BRAJA KISHORE JAGDAV Vs. LINGRAJ SAMANTARAY

JUDGEMENT

(1.) The respondents made a claim in respect of an institution Sri Sidha Baladev Jew, Bie-Sodharpur, P.O. Baku in the district of Puri; that the said institution had been established by some unknown founder the origin of which had been lost in antiquity and the institution has all along been treated as a public religious institution, that the respondents' ancestors were entrusted with the management of all the affairs of the said institution including seva-puja of the deity and possessing all the lands of the deity and such right of maintaining the institution was inherited by their heirs; that they have been rendering seva-puja to the deity as marfatdars without any intervention at any time whatsoever and therefore are in possession of all the properties of the deity, paying rents to the authorities in respect of the landed properties and from out of the usufruct received from the landed properties by their ancestors; that no property has been separately set apart and given to the marfatdars to be enjoyed by them in lieu of their service; that such right of inheriting the office of marfatdarship has been in practice since the time of the founder and is regulated by custom; that they have been functioning as marfatdars since the time of the founder till today and they have also been recognized as Hereditary Trustees by the Revenue and other authorities from time to time.

(2.) In the year 1955, the respondents claimed by filing an application under Section 64 of the Orissa Hindu Religious Endowments Act, 1939, that the institution of the endowments thereof to be their private property made by the respondents and contested by the appellant and others and the same was dismissed. Thereafter the matter went to the High Court in appeal and ultimately the decision of the lower Court was upheld and the appeal was disallowed. Another application under Section 42 of the Orissa Hindu Religious Endowments Act, 1951 (hereinafter referred to as 'the Act') was filed in the year 1959-60 which was also dismissed but for default. Thereafter a non-hereditary trust board was appointed under Section 68 of the Act and under whose control sevas are performed to the said deity. Another application was filed to adjudicate their claims as hereditary trustees under the Act on the basis of the pleadings set out earlier in this order. The appellant pleaded that by custom or otherwise the respondents were not ever treated as hereditary trustees of the institution.

(3.) Three issues were raised by the Assistant Commissioner as to (i) whether the petition was maintainable; (ii) whether the appellant is barred by the principle of res judicata; (iii) whether respondents are hereditary trustees. With regard to issue Nos. 1 and 2, he found in favour of the respondents. Thus the only issue remaining to be considered is whether the respondents are the Hereditary Trustees of Sri Sidhabaladev Jew of Village Sodharpur, P.O. Baku, District Puri. The Assistant Commissioner noticed that heavy burden lies upon respondents to establish that they are Hereditary Trustees of the institution of the deity since the time of the foundation of deity or is regulated by customs or specially provided by founder so long as such scheme is in force. He, in detail, considered the said aspect of the matter and came to the conclusion that respondents could only be marfatdars, that is, only servants of the institution, who are liable for dismissal in the event of non-performance of seva/puja of the deity and not Hereditary Trustees. He also noticed that even the respondents' case is that the institution of the deity and entrusting the management thereof had been lost in antiquity. Therefore some good material should have been produced by the respondents to establish their claim. On discussion of the other material on record the Assistant Commissioner rejected the claim made by the respondents. The matter was carried in appeal to the High Court and the High Court allowed the same. The basis upon which the High Court proceeded to hold the respondents as Hereditary Trustees is that there was material to show that the respondents are marfatdars and if they are marfatdars, they should be taken to be trustees. It was also held that since the origin of the temple was lost in antiquity, on principle of 'lost grant' the respondents should be deemed to be hereditary trustees.