BANAMALI MOHAPATRA Vs. GOPINATH JEW

JUDGEMENT

(1.) DEFENDANTS are appellants, in this Second Appeal, from a reversing decision of the learned Second Additional Subordinate Judge of Cuttack, whereby he set aside a decision of the learned Munsif, Athgarh, and decreed, in part, the plaintiffs' suit for recovery of Rs. 1680/- as collections realised by the defendants as alleged marfatdars in the circumstances hereinafter stated.

(2.) THE relevant facts shortly stated are these: The plaintiff No. 1 is a deity and plaintiff No. 2 is a hereditary trustee of the said deity. The defendants appellants herein claim as Marfatdars of the said deity. On August 16, 1943 the defendants as the then Marfatdars were dismissed. On June 6, 1944 the plaintiff No. 2 was appointed Marfatdar. In 1950, dispute arose between the plaintiff No. 2 and the defendants as rival claimants to the marfatdari right in respect of the deity. On December 29, 1951, a Panchayati sat over the said dispute between the plaintiff no. 2 and the defendants. It was agreed that the defendants would be entrusted with the collections until it was decided as to who is the rightful owner; that the defendants would thus continue as trustees until decision as to title. The defendants admitted that they acted as trustees from 1951-1956. There is no evidence as to who was in charge between 1956 and 1958. In 1958 the plaintiff took over the charge after being declared hereditary trustee in a title suit brought by the plaintiff No. 2 being T. S. No. 13/9 of 1953-54 before the Subordinate judge in which an ex parte decree was passed on August 9, 1958 and plaintiff No. 2 was declared hereditary trustee and the institution an excepted temple. Thereafter the plaintiff No. 2 demanded the usufruct which the defendants collected during their management which, however, the defendants refused to pay. In December 1956 there were criminal proceedings under Section 145 criminal Procedure Code in which the plaintiff No. 2 was the first party and the defendant No. 1 was the second party. In the said proceedings the defendant No. 1 was found in possession by the Magistrate. On April 12, 1957 this suit was filed for recovery of usufruct for the five years 1952 to 1956 amounting to Rs. 1680/as aforesaid on the cause of action as stated in the plaint, the implications whereof i shall deal with hereafter. The defence taken in the suit was that the defendants are all trustees, enjoying the usufruct and performing the Seva of the deity; that the defendants are bound by the decree in the said Title Suit No. 13/9 of 1953-54 as the defendants were not parties to the said suit. The defendants denied that there was any Panchayati as alleged or that the defendants agreed to the terms as alleged or at all. With regard to the amount of usufruct, claimed by the plaintiffs in the suit, the defendants pleaded that there was complete failure of crops in 1952, 1953 and 1956; that there was partial failure of crops during 1954 and 1956; that the usufruct realised by defendants was spent for the Seva of the deity and thus there is nothing payable by the defendants as claimed. That apart a point of limitation was also taken on behalf of the defendants pleading that Article 109 of the limitation Act is applicable; that the plaintiffs' claim for that portion of the usufruct, which is alleged to have been wrongfully received by the defendants beyond three years from the date of the suit,--is barred by limitation.

(3.) IN a judgment dated February 3, 1958 the trial Court held that the suit was based on the agreement by the defendants and the Panchayati and that in view of the decree in Title Suit No. 13/9 of 1953-54 passed on August 9, 1955 when, according to the trial Court, the cause of action arose, and thus the suit having been filed within three years from the said date, was not barred by limitation. The trial Court also, held that the defendants are bound by the decree in the said T. S. No. 13/9 of 1953-1954. On the question whether there was Punchayati or the alleged agreement by the defendants on December 29, 1951 as aforesaid, it was held that there was no Punchayati and accordingly there was no question of agreement by the defendants as alleged. As regards the amount which is alleged to have been kept in deposit by the defendants in terms of the said alleged agreement it was held that there was no such deposit and that the defendant No. 1 has been cultivating the schedule lands during 1952 to 1956. On a question of jurisdiction, which arose, the trial Court held that the defendants having been found to be tenants and as it was a suit for recovery of rent the suit must go to the Revenue Court and accordingly found that the Civil Court has no jurisdiction and the plaint was returned for presentation in proper Court.