Shaikh Saffiqueuddin and Others vs Gulei ' Golap Samal and Others

B.S. Chauhan, C.J.—All the three appeals have been filed against the same judgment and order dated 18.6.2007 in W.P.(C) Nos. 9199 of 2004 and 5522 of 2005 by which one writ petition has been dismissed and another has been partly allowed. The learned Single Judge directed the Civil Court to issue notice to the Commissioner of Endowments, Orissa under the provisions of Orissa Hindu Religious Endowments Act, 1951 (hereinafter called ''the Act'').

The facts and circumstances giving rise to these cases are that the Appellant in W.A. No. 136 of 2008 Petitioner-appellant filed a suit bearing T.S. No. 31 of 1997 for declaration of the sale deed dated 20.11.1964 as illegal and void and as a consequence thereof for declaration that the gift deed dated 10.3.1983 by Respondent No. 1 in favour of Respondent No. 1 (a) be declared void. The suit has been filed basically on the ground that the Appellant-Plaintiff belongs to Scheduled Caste and is illiterate person. His grand-father had acquired title over the land in dispute. After the death of his grand-father, when Appellant-Plaintiff was minor, his mother had sold the land by registered sale deed dated 20.11.1964 in favour of Respondent No. 1. Subsequently, the said Respondent has further alienated the land to Respondent No.l(a) by a registered gift deed dated 10.3.1983. The land has been sold by the mother of the Plaintiff without there being any legal necessity and without prior sanction of the District Judge as required u/s 8 of the Hindu Minority and Guardianship Act, 1956 ( hereinafter referred to as the" Act, 1956)". Written statement was filed by the Defendant denying all the allegations made in the plaint. An application was filed by the Appellant-Plaintiff under Order 1, Rule 10 Code of Civil Procedure, 1908 (hereinafter called "Code of Code of Civil Procedure") for impleadment of deity on the ground that originally the land belonged to the deity, i.e., Sri Laxminarayan Thakur Bije Ramgarh and it had been so recorded in the revenue record 1929-30. Certain intermediary right has been created in favour of other persons. The Commissioner in exercise of power under the provisions of Orissa Hindu Religious Endowments Act, 1951 ( hereinafter called the "Act, 1951") formed a Trust Board for Management of the Deity in respect of all the properties of the institution vide order dated 11.4.1961. This land could not have been transferred without prior permission of the Commissioner under the Act 1951. The sale deed dated 11.4.1961 is void. The said application has been rejected by the Civil Court vide order dated 24.3.2004. The Civil Court took note of all the facts, however, came to the conclusion that the deity was not a necessary party. Subsequently another application was filed by the Plaintiff for impleadment of the Commissioner under the Act, 1951 which has also been rejected vide order dated 13.8.2004 making reference of the earlier order dated 24.3.2004 by which it had rejected the application to implead the deity as a party.

Being aggrieved the Plaintiff-Appellant filed two writ petitions which have been disposed of by a common judgment by the learned Single Judge rejecting the writ petition so far as impleadment of the deity is concerned, but issued a direction in the other writ petition that as at one time the land belong to the deity in view of the provisions of Section 69 of the Act, 1951 notice to the Commissioner is mandatory. Therefore, learned Single Judge issued a direction to the trial court to issue notice to the Commissioner under the Act, 1951.

The Defendants being aggrieved filed two writ appeals for setting aside the direction of the learned Single Judge issuing direction to notice the Commissioner under the Act, 1951 and another appeal has been filed by the Appellant-Plaintiff that the deity should be impleaded as a party.

We have heard Learned Counsel for all the parties and perused the record. Mr. P. Panda, learned Addl. Standing Counsel for the State has also been permitted to make submissions in view of the fact that serious legal issues are involved and interest of the deity, a perpetual minor, requires to be protected.

It has been submitted by Mr. Sk. Aziz, Learned Counsel for the Appellant in Writ Appeal Nos. 63 and 64 of 2007 that in view of the fact that learned Single Judge came to the conclusion that deity was not a necessary party and the writ petition had been dismissed, there was No. occasion for the Writ Court to issue a direction to the Civil Court to issue notice to the Commissioner under the Act, 1951; provisions of Section 69 of the Act, 1951 were not attracted. Therefore, the appeals should be allowed.

