High Court Division :
(Civil Appellate Jurisdiction)
Borhanuddin J
Md Ashraful Kamal J
Dolan Tripati alias …………Dulal Tripati
vs
Gobinda Jiew and Mohaprobhu Jiew Diety represented by Sree Bimalendu Das and others………… Respondents
Judgment
February 8th, 2017
Hindu Law-Transfer in favour of Pujari for Sheba Puja & Status of Pujari Shebait who was a manager relating to temple property had no right to transfer the property in favour of a pujari in any manner for performing Sheba puja of the deities, Status of a pujari is of a servant of the Shebait and mere performing Sheba puja for generation after generation cannot entitle him with any right and interest in the property belongs to deity. ………. (10 & 11)
Sylhet Tenancy Act, 1936 Section 3(16)
It may be mentioned here that though defendant No.1 claim the land as chakran tenant through his predecessor but could not produce any document executed in favour of his predecessor as such claim of chakr tenant is not tenable. ……………….. (12)
Satish Chandra Pal vs Musammat Mazidan Begum, 10 DLR 271; Bangladesh, represented by the Secretary, Ministry of Land, Bangladesh Secretariat, Dhaka vs Abdul Hye, 24 BLT (AD) 340; Ramanathan Chett. vs Murugappa Chetti, (1906) LR 139 and Kalikrishna Ray vs Makhanlal Mookerjee, ILR 50 Cal 233 ref.
Surajit Bhattacharjee, Advocate -For the Appellant.
Sudipta Arjun, with Chanchil Kumar Biswas, and Soumitra Sarder, Advocates-For the Respondents.
Judgment
Borhanuddin J : This appeal is directed against the judgment and decree dated 31-1-2001 passed by the learned Subordinate Judge, 1st Court, Sylhet, Title Suit No.70 of 1994, dismissing the suit.
2. Facts relevant for disposal of the suit are that opposite parties herein as plaintiffs instituted Title Suit No.06 of 1990 in the 2nd Court of learned Subordinate Judge, Sylhet, on transfer renumbered as Title Suit No. 70 of 1994, for declaration that the suit schedule property is debottar property contending inter alia that the suit property originally belonged to Surja Kumar Das who installed the plaintiff-deities in suit plot No.5808 and gifted suit schedule lands alongwith other lands for performing Sheba Puja of the deities by appointing pujari; After expiry of Surja Kumar Das, local elite principal Promodh Chandra Goshwami and others voluntarily shouldered responsibility of performing Sheba Puja of the plaintiff deities by executing an ekrarnama on 11-8-1944 in favour of Hemendra Nath Das and others, successors of Surja Chandra Das; Predecessor of the defendant, Loknath Tripati was appointed as Pujari of the plaintiff deities; During SA survey though DP Khatian relaling to the suit property prepared in the name of plaintiff deities but final SA khatian recorded in the name of Loknath Tripati showing the property as his personal one which is incorrect, collusive and inoperative; Loknath Tripati had no right, title and interest in the suit property; Loknath Triparty died in the year 1979 leaving behind the defendants as his heirs; After expiry of Loknath Tripati, his son defendant No.1 has been performing Sheba Puja) of the plaintiff deities; During his life time Loknath Tripati never claimed the suit land as his personal property; In the first part of 1396 BS, plaintiff No.5 came to know that some interested persons are contacting with defendant Nos. 1 and 2 to purchase the lands of plot No. 5807; On query from the local Tahshil Office defendant No.5 for the first time informed that SA khatian relating to suit property wrongly recorded in the name of Loknath Tripati; Wrong recording of SA khatian clouded title of the plaintiff-deities; Hence, the suit.
