DEITY SHRI JAGANNATH SWAMI Vs. BISWANATH PANDA

JUDGEMENT

(1.) THIS appeal arises out of a suit for declaration of this in respect of the properties mentioned in Schedules A, B and C of the plaint and for a further declaration that the defendants have no right to interfere with the possession of the suit land by the plaintiffs.

(2.) DEFENDANT No. 1 is the deity Sri Jagannath Swamy situated in village Dhunkapada and is represented by the trustees appointed under the Orissa Hindu Religious Endowment Act (hereinafter referred to as the 'Act'). There was a proceeding under Section 68 of the Act against the plaintiffs and some others for recovery of profession in respect of the several items of properties including the plaint schedule properties. The plaintiffs in the said proceeding took a stand that the said lands were purchased by their father long long back and they have been in khas possession of the said lands for which the provisions of Section 68 of the Act would not be applicable. The Assistant Commissioner of Endowments ultimately allowed the application under Section 68 of the Act directing delivery of symbolical possession with respect to Schedules A, B and C properties. In a revision under Section 9 of the Act the Commissioner of Endowments found the proceeding under Section 68 of the Act to be inappropriate and held that it is a case to be governed by Section 25 of the Act. The Managing Trustee filed an application under Section 25 of the Act before the Commissioner of Endowments in which the Commissioner passed an order directing khas possession of the suit lands to be given to the Managing Trustee. The present suit (Title Suit No 64/68) was filed by the plaintiff in the Court of the Subordinate Judge, Aska, contending that they have otherwise perfected title in respect of the suit properties by adverse possession for which their title should be declared. The suit was contested by the defendants. One of the points taken against the maintainability of the suit was that the provisions of Section 69 ) the Act having not been compiled With, the suit should be dismissed. The learned trial Court decided the said question under issue No. 5 holding that non -clearance of Section 69(1) of the Act would not be fatal to the proceeding Having recorded the finding on other issues in favour of the plaintiffs, he decreed the suit and allowed the reliefs prayed for by the plaintiffs. In this appeal all the findings recorded by the Subordinate Judge have been challenged.

(3.) AFTER hearing learned counsel for both parties we are satisfied that the provisions of Section 69(1) of the Act being mandatory in nature and the same having not been complied with, the impugned judgment must be set aside and the suit should proceed from the stage where the notice under the said section was required under law to be issued. We, therefore, remand the suit to the trial Court with a direction to issue notice to the Commissioner of Endowments in conformity with the requirements of Section 69(1) of the Act and to hear the suit afresh after calling for the parties to adduce further evidence and also to direct the witnesses already examined to be produced in Court for the purpose of cross -examination by the Commissioner of Endowments, if the chooses. The evidence already adduced in the suit shall be deemed to be the evidence after remand subject to further cross -examination by the Commissioner of Endowments, as earlier directed.