Mr. Damodar Deo, Learned Counsel for the Appellant in Writ Appeal No. 136 of 2008 has opposed these appeals contending that the land belonged to the Deity and therefore, it could not be a subject matter of sale, without permission of the Commissioner under the Act, 1951. In support of his appeal he submitted that the deity being a perpetual minor, requires protection of his legal guardian i.e. the Plaintiff and if not, of the State and in case the State also fails to protect its interest, the Court becomes the last guardian. Therefore, the appeal deserves to be allowed.

Shri P. Panda, learned Addl. Standing Counsel has submitted that the matter involves serious legal issues i.e. what is the effect of a sale deed in case the land belongs to deity, a perpetual minor and if the sale deed is void, what is the limitation which would apply in this case. As what rights a person can claim after vesting of land in the State u/s 8(1) of the Orissa Estates Abolition Act, 1951. Sri Panda has raised doubt about the bona fides of the Plaintiff himself contending that in the plaint, No. reference has been made to the deity. More so, it was a simple case of alienation of land vide sale deed dated 20.11.1964 by a member belonging to the Scheduled Caste in favour of a non-Scheduled Caste person. Therefore, the issue could have been agitated under the provisions of Section 22 and 23 of the Orissa Land Reforms Act, 1960 (hereinafter called ''the Act, 1960 ) which provides that such transfer itself is void and No. explanation is coming forward from the Appellant-Plaintiff why such a simple procedure has not been adopted. It cannot be ruled out that at the initial stage the suit had been as collusive proceedings otherwise the issue could be agitated giving reference to the deity. Therefore, the Court should grant permission to the Commissioner under the Act, 1951 to examine the entire case as it is necessary to protect the interest of the deity. In case the applications are allowed, the newly added Defendants file proper written statements, issue may be framed as to whether the land belong to the deity and if so, whether it could have been transferred by sale deed dated 20.11.1964. Other incidental and ancillary issues can also be decided. Therefore, the Writ Appeal No. 136 of 2008 be allowed and remaining two appeals i.e. Writ Appeal Nos. 63 and 64 of 2007 be dismissed.

Learned Counsel for the Plaintiff is not in a position to explain as under what circumstances, the plaint does not make reference that the land belonged to the deity. More so, for the reason best known to him, the Appellant-Plaintiff is not in a position to explain why recourse to the provisions of Sections 22 and 23 of the Act, 1960 which make the alienation by the members of the Scheduled Caste in favour of a non-Scheduled Caste void has not been resorted to.

There can be No. dispute to the settled legal proposition that the land belonging to the deity cannot be transferred in contravention of Statutory provisions. The reason being that Deity is a juristic, perpetual minor and disabled person and in respect of the property belonging to the minor and a person incapable to cultivate the holdings by reasons of physical disability or infirmity requires protection. A deity is covered under both the classes. The manager/trustee/pujari and ultimately the state authorities are under obligation to protect the interest of such a minor or physically disabled person. The Deity cannot be divested of any title or rights of immovable property in violation of the statutory provisions. The object is laudable and based on public policy. In order to protect its interest even a worshipper having No. interest in the property may approach the authority or Court. If any person claims to have acquired any right in the property belonging to the deity, the transaction is required to be ignored being illegal and the deity becomes entitled to recover the possession as well as the right title/interest in the property.

In Bishwanath and Another Vs. Shri Thakur Radhaballabhji and Others, , the Apex Court has observed as under:

When such an alienation has been effected by the shebait acting adversely to the interests of the idol even a worshipper can file the suit, the reason being that the idol is in the position of a minor and when the person representing it leaves it is a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest.

(Emphasis added)

In Veruareddi Ramaraghava Reddy and Others Vs. Konduru Seshu Reddy and Others, , the Supreme Court held that the worshipper of Hindu Temple is entitle in certain circumstances, to bring a suit for declaration that the alienation of the temple properties by the de-jure Shebait is invalid and not binding upon the temple. Worshippers of temple are beneficiaries in a spiritual sense. It is open in such a case, to the deity to file a suit through some person as next friend for recovery of possession of property improperly alienated or for other relief. Such a next friend may be a person who is a worshipper of the deity.

A similar view has been reiterated by Allahabad High Court in Bhagauti Prasad Khetan Vs. Laxminathji Maharaj, .

