HINDU PUBLIC Vs. SANKARSAN DAS

JUDGEMENT

(1.) THIS appeal is directed against judgment and order dated 18.8.1995 passed in F.A. No. 9 of 1985 by the learned Deputy Commissioner of Endowments, Bhubaneswar reversing the judgment and order dated 26.2.1985 passed by the learned Additional Assistant Commissioner of Endowments, Cuttack Zone, Cuttack in O.A. No. 27 of 1983 on an application filed under Section 41 of the Orissa Hindu Religious Endowments Act, 1951.

(2.) RESPONDENT No. 1 was the petitioner before the trial Court. The case of the respondents is that respondent No. 2, Sri Swapneswar Mahadev is the private deity of respondent No. 1 Sankarsan Das and it was installed by the ancestors of respondent No. 1. It was also the case of the respondent No. 1 that the deity was a public endowment and as such, the place of the deity was never visited by general public. The temple was constructed and the deity was installed by the ancestors of respondent No. 1 with about Ac.8.00 of land including the Bijesthali. The ancestors of respondent No. 1 are recorded as Marfatdars of the deity in the record of rights and they are managing the affairs of the deity as hereditary trustees. The further case of the respondent No. 1 is that he has got no other land except the deity properties and he is in cultivating possession by exercising hereditary right. Accordingly, in the application filed under Section 41 of the Act the respondent No. 1 prayed for a declaration that the respondent No. 2 is his private deity and he is the hereditary trustee of the deity.

(3.) ON the pleadings of the parties, the trial Court framed eight issues. While answering Issue No. 2 it was held that the deity Swapneswar Mahadev was installed within a temple and, therefore, comes within the meaning of the Act. In respect of Issue Nos. 3 and 4 which are most important issues for the purpose of this case it was held that although the names of some of the ancestors of respondent No. 1 have been recorded as Marfatdars of the deity in respect of its land, the respondent No. 1 cannot claim any hereditary right by way of succession and as such he cannot be called as a Hereditary Trustee of the deity under any circumstances. In respect of Issue No. 5 it was held that the respondent No. 1 is not entitled to possess or enjoy the land of the deity as he failed to prove that his ancestors and after their demise he was rendering Sevepuja of the deity. With the above findings, the application filed under Section 41 of the Act was rejected. Challenging the judgment passed by the learned Additional Assistant Commissioner of Endowments, the present respondent Nos. 1 and 2 preferred an appeal before the Deputy Commissioner of Endowments, Bhubaneswar. The appellate Court on reconsideration of the evidence reversed the findings of the learned Additional Assistant Commissioner and allowed the appeal. The aforesaid judgment of the lower appellate Court is under challenge before this Court.