BINOD BEHARI PANDA Vs. MRUGESWAR DEV

JUDGEMENT

(1.) THIS Second Appeal is against the judgment and decree dated 27.7.1993 and 7.8.1993, respectively, passed by the learned Second Additional District Judge, Bhubaneswar in T.A. No.82/3 of 1990/88 confirming the judgment and decree dated 27.1.1988 and 11.2.1988, respectively, passed by the learned Subordinate Judge, Bhubaneswar in O.S. No.163 of 1982 (I).

(2.) THE Respondent Nos.1 and 2 are the plaintiffs and the deceased -appellant No.1, appellant No.2 and proforma respondent No.3 are the defendants in the trial Court. Respondent No.1/plaintiff No.1 is a public deity represented by its Managing Trustee - Respondent No.2/ plaintiff No.2. The case of the plaintiffs is that the plaint scheduled landed property was originally owned by one Narayanabandhu Maharana who by a registered deed of gift bearing No.2503 dated 29.5.1923 endowed the same in favour of the deity with one Gangadhar Panda as the Sebayat/Marfatdar of the deity. Subsequently, in the year 1962 the Managing Trustee of the deity got delivery of possession of the land in a proceeding under section 68 of the Orissa Hindu Religious Endowments Act, 1951 (for short, the "Act"). The Managing Trustee used to get the land cultivated by hired labour and the usufructs of the property got to be used for the Seba Puja of the deity. When the matter stood thus, on 25.10.1978, the defendants claiming themselves to be the Marfatdars of the deity forcibly cut and removed standing paddy crop from a portion of the land for which a criminal case bearing I.C.C No.160 of 1978 was initiated in the court of the learned S.D.J.M., Bhubaneswar. As there was dispute with regard to possession over the suit properties the police, apprehending serious breach of peace, initiated a proceeding under section 144, Cr.P.C. which was subsequently converted into a proceeding under section 145 Cr.P.C., in which the learned Executive Magistrate, Bhubaneswar by his order dated 18.8.1980 held the defendants to be in possession of the property. Because of such an erroneous order, a cloud with regard to title and possession of the plaintiff deity in respect of the suit land got created. Therefore, the suit was filed for declaration of title and recovery of possession.

(3.) DEFENDANT No.1 and Defendant No. 3 in their joint written Statement have contended that the original owner of the suit land had gifted the property to Gangadhar Panda with condition that the said Gangadhar Panda and his successors would offer "Pitha and Khiri" Bhog to the deity and in lieu thereof continue to remain in possession of the land on hereditary basis. According to these defendants delivery of possession in respect of the suit land was not given to the Managing Trustee of the deity. The suit land has all along been in possession of the defendants on hereditary basis. Their further claim is that in a proceeding under section 41 of the Act which ended in a compromise, it was decided that the defendants would continue to remain in possession of the suit land on hereditary basis. Despite of such compromise, the plaintiffs have filed a series of litigations against the defendants but being unsuccessful in all those litigations, they have filed the present suit only to harass the defendants.