3. Defendant No.1 contested the suit by filing written statement contending interalia that the suit is not maintainable, barred by limitation, barred under Section 42 of the Specific Relief Act. Further contending that defendant No.1’s father Loknath Tripati was appointed as Pujari to perform Sheba Puja of the plaintiff deities and the lands of SA Plot No.5807 settled in favour of Loknath Tripati as rent free chakran land by the Shebait; After expiry of Loknath Tripati, his son defendant No.1 has been performing Sheba Puja of the plaintiff deities without taking any remuneration; Defendants are in possession of Suit Plot No.5807 by inheritance; Plaintiffs have no manner of right, title and possession in the Suit Plot No. 5807; SA Plot Nos.5806 and 5808 are in possession of plaintiffs and defendants are not claiming the same; Though SA Plot Nos.5806, 5807 and 5808 are recorded in the name of defendants’ predecessor but Loknath Tripati never claimed lands of Plot Nos.5806 and 5808 as his personal property; Suit is liable to be dismissed.
4. After hearing the parties and assessing evidence on record, learned Subordinate Judge, 1st Court, Sylhet, decreed the suit by his judgment and decree dated 31-1-200l.
5. Having aggrieved by and dissatisfied with the judgment and decree, defendant No.1 as appellant preferred instant appeal which is registered as First Appeal No. 433 of 2001
6. Mr. Surajit Bhattacharjee, learned advocate appearing for the appellant submits that the court below committed an illegality in not considering that Shebait of the plaintiff-deities settled the lands of Suit Plot No. 5807 in favour of defendant-appellant’s predecessor Loknath Tripati as rent free chakran land since Loknath Tripati performed Sheba Puja of the plaintiff deities without any remuneration as such impugned judgment and decree is liable to be set aside. He also submits that the court below committed an illegality in not holding that predecessor of the defendant No.1 acquired title in Suit Plot No.5807 as a rent free tenant settled by the Shebait of plaintiff deities for his service as pujari without taking any remuneration as such impugned judgment and decree is liable to be set aside. He further submits that the court below committed illegality in disbelieving testimony of the DWs 2 and 3 who categorically stated in their deposition that Shebait of the plaintiff deities settled Suit Plot No. 5807 in favour of Loknath Tripati for residing therein with his family as rent free tenant as such impugned judgment and decree is liable to be set aside. He lastly submits that transfer of debottar property is valid when the transfer is necessitated for protection of the deity and the Sheba Puja thereof as such court below committed an error in law without considering this legal aspect. In support of his submission, learned advocate referred to the case of Satish Chandrn Pal vs Musammat Mazidan Begum, reported in 10 DLR 271.
7. On the other hand, Mr. Sudipta Arjun learned advocate appearing for the respondents submits that it is well settled by law that pujari is the servant of Shebait who is manager and legal representative of the deity without having any legal right to transfer property belongs to the deity as such court below justly and legally passed the judgment and decree. By referring Section 3(16) of The Sylhet Tenancy Act 1936, learned advocate submits that no person can claim any land as tenant under the system known as ‘chakran’ without any document executed in his favour by the landlord but the defendant No.1 though claiming disputed plot as chakran land through his predecessor but failed to produce any evidence to show that a document is executed in favour of his predecessor as such there is nothing to interfere with the impugned judgment and decree. By referring the ‘Ekrarnama’ marked as exhibit-‘2’, learned advocate submits that it is evident from the ‘Ekrarnama’ that suit schedule plots are not transferable as such claim of the defendant-appellant has no basis. In this regard learned Advocate also referred Section 30 of The Sylhet Tenancy Act, 1936. In support of his submissions, learned advocate referred to the case of Bangladesh, represented by the Secretary, Ministry of Land, Bangladesh Secretariat, Dhaka vs Abdul Hye, reported in 24 BLT (AD) 340.
