RAM KRISTO MOHAPATRA Vs. JAGANNATH MOHAPRAVU, IDOL, SHEBAIT

JUDGEMENT

(1.) The facts, out of which this appeal arises, are very simple. The plaintiff No. 2 is, as alleged, the shebait of a certain idol, and holds in that character as marfatwar on behalf of the idol certain amrilomonohi lands. He mortgaged these lands to the defendant, in the year 1890, and in execution of a decree obtained in a suit-brought upon that mortgage-bond the defendant bought up the land in the year 1894; in the recent record-of-rights the name of the defendant has boon entered as the possessor of the lands. The plaintiff No. 2 now seeks to get the sale sot aside and to recover possession of the property with mesne profits on the ground that the land was debutter and not transferable.

(2.) The suit has been decreed in both the lower Courts, and the defendant appeals urging the following points: (1) that the plaintiff No. 2 is estopped from bringing this suit. (2) that the suit is time-barred. (3) that the plaintiff is not the shebait of the Temple, and is not, therefore, entitled to sue. (4) that the land is not really dabutter land; and finally (5) that the defendant is, in any case, entitled to a refund of the money advanced to the plaintiff No. 2 before possession of these lands can be decreed. For an authority that the land is not dabutter I am referred to a report on the Survey and Settlement of Orissa by Mr. Mod-dax, i. c. s., dated 1900; it does not, however, appear that this re-port was produced in the lower Courts; the question as to the character of these lands can only be decided, on the evidence adduced, and I am content to accept the finding of the lower Court as to the character of the land which appears to be a question of fact. I may state farther that it appears from Mr. Moddax's report that amrito-monolii lands are not alienable.

(3.) There also appears to be no foundation for the suggestion that the plaintiff is not the shebait of the idol. This point was not raised in the issues and cannot be considered now.