SANKARI PRASAD MUKHERJI Vs. CHANDRA SEKHAR MUKHERJI

JUDGEMENT

(1.) This is an appeal by the defendants from a decree of reversal in a suit for declaration that the properties mentioned in 'ka' and 'ga' schedules to the plaint are absolute debutter properties of the deity Shree Shree Chandrachur Shiv Thakur and that the plaintiffs have joint shebaiti right with the defendants in such properties and tor permanent injunction restraining the defendants from interfering with the plaintiffs joint possession thereof. 'Briefly stated the plaintiff's case is this. One Kamini Dasi of a barbar family of Talalpur having 2/3rd share in ka' and 'kha' schedule properties absolutely dedicated her state to the deity Shree Shree Chandrachur Shiv Thakur by a registered deed of Arpannama dated 29th Magh 1311 B.S. and appointed Purna Chandra Banerji of Memari as shebait of the deity to perform sheba puja out of the usufruct of such property. Rakhal Chandra Nai who had the remaining 1/3rd share in such properties also made an absolute dedication of his share in favour of the said deity orally and entrusted the sheba puja of the deity to the same shebait Puma while exercising his shebaiti right and performing his spiritual duties died leaving his only son Satya Charan who inherited shebaiti right and performed the sheba puja of the deity ml he became old. Thereafter, as ha laced great difficulties in performing the sheba puja of the deity daily alter coming to Tatalpur from his village Memari he brought his brother -in -law Nagendra Mukhopadhya from his village Kuiingram to Tatalpur and entrusted to him the duties of performing the Sheba puja of the deities. Subsequently being satisfied with his performance Satya Charan transferred his shebaiti right in 'ka' and kha' schedule properties to Nagendra by a registered deed of transfer dated 12th Bhadra 1321 B S with the stipulation that he and his heirs and successors in interest would perform the sheba puja of the deity from generation to generation out of the usufruct of such property Nagendra functioned as shebait of the deity for over 50 years. But he transferred portions of 'ka' 'kha' schedule properties without legal necessity to different persons treating them as his secular properties Nagendra thereafter, orally dedicated his own property mentioned in 'ga' schedule to the plaint to the same deity absolutely and applied income from such property to the sheba puja of the deity subsequently by a registered document dated 5th Kartick 1374 B S. (23.10. 1967) Nagendra purported to nominate the defendants who are two out of his four sons as shebait of the deity in respect of 'ga' schedule property excluding the plaintiffs who are his other to sons. But Nagendra remained shebait of the deity till his death which took place in 1377 B. S. Thereafter, the plaintiff and the defendants jointly possessed the 'ka' and 'ga' schedule properties and performed sheba puja of the deity as shebaits but since Ashar 1380 B.S. the defendants taking advantage of the aforesaid document dated 23. 10. 67 an erroneous entry in the C.S. and R S. records threatened to interfere with the plaintiffs' joint possession of the disputed 'ka' and 'ga' schedule properties. Hence the suit.

(2.) The defendants In their written statement have denied the material averments made in the plaint. The substance of the case is that Purna Chandra Banerji was shebait of Shree Shree Mahadeb Shiv Thakur of the barbar family of Tatalpur who dedicated 'ka' and 'kha' schedule properties for performance of sheba puja of the said daity, which was installed in the house of Kamini Dasi that the said house collapsed and the idol got buried that after the death of Puma his son Satya Charan in order to save such properties from being made khas by the landlord created the sham document dated 12th Bhadra 1321 B.S. purporting to declare the 'ka' and 'kha' schedule pro parties as debutter properties of Shree Shree Chandrachur Shiv Thakur and transferred the shebaiti right in favour of Nagendra Thereafter Nagendra possessed such properties and acquired title thereto by adverse possession. Nagendra's father Akshoy had come to Tatalpur and acquired 'ga' schedule property which was inherited by Nagendra who consecrated the deity Shree Shree Chandrachur Shiv Thakur and installed it in a temple constructed by him on Plot No. 164. Nagendra made a partial dedication of 'ga' schedule property in favour of the said deity which is different from the deity Shree Shree Mahadeb Shiv Thakur of the barbar family and became its founder shebait. He legally nominated the defendants as shebaits of the delty in respect of 'ga' schedule property and the plaintiffs having no shebait right in the disputed properties, the suit is liable to be dismissed.

(3.) The trial court has held that the disputed properties are the absolute debutter properties of Shree Shree Chandrachur Shiv Thakur established by the barbar family of Tatalpur and that Purna Chandra Banerji was shebait of the daity and was succeeded by his only son Satya Charan. But according to the learned Munsif Satya Charan had no right to transfer the shebaiti right to Nagendra Mukhopadhya to whom both parties claimed such right, in that view the learned Munsif has dismissed the suit In appeal the learned Subordinate Judge has held that the transfer to the shebaiti right by Satya Charan to Nagendra for pressing necessity and in the interest of deity is valid. The first appellate court has found that the plaintiffs' case has been sufficiently established and that the defendants have failed to prove their allegations. So, it has reversed the decision or the trial court and decreed the suit.