MARKANDA MAHAPATRA Vs. VARADA KAMESWAR RAO NAIDU

JUDGEMENT

(1.) This is a plaintiff's appeal from the decision of the learned Subordinate Judge of Berhampur, dated 18 March 1940, dismissing his suit for possession of village Chitrakari Lakshmipuram in the district of Ganjam, which he claimed as his service tenure, as also for ac counts of the usufruct of the disputed property and for payment of such amount as may be found due on such accounting. There was also an alternative prayer that, if the plaintiff were adjudged not to be entitled to the relief claimed, he, along with such other of the defendants second party as may be found to be so entitled, may be granted those reliefs. The following genealogical table, which is not, in dispute between the parties, may be useful in understanding the plaintiff's case and the defendants pleas in bar of the suit (omitting unnecessary names): (See genealogical table on page 199.)

(2.) The plaintiff's case is that the village in question is a service tenure granted to Chitrakar Harekrishna Mahapatra, the ancestor of the plaintiff and of the defendants second party, that is to say, defendants 2 to 15. This grant is said to have been made about 200 years before the institution of the suit, as would appear from para, 1 of the plaint. But the documentary evidence would make it out that the grant was made in or about the year 1700 A. D. by the then Raja of Parlakhemedi as a remuneration for painting the idols in the temples of Sri Jagannath Swamy in the town of Parlakhemedi and of Gopinath Swamy in Luhuri. That grant is said to have been confirmed in 1862 by the Inam Commissioner after making necessary and proper enquiries, and the title deed was issued in the name of Samo, a grandson of Harekrishna, and of Gopinath, his great grandson. The grant is claimed to have been made for public and religious service, and was as such impartible and inalienable both by law and custom. The office, as a remuneration of which the said grant is said to have been made, is alleged to devolve upon the person or persons in the family of the original grantee appointed as chitrakar (painter) from time to time by the Maharaja of Parlakhemedi in his capacity of the trustee and Dharniakarta of the aforesaid deities. The plaintiff then made a detailed statement of the transactions in respect of the inam village between members of his family and the defendant first party, that is to say, defendant 1 or his predecessors-in-title, which will be noticed in detail hereinafter. The plaintiff claims that the usufruct of the village has satisfied the usufructuary mortgages in favour of defendant 1 or his predecessors-in- title, about ten years before the institution of the suit. The plaintiff laid his claim on the ground that he had been appointed by the Maharaja of Parlakhemedi defendant 16 seven or eight years before the suit when the cause of action is alleged to have arisen. It may be noted that the suit was commenced in forma pauperis, and the appeal also was allowed to be prosecuted as a pauper.

(3.) The suit was contested by defendant 1 only chiefly on the allegations that not the whole village but only 50 acres out of the village was granted by an ancestor of defendant 16 to the original grantee as an absolute grant burdened with the service of painting the idols aforesaid but not for any public or religious service; that the grant was not inalienable and impartible by law and custom as alleged by the plaintiff, or that it devolved for the time being on a member of the family of the grantee appointed as chitrakar; and that, as a matter of fact, all the share- holders in the grantee's family have been exercising rights of ownership by alienating their respective shares in the grant by gifts, mortgages and sales to third parties. Defendant 1 claimed to have acquired absolute title to the property in suit by a number of private sales by some of the defendants second party or their ancestors as also by auction-purchase at court sales, as will presently appear. It was also claimed on behalf of defendant 1 that he had acquired rights by adverse possession against the true owners, as he had been possessing the whole village since after 1922 when the usufructuary mortgages had been fully satisfied. It was also pleaded that the suit was barred by limitation and by res judicata in view of certain decisions to be noticed hereinafter in detail. It was also contended that neither the plaintiff nor defendant 16 had any right to sue for possession, as the reversion in the inam was vested in the Government. Some of the defendants second party filed formal written statements supporting the plaintiff's case.