Disposed

Mahanta Adhikari v. Commnr.,L.R.S.

Orissa HC20 Apr 2021WP(C)/4542/2002

Case brief

AI extract

What is this about?

This writ petition challenged a settlement order that recorded land in a temple name despite prior consolidation recording in an individual's name. The court held the Settlement Authority cannot alter consolidated Record of Rights. Due to pending title dispute upon the petitioner's death, petitions were dismissed with a direction to appoint a custodian.

What did the court decide?

Petitions dismissed with a direction to the Tahasildar to act as custodian of the property until a competent court adjudicates the title dispute.

Mahanta Adhikari Vs Commnr.,L.R.S. — Property and Title | Orissa HC (2021)

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HIGH COURT OF ORISSA: CUTTACK

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W.P.(C) No.4542 of 2002

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A N D

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W.P.(C) No.189 of 2020

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In the matter of applications under Articles 226 and 227 of Constitution of India.

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Sri Mahanta Biswambar Dash, Chella of late Mahanta Adhikari Krupasindhu Das ……. Petitioner -Versus-

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Commissioner, Land Records and Settlement, Odisha, Cuttack & others ……. Opp. Parties

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For Petitioner : M/s Mr.N.K. Sahu, B. Swain,

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M. Das & S.K. Nayak

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For Opp. Parties : M/s P. K.Routray, A. Routray

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J. Bhuyan, A. Routray & P.K. Jena (For O.Ps.4 & 5) Mr. A.K. Nath (For Commr. of Endowments) Mr. Sarojananda Mishra, Addl. Government Advocate

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(For O.Ps.1 to 3)

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Date of Order - 20.04.2021 -----------------------------

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P R E S E N T:

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THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA

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O R D E R

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K.R. Mohapatra, J. These matters are taken up through video

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conferencing mode.

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Heard Mr. N.K. Sahoo, learned counsel for the

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Petitioner, Mr. J. Bhuyan, learned counsel for the Opposite Party

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Page 2 of 15

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Nos. 4 and 5, Mr. A.K. Nath, learned counsel for the Commissioner of Endowments and Mr. S.N. Mishra, learned Addl. Government Advocate for the State-Opposite Party Nos. 1 to 3.

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The petitioner in these writ petitions seeks to challenge the order dated 24.05.2002 (Annexure-6) passed by the Commissioner, Land Records & Settlement, Orissa, Cuttackopposite party no.1 in M.R.C. Case Nos.30 and 31 of 1999, wherein the Commissioner exercising power under Section 32 of the Orissa Survey & Settlement Act, 1958 (for short ‘the Settlement Act’) directed to record the land in question in the name of Sarang Jagannath Matha, (for short ‘Matha’) represented by the Executive Officer-opposite party no.4.

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The short question involved in these writ petitions are as to whether the Settlement Authority in exercise of power under Rule 34 of Orissa Survey & Settlement Rules, 1962 (for short ‘the Rules’) can sit over the R.O.R. published under Section 22(2) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short ‘the Consolidation Act’).

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It is submitted by Mr. Sahu, learned counsel for the petitioner that one Kamali Dasi by way of registered sale deeds dated 17.01.1956, 15.01.1969, 12.06.1972 and 09.10.1972 had purchased the land in question from her own source of income.

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During her lifetime, said Kamali Dasi had executed a registered deed of Power of Attorney and relinquishment in favour of Krupasindhu Das, the original petitioner in W.P.(C) No.4542 of 2002. In the year 1977, said Kamali Dasi died. After the death of Kamali Dasi during settlement operation, the properties left by Kamali Dasi were recorded in the name of Krupasindhu Das under sthitiban status (Annexure-1). During consolidation operation, the land in question was also recorded in the name of said Krupasindhu Das in the R.O.R. published under Section 22 of the Consolidation Act in the year, 1985 (Annexure-2). In the interregnum, the succession of Mahantship of Matha by Krupasindhu Das came to be challenged by the opposite party no.4-Executive Officer of Matha. The matter went up to the Hon’ble Supreme Court and it was decided that said Krupasindhu Das did not succeed as Mahanta of the Matha after death of Nityananda Das. On the basis of the said order passed by the Hon’ble Supreme Court, Mutation Case Nos. 795 and 938 of 1990 were filed by the opposite party no.4 to record the land in the name of Matha. Objection was also filed by said Krupasindhu Das stating that the properties were the exclusive stridhan of Kamali Dasi and after her death the said property was recorded in the name of Krupasindhu Das on the basis of registered Power of Attorney and relinquishment deed executed by Kamali Dasi in favour of Krupasindhu Das. Thus, the

