Gajeswar Mahadeb and ors. Vs. Prafulla Kumar Jena and ors.

Gajeswar Mahadeb and ors. vs Prafulla Kumar Jena and ors.

Disposition Appeal dismissed Court Orissa Decided May 09, 1985

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Citation: sooperkanoon.com/527251
Court: Orissa High Court
Judge: B.N. Misra, J.
Decided On: May 09, 1985
Case Number: Miscellaneous Appeal No. 216 of 1979
Subject: Family;Property
Disposition: Appeal dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal ...

Key legal issue: Family;Property
Outcome / disposition: Appeal dismissed
Acts & sections: Orissa Hindu Religious Endowments Act, 1952 - Sections 41; Code of Civil Procedure (CPC) , 1908 - Sections 11

Parties & Advocates

Appellant / Petitioner

Gajeswar Mahadeb and ors.

Advocate A. Mukherjee, Adv.

Respondent

Prafulla Kumar Jena and ors.

Advocate S. Misra-2, Adv.

Legal References

Acts: Orissa Hindu Religious Endowments Act, 1952 - Sections 41; Code of Civil Procedure (CPC) , 1908 - Sections 11
Reported In: AIR1986Ori148; 60(1985)CLT88

Excerpt

.....is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the learned assistant commissioner of endowments has further found on merits that the applicants before him had failed to prove that they were the hereditary trustees of the deity. 258 of 1957-58 has been dismissed both on merits as well as on the finding that the proceeding was not maintainable......commissioner of endowments. it is this order of the learned commissioner of endowments which is under challenge in this appeal.5. learned counsel appearing for the appellants has urged in this appeal the same points which had been urged by the appellants before the learned lower appellate court. the grounds on which the impugned judgment of the learned commissioner of endowments is assailed are that the previous proceeding forming the subject-matter of o. a. no. 258 of 1957-58 had not been finally heard and decided on merits and that the said proceeding was not between the same parties. the judgment of the learned assistant commissioner of endowments in o. a. no. 258 of 1957-58 is on record. in the said judgment the learned assistant commissioner of endowments inter alia held that the proceeding under section 41 of the act was liable to be dismissed as the deity was not impleaded as a party to the proceeding. the learned assistant commissioner of endowments has further found on merits that the applicants before him had failed to prove that they were the hereditary trustees of the deity. thus the previous application under section 41 of the act forming the subject-matter of o. a. no. 258 of 1957-58 has been dismissed both on merits as well as on the finding that the proceeding was not maintainable. it is worthy of note that the aforesaid judgment of the learned assistant commissioner was challenged in appeal, but the said appeal was dismissed on the ground of limitation. thus i agree with the finding of the learned commissioner of endowments that the previous judgment in o. a. no. 258 of 1957-58 was a judgment on merits pronounced after hearing the parties. the second point urged by the appellants that the previous proceeding in o. a, no. 258 of 1957-58 was not between the same parties is also without substance. the cause title of the judgment in o. a. no. 258 of 1957-58 shows that dinabandhu panda, appellant no. 8, was the applicant and the hindu public were.....

Full Judgment

B.N. Misra, J.

1. This appeal under Section 44(2) of the Orissa Hindu Religious Endowments Act, 1951 (hereinafter referred to as the 'Act') is directed against the order dated 22-11-1979 passed by the learned Commissioner of Endowments in F. A. No. 11 of 1979.

2. Appellants 2 to 9 filed a petition before the learned Assistant Commissioner of Endowments, Orissa under Section 41 of the Act for a declaration that the deity Sri Gajeswar Mahadeb at Deulapada, appellant No. 1, is a 'temple' within the meaning of the Act and the families of appellants 2 to 9 are the hereditary trustees with rights of management of the deity and its properties. This petition was registered as O. A. No. 45 of 1978. The appellant's case is that the deity which has been existing from time Immemorial was founded by their ancestors who also endowed their personal lands for the management and other expenses of the deity. From the date of inception of the deity, the appellants' ancestors and thereafter the appellants were in exclusive management of all the affairs of the deity being the hereditary trustees. The lands endowed to the deity were recorded in the name of the deity and appellants 2 to 9 were recorded as the Marfatdars. One Prafulla Kumar Jena, and outsider, attempted to interfere with the management of the institution. So appellant No. 8 representing the families of the appellants filed a petition under Section 41 of the Act for declaration that they were the hereditary trustees of the institution. It may be noted that this Prafulla Kumar Jena was described as opposite party No. 1 in the original petition filed by appellants 2 to 9, but by order dated 30-4-1979 of the learned Assistant Commissioner of Endowments, the name of opposite party No. 1 was expunged at the instance of the appellants. Inadvertently in F. A. No. 11 of 1979 before the learned Commissioner of Endowments and in the present appeal the said Prafulla Kumar Jena continues to be described as respondent No. 1. However, according to the appellants, the petition under Section 41 of the Act filed by appellant No. 8 which was registered as O. A. No. 258/57-58 was dismissed on the ground of non-joinder of necessary parties by order dated 27-3-1963 of the learned Assistant Commissioner of Endowments. First Appeal No. 19/64 filed against the aforesaid order of dismissal was dismissed by the learned Commissioner of Endowments on the ground of limitation. It is claimed that the appellants' families have continued to be the hereditary trustees of the deity without let or hindrance by any member of the public. In the month of September, 1978 the appellants learnt that the learned Assistant Commissioner of Endowments had appointed a non-hereditary Trust-Board and Prafulla Kumar Jena was appointed as the managing trustee by order dated 22-4-1978. This order was passed without any notice to the appellants. Accordingly the appellants have prayed that the deity should be declared as a 'temple' within the meaning of the Act with the families of appellants 2 to 9 as the hereditary trustees.

