SARASWATI DEI @ JENA Vs. GOPINATH JEW AT ADHANGA

JUDGEMENT

(1.) This appeal has been filed assailing the judgment and decree dated 30.10.2008 and 15.11.2008 respectively passed by the learned Civil Judge (Senior Division), Jagatsinghpur in C.S. No.208 of 2004 dismissing the suit. The suit was filed for declaration of right, title and interest of the plaintiff by way of adverse possession; to declare the order dated 06.04.2004 passed by the Commissioner of Endowments, Odisha, Bhubaneswar (defendant No.2) in O.A. No.128 of 1995 (II) under Section 25 of the Orissa Hindu Religious Endowments Act, 1951 (for short 'the OHRE Act') as null and void and for permanent injunction.

(2.) Case of the plaintiff in a nut shell is that the suit land, i.e., Consolidation Khata No.15, Plot No.236 measuring an area of Ac.0.32 decimal, corresponding to Sabik Settlement Khata No.17, Plot No.274, measuring an area Ac.0.32 decimal in Mouza: Anakhia, in the district of Jagatsinghpur stood recorded in the name of Sri Gopinath Jew, Bije at Adhanga, district -Jagatsinghpur (defendant No.1) (for short, 'the deity'). The then Managing Trustee of the deity, Sri Harekrushna Tripathy sold the suit land to the plaintiff vide Registered Sale Deed No.3919 dated 11.07.1959 for valuable consideration and delivered possession thereof. Since then, the plaintiff has been in peaceful possession over the same exercising all manners of right, title and interest thereon. The alienation was made without obtaining prior permission under Section 19 of the OHRE Act. However, the Managing Trustee did not take any step to recover possession of the suit land from the plaintiff within the statutory period of 12 years. Thus, the plaintiff has acquired title over the suit land through adverse possession. Her possession over the suit land has been recognized in the Record of Right in Major Settlement published on 06.04.1983 and Consolidation ROR finally published on 30.12.1991 recording her illegal possession in the remarks column. On 04.12.1995, the Managing Trustee of the deity filed a petition under Section 25 of the OHRE Act for recovery of possession of the suit land in O.A. No.128 of 1995 (II). The plaintiff could not contest the said case due to her old age. As such, the defendant No.2 vide order dated 06.04.2004 directed eviction of the plaintiff from the suit land and sent requisition to the Collector, Jagatsinghpur (defendant No.3) to deliver vacant of possession of the suit land to the deity. On receipt of the requisition, the Tahasildar, Jagatsinghpur (defendant No.4) sent notice to the plaintiff for execution of the requisition of defendant No.2. On receipt of the notice, the plaintiff apprehending her dispossession filed the suit for aforesaid relief.

(3.) Defendant Nos.3 and 4 neither filed any written statement nor contested the suit; hence, they were set ex parte. Defendant No.2 did not file any separate written statement, but supported the case of defendant No.1 by filing a memo dated 23.03.2006. Defendant No.1 in his written statement contended that the defendant No.1 is a Hindu Public Religious Institution (deity) and one Harekrushna Tripathy was the Managing Trustee of the deity till 1985. Said Harekrushna Tripathy, the then Managing Trustee of the deity, executed a nominal sale deed dated 11.07.1959 in favour the plaintiff. However, no delivery of possession was made to the plaintiff pursuant to such sale. The sale being in contravention of Section 19 of the OHRE Act is void ab initio. The deity, defendant No.1 being a perpetual minor, its right cannot be extinguished under Section 27 of the Limitation Act, 1963. The status of the plaintiff is that of a trespasser in respect of the suit land. Thus, the plaintiff has never acquired any title over the suit land by adverse possession. When one Narayana Tripathy was appointed as the Managing Trustee of the deity and came to know about the illegal possession of the plaintiff over the suit land, he filed a petition (OA No.128 of 1995) under Section 25 of the OHRE Act for recovery of possession. The plaintiff preferred not to contest the said case. Accordingly, the defendant No.2 following due procedure of law rightly directed for eviction of the plaintiff from the suit land vide his order dated 06.04.2004. Thus, he contended that the suit is not maintainable and prayed for dismissal of the same.