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Tahasildar, Kendrapara has no jurisdiction to sit over the matter and make any change in the record of right prepared by the Consolidation Authority. However, Tahasildar, Kendrapara vide his order dated 18.08.1990 (Annexure-4) allowed the mutation case holding as under:

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“He further contended that the land situated in village Badabaranga and Saranga is his personal property and it has no connection with the Matha. But no document in support of this averment is filed in the Court. The mode of recording of the name of the land owner in Hal Kahata no.27, 55 and 57 is almost same since the O.P. Adhikari Krupasindhu Das has been identified as the disciple of Late Mahanta Nitayananda Das in all the Khatas. Hence, I am not convinced of the fact that the land situated in village Badabaranga and Saranga is the personal property of the O.P.”

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Assailing the same, said Krupasindhu Das filed

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Mutation Appeal Nos.9 and 11 of 1990 before the Sub-Collector, Kendrapara, which were allowed vide order dated 28.04.1999

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(Annexure-5) holding as under:

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“The learned Court below has mutated the land in favour of the respondent solely basing on the orders of the learned Additional Assistant Commissioner, Endowment passed in OA No.14 of 1989, Khata No.27 of Mouza-Saranga is separate from other two Khatas of this case as because it stood recorded in favour of Sri Jagannath Mahaprabhu of Puri Marfat Adhikari Krupasindhu Das, disciple of Mahanta Nityananda Das. Nowhere in the cases referred, has the question of succession to late Kamali Dasi been brought to deliberation. The property involved in these two appeal cases are evidently purchased land of Kamali Dasi disciple of Mahanta Nityanada Das. Probably the settlement/consolidation authorities have found the appellant as the successor of Kamali Dasi which is led to preparation of the record of rights in favour of the appellants and publication of the same. There is no rebuttal evidence to the fact of succession of appellant to the properties of Kamali Dasi. The learned Mutation Officer has not appreciated the difference of the property purchased by Kamali Dasi and the property belonged to the Endowment/Institution.”

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Being aggrieved, the opposite party no.4 preferred M.R.C. Case Nos.30 and 31 of 1999 before the Commissioner, Land Records & Settlement, Orissa, Cuttack and the impugned

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order has been passed under Annexure-6 holding as under:

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“ xx xx xx

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When a holder is a person free from wordly attachment is a celibate and has no family of his own, the presumption is that what he holds or acquires is held or acquired on behalf of the Matha to which his life is entirely devoted.

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xx xx xx Therefore, the suit properties acquired by Kamali Dasi through the different registered sale deed cited above would belong to the Sarangi Matha on the death of the vendee in view of the decision cited above in absence of any legal heirs.”

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Mr. Sahu, learned counsel for the petitioner, submits

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that a Sanyasi can acquire personal property from his/her own source of income and in that event it cannot be said to be the property of Matha, unless it is established otherwise. Reiterating his contention, he further contended that when the property was recorded by the Consolidation Authority in the name of said Krupasindhu Das (original petitioner in W.P.(C) No.4542 of 2002 being substituted by Biswambara Dash pursuant to the order dated 06.08.2007 passed in Misc. Case No.6062 of 2006), the Settlement Authority cannot sit over the same and pass the impugned order. The Settlement Authority being swayed away by the fact that Krupasindhu Das was not the Chela of Nityananda Das and he was not the Mahanta of the Matha after death of Mahanta Nityananda Das, directed to record the property in the name of the Matha. In support of his contention,

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he relied upon the case of Math Sauna and others –v- Kedar Nath @ Uma Shankar and others ¸ reported in AIR 1981 SC

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1878, wherein at paragraph-6 it is held as follows:

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“ The Mahants and members of Math Sauna belonged to the Dashnami Sanyasi sect. The material on the record establishes that they could own and possess personal property. They included sanyasis who had formerly been married men and householders, men who had passed through the grihastha ashram. Some of them continued to possess and even to acquire personal property after taking sanyas. It was observed in Sushil Chandra Sen v. Gobind Chandra Das(l) that Dashnami sanyasis mixed freely in the business world and carried on trade and often accumulated property. This Court in Gurcharan Prasad v. Krishnanand (2) affirmed that Nihang Dashnami Sanyasis could pursue money-lending business and could own property as absolute owners, and enjoy them as their personal property. That certain sects of sanyasis could acquire personal property was accepted by that eminent Judge, Dr. B.K. Mukherjee, in his "Hindu Law of Religious and Charitable Trusts",(a) where he says: "A Mohunt, and for the matter of that, any other Sanyasi can acquire personal property of his own...The Pronamis given to a Mohunt are generally his personal property.. The mere fact that a Mohunt is an ascetic does not raise any presumption that a property in his possession is not his personal property. Strictly speaking, there is no presumption either one way or the other, and in each case the burden is upon the plaintiff to establish that the properties in respect of which he is asking for possession are properties to the possession of which he is entitled in the right in which he sues".

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8. He further relied upon the case of Pandit Parma Nand

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–v- Nihal Chand and another , reported in A.I.R. 1938 PC 195,

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wherein it is held as follows:

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“ The principal ground upon which the judgment of the High Court proceeds is that the Baghichi and other properties have descended from Guru (religious preceptor) to Chela (religious disciple); but this circumstance does not necessarily lead to the conclusion that a property, when acquired by a Mahant, loses its secular character and partakes of a religious character. It is common ground that the Mahants of this institution belonged to an ascetic order called Udasi. The Udasis rarely marry, and, if they do so, generally lose all influence, for the dharmsala or Gurdwara

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soon becomes a private residence closed to strangers: Maclagan's Census Report for the Punjab, Part I., Chap. IV., p. 152. When a person enters the Udasi Order he severs his connection with the members of his natural family. It follows that neither he nor his natural relative can succeed to the property held by the other. There is, however, no reason for holding that an Udasi cannot acquire private property with his own money or by his own exertions. If he does acquire private property, it cannot be inherited by his natural relatives, but passes on his death to his spiritual heir, including his Chela, who is recognized as his spiritual son. The descent of the property from a Guru to his Chela does not warrant the presumption that it is religious property.”

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It is his contention that by virtue of substitution of Biswambara Dash vide order dated 06.08.2007 passed by this Court, he has stepped into the shoes of Krupasindhu Das and the land should be recorded in his name in the consolidation R.O.R. He, accordingly, prayed for setting aside the impugned order under Annexure-6 and to direct for correction of the R.O.R. in the name of the petitioner in respect of the land in question.

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Mr. Bhuyan, learned counsel for the opposite party nos.4 and 5 vehemently objected to the same. It is his contention that no doubt, the property was recorded in the name of Adhikari Krupasindhu Das in the consolidation R.O.R., but it was not recorded in his individual capacity. The R.O.R. (Annexure-2) was prepared in the name of Adhikari Krupasindhu Das, as the Chela of Adikari Nityananda Das, the then Mahanta of Saranga Matha. It goes to show that said

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Krupasindhu Das was claiming to be the owner of property in the capacity of Chela of Adhikari Nityananda Das and not in his individual capacity. He further submits that after the death of said Krupasindhu Das during pendency of W.P.(C) No.4542 of 2002, the situation has completely changed. Although Biswambara Dash has been substituted as the legal representative of said Krupasindhu Das, but it has been made clear in the order dated 06.08.207 passed in Misc. Case No.6062 of 2006 that substitution shall not confer any right on the petitioner to inherit the properties belonging to the institution. He, therefore, submits that the property cannot be inherited or succeeded by Biswambara Dash as such. He further submits that when the claim of Krupasindhu Das was turned down by the Hon’ble Supreme Court vide order dated 19.01.1997 passed in S.L.P. (Civil) No.24805 of 1996, he cannot claim any right, title interest over the suit property and as such, Biswambara Dash, does not have any right, title and interest over the property in question. He, therefore, prays for dismissal of these writ petitions being devoid of any merit.

