GAYARAM PATEL Vs. SRI SAMALESWARI DEVI AND ANR.

JUDGEMENT

(1.) THE Petitioner's case is that the ancestors of Sri Anup Singh Deo, ex -Zamindar of Khariar, dedicated their intermediary interest in village Konabira in favour of opposite party No. 1, Sri Samaleswari Devi. On 10 -5 -1949 Shri Anup Singh Deo on behalf of the deity, opposite party No. 1, leased out the Thikadari rights of this village for ten years i.e. from 1 -6 -1950 to 31 -5 -1960 and gave possession of Sir and Khudkast lands of that village to the Petitioner as per Annexure -I, the original of which is said to be a registered document. On 28 -3 -1951, by Annexure -2. the Petitioner's name was mutated by an order of the Tahasildar, Nawapara. On 1 -6 -1959 the Estate vested in the State of Orissa under the Orissa Estates Abolition Act, 1951 (hereinafter referred to as the Act). Shri Kailash Chandra Panigrahi, the managing trustee of the deity opposite party No. 1. filed an application under Section 8 -A of the Act for settlement of the disputed agricultural lands on the deity under Section 7 of the Act. The Petitioner filed his objection on 27 -1 -1960. On 30 -6 -1962 the Estates Abolition Collector settled the disputed lands on the Petitioner for and on behalf of Sri Samaleswari Devi off Komna as an occupancy raiyat. (Order: Annexure -3). On 20 -10 -1963 opposite party No. 1 filed a petition (Annexure -4) under Section 16 of the Orissa Hindu Religious Endowments Act, 1951 for evicting the Petitioner from the disputed lands. The application was allowed by the Assistant Commissioner of Endowments by his order (Annexure -7) dated 12 -1 -1970. The Commissioner rejected the revision by his order ( Annexure -8) dated 3 -5 -1970. On 30 -10 -1970 the Assistant Commissioner of Endowments passed an order directing delivery of possession. The writ application has been filed under Articles 226 and 227 of the Constitution for quashing Annexures 7 and 8 and for issue of an injunction against the opposite parties not to execute those orders.

(2.) MR . Rao for the Petitioner raised two contentions:

(3.) THE second contention is that the Petitioner claims the disputed lands in good - faith as a trustee. There can be no dispute that by virtue of the order of the Estates Abolition Collector the Petitioner remained in possession of the disputed lands on behalf of the deity as a defector trustee. Sri Kailash Chandra Panigrahi was the managing trustee of opposite party No. 1 appointed by the Endowment Commissioner. Though the Petitioner was a de facto trustee and though the order of the collector was clear and unequivocal that the lands were settled with the deity, yet the Petitioner now, claims the lands to be his and not of the deity. By his present conduct and action the Petitioner is acting in derogation of the right, title and interest of the deity, and has thus committed an act of breach of faith against the interest of the deity.