In Ramchand (Dead) by Legal Representatives Vs. Thakur Janki Ballabhji Maharaj and Another, , the Apex Court held:

A person who has made large donation for the maintenance of the temple, has clearly a substantial interest to maintain a suit for possession temple and its properties against the Pujari or manager on behalf of the deity to protect the property from mismanagement and misappropriation.

In Shri Kalanka Devi Sansthan Vs. The Maharashtra Revenue Tribunal, Nagpur and Others, , the Supreme Court held that the properties of the trust in law is of the trustee, whereas in case of an idol or a Sansthan they do not vest in the manager or Shebait. It is the deity which owns and holds the property. It is only the possession and the management which vest in the manager.

A similar view has been reiterated by the Supreme Court in Deoki Nandan Vs. Murlidhar, ; and Kapoor Chand and others Vs. Ganesh Dutt and others, .

In Shri Krishna Singh v. Mathura Ahir and Ors. AIR 1980 SC 707, the Supreme Court held:

A religious institution such as a math is treated as a juristic entity with legal personality capable of holding and acquiring property. The ownership is in the institution or the idol. From its very nature a math or an idol can act and assert its right only through human agency known as a Mahant Shebait or dharmakarta or sometimes known as trustee.

Thus, in view of the above, it is evident that the case of a deity is to be considered entirely on different footings. Deity is a juristic entity, capable of acquiring and possessing of the immovable properties, as it cannot manage it, the management shall be that of the pujari/shebait/mahant/or trustee. Deity can sue or can also be,sued through the next friend.

In any Court proceeding wherever the property of the deity is involved the deity is a necessary party. Any judgment or order behind its back would not be binding on the deity in view of the- provisions contained in the proviso to Order 1, Rule-9,Code of Code of Civil Procedure. More so, it would be violative of the principles of natural justice (Vide Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar, ).

Section 19 of the Act, 1951 provides that sale or mortgage of lease for a term exceeding five years of any immovable property belonging to, or given or endowed for the purpose of, any religious institution, shall not be made unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution and No. such transfer shall be valid or operative unless it is so sanctioned.

Section 25 of the Act, 1951 provides for recovery of immovable trust property unlawfully alienated. It provides that in case of any alienation, incontravention of Section 19 of this Act or Section 51 of the Orissa Hindu Religious Endowments Act, 1939, or in case of unauthorized occupation of any immovable property belonging to or given or endowed for the purpose of any religious institution, the Commissioner may, after summary enquiry as may be prescribed and on being satisfied that any such property has been so alienated or unauthorisedly occupied send requisition to the Collector of the district to deliver possession of the same to the trustee of the institution of a person discharging the function of the said trustee.

From a reading of the provisions of Sections 19 and 25 of the Act, 1951 together it is evident that the provisions of Section 19 are mandatory and any transaction entered in contravention thereof is ab initio void. Non-observance of the said provision attracts dispossession and requires restoration of property to the deity by the statutory authorities. Section 19 starts with non-withstanding clause, so it will have overriding effect on any other law being in force.

A Full Bench of this Court in Smt. Basanti Kumari Sahu v. State of Orissa and Ors. 81 (1996) CLT 571, has taken the view that provisions of Section 19 of the Act, 1960 are mandatory in nature and any alienation of land in contravention of the provisions of Section 19 is void.

While considering the application for impleadment under Order 1, Rule 10, Code of Civil Procedure, the Court must keep in mind that Plaintiff is the sole architect of his plaint and he has a right to choose his own adversary against whom he seeks relief. A judgment or order shall have No. legal effect so far as the person who is not a party in the case is concerned. Impleadment may be necessary to avoid multiplicity of the suit, but it cannot be the sole ground. Facts and circumstances of the case must show that unless a person is impleaded in the suit there is likelihood of further litigation in the same matter on the same issues. It is only in exceptional circumstances where the Court finds that addition of new party is absolutely necessary to enable it to adjudicate effectively and completely the matter in controversy between the parties, it will add him as a party. (Vide Banarsi Dass Durga Prashad Vs. Panna Lal Ram Richhpal Oswal and Others, ; Arjan Singh and Ors. v. Kartar Singh and Ors AIR 1975 P&H 184; Harbans Singh Vs. E.R. Srinivasan and Another, ; and Mohd. Farooq Vs. District Judge, Allahabad and others, ).

