Orissa High Court
908 vs Sri Gopinath Dev & Others on 30 March, 2021
Author: K.R.Mohapatra
Bench: K.R. Mohapatra
HIGH COURT OF ORISSA: CUTTACK
S.A. No. 100 OF 1992
In the matter of an Appeal under Section 100 of Code of Civil Procedure,
1908.
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Srikar Patra ....... Appellant
-Versus-
Sri Gopinath Dev & Others ....... Respondents
For Appellant : M/s. Srinivas Mishra, S. Mohanty,
R.C. Rout & A.K. Mishra
For Respondents : M/s. N.C. Panigrahi & S.C. Dash
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Judgment delivered on :30.03.2021
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
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K.R. Mohapatra, J. 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.
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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.
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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. 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
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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. 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.
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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
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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
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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. 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 -v-
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
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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.
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 -v- 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
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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. 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
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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 -v- 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.
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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
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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.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
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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 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
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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. Thus, the guardian, namely, the Commissioner of
Endowments is required to be given notice and opportunity of hearing when
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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.
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K.R.MOHAPATRA, J.
Orissa High Court, Cuttack Dated the 30th day of March, 2021/ss/bct