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Mr. Nath, learned counsel for the Commissioner of Endowments, on the other hand, defended the impugned order under Annexure-6 and contended that Nitayananda Das, Krupasindhu Das, Kamali Dasi and Biswambar Dash are all Nihangi Sanyasis and are celibates. As such, they cannot

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acquire any personal property and all the properties acquired by them belongs to Matha to which they belong. In support of his case, he relied upon the decision in the case of Susil Chandra

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Sen and another-v- Gobind Chandra Das and another ,

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reported in AIR 1934 Pat 431, wherein it is held as follows:

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“5. A Nihangi Baisnab is a celibate sanyasi without any worldly attachments, quite unlike the grihastha or house holder class of Mahants found outside the Dasnamis of Sankaracharya or unlike the Paris and other five classes and half out of the Dasnamis who mix freely in the business of the world and carry on trade and often accumulate property: see p. 245 of Jogendra Chandra Ghosh's Tagore Law Lectures on the Law of Hindu Endowments, Vol. 2, Edn. 2, 1923.

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Thus, he submits that there is no infirmity in the impugned order under Annexure-6 and prays for dismissal of the writ petition.

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Mr. Mishra, learned Additional Government Advocate for the State, on the other hand submits that after closure of the consolidation operation, the Tahasildar is the custodian of the land records. Thus, he has been entrusted with the duty to update the records as per the changed circumstances. When an application was filed by the opposite party no.4-Matha under Rule 34 of the Rules for correction of the R.O.R. in view of the order passed by the Hon’ble Supreme Court, the Tahasildar in exercise of power under Rule 34 of the Rules, only maintained the entries in consonance with the changed circumstances. He has not passed any order, which would amount to sit over the

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R.O.R. published under the Consolidation Act. As such, the impugned order needs no interference. He further submits that in view of death of said Krupasindhu Das, the recorded tenant, the petitioner has to establish his right in competent court of law to be recorded in place of said Krupasindhu Das in respect of the land in question. Accordingly, he prays for dismissal of the writ petition.

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Heard learned counsel for the parties and perused the materials available on record.

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It is the admitted that the R.O.R. under Section 22(2) of the Consolidation Act was published in the name of Adhikari Krupasindhu Das, Chela of Nityananda Das under Annexure-2. It further appears that Krupasindhu Das (original petitioner) had filed OA No.14 of 1989 under Section 41 of the Orissa Hindu Religious Endowment Act, 1951 (for short ‘the Endowment Act’) to declare him as the Mahanta of Matha after the death of Mahanta Nityananda Das. Learned Additional Assistant Commissioner of Endowments, Cuttack taking into consideration the rival contentions of the parties held that he had no jurisdiction to decide whether the petitioner is the Mahanta or the hereditary trustee of the institution. Challenging the said order, said Krupasindhu Das filed F.A. No.13 of 1990 before the Deputy Commissioner of Endowments, Bhubaneswar,

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which was subsequently dismissed vide order dated 09.07.1993.

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Challenging both the orders, said Krupasindhu Das preferred Misc. Appeal No.226 of 1993 before this Court, which was also dismissed vide order dated 16.08.1996. Being aggrieved, the petitioner preferred S.L.P.(C) No.24805 of 1996 before the Hon’ble Supreme Court, which came to be dismissed on 19.01.1997. Thus, the claim of said Krupasindhu Das as the Mahanta of Saranga Matha has been turned down.

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In the case at hand, the petitioner claims that Kamali Dasi out of her own stridhan had acquired the land in question and the land was recorded as such in her name. During her lifetime, she executed a registered Power of Attorney in the name of said Krupasindhu Das. Said Krupasindhu Das on the basis of the said Power of Attorney got the land recorded in his name during settlement operation as well in consolidation operation and the R.O.R. under Annexures-1 and 2 have been published in his name.

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Law is well settled that the Settlement Authority cannot go into the correctness of entries in the R.O.R. published under Section 22 of the Consolidation Act. Thus, the Tahasildar, Kendrapara could not have entertained an application under Rule 34 of the Rules and directed for correction of the R.O.R. in the name of Matha. As such, the impugned orders passed by the Settlement Authorities including the Commissioner, Land Records & Settlement, Odisha, Cuttack exercising power under

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Section 32 of the Settlement Act are not sustainable in the eyes of law. Mr. Sahu, leaned counsel for the petitioner relied upon the case law in the case of Govinda Chandra Tripathy and others -v- The State of Orissa represented by the Secretary to Government of Orissa, Revenue Department and others , reported in 1989 (I) OLR-367, wherein this Court, while examining the validity of notification under Section 5(1) of the Consolidation Act after publication of R.O.R. under Section 22(2) of the said Act, came to a conclusion that the R.O.R. published under Section 22(2) of the Consolidation Act is a document of title.