8. Heard the learned advocates. Perused memo of appeal, related paper book alongwith impugned judgment and decree.
9. It is admitted that Surja Kumar Das installed plaintiff deities in Suit Plot No. 5808
and gifted some lands for performing Sheba Puja of the deities. It is also admitted that Loknath Tripati, predecessor of the defendant No.1, was appointed as pujari to perform Sheba Puja of the plaintiff deities and after his expiry his son defendant No.1 has been performing Sheba Puja of the deities as pujari. In the case of Bangladesh, represented by the Secretary, Ministry of Land, Bangladesh Secretariat, Dhaka vs Abdul Hye, reported in 24 BLT (AD) 340, function of shebayet and pujari is clearly described. Relevant portion from the judgment is quoted hereinbelow:
“This human ministrant of the Deity, who is its manager and legal representative, is known by the name of “Shebait” in Bengal and Northern India. He is the person entitled to speak on behalf of the Deity on earth and is endowed with authority to deal with all its temporal affairs. As regards the temple property, the manager is in the position of a trustee, but as regards the service of the temple and the duties that appertain to it he is rather in the position of the holder of an office of dignity. Reference in this connection is the case of Ramanathan Chetti vs Murugappa Chetti, (1906) LR 33 IA 139, In this connection it should be remembered that a ‘Poojari’ is a servant of the shebait, and no part of the rights and obligations of the latter are transferred to him. When the appointment of a ‘Purohit’ has been at the will of the founder, the mere fact that the appointee has performed the worship for several generations will not confer an independent right upon the members of the family so appointed and will not entitle them as of right to be continued in office as priests. (Kalikrishna Ray vs Makhanlal Mookerjee, ILR 50 Cal 233)”
10. From above, it is clear that the Shebait who was a manager relating to temple property had no right to transfer the property in favour of a pujari in any manner for performing Sheba Puja of the deities. As such claim of the defendant-appellant that Shebait of the plaintiff deities settled lands of Plot No.5807 in favour of his predecessor who performed Sheba Puja of the deities as pujari without any remuneration has no legal basis.
11. It is also clear that status of a pujari is of a servant of the Shebait and mere performing Sheba Puja for generation after generation cannot entitle him with any right and interest in the property belongs to deity.
12. It may be mentioned here that though defendant No.1 claim the land as chakran tenant through his predecessor but could not produce any document executed in favour of his predecessor as such claim of chakran tenant is not tenable under Section 3(16) of The Sylhet Tenancy Act, 1936. Section 30 of the aforesaid Act runs as follows:
“30(1) Every transfer shall be made by registered instrument, except in the case of a bequest or a sale in execution of a decree or a certificate signed under the Bengal Public Demands Recovery Act, 1913.”
13. Aforesaid provisions of law also nullify claim of the defendant No.1. Only basis of the claim of defendant No.1 i.e. exhibit-‘2’ ‘Ekrarnama’, also negated claim of the defendant-appellant inasmuch as in’ the ‘Ekrarnama’ it is clearly stated that property of the plaintiff deities is not transferable.
14. In such view of the matter, we do not find any reason to interfere with the judgment and decree passed by the Court below.
15. Facts and circumstances of the case referred by learned Advocate for the appellant are quite distinguishable from the facts and circumstances of the case in hand.
16. Accordingly, the appeal is dismissed without any order as to cost.
17. Judgment and decree dated 31-1-2001 passed by the learned Subordinate judge, 1st Court, Sylhet, in Title Suit No.70 of 1994 is hereby maintained.
Send down lower courts record alongwith a copy of this judgment to the court concern at once.
(Civil Appellate Jurisdiction)
Borhanuddin J
Md Ashraful Kamal J
Dolan Tripati alias …………Dulal Tripati
vs
Gobinda Jiew and Mohaprobhu Jiew Diety represented by Sree Bimalendu Das and others………… Respondents
Judgment
February 8th, 2017
Hindu Law-Transfer in favour of Pujari for Sheba Puja & Status of Pujari Shebait who was a manager relating to temple property had no right to transfer the property in favour of a pujari in any manner for performing Sheba puja of the deities, Status of a pujari is of a servant of the Shebait and mere performing Sheba puja for generation after generation cannot entitle him with any right and interest in the property belongs to deity. ………. (10 & 11)
Sylhet Tenancy Act, 1936 Section 3(16)
It may be mentioned here that though defendant No.1 claim the land as chakran tenant through his predecessor but could not produce any document executed in favour of his predecessor as such claim of chakr tenant is not tenable. ……………….. (12)
Satish Chandra Pal vs Musammat Mazidan Begum, 10 DLR 271; Bangladesh, represented by the Secretary, Ministry of Land, Bangladesh Secretariat, Dhaka vs Abdul Hye, 24 BLT (AD) 340; Ramanathan Chett. vs Murugappa Chetti, (1906) LR 139 and Kalikrishna Ray vs Makhanlal Mookerjee, ILR 50 Cal 233 ref.
