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HIGH COURT OF ORISSA
S.P.MOHAPATRA,S.BARMAN, JJ.
Govinda Jiew Thakur
Versus
Surendra Jena
First Appeal No. 32 of 1953
Decided On : 26-04-1960
LIMITATION ACT - ART. 134-B - APPLICABILITY - VOID AB INITIO TRANSFER - ADVERSE POSSESSION - DEITY'S PROPERTY - TITLE - PROOF.
Fact of the Case:
Plaintiffs, representing a deity, sought a declaration of title and recovery of possession of disputed properties, alleging that the properties were endowed to the deity and that the defendants, who claimed title through sale deeds executed by the deity's former Mahant, were in possession without legal right. The defendants contended that the properties were not debottar properties and that the deity did not exist. The main defense was that the suit was barred by limitation.
Finding of the Court:
The court found that the properties were indeed debottar properties belonging to the deity and that the sale deeds were executed by the Mahant in his personal capacity, not on behalf of the deity. However, the court also found that the defendants had been in possession of the properties since the date of the sale deeds, more than 12 years before the suit was filed. The court held that the transfers were void ab initio and that the defendants' possession was adverse from the beginning, making the suit barred by limitation under Article 134 of the Limitation Act.
Issues: 1. Whether Article 134-B of the Limitation Act applies to cases where the transfer of endowed property is void ab initio? 2. Whether the defendants' possession of the disputed properties was adverse from the date of the sale deeds? 3. Whether the plaintiffs had established their antecedent title to the properties?
Ratio Decidendi: 1. Article 134-B of the Limitation Act applies only to cases where the transfer of endowed property is voidable, not void ab initio. A transfer is void ab initio if the manager acts in negation of the trust, such as by selling the entire endowment or by asserting personal ownership of the property. In such cases, the transferee's possession is unlawful from the beginning, and limitation runs from the date of transfer. 2. The defendants' possession of the disputed properties was adverse from the date of the sale deeds because the transfers were void ab initio. The defendants were not acting as representatives of the deity but were asserting their own personal ownership of the properties. 3. The plaintiffs failed to establish their antecedent title to the properties because the deity's name did not appear in any of the settlement records or in the sale deeds. The only evidence of the deity's title was a Robkari record from 1842, but the court found that it was not clear that the properties described in the record were the same as the properties in dispute.
Final Decision: The court dismissed the plaintiffs' suit, holding that it was barred by limitation and that the plaintiffs had failed to establish their antecedent title to the properties.
Judgement
MOHAPATRA, J. :- The plaintiffs are the appellants in the First Appeal against the judgment and decree passed by Sri B. Misra, Subordinate Judge of Balasore, arising out of a suit for declaration of title of the deity Govinda Jiew Thakur, plaintiff No. 1 and for recovery of possession of the disputed properties with an acreage 19,99 acres. Plaintiff No. 1, the deity, is situated in Bhadrak and plaintiffs 2 and 3 are the trustees representing the deity and were appointed as trustees by the Endowment Commissioner.
The contesting defendants 1 to 18 are the transferees in respect of the disputed properties on the basis of three sale-deeds and all of them being of 22nd January, 1927. One of the sale deeds was in favour of defendants 1 to 3 that is, Jena transferees; the second one was in favour of the defendants 4 to 8, that is Rout transferees; and the third was in favour of defendants 9 to 18, that is, Misra transferees.
Defendant No. 19 is the Ex-Mahant who has since been removed and plaintiffs 2 and 3 have been appointed as trustees by the Endowment Commissioner. The plaintiffs case is that the properties in dispute are the endowed properties belonging to the deity, plaintiff No. 1. Defendant No. 10s father Chandra Sekhar executed a mortgage transaction on 6th April, 1908, (Ext. B) in respect of 17 acres and 68 decimals in favour of Bandhu Misra, that is, the ancestor of defendants 9 to 18.
There was also a second mortgage dated 19th February, 1909, in respect of 20 acres of the endowed properties in favour of the ancestor of defendants 4 to 8. On 22nd January, 1927, Defendant No. 19 Durgacharan being represented by mother guardian Hara Dasi executed these three sale deeds (Exts. A, G and I) as personal properties belonging to Durgacharan. As these transactions are not binding upon the deity, the plaintiffs prayed for declaration of title and recovery of possession.
2. The defence is to the effect that the properties are not debottar properties and further there is no such deity in existence as Govinda Jiew. But the main point taken by the defence was the point of limitation on the assertion that the transferees were in possession of the properties for all times since the year 1927. It is to be noted that the present suit was filed on the 2nd September, 1950. The plaintiffs also came with a case that the three transactions which are sought to be impugned in the present suit are Benami transactions and that no consideration passed and that they were not supported by legal necessity.
3. The learned Court below has found that the properties in dispute are really the absolute debottar properties and the deity is a public deity. The Kabalas clearly show that they were executed by the mother as guardian of defendant No. 19 in personal capacity and not on behalf of the deity. Necessarily the transactions cannot be deemed to be for legal necessity of the deity. The learned Subordinate Judge found that the transactions were for valuable consideration and they were executed for payment of previous debts. The suit has been dismissed mainly on the grounds of limitation.
4. The learned Subordinate Judge found that the case was governed by Art. 134 and not by Art. 134-B of the Indian Limitation Act. Mr. S.C. Das appearing on behalf of the plaintiff-appellants, strongly contends that the case is governed by Art. 134-B; and if it is found that the case is not governed by Art. 134-B, his clients are out of court. I would mention that the learned Subordinate Judge has come to this finding on a discussion of the evidence on record that not only the plaintiffs have failed to prove possession but it is clear from the entire evidence on record that the defendants (transferees) were in possession of the disputed properties ever since the date of Kabalas.
Very fairly Mr. Das does not contest the folding of the learned Subordinate Judge, and on a perusal of the records it is clear that this finding could not be challenged. The witnesses relied upon
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