SUKADEV Vs. SIDHESWAR MAHADEV BIJA SILOD

JUDGEMENT

(1.) Respondents 2 to 25 had filed a petition under S.41 of the Orissa Hindu Religious Endowments Act, 1951 (hereafter referred to as the 'Act') for declaration that respondent No.1, Sri Sidheswar Mahadev, was a public institution and that they and the late Abhi Tapaswi (Opp.party No.1) and appellant No.4 were the hereditary trustee of the deity. Their case is that their ancestors had installed the deity and they had all along done the Sebapuja and acted as Marfatdars of the deity. They had impleaded appellants 5 and 6 (opposite parties 3 and 4) as representing the Hindu public. The application of the respondents was registered by the learned Asst. Commissioner of Endowments on 10-12-76. The respondents had also filed an application for publication of a notice under the provisions of O.I, R.8, C.P.C. A draft notice filed by the petitioner was approved and that petition was allowed on the same day. The notice under O.1, R.8 C.P.C. was published in the 'Samaj' on 6-2-77 and the said publication is on record. In the meanwhile opp. parties 3 and 4 were set ex parte on 21-1-77 and on that day three persons, Nakula Senapati, Adikanda Behera and Dinabandhu Pati filed a petition to be impleaded as parties. These three persons had appeared before the Court prior to the publication of the notice under O.1, R.8, C.P.C by orders dt. 26-5-77 and 18-6-77, all the opp. parties were set ex parte and the petition for impletion filed by the aforesaid three persons was also rejected. The suit was heard ex parte. By his order dt.30-6-77 the learned Asst. Commissioner of Endowments held that the institution was a public institution and that the petitioners (respondents 2 and 26) had failed to establish that they and opp. parties 1 and 2 were the hereditary trustees. The petitioners filed an appeal before the learned Deputy Commissioner of Endowments. During the pendency of the appeal before the learned Deputy Commissioner opp. party No.1 Abhi Tapaswi died and his three legal representatives were substituted as respondents 1(a) to 1(c). In the lower appellate court the three legal representatives of Abhi Tapaswi and opp. party No.2 appeared through counsel and adduced documentary evidence. The appeal was dismissed by the learned Deputy Commissioner of Endowments by his order dt. 17-11-78. Thereafter the respondents filed Misc. Appeal No. 208 of 1978 in this court. By order dt. 21-3-81 the appeal filed by the respondents was allowed and the matter was remanded to the learned lower appellate court for fresh (hearing) according to law. In the order of remand the learned lower appellate court was directed to examine the matter afresh and decide whether the provisions of law with particular reference to O.1, R.8, C.P.C. had been complied with. It was further observed that in case the learned lower appellate court would come to the conclusion that the provisions of law had not been properly followed it was open to that court to remand the case to the learned Asst. Commissioner. After remand the learned Deputy Commissioner found that the provisions of O.1, R.8 C.P.C. had not been properly followed and accordingly as directed the case was remanded to the learned Asst. Commissioner of Endowments for fresh trial and disposal according to law. It is this order of remand of the learned Deputy Commissioner of Endowments which is under challenge in this appeal.

(2.) Mr. S. Misra-II, learned counsel appearing for the appellants, submitted that the order of remand cannot be sustained in law as the learned lower appellate court did not properly follow the directions of this Court contained in the order of remand. Mr. S. P. Misra, learned counsel appearing for the respondents, on the other hand, submitted that the order of remand does not call for interference as the learned Deputy Commissioner has remanded the case to the learned Asst. Commissioner for fresh trial after coming to the conclusion that the provisions of O.1, R.8, C.P.C. had not been complied with. In support of his contention Mr. S. P. Misra relied on a decision reported in AIR 1927 Cal 608 (Ismail Munshi v. Niamat Khan) wherein it was held :

(3.) In the result, this appeal is dismissed and the impugned order of remand is upheld. I would only add that the dispute between the parties being an old one, the learned Asst. Commissioner shall expeditiousiy take up the hearing of this case and dispose it of according to law keeping in view the directions contained in the order of the learned Deputy Commissioner and also the observations made above. Evidence already on record shall, after remand, be treated as evidence in the suit for all purposes. If so moved, the learned Asst. Commissioner may make such interim arrangements as he thinks fit for proper administration of the institution and its properties pending disposal of the suit. There shall be no order as to costs. Appeal dismissed.