Surajit Bhattacharjee, Advocate -For the Appellant.
Sudipta Arjun, with Chanchil Kumar Biswas, and Soumitra Sarder, Advocates-For the Respondents.
Judgment
Borhanuddin J : This appeal is directed against the judgment and decree dated 31-1-2001 passed by the learned Subordinate Judge, 1st Court, Sylhet, Title Suit No.70 of 1994, dismissing the suit.
2. Facts relevant for disposal of the suit are that opposite parties herein as plaintiffs instituted Title Suit No.06 of 1990 in the 2nd Court of learned Subordinate Judge, Sylhet, on transfer renumbered as Title Suit No. 70 of 1994, for declaration that the suit schedule property is debottar property contending inter alia that the suit property originally belonged to Surja Kumar Das who installed the plaintiff-deities in suit plot No.5808 and gifted suit schedule lands alongwith other lands for performing Sheba Puja of the deities by appointing pujari; After expiry of Surja Kumar Das, local elite principal Promodh Chandra Goshwami and others voluntarily shouldered responsibility of performing Sheba Puja of the plaintiff deities by executing an ekrarnama on 11-8-1944 in favour of Hemendra Nath Das and others, successors of Surja Chandra Das; Predecessor of the defendant, Loknath Tripati was appointed as Pujari of the plaintiff deities; During SA survey though DP Khatian relaling to the suit property prepared in the name of plaintiff deities but final SA khatian recorded in the name of Loknath Tripati showing the property as his personal one which is incorrect, collusive and inoperative; Loknath Tripati had no right, title and interest in the suit property; Loknath Triparty died in the year 1979 leaving behind the defendants as his heirs; After expiry of Loknath Tripati, his son defendant No.1 has been performing Sheba Puja) of the plaintiff deities; During his life time Loknath Tripati never claimed the suit land as his personal property; In the first part of 1396 BS, plaintiff No.5 came to know that some interested persons are contacting with defendant Nos. 1 and 2 to purchase the lands of plot No. 5807; On query from the local Tahshil Office defendant No.5 for the first time informed that SA khatian relating to suit property wrongly recorded in the name of Loknath Tripati; Wrong recording of SA khatian clouded title of the plaintiff-deities; Hence, the suit.
3. Defendant No.1 contested the suit by filing written statement contending interalia that the suit is not maintainable, barred by limitation, barred under Section 42 of the Specific Relief Act. Further contending that defendant No.1’s father Loknath Tripati was appointed as Pujari to perform Sheba Puja of the plaintiff deities and the lands of SA Plot No.5807 settled in favour of Loknath Tripati as rent free chakran land by the Shebait; After expiry of Loknath Tripati, his son defendant No.1 has been performing Sheba Puja of the plaintiff deities without taking any remuneration; Defendants are in possession of Suit Plot No.5807 by inheritance; Plaintiffs have no manner of right, title and possession in the Suit Plot No. 5807; SA Plot Nos.5806 and 5808 are in possession of plaintiffs and defendants are not claiming the same; Though SA Plot Nos.5806, 5807 and 5808 are recorded in the name of defendants’ predecessor but Loknath Tripati never claimed lands of Plot Nos.5806 and 5808 as his personal property; Suit is liable to be dismissed.
4. After hearing the parties and assessing evidence on record, learned Subordinate Judge, 1st Court, Sylhet, decreed the suit by his judgment and decree dated 31-1-200l.
