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PETITIONER: BRAJA KISHORE JAGDEV

       Vs.

RESPONDENT: LINGRAJ SAMANTARAY & ORS.

DATE OF JUDGMENT:       28/07/2000

BENCH: S. Rajendra Babu, J. & Shivaraj V. Patil, J.

JUDGMENT:

RAJENDRA BABU, J. :

The  respondents  made a claim in respect of an  institution  Sri SidhaBaladev  Jew,  Bie-Sodharpur, P.O.  Baku in the district  of Puri;   that  the said institution had been established  by  some unknown  founder  the origin of which had been lost in  antiquity and  the  institution  has  all along been treated  as  a  public religious  institution;   that  the respondents  ancestors  were entrusted  with  the  management of all the affairs of  the  said institution  including seva-puja of the deity and possessing  all the  lands  of  the  deity  and such  right  of  maintaining  the institution  was  inherited by their heirs;  that they have  been rendering  seva-puja  to  the  deity as  marfatdars  without  any intervention  at  any  time  whatsoever   and  therefore  are  in possession  of  all the properties of the deity, paying rents  to the  authorities in respect of the landed properties and from out of  the  usufruct  received from the landed properties  by  their ancestors;   that  no property has been separately set apart  and given  to  the marfatdars to be enjoyed by them in lieu of  their service;    that  such  right  of   inheriting  the   office   of marfatdarship  has been in practice since the time of the founder and  is regulated by custom;  that they have been functioning  as marfatdars  since the time of the founder till todayand they have also  been  recognized as Hereditary Trustees by the Revenue  and other authorities from time to time.

In   the  year  1955,  the   respondents  claimed  by  filing  an application  under  Section  64  of the  Orissa  Hindu  Religious Endowments  Act,  1939,  that the institution of  the  endowments thereof  to be their private property made by the respondents and contested by the appellant and others and the same was dismissed. Thereafter  the  matter  went  to the High Court  in  appeal  and ultimately  the  decision of the lower Court was upheld  and  the appeal  was disallowed.  Another application under Section 42  of the  Orissa  Hindu  Religious Endowments Act,  1951  [hereinafter referred to as the Act] was filed in the year 1959-60 which was also  dismissed  but  for default.  Thereafter  a  non-hereditary trust  board was appointed under Section 68 of the Act and  under whose  control  sevas are performed to the said  deity.   Another application  was  filed to adjudicate their claims as  hereditary trustees  under  the  Act on the basis of the pleadings  set  out earlier  in this order.  The appellant pleaded that by custom  or otherwise  the  respondents were not ever treated  as  hereditary trustees of the institution.

Three  issues were raised by the Assistant Commissioner as to (i)

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whether   the  petition  was   maintainable;   (ii)  whether  the appellant  is  barred  by the principle of res  judicata;   (iii) whether  respondents  are  hereditary trustees.  With  regard  to issue  Nos.1 and 2, he found in favour of the respondents.   Thus the  only  issue  remaining  to  be  considered  is  whether  the respondents  are the Hereditary Trustees of Sri Sidhabaladev  Jew of  Village Sodharpur, P.O.  Baku, District Puri.  The  Assistant Commissioner  noticed that heavy burden lies upon respondents  to establish that they are Hereditary Trustees of the institution of the  deity  since  the  time of the foundation  of  deity  or  is regulated  by custom or specially provided by founder so long  as such  scheme  is  in force.  He, in detail, considered  the  said aspect  of the matter and came to the conclusion that respondents could  only  be  marfatdars,  that   is,  only  servants  of  the institution,  who  are  liable  for dismissal  in  the  event  of non-performance  of  seva/puja  of the deity and  not  Hereditary Trustees.   He  also noticed that even the respondents  case  is that  the institution of the deity and entrusting the  management thereof had been lost in antiquity.  Therefore some good material should  have been produced by the respondents to establish  their claim.   On  discussion  of  the other  material  on  record  the Assistant   Commissioner   rejected  the   claim  made   by   the respondents.   The matter was carried in appeal to the High Court and  the  High Court allowed the same.  The basis upon which  the High  Court  proceeded  to  hold the  respondents  as  Hereditary Trustees  is that there was material to show that the respondents are  marfatdars and if they are marfatdars, they should be  taken to  be  trustees.  It was also held that since the origin of  the temple  was lost in antiquity, on principle of lost grant,  the respondents should be deemed to be hereditary trustees.

