IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.76 of 1997 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Kalia Sethy (dead) and others …. Appellants -versus-

Sri Sri Balaji Mahaprabhu ..... Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

For Appellants - Mr. S.S. Rao, Sr. Advocate.

assisted by Mr. B.K. Mohanty, Advocate.

For Respondent- None CORAM:

HON’BLE MR. JUSTICE A.C.BEHERA Date of Hearing :12.03.2025 :: Date of Judgment :03.04.2025 A.C. Behera, J. This second appeal has been preferred against the reversing judgment.

2. The appellants in this second appeal were the defendants before the Trial Court in the suit vide T.S. No.115 of 1973 and respondents before the First Appellate Court in the First Appeal vide T.A. No.105 of 1977 (82/1980).

The respondent-Deity in this second appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.115 of 1973 and appellant before the First Appellate Court in the First Appeal vide T.A. No.105 of

1977 (82/1980).

3. The suit of the plaintiff-Deity (respondent in the second appeal) vide T.S. No.115 of 1973 against the defendants (appellants in the second appeal) was a suit for injunction simpliciter.

4. According to the case of the plaintiff-Deity, the suit properties are the properties of the plaintiff-Deity and the usufructs/products of the said properties are used as the feeding of the “Abhyagats” from the “Prasad”

offered to the plaintiff-Deity.

In the year 1940, the father of the defendant Nos.1 & 2 and uncle of the defendant No.3 i.e. Raghu Sethi was engaged as Bhag chasi (Bhag tenant) in respect of the suit properties by the plaintiff-Deity and accordingly, Raghu Sethi was cultivating the suit properties on Bhag basis and he was providing the Bhag of the products of the suit properties to the plaintiff-Deity. That Raghu Sethi died in the year 1962. After the death of Raghu Sethi, the plaintiff-Deity through its marfatdar kept the suit properties for personal cultivation of the Deity engaging labourers.

When in the year 1971, the marfatdar of the plaintiff-Deity became ill and undergone treatments at Berhampur Hospital, during that time, taking advantage of the absence of the marfatdar from the village, the defendant No.3 tried to create disturbances in the suit properties. For which, a proceeding under Section 144 of the Cr.P.C., 1973 was started and thereafter, the said proceeding under Section 144 of the Cr.P.C. was converted to a proceeding under Section 145 of the Cr.P.C., 1973. Subsequently, the said proceeding under Section 145 of the Cr.P.C. was dropped and R.I., Jakar Firka was appointed as a receiver of the suit properties. For which, the plaintiff-Deity filed the suit against the defendants praying for restraining them (defendants) from entering into the suit properties and from creating disturbances in the peaceful possession of the plaintiff-Deity in the suit properties.

5. Having been noticed from the Trial Court in the suit, the defendants challenged the same by filing their joint written statement taking their stands inter alia therein denying the averments made by the plaintiff-Deity in its plaint that, Raghu Sethi (father of the defendant Nos.1 & 2) and Brundaban Sethi (father of the defendant No.3) were cultivating the suit properties originally as raiyats having their occupancy right in the same and they were in cultivating possession of the suit properties throughout. After the death of Brundaban Sethi, his son i.e. defendant No.3 Budhia Sethi inherited the tenancy right of his father Brundaban Sethi in the suit properties and he (defendant No.3 Budhia Sethi) jointly cultivated the suit properties with Raghu Sethi. Subsequently, the suit properties were divided between them i.e. between their two branches into two equal shares. Accordingly, the defendant No.3 was cultivating half and the father of the defendant Nos.1 & 2 i.e.

Raghu Sethi was cultivating half of the suit properties according