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High Court Of Orissa
P. K. Mohanti, Ag. C. J. And B. K. Behera, J.
CHINTAMANI SAHOO (DECEASED BY LR.) - Appellant
Versus
COMMISSIONER OF ORISSA HINDU RELIGIOUS ENDOWMENTS - Respondent
Second Appeal 196 Of 1975
Decided On : 04/08/1983
VOID LEASE - ADVERSE POSSESSION - LIMITATION - ORISSA HINDU RELIGIOUS ENDOWMENTS ACT, 1939 - SECTION 58 - ARTICLE 65 OF THE LIMITATION ACT, 1963.
Fact of the Case:
The plaintiff acquired land from the Mahant of a Math through permanent lease deeds that were executed without the sanction of the Commissioner of Endowments. The Mahant was later dismissed, and the Executive Officer of the Math instituted proceedings under Section 68 and 25 of the Orissa Hindu Religious Endowments Act, 1951, for recovery of possession. The plaintiff filed a suit for a declaration of indefeasible tenancy rights and permanent injunction, while the Executive Officer issued notices to tenants demanding rent. The lower courts dismissed the plaintiff's appeals, holding that the leases were voidable but not void and that adverse possession started from the Mahant's dismissal.
Finding of the Court:
The High Court held that the permanent leases were void ab initio as they violated Section 58(1) of the Orissa Hindu Religious Endowments Act, 1939, which prohibited the grant of leases for more than five years without prior sanction. The Court found that Article 65 of the Limitation Act, 1963, applied to the case since the transfer was void ab initio, and the plaintiff's possession became adverse from the date of the transfer. The Court also held that the plaintiff had acquired an indefeasible right of tenancy by adverse possession and was deemed to be a tenant under the State Government by virtue of Section 8(1) of the Orissa Estates Abolition Act.
Issues: 1. Whether the permanent leases granted to the plaintiff were void or voidable? 2. Which Article of the Limitation Act, 1963, applied to the case: Article 65 or Article 96? 3. Whether the plaintiff had acquired an indefeasible right of tenancy by adverse possession?
Ratio Decidendi: 1. The Court held that the permanent leases were void ab initio as they were executed in violation of Section 58(1) of the Orissa Hindu Religious Endowments Act, 1939, which prohibited the grant of leases for more than five years without prior sanction. 2. The Court held that Article 65 of the Limitation Act, 1963, applied to the case since the transfer was void ab initio, and the plaintiff's possession became adverse from the date of the transfer. Article 96, which applies to voidable transactions, was not applicable. 3. The Court held that the plaintiff had acquired an indefeasible right of tenancy by adverse possession since he had been in possession of the land for more than 12 years from the date of the transfer, and the right to recover possession was extinguished by limitation.
Final Decision: The appeals were allowed, the decisions of the lower courts were set aside, and Title Suit Nos. 131 of 1970 and 62 of 1971 were decreed. The plaintiff was declared to have acquired an indefeasible right of tenancy under the Math by adverse possession, and the Commissioner of Endowments and the Executive Officer of the Mastaram Math were restrained from disturbing his possession. The defendants were restrained from paying house rent to anyone other than the plaintiff.
P. K. MOHANTI, J.
( 1 ) THE unsuccessful plaintiff is the appellant in both the Appeals which arise out of two confirming decrees passed by the learned Additional District Judge, Cuttack.
( 2 ) PLOT No. 145 comprising an area of 2. 135 acres was the nijdakhali land of the deity Sri Laxminarayan Jew instiled at Mastaram Math in the city Cuttack. Defendant No. 3 who was the Mahant of the Math executed three permanent lease deeds dt. 8-1-44. 26-7-43 and 15-7-44 (Exts. 5, 6 and 7) in respect of 0. 110 acre out of the said plot in favour of the plaintiff without the sanction of the Commissioner of Endowments. The plaintiff possessed the land from the respective dates of the leases and constructed house on the same. On 9-4-52, he sold away 0. 025 acre out of the land to one Bidei Jethi and delivered possession to him. The Mahant was dismissed in the year 1965. In 1967, the Executive Officer of the Math appointed by the Commissioner of Endowments instituted a proceeding under Section 68 of the Orissa Hindu Religious Endowments Act for recovery of possession, which was allowed on 19-9-68 and the plaintiff was directed to deliver vacant possession of the suit land. Aggrieved by this decision, the plaintiff preferred a revisional application before the Commissioner of Endowments. The Executive Officer had also instituted a proceeding under Section 25 of the Orissa Hindu Religious Endowments Act, 1951 before the Commissioner of Endowments for recovery of possession. Both the matters were heard together by the Commissioner of Endowments, who by his order Dt. 30-10-1969 allowed the revisional application of the plaintiff holding that the provisions of S. 68 of the Act were not applicable to the case. He also allowed the proceeding under Section 25 and directed issue of a requisition to the Collector of Cuttak for eviction of the plaintiff from the suit land. The Collector by his order dated 24-8-70 directed the Tahasildar to cause delivery of possession of the suit land to the Executive Officer in accordance with the provisions of Order 21, Rule 36, C. P. C. The Additional Tahasildar of Cuttack gave symbolical delivery of possession of the suit land to the Executive Officer on 27-9-70. Aggrieved by the Collector's order, the plaintiff brought a Title Suit No. 131 of 1970 for a declaration that he had acquired an indefeasible right of tenancy in respect of the suit land by his long uninterrupted possession for more than 12 years and was not liable to be evicted, for a permanent injunction restraining the defendants from disturbing his possession and for some other consequential reliefs.
( 3 ) THE Executive Officer of the Math, after taking symbolical delivery of possession, issued notice to the tenants (defendants 5 to 8 in T. S. No. 131 of 1970 and defendants 4 to 8 in T. S. No. 62 of 1971) demanding house rent from them, This led the plaintiff to file T. S. No. 62 of 1971 for a permanent injunction directing the tenants-defendants to pay rent to him and restraining them from paying rent to anybody else.
( 4 ) THE Executive Officer of the Math resisted both the suits contending, inter alia, that the leases were invalid and inoperative and were neither for legal necessity nor for the benefit of the deity. The Commissioner of Endowments who was impleaded as defendant No. 1 in T. S. No. 62 of 1971 filed a written statement supporting the stand taken by defendant No. 2, the Executive Officer.
( 5 ) THE trial court, on a consideration of the evidence led by both the parties, held that the leases were neither for legal necessity nor for the benefit of the deity and were voidable but not void, The plaintiff was found to be in possession of the suit land from the respective dates of execution of the leases; but his claim of acquisition of title by adverse possession was negatived.
( 6 ) THE lower appellate court maintained the findings of the trial court that the permanent leases granted in favour of the plaintiff were neither for legal nece
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