SANATAN MOHAPATRA Vs. HAKIM MOHAMMAD KAZIM MOHMMAD

JUDGEMENT

(1.) THE principal opposite parties 1 to 7 instituted O. S. No. 3 of 1967-1 in the court of Munsif. Bhadrak against the petitioners and pro forma opposite parties 8 to 14 for the relief of, inter alia, permanent injunction restraining the defendants, in their representative capacity, from interfering with their customary right of performing religious ceremonies on the suit land, on the ground that they have not only acquired this customary right of using the suit land for religious purposes but have also acquired title to the same by purchase from Shri Udayanath Das by two registered sale deeds contemporaneously executed on 2-6-1958 (Exts. 31 and 32 ). Defendants while denying plaintiffs' alleged customary right, also denied their title to the suit land alleging that the aforesaid sale deeds under which the plaintiffs claim title are collusive and void documents and are not supported by any consideration (paragraph 10 of the written statement ). They, however, claimed communal rights over suit land without claiming title to it either by purchase or inheritance or otherwise.

(2.) THE trial Court decreed the suit holding that the plaintiffs had acquired title on the basis of the two sale deeds and granted the relief of permanent injunction sought for. It appears from paragraph 12 of the judgment of the trial court that the defendants made a number of admissions, namely, that the ex landlord executed a registered patta (Ext. 40) in favour of his wife Harmani in the year 1931 and that the latter gifted the suit land to Udayanath, vendor of the Plaintiff in 1939 (Ext. 44), that Udayanath sold the suit land to the plaintiffs by two registered sale deeds, Exts 31 and 32, and subsequently the plaintiffs mutated their names in respect thereof. It also appears from the records that exts. 31 and 32 were admitted into evidence without objection.

(3.) ON appeal by the defendant, the first appellate Court allowed the appeal, set aside the Iudgment and decree of the trial Court and remitted the suit to the trial Court directing its fresh disposal after framing a separate issue to the effect, "whether the plaintiffs have a customary right over the suit properties for performances of their religious functions or they have acquired a valid title over the suit land under two registered sale deeds dated 26-58 executed by Udayanarayan Das?" the first appellate Judge also directed that the trial Court should give opportunity to both parties to adduce further evidence, if any, only regarding the validity of the two registered sale deeds.