KANHU KHUNTIA Vs. PADMALAVA KHUNTIA

JUDGEMENT

(1.) Plaintiff is the appellant against a confirming judgment.

(2.) Plaintiff filed the suit for declaration of his `Seva-pali' right for the period 27th day of `Simha' to 19th. day of `Dhanu' at `Bata Ganesh' inside the temple of Lord Jagannath at Puri and for injunction restraining the defendants from interfering with such right. Plaintiff is the son of one Baman Khuntia. Defendants 1 to 6 are the legal representatives of Ramanath Khuntia and defendant No. 7 is the son of Palabhadra Khuntia. The entire year is divided into three periods, the first period being 1st day of `Mesha' (Baisakh) to 26th. day of 'Simha' (Bhadra); the second period between 27th. day of 'Simha' (Bhadra) to 19th. day of 'Dhanu' (Pousha) and the third period being from 20th day of 'Dhanu' (Pousha) to 30th day of 'Mina' (Chaitra). So far as the first period is concerned, it is defendant No. 7 who performs the 'Pali' and it is in accordance with the registered partition deed dated 21-6-1934 (Ext. F). There is no dispute about the same and defendant No. 7 was also ex parte in the court below. The real dispute between the plaintiff on the one hand and defendants 1 to 6 on the other is in respect of the two other periods. Under the deed of partition (Ext. F) the second period namely from 27th day of 'Simha' till 19th day of 'Dhanu' had been allotted to Ramanath's branch and the third period from 28th. day of 'Dhanu' till 30th day of `Mina' had been allotted to Baman's branch represented by the plaintiff. But in the Record-of-Rights of the Jagannath Temple it has been recorded that the second period is allotted to the plaintiff and the third period to defendants 1 to 6 and, therefore, the present controversy. According to the plaint case, the plaintiff was performing the 'Pali' for the second period and defendants 1 to 6 for the third period and it has been so recorded in the Record-of Rights prepared under Shri Jagannath Temple Act. The Record-of-Rights so prepared had not been challenged by defendants 1 to 6 of their predecessor-in-interest. The partition deed on which the defendants rely had never been acted upon and notwithstanding the said partition deed, the plaintiff and prior to him his father Baman was performing the 'pali' for the second period. It is only in the year 1976 defendants 1 to 6 tried to exercise their right in respect of the second period for the first time and raised dispute with regard to the wrong entry in the Record-of-Rights and, therefore, the plaintiff filed an application before the Administrator of Shri Jagannath Temple to render necessary protection, but since that application was not disposed of, the plaintiff filed the present suit.

(3.) In the written statement filed by defendants 1 to 6, it has been averred by them that there had been a division under the partition deed of the year 1934 and according to the said division, Baman (plaintiffs father) was allotted the third period and kamanath (father of defendants 1 to 5) was allotted the second period, but a mistake crept in while preparation of the Record-of-Rights of the Temple. It was also averred that though in the Record-or-Rights the factum of partition was noted but it was wrongly mentioned about the performance of 'Pali' and notwithstanding the entry in the Record-of-Rights, the defendants had been exercising their right in respect of the second period. The defendants also stated that they filed an application for correction in the Record-of-Rights and the said matter was still pending. On these averments, the defendants have prayed that the suit is liable to be dismissed.