Decided on August 13,1953



Mohapatra, J. - (1.) It is the unsuccessful plaintiff in both the Courts below who has filed this appeal against the judgment and decree dated 11-8-48, of Sri T.V. Rao, First Addl. Subordinate Judge of Cuttack, confirming the decision of the trial Court after remand. The plaintiff has brought the suit for declaration of his right, title and interest in respect of three mouzas Ahmedpur, Gokulpur and Rangidaspur, as proprietor and for confirmation of his possession. The plaintiff's case is that Raja Raghunath Raj, who owned nine annas sis pies interest in all such villages, executed a mortgage transaction (Ext. 5a) on 14-8-1880 in respect of his interest in the said mouzas for a sum of Rs. 1400/-in favour of the plaintiff's ancestor who obtained a final decree on the basis of the said mortgage on 1-3-1887 and in. execution of the said mortgage decree the properties were purchased on 17-61895 by the mortgagee-decree-holder, that is the plaintiff's ancestor; he had also taken delivery of possession through Court near about the year 1901; the balance six annas six pies, according to the plaintiff, belonged to Raja Suberaj and Sunder Nalia. They had mortgaged their interest in the said mouzas also in favour of the same ancestor of the plaintiff in the year 1884 for Rs. 1200/- on the basis of which a final decree was obtained on 15-9-1890 and in execution of the said mortgage decree the mortgagee-decree-holder purchased them in two instalments on 15-71895 and 15-7-1898; the mortgagee-decree-holder had taken possession through the Court also in the year 1901; the plaintiff's further case is that ever since the delivery of possession in favour of his ancestor he was in possession of the entire mouzas in question ever since the year 1901 and collecting rents in his own rights and on his own behalf; the plaintiff's grandfather, that is, the mortgagee-decreeholder, died near about the year 1901 and he was succeeded by his son Hariharnath Pandit who also-died a short time thereafter leaving his widow Rani Luxmi Rani as the legal heir; as she was a young widow, the estate was managed by a committee of executors and subsequently it came under the management of the Court of Wards till the present plaintiff Pandit Shymasundar Suthoo who, in the meantime was adopted by Luxmi Rani, took possession in 1924. In the year 1936 when the plaintiff started certificate proceedings for the purpose of realisation of rents against the tenants, the tenants raised an objection that the plaintiff had no right to realise rent inasmuch as the properties belonged to deity Raghunath Jiew Thakur represented by Marfatdar Rani Venkataramaniya; these certificate proceedings having been cancelled, the plaintiff filed the suit on 21-9-38 for the relief of declaration of plaintiff's absolute right over the properties and for confirmation of possession on the allegation that the properties in dispute never belonged to deity Sri Raghunath Jiew Thakur but were all along the secular properties of the mortgagors named above; an alternative case also was alleged in the plaint that even though the properties belonged to the deity, the plaintiff had acquired absolute right over the same by virtue of adverse possession against the deity,
(2.) The defence, in short, was that the properties were really the debuttar properties belonging to the celebrated deity Shri Raghunath Jiew Thakur situate in the town of Cuttack at Telenga bazar and the mortgagors, namely, Raja Raghunath Raj & Raja Suberj and Sunder Nalia had only marfatdari rights in respect thereof; the mortgage transactions, if any, were only in respect of the said marfatdari rights and the plaintiff's ancestor, Baidyanath Pandit, purchased nothing else than the marfatdari rights of the mortgagors in execution of the mortgage decrees. It is further contended on behalf of the defendants that the plaintiff's ancestor, or, as a matter of that, the plaintiff himself has never asserted any adverse right against the deity and the plaintiff has not acquired any absolute right over the properties even by virtue of adverse possession. We may refer here to Section 30, Cuttack Land-Revenue Regulation, 1805, published in Orissa Code Vol. I, at p. 96, where there is a mention of the deity Sitaram Thakur who is otherwise known as Sri Raghunath Jiew; "Provided also that nothing herein contained shall be construed to authorise the resumption of the established donation for the support of the temple of Jagannath, the charitable donation to the officers of certain Hindu temples, called Anuchatri, and the allowance granted for the support of the Hindu temple at Cuttack, called Sitaram Thakur Bari."
(3.) Both the Courts below have concurrently found plaintiff's possession for a long time ever since the year 1901 through his ancestor and by himself, but they have categorically found that possession by the ancestor of the plaintiff, or his mother or by the plaintiff himself was only on behalf of the Thakur and as Marfatdar of the Thakur. The Courts below on a very careful examination of all the documents in question have come to an equally definite finding that the properties in dispute are really the Debottur properties belonging to the Thakur Raghunath Jiew and were never the secular properties of the mortgagors; and what was mortgaged by virtue of the transactions of the year 1880 and 1884 were only the marfatdari rights and not the deity's interest.;

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