BAKRESWAR MAHADEB Vs. BRAJABANDHU BISWAL

JUDGEMENT

(1.) DEFENDANTS 1 and 4 are the appellants against the judgment of the District judge of Cuttack partly decreeing the plaintiffs' suit.

(2.) THE plaintiffs' case is as follows : --Defendant No. 1 Bakreswar Mahadeb is the deity; defendants 2 and 3 are the deity's hereditary marfatdars and defendant No. 4 was appointed as the trustee by the Endowment Commissioner (defendant 5)under section 27 of the Orissa Hindu Religious Endowments Act, sometime in 1950, and since then defendants 2 and 3 ceased to be the hereditary marfatdars of defendant No. 1. For the legal necessities of the deity. Shiva Raul and Panu raul, the father of defendant No. 3, the then marfatdars of defendant No. 1, sold a portion of the land comprised in lots 1 and 3 of the schedule attached to the plaint. Lot No. 1 consists of plot No. 1438 with an area of 1. 13 acres and plot No. 1900 with an area of 1. 02 acres in the village Tulang in Bajiapty madhyaswatwadhikari Khata No. 432, lot 3 consists of Plot No. 86 with an area of 0. 40 decimals in mouza Natasinghpur in Bajiapti Sthitiban Khata No. 18. The sale was for Rs. 400/- under a registered sale deed dated 19-9-1921 (Ext. 3)in favour of plaintiff No. 1 and Ramkrushna Biswal, the deceased father of plaintiffs 2 and 3. The plaintiffs' case is that they acquired exclusive title to the property in suit by adverse possession. As per terms of Ex. 3 the vendees were to pay rent to the landlord direct and were also to spend eight annas annually for the jagar Amabasya ceremony of defendant 1. It is to be made clear here that the admitted case of the parties is that the transfer under Ex. 3 was not by all the marfatdars or by any of the managing marfatdars but by some of the marfatdars of the deity. By another registered sale-deed dated 23-2-1933 (Ext. 3/a) for Rs. 22/- defendant no. 2 Chemi Roul, another hereditary marfardar of defendant 1, sold another portion of Lot 1 to the plaintiff 1 and Ramkrushna Biswal, the deceased father of plaintiffs 2 and 3. Under the terms of Ex. 3/a the vendees were to pay rent to the landlord direct and were to spend one anna annually for the Makar Sankrant offerings of the deity. In the settlement of the year 1931 the plaintiffs were recorded in respect of the lands covered by Ex. 3 as co-marfatdars of the deity with one of the previous hereditary marfatdars, Chemi Roul (vide Ex. 2/b ). The plaintiffs claim that they are in possession of the lands in dispute in their own right and that they are discharging their obligations on the basis of the sale deeds by defraying the expenses of Jagar Amabasya and Makar Sankranti. Sometime in 1951 defendant No. 4, after becoming the trustee, made an application under Section 59 of the Orissa Endowments Act, 1939 for taking possession of the lands recorded in the name of the deity, defendant No. 1, and delivery of possession was effected despite objections of the plaintiffs on a finding by the Endowments Commissioner that the plaintiffs merely purchased the marfatdari interests of the hereditary marfatdars and not the interests of the deity in the suit lands. The plaintiffs accordingly filed the present suit on 14-11-1952 for declaration of their title with confirmation of possession, or in the alternative for recovery of possession, if they are found to have been dispossessed.

(3.) DEFENDANTS 2 and 3, the original marfatdars, were set ex parte. Defendants 1, 5 and 4 filed written statements traversing identical grounds. The essence of the defence contention is that the transfers were not for legal necessity and the plaintiffs purchased the marfatdari rights and were so recorded in the settlement and the lands continued in the name of the deity with the plaintiffs as the marfatdars; and as Marfatdars the plaintiffs cannot set up any hostile title against the deity.