JANMEJOY PATI Vs. GOPINATH BHARTHI

JUDGEMENT

(1.) This is an application for revision of an order by the Munsif of Bhadrak made on a reference by a Deputy Collector under Section 55, Bengal Land Registration Act. Before the Deputy Collector there were four claimants to registration. The previous registered proprietor had been one Mahanth Ghanshyam Bharthi. The petitioners before me are two persons Janmejoy Pati and Ghanshyam Pati who claim to be in possession of a portion of the property and to be in possession by virtue of a sale deed executed by Ghanshyam Bharthi who had since died. The other claimants were three persons who were claiming as trustees under a deed which had been executed by the deceased Bharthi who had purported to execute deed of trust in their favour of the lands in dispute by which he constituted them trustees of these lands for the support of a deity and it is said by them that the land in dispute is debottar property, that it was rightly the subject of a trust deed and that the alienation under which the petitioners claim was outside the Bharthi's powers as the mahanth of the math and they say that the petitioners have no good title.

(2.) The third petitioner is an ijardar who claims registration as in possession of 13 annas of the property by virtue of an ijara executed by the deceased mahanth in his favour. The fourth claimant is a chela of the deceased mahanth and alleges that he is now the mahanth of the math, but his claimant and the alleged trustees are indifferent as to which of them is recognised as in possession of the property because each of them claims to hold merely on behalf of the deity. The Deputy Collector before whom the applications were heard came to the conclusion that it was not necessary to outer into the question of the actual possession by the parties.

(3.) He said that there was a serious dispute between the parties the decision of which depended upon the question of whether or not the land was in fact debottar property and whether the deceased mahanth had a right to execute an alienation. Accordingly he referred the matter under Section 55 of the Act to the civil Court for decision. In my opinion he was wrong in so doing because his fundamental duty under Section 52 is first to decide the question of possession in fact and in the case of a person who claims possession by virtue of a succession or transfer to satisfy himself as to whether the transfer or the operation on which the succession purports to be founded did in fact take place. He has the right, if he is unable to decide upon these matters, to refer the matter to the civil Court under Section 55 but the power of the civil Court and the scope of the enquiry to be conducted by it are no wider than the scope of the enquiry originally before the Deputy Collector.