3. Respondents 2 and 3 who were opposite parties 2 and 3 in O. A. No. 45 of 1978 had filed a joint written statement. They have denied the claim of appellants 2 to 9. They have denied that the deity was founded by the ancestors of appellants 2 to 9 and that the appellants were the hereditary trustees of the deity. It is also denied that Prafulla Kumar Jena was the managing trustee of the deity. It is stated that respondent No. 2 was the managing trustee along with respondent No. 3 and others who were co-trustees. The respondents have further pleaded that the application under Section 41 is not maintainable being barred by the principles of res judicata and estoppel.

4. By order dated 17-9-1978 the learned Assistant Commissioner of Endowments held that the application under Section 41 of the Act forming the subject-matter of O. A. No. 45/78 was not maintainable as it was barred by res judipata in view of the previous judgment in O. A. No. 258 of 1957-58. Accordingly, the appellants' application under Section 41 of the Act in O. A. No. 45/78 was dismissed. The appellants challenged the aforesaid order of the learned Assistant Endowment Commissioner in F. A. No. 11 of 1979. The learned Commissioner of Endowments by his order dated 22-11-1979 dismissed the appeal and upheld the judgment of the learned Assistant Commissioner of Endowments. It is this order of the learned Commissioner of Endowments which is under challenge in this appeal.

5. Learned counsel appearing for the appellants has urged in this appeal the same points which had been urged by the appellants before the learned lower appellate Court. The grounds on which the impugned judgment of the learned Commissioner of Endowments is assailed are that the previous proceeding forming the subject-matter of O. A. No. 258 of 1957-58 had not been finally heard and decided on merits and that the said proceeding was not between the same parties. The judgment of the learned Assistant Commissioner of Endowments in O. A. No. 258 of 1957-58 is on record. In the said judgment the learned Assistant Commissioner of Endowments inter alia held that the proceeding under Section 41 of the Act was liable to be dismissed as the deity was not impleaded as a party to the proceeding. The learned Assistant Commissioner of Endowments has further found on merits that the applicants before him had failed to prove that they were the hereditary trustees of the deity. Thus the previous application under Section 41 of the Act forming the subject-matter of O. A. No. 258 of 1957-58 has been dismissed both on merits as well as on the finding that the proceeding was not maintainable. It is worthy of note that the aforesaid judgment of the learned Assistant Commissioner was challenged in appeal, but the said appeal was dismissed on the ground of limitation. Thus I agree with the finding of the learned Commissioner of Endowments that the previous judgment in O. A. No. 258 of 1957-58 was a judgment on merits pronounced after hearing the parties. The second point urged by the appellants that the previous proceeding in O. A, No. 258 of 1957-58 was not between the same parties is also without substance. The cause title of the judgment in O. A. No. 258 of 1957-58 shows that Dinabandhu Panda, appellant No. 8, was the applicant and the Hindu public were the opposite parties. Thus there can be no dispute that the previous proceeding was between the same parties. Hence I agree with the learned lower appellate Court that the present proceeding is not maintainable being barred by res judicata.

6. In the result this appeal which is devoid of merit is dismissed. No costs.

Same Court & Year Orissa · 1985 Same Parties Gajeswar Mahadeb and ors. vs Prafulla Kumar Jena and ors. Same Subject Family;Property Same Judge B.N. Misra, J. Acts & Sections Orissa Hindu Religious Endowments Act, 1952 - Sections 41; Co...

Family;Property