Sree Jagannath Bairagy Vs. Sree Sree Kanailal Jew Bigraha and others, 2009

Supreme Court

Appellate Division

(Civil)

Present:

MM Ruhul Amin CJ

Md. Abdul Matin J

Md. Abdul Aziz J

Sree Jagannath Bairagy……………Petitioner

Vs.

Sree Sree Kanailal Jew Bigraha and others……….Respondents

Judgment        

April 5, 2009.

Lawyers Involved:

Md. Nawab Ali, Advocate-on-Record-For the Petitioner.

Rabishanker Chakrabarty, Advocate, instructed by A. K.M. Shahidul Huq, Advocate     on-Record-For Respondent Nos. 1-4.                             

Not represented-Respondent Nos. 5-1.

Civil Petition for Leave to Appeal No.1276 of 2008.

(From the judgment and order dated 21.04.2008 passed by the High Court Division in Civil Revision No. 5583 of 2000.)

Judgment

 Md. Abdul Matin J. – This petition for leave to appeal is directed against the judgment and order dated 21.04.2008 passed by the High Court Division in Civil Revision No.5583 of 2000 discharging the Rule affirming the judgment and decree dated 31.08.2000 passed by the learned Subordinate Judge, Additional Artha Rin Adalat No.2, Dhaka in Title Appeal No. 221 of 1995.

2. The facts, in short, are that the respon­dents as plaintiffs as next friend of shebait committee instituted a suit for declaration that two deed of gift dated 12.07.1979 and 30.07.1979 executed and registered by the Sree Sree Kanailal Jew Bigraha represented by its Shebait Sree Lakshmi Bairagy to defendant No.1 are illegal, inoperative, collusive and not binding upon the plain­tiff.

3. The facts of the case are that the prop­erty in suit ‘Ka’ and ‘kha’ schedule origi­nally owned and possessed by Murari Dhar Madha Sathadhikari who took per­manent settlement from zamindar Harendra Kumar Roy Chowdhury. Before preparing C.S Khatian the said zamindar dedicated by way of Endowment the suit property and some other property and installed the deity Sree Sree Kanailal Jew Bigraha for performances of Seba Puja, Archna and religious festivals as a public Debottor property, Sreemati Zugal Dasshya and Usha Rani Dashya were the owner of the “Ka” schedule property appertaining C.S. and S.A Dag Nos. 1720 and 21 measuring suit lands .48, 1.49 and 1.36 decimals respectively by a pattan nama. Subsequently they executed and registered in favour of the Deity on 11.031956 by a deed of gift No.44774 with a condition that the said properties could not be sold by any one. The said endowment was public in nature. Thereafter some local religious people nominated a pujary Radha Raman Das by name for performing the seba-puja of the said Deity. Since then the said Radha Raman Das was performing the Sheba puja. But though the C.S khatian was cor­rectly prepared in the name of Sree Sree Kanai Lal Bigraha but wrongly prepared in the name of Radha Raman Das as Shebait, the suit land is public Debattor property, as much Radha Raman Das was not a Shebait of the Deity but he was only a pujary. The said Radha Raman belonged to a Maroary or aria community. He appointed Lakshmi Baisnabi Bangalee women for helping him to perform the seba puja. After the death of said Radha Raman Bairagy the religious people of the locality decided to continue the position of the Lakshmi Bairagy. But C.S Khatian was prepared correctly in name of Sree Sree Kanailal Bigraha, but wrongly prepared in the name of Lakshmi Baishnabi wife of Radha Raman as a Shebait, Lakshmi Baishnabi was only her seba Dashi and the said Lakshmi Baishnabi was maintain­ing celibacy and was childless. Accordingly, Lakshmi Baishnabi had no right, title, interest and possession over the suit land.

4. The said Lakshmi Baishnabi died in the year 1988. After the death of Lakshmi Baishnabi the religious people constituted a shebait committee in presence of 52 local religious persons on 16.10.1992 they created a shebait committee to look after the management of the deity. Thereafter the said committee was performing the seba puja of the deity. The defendant took away the idol from the puja ghar only to grab the debottor property and he made a G.D Entry with a false statement on 28.09.1992. But after investigation the officer-in-charge of the said Thana arrest­ed him and carried him on the back side of his motor cycle but he was running away from the motor cycle to save himself and it was circulated in some news papers. But the investigation officer did not collect evidence to prove that but submitted final report to the Court. Thereafter the defendant brought a permanent injunction against the member of the Shebait com­mittee and after taking the plaint of the said permanent injunction the manage­ment committee came to learn the matter of the deeds of gift and thereafter taking certified copies the shebait committee was compelled to bring this suit claiming that the said two deeds are illegal, inoperative, collusive and not binding upon the plain­tiff.

5. The defendant petitioner contested the suit by filing a written statement denying all the assertions and material allegations that the suit properties are private Debbottor properties. Bharat Chandra Bairagy father of Radha Raman Bairagy installed deity Sree Sree Kanai Lal Bigraha. Said Bharat Chandra was a fisherman. He installed Kanai Lal Bigraha. He was per­forming seba puja as a shebait of the said deity and purchased some lands in favour of the deity. After the death of said Bharat Chandra his only one heir Radha Raman Das was performing the Sheba puja, accordingly his name was prepared as a shebait of the Sree Sree Kanai Lal Bigraha in the C.S. Khatian as a private debbottor properties. Subsequently Radha Raman died leaving his only wife Lakshmi Baishanabi, she got Shebayatship to look after the management of the deity and her name was prepared in the place of Shebait in the S.A. Khatian. Lakshmi Baishnabi had no child as such she took adopted son who is defendant to look after the manage­ment and sheba puja of the deity as a shebait of the deity’s properties and she creat­ed two deeds of gift and put him into pos­session. Accordingly, defendant mutated his name as a shebait and was paying rent to the Government. It is a private debottor properties as such the shebait committee has no locus standi to file this suit, hence the suit is liable to be dismissed.

6. The trial Court decreed the suit and on appeal the appellate Court affirmed the judgment of the trial Court and the High Court Division discharged the Rule and affirmed the judgment and decree passed by the Courts below.

7. As against the judgment and order of the High Court Division Passed in revi­sion the petitioner has filed this petition for leave to appeal.

8. Heard the learned Advocate-on-Record and perused the petition and the impugned judgment and order of the high Court Division and other papers on record.

9. It appears that the trial Court on consid­eration of exhibits-‘Ka’ and ‘Kha’ held that Jugal Dashi and Usha Rani gifted the prop­erty in favour of the Deity and decreed the suit, such finding of the trial Court has been affirmed by the appellate Court and the High Court Division. The Deity was established 100 years ago and the defen­dant failed to produce any document to prove that Bharat Das took Settlement of the suit land. The defendant created exhibit-5 series which the Court of appeal below rightly disbelieved. No case has been made out calling for interference by this Court.

We find no substance in this petition which is accordingly dismissed.

Ed.

Source : VI ADC (2009) 939

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