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In view of the above, it is clear that the R.O.R published under the Consolidation Act is the document of title and cannot be varied by the authorities under the Settlement Act.

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Mr. Sahu, learned counsel for the petitioner further relied upon the decision of this Court in the case of Kusum Jena and Others –v- Nakhi Dei and Others , reported in 1993 (II) OLR 449, wherein at paragraph-6 it is held as follows:

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“6. The other question which crops up for our consideration is whether the Consolidation Officer as well as the appellate authority was entitled to direct that the possession of opp. party No. 1 be noted after having rejected opp. party No. 1's claim of title in respect of the land in question. There is no manner of doubt that the Consolidation authority after rejecting the title of a dispute is not entitled to direct that the possession alone be noted. The power of the Consolidation authority under the Act is not akin to that

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of the settlement authority under the Orissa Survey and Settlement Act. Under the Settlement Act, the Settlement authority is required to find out who is in possession on the date the record of rights is prepared, and is in no any concerned with the title of the person concerned, whereas under the Consolidation Act, the Consolidation Officer is required to find out the right, title and interest and pass appropriate orders thereon and is not in any way connerned with the possession on the date of notification under the Consolidation Act.”

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Mr. Sahu, learned counsel for the petitioner further relied upon the full Bench judgment of this Court in the case of

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Sundarmani Bewa and another-v- Dasarath Parida (dead)

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and after him Labanya Dei and others , reported in 1988 (I) OLR 334, wherein the view taken in Kusum Jena (supra) has been affirmed .

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In view of the above, I have no hesitation to hold that the Settlement Authority could not have directed to correct the entries in the R.O.R. published under Section 22 of the Consolidation Act.

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But the matter does not come to an end here.

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During pendency of the writ petition, said Krupasindhu Das died and an application was filed by the present petitioner to be substituted in his place. The said application was registered as Misc. Case No.6062 of 2006 and this Court passed the following order on 06.08.2007, which is as follows:

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“ Heard.

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2. This is a petition for substitution. It is submitted that the sole petitioner has died in the meantime. The

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present petitioner claims to be a ‘Chela’ of the deceased petitioner and also purchaser of the property. In view of the aforesaid fact the petition s allowed. Let Biswambara Dash be added as sole petitioner. The question as to whether he is the ‘Chela’ of late Mahanta Adhikari Krupasindhu Das, however, remains open to be dcided under the Endowment Act. It is made clear that this substitution shall not confer upon the petitioner any right to inherit the properties belonging to the institution.

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The Misc. Case is, accordingly, disposed of.”

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Thus, it leaves no iota of doubt that although Biswambara Dash was substituted as the legal representative of said Krupasindhu Das to pursue the writ petition, but it has been made clear that on the basis of the said substitution, he cannot inherit the properties in question. It can thus be safely inferred that although the R.O.R. was published in the name of Adhikhari Krupasindhu Das Chela of Nitayananda Das, the substituted petitioner cannot claim title over the land in question by virtue of his substitution in the writ petition. Since there is a rival claim of the party, namely, the petitioner vis-a-vis Matha with regard to title of the property after the death of Krupasindhu Das, the same can only be adjudicated by the competent court of law, if moved.

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In that view of the matter, this Court while setting aside the order passed by the Commissioner, Land Records & Settlement, Odisha, Cuttack under Annexure-6, disposes of these writ petitions with an observation that the parties may seek remedy claiming title over the property in question in a competent court of law, if so advised. Till an arrangement is

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made for management and protection of the property in question by the competent court of law, the Tahasildar, Kendrapara, shall be the custodian and shall look after, protect and manage the property in question . He may put the property in auction in every agricultural year, keep the account and the income therefrom shall be deposited in a separate account to be submitted to the competent court of law as and when directed. The said amount shall be dealt with as per the direction of the Court in seisin of the matter.

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As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court’s website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court’s Notice No.4587 dated 25th March,2020 as modified by Court’s Notice No.4798 dated 15^th April, 2021.

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.................................

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K.R. Mohapatra, J.

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Orissa High Court, Cuttack. Dated the 20^th April., 2021/jm

Mahanta Adhikari v. Commnr.,L.R.S.

Case brief

What is this about?

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Mahanta Adhikari v. Commnr.,L.R.S.

Case brief

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