BALAJI MOHAPRABHU Vs. NARASINGHA KAR

JUDGEMENT

(1.) The plaintiffs have preferred this appeal against the decision of the court below confirming the decision of the trial court dismissing the plaintiffs' suit for a declaration that plaintiff No. 2 is the hereditary trustee of the deity, plaintiff No. 1, and for other ancillary reliefs.

(2.) The plaintiffs' case, in short, is that plaintiff No. 2 is the sole hereditary trustee of the deity, plaintiff No. 1. Late Rama Mahanty was the last male hereditary trustee of the deity. After his death in 1920, his widow Jamuna succeeded as a trustee of the deity, but as she was then a minor, her father Bada Ghana Patra was managing the deity's affairs on behalf of Jamuna. The first defendant and his relations at times used to help Jamuna and Bada Ghana Patra in the management of the deity's affairs. In 1921 the first defendant falsely claimed to be the hereditary trustee of the deity and forcibly occupied the temple of the deity and its properties. At this Jamuna filed O. S. No. 216/24 in the court of the Munsif at Berhampur against defendant No. 1 for recovery of possession of the temple of the deity and its properties. In Feb. 1926 the suit was decreed as per the agreed terms of a compromise between the parties by which defendant No. 1 agreed to deliver possession of the deity's temple and properties to Jamuna within a month thereof. Thereafter defendant No. 1 put pressure on Jamuna and persuaded her to adopt plaintiff No. 2, the younger brother of defendant No 1. Plaintiff No. 2 was adopted in accordance with the custom and the legal formalities by Jamuna as the son of her late husband Rama Mahantry in Falguna, 1930 on obtaining the consent of her agnates to that effect. Thereafter she obtained possession of the temple and the deity's properties from defendant No. 1 Plaintiff No.2 on begin adopted by Jamuna lived with her. After some time Jamuna temporarily appointed defendants 1 to 3 as Pujharis of the deity as she was a female and plaintiff No. 2 was then a minor. Defendants 1 to 3 were also allowed to cultivate and manage the plaint B schedule lands on payment of the net income of the same. The plaint C schedule lands were kept under khas possession of Jamuna, Jamuna died in 1959, and plaintiff No. 2, being the adopted son of Jamuna, performed her obsequies and is still performing her yearly Sradha ceremony regularly. The defendants continued to manage the affairs of the deity and cultivated the plaint B schedule lands on behalf of plaintiff No. 2 and submitted accounts of their management of the said properties to plaintiff No. 2. But since 1964 they stopped rendering accounts and since 1969 they have been denying the plaintiff No. 2's right, and title to the suit lands, and are asserting their own title as trustees of the deity and alienated some of the properties belonging to the deity. Hence this suit for declaration that plaintiff No. 2 is the hereditary trustee of the deity and he, as such, has got unfettered rights to manage the temple and the deity's properties and is entitled to possession of the said proper ties, and for other ancillary reliefs.

(3.) Defendant No. 1 alone contested the suit and the other two defendants were set ex parte. Defendant No. 1 ad admits that the suit properties, excepting items 28 and 29 of the plaint B schedule lands, belong to the deity, plaintiff No. 1. The case put forward by defendant No. 1, inter alia, is that plaintiff No. 2 was never adopted by Jamuna; during the minority of Jamuna the defendants were managing the affairs of the deity and its properties and they were not acting under the guidance of Bada Ghana Patra; Jamuna brought O. S. No. 216/24 against the defendants at the instance of the enemies of the defendants; that suit was compromised, but subsequently, on 11-07-31, Jamuna surrendered her trusteeship right over the deity and its properties in favour of defendant No. 1 on taking a consideration of Rs. 500 for the same; ever since that time defendant No. 1 has been acting as the hereditary trustee of the deity and is managing all its properties and is in possession of the same. It is also alleged that plaintiff No. 2 along with defendants 2 and 3 is cultivating some of the lands of the deity as Bhag tenant and plaintiff No. 2 in that capacity is in possession of the plaint C schedule properties. He further asserts that the lands in villages Bhallagada and Manikyapur, included in the plaint B schedule, were never the properties of the deity but were the self-acquired properties of defendant No. 1 alone, and accordingly the sale and mortgage of the said properties by defendant No. 1 are perfectly valid. On the above averments this defendant prays for the dismissal of the plaintiffs' suit.