DINABANDHU PANDA Vs. KULAMANI DAS

JUDGEMENT

(1.) The opposite parties in a proceeding under Section 41 of the Orissa Hindu Religious Endowments Act, 1951 are in appeal against a concurrent decision. Their case is for declaration that Billoma Thakurani, Mangomea Thakurani and Sri Nilakantheswar Mahadeb of village Samagol are public deities, as envisaged under the Act and the properties described in the schedule consist of religious endowment of the said deities. The Sandhu Raja family of Kujans installed the deities and endowed the schedule lands for the Seva Puja and maintenance of the deities. The Raja of Burdwan took over the Kujang estate in a public auction and he was recorded as the Marfatdar of the deities. When the Zamindari was abolished in 1951, the Raja of Burdwan no longer looked after the Seva Puja of the deities and since then the Hindu public are managing the Seva Puja. Opposite Party No. 2 was a Sevak of the deities on salary basis and he was performing the Seva Puja and managing the affairs of the deities on behalf of the public and he was possessing the lands in question for performing the aforesaid Seva Puja. He fraudulently got a document executed from the Raja of Burdwan (Ext. B) in his favour as well as in favour of his friends and relations. It is contended that the temples of the deities are public temples. The members of the public pav Darshan, offer Bhog and participate in the festivals by paving contribution. Opposite party No. 1, the Raja of Burdwan, did not contest the proceeding and remained ex parte. Opposite Party Nos. 2 to 8 only contested and their case is that the deities as well as their properties are the private properties of the Raja of Burdwan. For proper Seva Puja of the deities, the Raja of Burdwan transferred the deities and also the properties by a deed of gift dated 3-111964 under Ext B to these opposite parties for management of the affairs of the deities as well as the properties. Since that time, these opposite parties by their own right are treating the deities as well as the properties as their private. They have claimed to be the hereditary trustees of the deities, in case the deities are declared to be public deities.

(2.) The learned Assistant Endowment Commissioner as well as the Commissioner of Endowments have concurrently held that the deities are public deities and the properties belonging to the deities were never the private properties of the Raja of Burdwan and are public endowments. The deities and the properties belonging to the deities were never the private properties of the Raia of Burdwan and the claim of the opposite parties 2 to 8 that the deities as well as the properties are their private has been negatived.

(3.) Undisputedly, the burden of proof lies on the person claiming the institution to be private according to the Proviso to Section 41 of the Orissa Hindu Religious Endowments Act. The opposite parties, who, according to the members of the public were the Sevaks, but claimed to be the owners and possessors of the deities and their properties, have to establish that the deities and the properties were the private of Raia of Burdwan, opposite party No. 1, and by virtue of Ext, B opposite party Nos. 2 to 8 have acquired the right to the deities and are treating the properties of the deities as the their own. Opposite party No. 1, the Raja of Burdwan, does not contest the claim of the petitioners. Therefore, the case of the opposite parties 2 to 8 is based on Ext. B, a document of the year 1964 -- admittedly after vesting of the estate, Undisputedly also, the Raja of Burdwan was the owner of the estate by virtue of purchase in an auction and there is no dispute that the estate has already vested in the year 1951 and the properties vested in the State Government. By the time Ext. B came into existence (in the year 1964), the properties were never the properties belonging to the ex-landlord. Therefore, unless and until opposite parties Nos. 2 to 8 establish that the deities and the properties were the private properties of the Raja of Burdwan and the Raja transferred all his interests absolutely to opposite parties Nos. 2 to 8, to enjoy the same full and exclusively, they cannot claim that these endowments are their private properties. The contents of Ext. B also do not show that the endowment properties have been exclusively given to opposite parties 2 to 8 without attaching any rider or condition. The Commissioner of Endowment has declared the institution and the properties as public on the ground that the temples are situated in the fields, away from the village. The Raja of Burdwan was an absentee and was not performing the Seva Puja of the deities and he had no right to transfer the deities and the properties in the year 1964, The Raja of Burdwan also does not dispute the claim of the petitioners.