JOGENDRA NATH DAS Vs. CHARAN DAS

JUDGEMENT

(1.) THE defendant files this appeal against the judgment and decree of the subordinate Judge, Cuttack decreeing the plaintiffs' suit for partition of the suit properties except lot No. 1 mentioned in Schedule B of the plaint. The plaintiffs filed a memorandum of cross-objections against the decree disallowing the partition of lot No. 1.

(2.) PLAINTIFFS' case is briefly as follows: Plaintiffs 1 and 2 and the defendant are members of a joint family governed by the Mitakshara law. Plaintiff No. 3 is the ancestral family deity of the parties who are the Shebait marfatdars. One chintamani had four sons -- Rama, Shyama, Padan and Madan. Plaintiff No. 1 fakir is the natural son of Madan who had another son Bidyadhar who died unmarried. Plaintiff No. 2 Mani Dei is the wife of Madan. Padan had two sons --Bhikari and Jogendra (the defendant), Bhikari having died unmarried. According to the plaint, the properties mentioned in Schedule B of the plaint are the ancestral joint family properties of the parties and lot No. 1 is the property of the deity plaintiff No. 3 and lots 11 to 161 are the Amrita Manchi lands of Lord jagannath Mahaprabhu of which the parties are marfatdars. Rama and Shyama, sons of Chintamani, died leaving no sons. The plaintiffs alleged that Shyama adopted Fakira (plaintiff No. 1) during his childhood about 37 years ago, he having died about 35 years back. It is also stated that Padan became a lunatic and died during the life time of his father about 32 years back. The plaintiffs therefore alleged that plaintiff No. 1 is entitled to the share of Shyama to the extent of 5 annas 4 pies and the defendant is entitled to 5 annas 4 pies and plaintiff No. 2 to the share of Madan to the extent of 5 annas 4 pies. The plaintiffs 1 and 2 separated in mess from the defendant about 7 years ago dividing their movables, but the Thakur, the articles of the temple and the immovable properties described in Schedule B remained joint. Consequently the plaintiffs filed the suit for partition.

(3.) THE defendant contended, denying the plaint allegations, that plaintiffs 1 and 2 have no locos standi to bring the suit on behalf of plaintiff No. 3; that plaintiff No. 3 has no cause of action, to bring the suit and that the suit is bad for nonjoinder of parties. He alleged that plaintiffs 1 and 2 are not shebait marfatdars of plaintiff No. 3 or marfatdars of Lord Jagannath Mahaprabhu. He also alleged that plaintiff No. 1 is not the adopted son of Shyama, but is the son of Madan and that plaintiffs 1 and 2 are not members of the same family along with the defendant governed by the Mitakshara law. The defendant also alleged that the properties mentioned in Schedule B are not the ancestral joint family properties of the parties; that Padan had two sons -- Nrusingha and the defendant, the former having died unmarried; that Padan had no son named Bhikari; and that it is not a fact that Padan became a lunatic at any time. It is also specifically alleged by him that the suit properties were always in exclusive possession of the defendant as Rajguru Mahant since the death of nrusingha in 1917; that by the rule of succession prevailing in the institution and the custom of the family, the properties devolved upon the defendant in 1917; that the ancestors of the defendants had been the Kulaguru of the Raj family of killa Madhupur; that the right of officiating as Raj-guru belongs by custom to the eldest male member of the eldest branch of the defendant's family; that plaintiff no. 3 is the Ista Debata of the defendant's family; that in order to maintain the position of Raj-guru and for due performance of the seba puja of plaintiff No. 3 from time to time the successive Rajas endowed properties in the name of plaintiff no. 3 and the shebaiti marfatdari of these properties was vested in the Rajguru who was also called the Rajguru Mahant; and that the rule of succession was that only the Rajguru Mahant will be the She-bait marfatdar in respect of that property. Consequently his case is that the right which this defendant enjoys with respect to the disputed properties mentioned in lot No. 1 of Schedule B of the plaint devolved upon him in exclusion of the junior branch to which plaintiffs 1 and 2 belong. The defendant further alleged that plaintiff no. 1 and his father never put forward any right to these properties and that Plaintiff No. 1 is maintaining himself with his own earnings. It is also alleged that lots 2 to 10 of Schedule. B of the plaint were gifted from time to time by the Rajas of Madhupur to the successive Rajgurus as niskar to maintain the position of Rajguru with the same rule of succession as mentioned above and have come down to the defendant in the same manner as stated before. With regard to lots 11 to 16 of Schedule B, it is the defendant's case that as the rajguru Mahant of Madhupur came to officiate as the Rajguru of Chhedra Raj family, the Rajas of Chhedra from time to time created an endowment in the name of Lord Jagannath and out of respect for their Guru appointed them as marfatdars thereof for offering flowers and prayers for the good of the Raj family and the right to marfatdarship devolves on the eldest male member of the eldest branch who alone officiates as Rajaguru. Accordingly the defendant's elder brother Nrusingha had been and this defendant has been in possession of the disputed properties to the exclusion of plaintiffs 1 and 2, He also pleaded that the suit is barred by limitation as on the death of rajguru Mahant Chintamani Das in 1912 his son Padan having predeceased him in 1909, the shebaiti marfatdari right and Rajguru Mahantship along with other rights appertenant thereto devolved upon Padan's son Nrusingha and then upon the defendant according to the prevailing rule of succession, by primogeniture; and that the above-mentioned succession, took place during the life-time of Madan, father of plaintiff No. 1 and husband of plaintiff No. 2 without any objection on the part of anybody and as successors to the property, Nrusingha and the defendant were and are in adverse possession, against plaintiff No. 1 and his father for more than the statutory period.