HARI CHARAN DAS Vs. NITYANANDA SWAIN AND ORS.

JUDGEMENT

(1.) THIS appeal is directed against an appellate order of the Commissioner of Hindu Religious Endowments upholding an order of the Assistant Commissioner of Endowments declaring under Section 41 of the Orissa Hindu Religious Endowments Act, 1951 (hereinafter referred to as the Act) that the institution of Sri Ananta Sesadeb of Nuasasan is a public temple as defined in Section 3(15) of the Act without any hereditary trustee. The proceeding giving rise to this appeal was instituted before the Endowment Commissioner under Section 64 of the Orissa Endowments Act, 1939 by the Appellant Hari Charan Das for a declaration that Sri Ananta Sesadeb is a private family deity of one Krishna Charan Das and is not governed by the provisions of the Endowment Act, 1939. Shortly afterwards the new Act of 1951 came into force and by virtue of Section 79(2) thereof the proceedings were continued under Section 41 before the Assistant Commissioner of Endowments. The case of the Appellant is that Sri Ananta Sesadeb installed at mouza Nuasasan is the family deity belonging to Krishna Charan Das of that village, that some of the family properties of said Krishna Charan Das and some of his own acquisitions were recorded in the name of the deity in respect of some of which Krishna Charan himself and in respect of others his wife Chandanbati Dei were recorded as marfatdars, that these properties were nominal Debottar and that the usufruct there from was being enjoyed by Krishna Charan and members of his family who were performing the Sebapuja of the deity. To discharge the dues which Krishna Charan owed to the Petitioner's father he executed in his favour a Kantakabala on 21 -1 -1935 in respect of 9 items of the properties standing in the name of the deity. As there was no repayment of the dues the Appellant obtained a decree for foreclosure on the basis of the Kantakabala and in due course obtained delivery of possession of the properties through Court on 15 -7.1942. The decree being an ex parte one Krishna's son Sadhu Charan applied for setting aside the decree but failed. Thereafter the grand sons of Krishna filed a pauper suit for declaring that the Kantakabala, was invalid, but failed in their attempt. The Petitioner then got himself mutated in respect of revenue free properties which formed part of the subject matter of the foreclosure suit and inspite of objection raised by some of the members of Krishna Charan's family, his name was registered. Thus having failed in all their attempts to dislodge the Petitioner from possession of the aforesaid properties, Laxmidhar one of the agnates of Krishna Charan moved the Endowment Commissioner for appointment of trustees for the deity on the representation that it is a public deity. It is in these circumstances that the Petitioner filed the application before the Endowment Commissioner for declaration that the deity is a private family deity.

(2.) THE Hindu Public of the locality opposed the application. Their contention is that the deity is a public deity installed more than 200 years ago. It is not the family deity of Krishna Charan Das, who was only it marfatdar. It is asserted that public take part in all the festivals of the deity as of right. Two other members of the public namely Nityananda Swain and Dibakar Misra filed objections stating inter alia that the deity was established by a Sanyasi who was managing the affairs thereof with public help and when he left the village the sebapuja of the deity was entrusted by the villagers to an ancestor of Krishna Charan Das who was then the Makodam of the village. The Zamindar granted lands to the deity free of rent which was subsequently confirmed by the British Government.

(3.) IS Ananta Sesadeb at present entitled to the status of a public deity?