JAGANNATH MAHAPRABHU Vs. BHAGABAN DAS

JUDGEMENT

(1.) The point debated in this appeal is whether the properties in dispute are the absolute Devottar of the Deity Jagannath Mahaprabhu, pitf. l in the suit, or whether they are properties merely charged with service to the said Deity. Pltfs. 2 & 3, defts. 1 & 2, defts. 11, 12, 13 & 14 constitute members of a family whose common ancestor was one Bishuu Charan Das. These descendants of Bishnu Charan are described as marfatdars of the Deity, Sri Jagannath Mahaprabhu, & the suit properties have been described as Amrita Manhi of the said Deity who is pltf. l. The Settlement Records show that ever since the time of the Provincial settlement the suit properties, along with some other properties, were in the possession of the members of Bishnu Charan's family. They have also been accessively recorded in the three Settlement Registers as Amrita Manhi of Lord Jagannath. In the last Settlement, however, the marfatdars have been recorded as being in possession o5 seperate plots & it is not denied that the family which consists of three branches is in possession of different plots in three separate shares. The first deft. & the husband of the second deft. executed a permanent lease under Ext. A, dated 4-4-30 of 33 decimals of lands out of these properties in favour of defts. 8 & 9. On 4-4-92 the second deft, executed another permanent lease in favour of the same lessees by a deed, Ext. A 1 in respect of 17 decimals out of these properties. Between 1942 & 1944, again, defts. 1 & 2 executed two more leases, two kebalas & one usufructurry mtge. in favour of defts 3 to 7, 10 & 11. It would thus appear that defts. 3 to 11 are alienees from "defts. l & 2 of properties which have been admittedly recorded as Amrita Manhi in the name of pltf. l.

(2.) Pltfs. 2 & 3 instituted the suit out of which this appeal arises-claiming a declaration on behalf of pltf. 1 that the several alienations made by defts. 1 & 2 are not binding on the Deity, Jagannath Mahaprabhu, & praying for setting aside the alienations & for possession as a consequential relief. The suit was instituted on 244-44. Defts. 3, 8 & 9 are the only alienees who contested the suit, the other alienees having remained ex parte. The substantial contention raised on behalf of the contesting defts. was that the suit properties are not the devottar properties of the first pltf. & that the alienors have been treating them as if they were their own personal properties for over twelve years & that consequently their right to alienate them is not open to challenge.

(3.) Both the Cts. below have concurrently found that the suit properties constitute the Devottar properties of pltf. l. But in view of the fact that the properties were admittedly being used as personal properties by the members of the marfatdar's family, they gave a declaration that they are not absolute Davottar but are merely charged with service to the Deity. The pltfs' prayer for setting aside the alienations made by defts 1 & 2 was rejected on the view that the properties not being absolute Devottar, were alienable subject to the performance of service to the Deity with which they were charged. The pltfs. have come up in appeal to this Ct. against this decision.