RADHAMOHAN THAKUR Vs. PRUNA CHANDRA

JUDGEMENT

(1.) The appellant is the petitioner in a proceeding under S.41 of the Orissa Hindu Religious Endowments Act (hereinafter referred to as 'Act') praying for a declaration that the deity Radhamohan Thakur is the family deity of the petitioner and ultimately if the deity is found to be a public one for declaration that the petitioner along with opposite parties Nos. 1 to 9 are the hereditary trustees of the deity with exclusive right of the management of the deity of the property. The case of the petitioner in his application under S.41 of the Act is as follows : - The deity Radha Mohan Thakur Bije Kortala P.S. Jagatsinghpur district Cuttack was installed by one Rasik Charan Choudhury, the ancestor of the petitioner and opposite parties Nos. 1 to 9 during the Moghal Rule in Orissa in the 17th Century. It is stated that the deity was brought from Mathura by one Rasik Charan Choudhury, the forefathers of Kanoongo family (i.e. the petitioner and O.F's.1 to 9). It is stated that one Harasingha Charan Deb Goswamy accompanied him from Mathura along with the deity. The petitioners case is that Rasik Charan installed the deity in his own residential house in village Agar which was subsequently brought to village Koratala. For meeting the expenses the founder Rasik Charan Choudhury endowed some of his own lands and the deity was being worshipped as the family deity of the petitioner from the time of its installation. The petitioner alleges that nobody had ever been offering bhog or paying darsan to the deity as of right. It is further alleged that the deity was originally placed in a thatched house which was converted to a pucca house by the father of the petitioner with own money and the sepapuja and performance of the festivals are being done by the members of the family of the petitioner and not by any contribution from the villagers. It has been claimed that the founder had settled some lands in favour of the Goswami family as well as in favour of the persons rendering service to the deity. It has been asserted that it is the members of the family of the petitioner who have been exercising the right of the management of the affairs of the deity all through from the time of the founder and as such they are hereditary trustees of the institution. According to the petitioner, sebayati right is a property and has been otherwise acquired by the adverse possession by the members of the family of the petitioner. It is stated that cause of action for this proceeding arose on 23-4-74 when the Additional Assistant Commissioner of Endowments appointed some outsiders as non-hereditary trustees under S.27 of the Act. The petitioner has filed this proceeding for the reliefs mentioned above.

(2.) The petitioner has given a genealogy showing that Rasik Charan Choudhury, the alleged founder of the deity is the common ancestor of the petitioner-appellant as well as the respondents 1 to 9. The present respondents 9 to 14 contested the aforesaid proceeding by filing a written statement. According to the said opposite parties the deity is a public deity without any hereditary trustees being founded by the villagers since time immemorial. It is alleged that the villagers have been managing the institution through different trust boards appointed under the provisions of Orissa Hindu Religious Endowments Act from time to time since the year 1945. According to them, the Maratha rulers endowed some lands to the deity including its Bijesthali so also by the British rulers and the lands were made rent free. The Mahant of Kotha Bhoga, Puri was the guru of the entire villagers and got himself described as the marfatdar of the deity, in all the revenue records. The villagers allowed the name of the Kanungo family to be recorded as the sebaks of the deity. Who were doing the "Deula Karan Seba" meaning the work of maintaining the accounts. It is further stated by them that since the non-hereditary trust board is being appointed from time to time from the year 1945 in fact they are managing the affairs of the deity and therefore the claim that the petitioner and others are hereditary trustees of the institution is thoroughly misconceived. The petitioner himself was taken in as one of the members of the non-hereditary trust board and as such he is estopped from claiming the institution to be a private one and from claiming that he is a hereditary trustee of the institution. The learned Additional Assistant Commissioner by his judgment dt. 31-1-75 negatived both the claims of the appellant against which he preferred F.A. No. 5/75 before the Commissioner of Endowments. The Commissioner of Endowments confirmed all the findings of the Additional Assistant Commissioner by its judgment dt. 27-3-78. Hence this appeal.

(3.) That the appeal under S.44 of the Act to the High Court is both on facts and on law as has been held in the decision of Sadasib Prakash Brahmchari v. State of Orissa, AIR 1956 SC 432. Following the said decision this Court has held in large number of cases that the provisions of S.100, C.P.C. would not be applicable to such appeals and therefore the High Court can go into both the facts and law in such appeals.