In Jayashree Chemicals Ltd. Vs. K. Venkataratnam and Others, , the Court held that it is not permissible that by moving an application under Order 1, Rule 10, CPC the nature of the suit can be changed. Therefore, in case of a plain and simple eviction suit if another person files an application claiming to have title over the suit property, it would amount to converting the simple suit for eviction into a suit for declaration of title. The said course would amount to substitute a new suit in place of old one.

A similar view has been reiterated by the Patna High Court in Jaikaran Singh Vs. Sita Ram Agarwalla and Others,

In Chamiar Kunchelan Vs. Kandan Damodaran, , the suit was filed for recovery of arrears of rent. Another person filed an application for impleadment on the ground that he was in possession of half of the suit property as owner. The question arose as to whether the applicant was the owner or trespasser. The Court held that the suit had been filed for arrears of rent and it cannot be converted into a complicated title suit by addition of parties and to adjudicate upon title of the parties.

In Pravat Kumar Misra Vs. Prafulla Chandra Misra and Another, , a suit for eviction of tenant was filed and a person made an application claiming title over the suit property and thus applied for impleadment. this Court rejected the application on the ground that in the suit No. relief has been claimed against the applicant nor his rights were to be determined therein and the judgment and order passed in the suit cannot adversely affect him as he was not the party in the suit. Therefore, he was not a necessary party.

In Firm of Mahadeva Rice and Oil Mills and Others Vs. Chennimalai Goundar, , the Madras High Court held that unless the Court comes to the conclusion that the applicant is one for whose presence the question in the suit cannot be completely and effectively adjudicated upon, the question of his addition does not arise. Merely because impleadment would avoid multiplicity of suits and it would be convenient for purpose of trial application cannot be allowed as there are not relevant considerations. The Court has to restrict the case only for determining the real controversy between the parties and when it is found that the third party is necessary only then he may be impleaded.

In Motiram Roshanlal Coal Co. (P) Ltd. Vs. District Committee and Others, , the Court held that the Court must keep two principles in mind while considering such a question, i.e., (1) when the party sought to be impleaded ought to have joined as Plaintiff or Defendant, and is not so joined, or (2) when without his presence the questions in the suit cannot be completely decided. Person seeking impleadment should have a direct interest in the suit property.

However, there cannot be any absolute bar to implead a person against the Plaintiffs consent in a fit and proper case where the applicant seeking impleadment or a person sought to be impleaded is found to be a necessary party. (Vide AIR 1931 229 (Privy Council) ; and Banarsi Dass Durga Prashad Vs. Panna Lal Ram Richhpal Oswal and Others, .)

In Vijay Pratap and others Vs. Sambhu Saran Sinha, ; the Supreme Court held that the scope of the suit cannot be enlarged by addition of a party and suit for specific performance cannot be converted into a suit for title and possession.

In J.J. Lal Pvt. Ltd. and Others Vs. M.R. Murali and Another, ; Vijay Lata Sharma Vs. Raj Pal and Another, ; and Kasturi Vs. Iyyamperumal and Others, , the Supreme Court held that impleadment of any of the party should not change the complexion of litigation and raise such controversies as are beyond the scope of the litigation.

In Sumtibai and Others Vs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.) Thru Smt. Mankanwar Chordia (Dead) and Others, , the Apex Court held that if a party can show fair semblance of title and interest, he is entitled to make an application for impleadment.

Thus, an application for impleadment can be allowed in case the person is found to be a necessary party. His impleadment is found to be absolutely necessary to enable the Court to adjudicate the issues effectively and completely. Person sought to be impleaded must have direct interest in the suit property. Avoidance of multiplicity of litigation may be a good ground but cannot be a sole criterion for deciding the application. Generally a party cannot be impleaded against the wishes of the Plaintiff, unless it is necessary in the interest of justice. A party may also be added by the Court, if its presence is found to be desirable in the interest of justice.

The cases in hand require to be examined in the light of the aforesaid settled legal proposition.