 The  definition of Hereditary Trustee is set out in the  Act. Under  the said provision Hereditary Trustee means the Trustee of the  religious institution succession to whose office devolves by hereditary right since the time of the founder or is regulated by custom  or is specifically provided for by the founder so long as such  scheme of succession is in force.  In order to lay a  claim that  they are Hereditary Trustees it has to be established  that the  members of the family have been in charge of the  management of  the affairs of the deity as trustees and succession to  their office  devolve on them by hereditary right since the time of the founder  and  the  scheme  was  in  force  until  filing  of  the application  under  Section 41 of the Act.  Assuming  that  every single  member  of the family of the respondents were  acting  as marfatdars  of  the  deity  for some time may not  by  itself  be sufficient  to  establish  their case that  they  are  Hereditary Trustees  as  provided  in Section 3(6) of the  Act.   The  other criteria  like  succession to office of the trustee devolving  by hereditary right since the time of the founder or being regulated by  custom  and  such  scheme  is  in  force  till  the  time  of application  under Section 41 of the Act has to be established by adducing cogent evidence.

Let  us test the material placed before the court in the light of what  we  have  stated.  The argument that was  advanced  in  the present  case  is  that  being  marfatdars  the  respondents  are trustees.  However, the High Court proceeds to analyse the matter on the basis that there is no impediment to the person who was in charge  of rendering religious duty of the deity to be a  trustee of  the  institution  in as much as the definition of  a  trustee includes  any person in whom the administration of the  religious institution is assigned.  This approach of the High Court results in  examining the matter from a wrong end.  What is to be seen is whether  respondents, though hereditary trustees, were engaged as marfardars  and not the other way.  Merely because a person  is

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in  charge of the administration of the deity though as a trustee will  not  make him a hereditary trustee unless the  conditions thereto  are fulfilled to which we have adverted to earlier.   In the  present case, the claim of the respondents is not that  they are  trustees  but  that they are hereditary trustees  under  the relevant provision.  Therefore the view of the High Court in this respect  is not well founded particularly when the view set up by the  authorities  below  could not be termed as  unreasonable  or improper.

The  other basis upon which the High Court passed its judgment is that  the  requirements of law that they are Hereditary  trustees since   the  time  of  founder occurring in  the  definition  of Hereditary Trustee is lost in antiquity and therefore it is not possible  to  have any direct evidence to establish the  line  of succession  but could be derived in the doctrine of lost grant. It  is open to court to infer grant from immemorial use when such user is open, as of right and without interruption but grant will not  be  inferred  if the user can be explained  otherwise.   The fiction  of  a  lost  grant is a  mere  presumption  from  long possession  and exercise of user by easement with acquiescence of the  owner,  that there must have been originally a grant to  the claimant,   which  had  been  lost.    There  can  be  no  such presumption  of  a  lost  grant  in  favour  of  a  person  who constitute  trustees  in succession.  We do not think that,  with the  material  on  record,  any such  interference  is  possible. Firstly,  contention had been advanced before the courts that the deity  is  a  private  trust and not covered  by  the  enactment; having failed in that regard now they want to hang on to the fact that they are hereditary trustees.  In establishing the same they have  miserably failed by not producing evidence of any kind.  In the  circumstances  we  have no hesitation in setting  aside  the order  made  by the High Court and restore that of the  Assistant Commissioner to which we have adverted to earlier.  The appeal is allowed  accordingly.   However,  there shall be no order  as  to costs.