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Orissa High Court
S.K.RAY,R.N.MISRA
Nityananda Panigrahi - Appellant
Versus
Basudeb Patra - Respondent
Second Appeals Nos. 584 to 590 of 1964
Decided On : 02/13/1970
HINDU RELIGIOUS ENDOWMENTS - ALIENATION - VALIDITY - MADRAS ACT 1 OF 1925 - ULTRA VIRES - REPEAL - EFFECT - MADRAS ACT 2 OF 1927 - SECTION 7 - SAVING CLAUSE - SCOPE - JURISDICTION OF CIVIL COURT - SUIT FOR DECLARATION OF TITLE AND RECOVERY OF POSSESSION - MAINTAINABILITY - SECTIONS 41 AND 73 OF ORISSA ACT 2 OF 1952 - ADVERSE POSSESSION - LIMITATION - SECTION 134-B OF THE FIRST SCHEDULE OF THE LIMITATION ACT, 1908.
Fact of the Case:
The plaintiffs filed suits for a declaration that the order of the Assistant Commissioner of Hindu Religious Endowments was illegal and not binding on them and for recovery of the disputed properties. The defendant No. 1, who was the President of the Board of Trustees of Srichaitanya Math, contended that the lands in question belonged to the math and the transfer was subsequent to the coming into force of the Madras Hindu Religious Endowments Act (Act 1 of 1925). As the alienation was without the sanction of the Board constituted under the Madras Act 1 of 1925 the alienation was invalid. The property belonged to the math and was, therefore, not transferable. It was also contended that there was no legal necessity to justify the transfer. Defendant No. 1 further took the stand that the proceeding under Section 68 of the Orissa Hindu Religious Endowments Act was maintainable and possession has been properly taken.
Finding of the Court:
The court held that Madras Act 1 of 1925 was ultra vires the Government of India Act, 1915 and was not a valid piece of legislation. The liability created under Section 72(1) of Madras Act 1 of 1925 was not saved by the subsequent legislation. The present suits were maintainable in the civil court and the lower appellate court rightly went into the matter and came to find that the Assistant Commissioner of Endowments had exceeded his jurisdiction while acting under Section 68 of Orissa Act 2 of 1952. The present suits are not barred by limitation.
Issues: 1. Whether Madras Act 1 of 1925 was intra vires or not? 2. Whether that Act had ever come into force? 3. What was the effect of repeal of the said Act by Madras Act 2 of 1927? 4. Whether the jurisdiction of the Civil Court to decide as to whether a particular property belongs to the religious endowment or not could be decided by the civil court in view of the provisions contained in Sections 41 and 73 of Orissa Act 2 of 1952? 5. Whether the Assistant Commissioner had jurisdiction to deliver possession under Section 68 of the Act or his action was without jurisdiction; 6. Whether the plaintiffs can be taken to have acquired title by adverse possession in the present case.
Ratio Decidendi: 1. Madras Act 1 of 1925 was ultra vires the Government of India Act, 1915, as it was not passed in accordance with the procedure prescribed by the Act. The Act was repealed by Madras Act 2 of 1927, which was a valid piece of legislation. 2. The liability created under Section 72(1) of Madras Act 1 of 1925 was not saved by the subsequent legislation, as Section 7 of Madras Act 2 of 1927 only saved actions taken and things done under the repealed Act, and did not save the embargo on alienation of math property without the sanction of the Board. 3. The present suits were maintainable in the civil court, as the jurisdiction of the civil court to decide whether a particular property belongs to a religious endowment is not barred by Sections 41 and 73 of Orissa Act 2 of 1952. Section 41 of the Act only provides for the determination of disputes relating to the administration of religious endowments, and does not include disputes relating to the title to property. 4. The Assistant Commissioner of Endowments exceeded his jurisdiction while acting under Section 68 of Orissa Act 2 of 1952, as the plaintiffs were in possession of the disputed properties in good faith on their own account and were not claiming under an alienation contrary to the provisions of the Act. 5. The present suits are not barred by limitation, as the plaintiffs had acquired title to the disputed properties by adverse possession.
Final Decision: The Second Appeals were dismissed and the judgment of the lower appellate court was upheld.
Judgement
R. N. MISRA, J. :- These seven appeals have been directed at the instance of defendant No. 1 against a reversing judgment and separate decrees passed by the learned Additional Subordinate Judge of Berhampur in suits for a declaration that the order of the Assistant Commissioner of Hindu Religious Endowments was illegal and not binding on the plaintiff and for recovery of the disputed properties.
2. Seven separate suits were filed, but in view of the fact that the defendants were common and common questions of fact and law arose, the suits were made analogous in the original and the lower appellate courts. One common judgment was delivered in the appellate court and in this Court the Second Appeals have been made analogous also.
3. One Basudeb Patra purchased certain properties under a registered sale deed dated 11-8-26 (Ext. 1) from the original defendant No. 2 who happened to be the Mahant of Srichaitanya Math. In the family of Basudeb the properties acquired under Ext. 1 came to be partitioned subsequently and the members of his family along with him were allotted shares in such properties. Basudeb himself is the plaintiff in T. S. No. 148 of 1959 and the other members of his family who acquired absolute interest in portions of such properties are each the paintiff in the remaining suits. The case made out by the paintiff in each suit was that the suit lands located in village Hatiotto being a part of what is locally known as "Dutia Chakada" or second block of the Inam lands of the village originally belonged to Gopabandhu Misra and others of Jamadevipur. Subsequently these lands which came to be later known as "Hanumantha Tangiri" were purchased by one Mahant Radhakrishna Das and out of his own personal funds and continued to be treated as his personal property separate from the assets of the math. After Radhakrishna Das, defendant No. 2 succeeded to the properties and in order to meet personal liabilities as also certain math expenses defendant No. 2 who had earlier borrowed money from one Dasarathi Patra, elder brother of Basudeb, by mortgaging the suit properties along with other lands sold the disputed lands for a sum of Rs. 8000/- on 11-8-26 and thereby obtained release of the remaining property and liquidated the mortgage debt. In partition different portions of the property came to be allotted to the different members of the family and each of the plaintiffs came to possess his specific portion shown in the schedule in each of the suits. In the recent record-of-rights the respective suit lands were shown in the Pattas issued to each of the respondents plaintiffs.
Defendant No. 1 came to be appointed as the President of the Board of Trustees of Srichaitanya Math some years before the suit and after his appointment he moved under Section 68 of the Orissa Hindu Religious Endowments Act (2 of 1952) and obtained an order from the Assistant Commissioner of Endowments for delivery of possession of the lands. Before the Assistant Commissioner the plaintiffs had resisted the application on various grounds including the one that they were in possession bona fide on their own account. Possession was, however, illegally ordered to be delivered and such delivery was effected. The plaintiffs filed a writ application before this Court in O. J. C. No. 326 of 1956 which, however, was disposed of by indicating that it was open to the plaintiffs to file a suit if they were so advised. Thereafter the present suits were filed.
4. Defendant No. 2 did not enter appearance. Defendant No. 1 who alone contested the suit took the stand that the lands in question belonged to the math and the transfer was subsequent to the coming into force of the Madras Hindu Religious Endowments Act (Act 1 of 1925). As the alienation was without the sanction of the Board constituted under the Madras Act 1 of 1925 the alienation was invalid. The property belonged to the math and was, therefore, not transferable. It was also contended that there was no lega
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