Appellant-Plaintiff, for the reasons best known to him had not made any reference to deity in the plaint; His simple case had been transferred by his mother without any legal necessity and without taking prior sanction of the District Judge required u/s 8 of the Act, 1956. Appellant-Plaintiff could also agitate the issue of sale under the provisions of the Act 1960 as any transfer of land by a person belonging to Scheduled Caste in favour of a non-Scheduled Caste is void under the said Act. Suit was filed in 1997 and at a belated stage, Appellant filed application for impleadment in 2004. There was sufficient material before the trial court to show that land in dispute originally belonged to the deity. Admittedly, No. sanction of the Commissioner as required u/s 19 of the Act, 1951 had been taken. The trial court did not allow the application as copies of the current Revenue Record had not been filed. More so, the Court had been of the view that name of the persons sought to be impleaded was a necessary party. The learned Single Judge has been convinced on the basis of documentary evidence that property of the religious Math was involved, thus notice to the Commissioner as required u/s 69 of the Act, 1951 was necessary.

We have, in view of the fact that deity being a perpetual minor required protection, examined the case more elaborately. The appeal involves substantial questions of law i.e.

(1) In case the land belongs to the deity originally, whether it could be sold without taking permission of the authority concerned under 1951 Act?

(2) Whether the deity''s land vested in the State in view of the provisions of Section 8 (1) of the Orissa Estates Abolition Act, 1951?

(3) What is the effect of vesting on the tenancy rights?

(4) Whether the Plaintiff could have tenancy right for more than five years at a time as per the provisions of Act, 1951?

(5) In case it was not the deity''s land, whether same was void in view of the provisions of Act, 1960 ?

(6) In the facts and circumstances involved in this case, whether the claim has been agitated within limitation prescribed by law?

In such a fact situation and after examining the documents on record it cannot be held that the deity does not have direct interest in the suit property. Interest of the deity has not been properly watched and protected even by those who had been responsible for it under the Act, 1951.

In such a fact situation, in case where there has been sufficient material on record to show that the Plaintiff himself have misbehaved in a most irresponsible manner and did not take any steps to protect and the authorities under the Act, 1951 remain totally unaware and unconcerned adopted a unwarranted indifferent attitude in utter disregard of their responsibility under the Act, 1951, the Court must come forward to protect the interest of the deity being a perpetual minor. (Vide Temple of Thakurji Vs. State of Rajasthan and Others, ).

The purpose of the Writ Court is not only to protect the person for being subjected for violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the discretion of the Court. However, being the power discretionary, the Court has to balance competing interest, keeping in mind that interest of justice and public interest can coalesce in certain circumstances. ( Vide Champalal Binani Vs. The Commissioner of Income Tax, West Bengal and Others, ; Ramniklal N. Bhutta and another Vs. State of Maharashtra and others, ; Chimajirao Kanhojirao Shirke and Another Vs. Oriental Fire and General Insurance Co. Ltd., ; Shama Prashant Raje Vs. Ganpatrao and Others, ; Life Insurance Corporation of India and Others Vs. Smt. Asha Goel and Another, ; Roshan Deen Vs. Preeti Lal, ; S.D.S. Shipping Pvt. Ltd. Vs. Jay Container Services Co. Pvt. Ltd. and Others, ; and Chandra Singh Vs. State of Rajasthan and Another, .

In A.M. Allison Vs. B.L. Sen, , the Apex Court held that writ Court should exercise its jurisdiction where it comes to the conclusion that there has been failure of justice when the substantive justice and technical consideration are in conflict, the former deserved to be preferred as No. person can claim to have vested right in injustice being done. (Vide Dal Singh v. King Emperor of India 1917 PC 25; and Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others,

Mr. P.Panda, learned Addl. Standing Counsel has asked the Court to issue a direction to the Commissioner to examine the issue independently and proceed in accordance with law. We have failed to understand as to why such a direction is required by authority under the statute as he is always free to meet the statutory obligation. Therefore, we are of the considered opinion that No. such direction is required as it is always open to the said authority to proceed in accordance with law.

In view of the above, the Writ Appeal No. 136 of 2008 is allowed. The deity is impleaded as a party and the trial court may give opportunity to file written statement within thirty days from today. The trial court is requested to proceed expeditiously and conclude the trial as early as possible in accordance with law. The other writ appeals being W.A. Nos. 63 and 64 of 2007 are dismissed.

B.N. Mahapatra, J.

I agree.