Mst. Danda Pujarini vs Mst. Bhagabati Pujarini and Others

R.N. Misra, J.—Plaintiff is in appeal against the confirming judgment and decree of the learned District Judge of Sambalpur in a suit for title and possession.

The genealogy given below shows the relationship of parties:

Kartik

Bijeram Balabhadra Bhagabati Bedmti Bijla

(dead) (D-1) (D-1) (D-3) (D-5)

widow-Danda

(Plaintiff)

The lands under the A schedule and the house described in B schedule belonged to Dukha and she had been recorded as the occupancy tenant in the Hamid Settlement as per Ext. B. Dukha made a gift of the properties covered by both the schedules to Plaintiff''s husband Bijeram under deed of gift dated 20th of May, 1949 (Ext. H). Bijeram enjoyed these properties until his death in 1955. A portion of the A schedule property was acquired under the provisions of the Land Acquisition Act and compensation was duly assessed. Dukha died after the acquisition and Defendants 1 to 3 and 5 laid claim to the compensation amount'' as reversioners of Dukha. One Bishnu Pujharini (Defendant No. 4) claiming herself to be the widow of Madhusudan, a brother of the husband of Dukha also laid a claim for the compensation amount. The Land Acquisition Officer, however, directed that the compensation be paid to the Plaintiff and Defendant No. 4 together and required Defendants 1 to 3 to establish their, title in the civil Court. Defendants 1 to 3 filed Title Suit No. 21 of 1962 in the Court of the Munsif, Sambalpur. The suit was dismissed. Same was the fate of an appeal carried by them in Title Appeal No. 23 of 1963. The judgments of the two Courts have been exhibited as Exts. 1 and 5 respectively. Even though the Defendants had failed, they forcibly drove away the Plaintiff from the property and Plaintiff was, therefore, obliged to institute this suit on 10-2-1965.

Defendants 2 and 3 filed a joint written statement. Defendant No. 1 died before it was time to file the written statement and Defendants 4 and 5 went ex parte. The contesting Defendants took the stand that the disputed properties belonged to an endowment and Dukha''s husband and after him Dukha herself were only sevaits. The suit was, therefore, not maintainable without the deity and/or the Endowment Commissioner being parties. It was further claimed that the gift by Dukha under Ext. H. in favour of Bijeram was a benami transaction and the second Defendant was actually the real donee. With a view to establishing the benami character of the transaction, reliance was placed on an agreement maked Ext. H dated 20th of May, 1949 (i. e. the same day as the deed of gift).

The Courts below have found that the disputed property is deviator a belonging to the deity Sri Mandhata Mahapravu and, therefore, the deity as also the Endowment Commissioner were necessary parties and without them the suit was not maintainable. They have repelled the contention that the earlier decision in the suit brought by Defendants 1 to 3 is res judicata for the present litigation. They have also found that under Ext. E Bijeram was only a benamdar and the real beneficiary was Defendant No. 2.

The compensation money for the acquisition had not been awarded for the deity but to Dukha. In the earlier suit brought by Defendants 1 to 3 it was not their contention that the property ''belonged to any deity. They had laid claim to the full compensation as reversioners of Dukha. For adjudicating such a claim, the Court examined whether Dukha continued to be the owner of the property after the gift now marked Ext. H and then marked as Ext. 1. The unregistered agreement then marked Ext. 2 and now marked Ext. E was found to be of no consequence on the concession of the present Defendants. It was concluded that the limited interest of Dukha had been validly transferred in favour of Bijeram under the deed of gift. In view of the settled legal position that no vendor can confer a better title than he has, Bijeram''s title in the property was confined to the life interest of Dukha. Defendants 2 and 3 did not advance a claim on the other occasion that the real donee was the second Defendant and that Bijeram was only a benamdar. If such a plea was available it was bound to have been raised and if not raised when it was available to be raised, it is no more to be raised and if raised must not be countenanced. That appears to be the law. Again the benami character of the transaction in favour of Bijeram having been negatived was not open to be reconvened. In the earlier suit what was finally determined was the inter se position with reference to the property up to the life-time of Dukha, the donor in favour of Bijeram, the donee. This position has been lost sight of though in the trial Court this aspect was broached and to an extent relevantly discussed. The stand taken in the present litigation being very much different from what the contesting Defendants as Plaintiffs on the earlier occasion had come to Court with, while examining the claim of the parties in the present litigation, the earlier stand should have been given due consideration to find out whether what was being claimed now could be of the Defendants. As already pointed out, it was not the case of the Defendants on the earlier occasion that the property belonged to a deity and that seems to be a new story. The documents on record do not prima facie appear to support the defence stand that the property is of the deity. There are some documents on record which would show (for instance Ext. 3) that Dukha was the recorded owner and the malgujar alone had been waived in lieu of seva to the Mahadev. The effect of these documents should have been taken into consideration in the Courts below.

Again, there is good authority in law that a trespasser can'' he sued on behalf of a deity even by a trustee de-son-tort. See Gopal Krishnaji Ketkar Vs. Mahomed Jaffar Mohamed Hussein and Another, and Vikrama Das Mahant Vs. Daulat Ram Asthana and Others, . It should have, therefore, been examined whether even if the property belonged to the deity the Plaintiff would not maintain a suit to keep the trespassers away and whether the deity''s interest could not have been adequately protected by making suitable provisions in the decree to be granted to the Plaintiff.

Undue importance has been given to the mortgage deeds said to have been executed by Dukha while examining-the question of possession. These are documents which are anterior in time to the earlier litigation. If they did exist, it was for the Defendants as Plaintiffs of the earlier suit to rely on them in support of their case. Having failed to place appropriate material and having invited a decree against them, it may not be open to them to reopen what under normal circumstances in law would appear to be a closed issue.

Having examined the decisions of the Courts below, I am satisfied that proper perspective both of fact and law have not been kept in view while disposing of the litigation and, therefore, the judgments as delivered appear to be vitiated. It is unnecessary to remit the matter to the trial Court and my own feeling is that cause of justice would be appropriately served if the lower appellate Court is called upon to dispose of the appeal afresh. All facts and legal aspects should be kept in view and the matter should be examined appropriately. Accordingly the appeal stands allowed. The judgment and decree of the lower appellate Court are vacated and the title appeal is directed to be re-heard by the lower appellate Court. Costs shall abide the event.