 dec., was partitioned amicably between the parties. Ac.0.46 dec. was allotted to his father as per schedule-A. The father of defendant no.1 got Ac.0.23 dec. as per schedule-B and the father of defendant nos.2 and 3 got Ac.0.23 dec. as per schedule-C. The parties are in possession as per their convenience. There was no partition of the property by metes and bounds. When the defendants created disturbances in his peaceful possession and tried to drive him out, he filed the suit for partition.
4. The defendants entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendants is that the plaintiff is a stranger to their family. Neither Dhani nor his father, Mohan belong to the family of Nidhi Samal. The plaintiff is a resident of village Patpur. The plaintiff was a tenant under them from 1970 to 1983 and was residing in holding no.511 (schedule-A land). As he did not pay rent, H.R.C.Case No.40 of 1982 was filed against him. During pendency of the H.R.C.Case, the plaintiff vacated the premises. It is further pleaded that the plaintiff 3 took some ration card from them and created the holding No.511 in his name while he was occupying the house on rent. The said house collapsed during rain. It is further pleaded that the plaintiff inserted his name in the draft record of right clandestinely.
4. Stemming on the pleadings of the parties, the learned trial court framed five issues. Both the parties led evidence, oral and documentary, to substantiate their case. The learned trial court came to hold that the suit is maintainable. The suit schedule properties are the ancestral properties of the parties. The plaintiff is a co-sharer. He is entitled to half share in the suit properties. Held so, it decreed the suit preliminarily. The defendants challenged the said judgment and decree before the learned District Judge, Cuttack in Title Appeal No.97 of 1997. A contention was raised by the appellants before the learned appellate court that the suit properties have been recorded in the name of the deity. The deity Sri Sri Laxminarayan Thakur is a public deity. In absence of Commissioner of Endowments, the suit is not maintainable. The learned appellate court came to hold that in the draft khatian, name of the landlord has been mentioned as Laxminarayan Thakur Endowment Trust Board. The R.O.R. of the year 1932, Ext.G, depicts the name of the deity Sri Sri Laxminarayan Thakur marfat Mahanta Jagannath Ramanuj Das. The rent receipt, Ext.C series from 1949 onwards till 1968, reveal payment of rent to the Executive Officer of the Trust Board of the deity Sri Sri Laxminarayan Jew Mastaram Math, Cuttack. Thus, Nidhi Samal was not the owner of the suit properties. Held so, it allowed the appeal.
5. The appeal was admitted on the following substantial questions of law enumerated in ground nos. B, C, D and E of the appeal memo. The same are :
4"B) Whether without considering the evidence on record on the basis of which the learned Trial Court has come to the specific findings against each of the issues, the lower appellate court is justified in law in reversing the same merely because the name of the deity as landlord has been found in the settlement records ?
C) Whether the darpatadari rights over the suit land of the parties to the suit cannot be made subject matter of partition amongst them ?
D) Whether the properties recorded in the name of the deity as landlord without any discussions in regard to the evidence on record, showing the relationship of the parties to the deity and the effect thereof, could be held to be not partible amongst the parties ?
E) Whether the lower Appellate Court is justified in law in rejecting the cross-appeal without any discussion whatsoever as regards its merits in the evidence available on record ?"
6. Heard Mr.P.K.Satpahty, learned Advocate for the appellant and Mr.M.Mohanty, learned Advocate for the respondents.
7. Mr.Satpathy, learned Advocate for the appellant submits that the suit properties originally belong to Nidhi Samal, common ancestor of the parties. The plaintiff belongs to the branch of Nidhi Samal. Nidhi Samal died leaving behind his two sons, namely, Baida Samal and Mohan Samal. Mohan Samal died leaving behind his two sons, namely, Dhani Samal and Iswar Samal, the plaintiff. The defendants belong to Baida Branch. Thus, the plaintiff has half share over the suit schedule properties. There was no partition of the suit properties by metes and bounds. The learned trial court, on analysis of the evidence on record, came to hold that the property belongs to 5 Nidhi Samal and the same was not partitioned. But then, on untenable and unsupportable grounds, the learned appellate court upset the findings of the learned trial court. He further contends that there was no material before the appellate below to come to a finding that the property belongs to Sri Sri Laxminarayan Thakur. The R.O.R. neither creates title nor extinguishes title. No opportunity was provided to the plaintiff to implead the deity as well as the Commissioner of Endowments. The darpatadari rights are partible. In view of the same, the judgment of the learned appellate court is vitiated. He relies on two decisions of this Court in the case of Smt.Ratnamani Mandal and others Vrs. Daniel Mandal and others, 1987 (II) OLR-25 and Gadadhar Satpathy (After him) Sankarsan Satpathy Vrs. Para Dibya and Ors, 70 (1990) CLT-65.
8. Per contra, Mr.Mohanty, learned Advocate for the respondents submits that the property belongs to Baida. The R.O.R. was published in the name of Padan Samal and Madan Samal, who are the sons of Baida, Ext.G. Thus the plaintiff has no share over the same. He further submits that the plaintiff has admitted that he was a tenant under the defendants and a case was filed under the Orissa House Rent Controller Act against him. Thus he cannot maintain the suit claiming to be a co-sharer.
9. Before delving deep in to the matter, it is apt to refer here that in course of hearing, this Court directed the learned counsel for the Commissioner of Endowments to ascertain as to whether deity Sri Sri Laxminarayan Thakura bije Ramagarh district Cuttack is an index institution or not. Learned Advocate has filed a memo on 26.7.2017 stating therein that Sri Sri Laxminarayan Jew commonly known as Mastaram Math is a Public Religious Endowment bearing 6 Index No.1063-C. The said institution is situated at Mansinghpatna, not Ramagarh. The learned appellate court, on an anatomy of the pleadings and evidence on record, came to hold that in Ext.1, name of the parties have been recorded, but then the name of the landlord has been mentioned as Laxminaryan Thakur Endowment Trust Board. The R.O.R. published in the year 1932, Ext.G depicts the name of the deity Laxminarayan Tahkur marfat Mahant Jagannath Ramanuj Das. The rent receipts shows payment of rent to the executive officer of the Trust Board of the deity Sri Sri Laxminarayan Jew Mastaram Math, Cuttack. Thus, the inescapable conclusion is that the properties belong to Math. The institution is an indexed one.
10. Section 69 (1) of the O.H.R.E. Act postulates that 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. It is the bounden duty of the court to issue notice to the Commissioner of Endowments. Neither the math nor the Commissioner of Endowments are the party to the suit. No notice was issued by the learned trial court to the Commissioner of Endowments before hearing of the suit. In their absence, the suit must fail. The contention of Mr.Satpathy that an opportunity ought to have provided to the plaintiff to implead the deity as well as Commissioner of Endowments is difficult to fathom. Impleadment of the math as well as Commissioner of Endowments will not improve the case. As held above, the properties belong to Math.
711. The decisions relied upon by Mr.Satpathy, learned Advocate for the appellant are distinguishable on facts. In Gadadhar Satpathy (supra), it was held that the properties were not absolute; but nominal or partial debottar and therefore, partible, but marfadars will take the properties with the obligation that they would meet the expenses of the deity for religious purposes keeping in view the interest of deity. But in the instant case, the properties are absolutely debottar.
12. The decision in the case of Smt.Ratnamani Mandal (supra) is also distinguishable on facts.
13. In the ultimate analysis, the appeal fails and is dismissed. No costs.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack.
The 18th August, 2017/CRB.
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