SRIKAR PATRA Vs. GOPINATH DEV
HIGH COURT OF ORISSA
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K.R. Mohapatra,J. -
(1.) 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.
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.
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 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.
(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?
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