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1972 Supreme(Ori) 151
IN THE HIGH COURT OF ORISSA
S. Acharya., J.
KASI MAHARANA - APPELLANT
Versus
PANDIT RADHAKRISHNA CHOWDHURY - RESPONDENT
Second Appeal No. 192 of 1969 (From a decision of Shri P. Jena, Subordinate Judge, Aska dated 24-2-1969 in T.A. No. 19 of 66, confirming a decision of Shri J.K. Mohapatra, Munsif, Aska dated 1-9-1965 in T.S. No. 73 of 64)
Decided On : 08-09-1972
R. Mohanty, Advocate, for the Appellants; S.C. Roy, Advocate, for the Respondents
A worshipper of a Hindu temple is entitled to bring a suit for a declaration that the alienation of the temple properties by the de jure Shebait is invalid and not binding upon the temple, if the Shebait has improperly alienated trust property.
Headnote:
HINDU LAW - TRUST - ALIENATION OF TRUST PROPERTY - SUIT FOR DECLARATION THAT ALIENATION IS INVALID - MAINTAINABILITY - BY WHOM - WORSHIPPER OF TEMPLE - WHETHER ENTITLED TO BRING SUIT - CIRCUMSTANCES IN WHICH SUIT CAN BE BROUGHT.
Fact of the Case:
Plaintiff, the de facto Manager of a Hanuman Math, filed a suit for a declaration that the properties described in schedules A and B of the plaint are not the properties of defendants 1 and 2 but belong to the Hanuman Math and defendant no. 3 respectively. He also sought the removal of superstructures constructed on the lands in schedules A and B of the plaint to restore the flow of water through the Nala adjacent to the north of the Math.
Finding of the Court:
The trial Court and the appellate Court found that defendant no. 2 did not have any right or title to the land in question and he was legally not entitled to transfer the same to defendant No. 1, and consequently he (defendant no. 1) has not acquired any right, title or interest on the same.
Issues: 1. Whether the plaintiff, as the de facto Manager of the Hanuman Math, has the legal capacity to institute the suit for a declaration that the alienation of the Math property by defendant no. 2 to defendant no. 1 is invalid and not binding upon the Math? 2. Whether a worshipper of a Hindu temple is entitled to bring a suit for a declaration that the alienation of the temple properties by the de jure Shebait is invalid and not binding upon the temple?
Ratio Decidendi: 1. The plaintiff, as the de facto Manager of the Hanuman Math, has the legal capacity to institute the suit for a declaration that the alienation of the Math property by defendant no. 2 to defendant no. 1 is invalid and not binding upon the Math. 2. A worshipper of a Hindu temple is entitled to bring a suit for a declaration that the alienation of the temple properties by the de jure Shebait is invalid and not binding upon the temple, if the Shebait has improperly alienated trust property.
Final Decision: The second appeal succeeds in part. The declaration that defendant no. 2 had no right, title and interest to the land in question and he was not legally competent to alienate the said property in favor of defendant no. 1, and defendant no. 1, by the said alienation, has not acquired any right, title or interest to the said property and that defendant no. 1 was not legally competent to put up the complained construction on the land in question and the said construction, obstructing the flow of water on the above-mentioned Nala, is liable to be removed, is maintained. The second part of the relief granted in this suit, which entitles the plaintiff to take steps for delivery of possession of the plaint A schedule properties on behalf of the Math and also for the removal of the superstructure over the plaint B schedule land is set aside.
JUDGMENT :
S. Acharya, J. - Defendant nos. 1 and 2 have preferred this second appeal against the confirming decision of the learned Subordinate Judge, Aska in Title Appeal No. 19 of 66.
2. The plaintiff has filed the suit for a declaration that the properties described in schedules A, and B, of the plaint are not the properties of defendants 1 and 2 but they belong to the Hanuman Math and defendant no. 3 respectively. In this suit it is prayed that the super structures constructed on the lands in schedules A and B of the plaint be removed in order to restore the flow of water which was all along flowing through the Nala adjacent to the north of the Math. The relevant portion of the plaintiff's case, in short, is that he is the de facto Manager of the Hanuman Math established by his father on portion of land in S. no. 2259 in village Hinjli about 35 years prior to the institution of the suit. In the year 1942 the plaintiff's father executed a settlement deed by which he divided the properties belonging to and in his possession into three shares and gave one share each to the plaintiff and defendant no. 2 (his brother) and the third share was dedicated to the deities in the Math. The plaintiff and defendant no. 2 in accordance with the above settlement occupies two houses to the south of the house of the deities within the precincts of the Math. There was a water passage adjacent to the north of the Math land through which water from the Madhakhei hill in the neighbourhood was all along flowing out to the southernmost precincts of the Math. Defendant no. 2, who is living in the southernmost house within the Math precincts, is falsely and fraudulently setting up title to a portion of land to the north of his house within the precincts of the Math, and with the active help and support of the village Karanam he has got a patta for that portion of land and also a portion of the land on which the said Nala was flowing. In 1960 defendant no. 2 sold the aforesaid portion of land to Kasi Mabarana, defendant no. 1. Defendant no. 1 thereafter started constructing a house over that portion of the land sold to him by defendant no. 2, which caused obstruction to the flow of water through the aforesaid Nala. As the construction work has been effected, rain water from the adjoining hill is diverted towards the Math and is causing damage to the Math and the houses adjoining the same. It is asserted that defendant no. 2 obtained the aforesaid Patta by fraudulent means and has transferred the aforesaid portion of land in favour of defendant no. 1 in misuse of the confidence reposed on him by the Math, and he has no title to the said land. Mostly on the above basis this suit is filed mainly for the removal of the super structures constructed by defendant no. 1 on the aforesaid portion of land and to restore that portion of the land including the Nala to its original position.
3. Defendant no. 1 in his written statement alleged that the plaint schedule B, property was in the enjoyment of defendant no. 2, who represented to defendant no. 1 that he had good title to that portion of the, land. On that representation defendant no. 2 sold that property to defendant no. 1 on 10-4-1960 for a valuable consideration of Rs. 800/-. It is also averred that defendant no. 1 after purchasing the same from defendant no. 2 has raised a house on that portion of the land with an expenditure of Rs. 700/-. It is alleged that the schedule B, land belongs to the Government and it was never in the possession of the Math, and defendant no. 2 had acquired title to the same by adverse possession. So by the aforesaid purchase defendant no. 1 has acquired good title to the aforesaid portion of land and as such he cannot be evicted therefrom. It is also alleged that there was no water channel on the aforesaid portion of land and he has not constructed his aforesaid house on any water channel.
4. Defendant no. 2 in his written statement has alleged that there was no water channel on