5. Having aggrieved by and dissatisfied with the judgment and decree, defendant No.1 as appellant preferred instant appeal which is registered as First Appeal No. 433 of 2001
6. Mr. Surajit Bhattacharjee, learned advocate appearing for the appellant submits that the court below committed an illegality in not considering that Shebait of the plaintiff-deities settled the lands of Suit Plot No. 5807 in favour of defendant-appellant’s predecessor Loknath Tripati as rent free chakran land since Loknath Tripati performed Sheba Puja of the plaintiff deities without any remuneration as such impugned judgment and decree is liable to be set aside. He also submits that the court below committed an illegality in not holding that predecessor of the defendant No.1 acquired title in Suit Plot No.5807 as a rent free tenant settled by the Shebait of plaintiff deities for his service as pujari without taking any remuneration as such impugned judgment and decree is liable to be set aside. He further submits that the court below committed illegality in disbelieving testimony of the DWs 2 and 3 who categorically stated in their deposition that Shebait of the plaintiff deities settled Suit Plot No. 5807 in favour of Loknath Tripati for residing therein with his family as rent free tenant as such impugned judgment and decree is liable to be set aside. He lastly submits that transfer of debottar property is valid when the transfer is necessitated for protection of the deity and the Sheba Puja thereof as such court below committed an error in law without considering this legal aspect. In support of his submission, learned advocate referred to the case of Satish Chandrn Pal vs Musammat Mazidan Begum, reported in 10 DLR 271.
7. On the other hand, Mr. Sudipta Arjun learned advocate appearing for the respondents submits that it is well settled by law that pujari is the servant of Shebait who is manager and legal representative of the deity without having any legal right to transfer property belongs to the deity as such court below justly and legally passed the judgment and decree. By referring Section 3(16) of The Sylhet Tenancy Act 1936, learned advocate submits that no person can claim any land as tenant under the system known as ‘chakran’ without any document executed in his favour by the landlord but the defendant No.1 though claiming disputed plot as chakran land through his predecessor but failed to produce any evidence to show that a document is executed in favour of his predecessor as such there is nothing to interfere with the impugned judgment and decree. By referring the ‘Ekrarnama’ marked as exhibit-‘2’, learned advocate submits that it is evident from the ‘Ekrarnama’ that suit schedule plots are not transferable as such claim of the defendant-appellant has no basis. In this regard learned Advocate also referred Section 30 of The Sylhet Tenancy Act, 1936. In support of his submissions, learned advocate referred to the case of Bangladesh, represented by the Secretary, Ministry of Land, Bangladesh Secretariat, Dhaka vs Abdul Hye, reported in 24 BLT (AD) 340.
8. Heard the learned advocates. Perused memo of appeal, related paper book alongwith impugned judgment and decree.
9. It is admitted that Surja Kumar Das installed plaintiff deities in Suit Plot No. 5808
and gifted some lands for performing Sheba Puja of the deities. It is also admitted that Loknath Tripati, predecessor of the defendant No.1, was appointed as pujari to perform Sheba Puja of the plaintiff deities and after his expiry his son defendant No.1 has been performing Sheba Puja of the deities as pujari. In the case of Bangladesh, represented by the Secretary, Ministry of Land, Bangladesh Secretariat, Dhaka vs Abdul Hye, reported in 24 BLT (AD) 340, function of shebayet and pujari is clearly described. Relevant portion from the judgment is quoted hereinbelow:
“This human ministrant of the Deity, who is its manager and legal representative, is known by the name of “Shebait” in Bengal and Northern India. He is the person entitled to speak on behalf of the Deity on earth and is endowed with authority to deal with all its temporal affairs. As regards the temple property, the manager is in the position of a trustee, but as regards the service of the temple and the duties that appertain to it he is rather in the position of the holder of an office of dignity. Reference in this connection is the case of Ramanathan Chetti vs Murugappa Chetti, (1906) LR 33 IA 139, In this connection it should be remembered that a ‘Poojari’ is a servant of the shebait, and no part of the rights and obligations of the latter are transferred to him. When the appointment of a ‘Purohit’ has been at the will of the founder, the mere fact that the appointee has performed the worship for several generations will not confer an independent right upon the members of the family so appointed and will not entitle them as of right to be continued in office as priests. (Kalikrishna Ray vs Makhanlal Mookerjee, ILR 50 Cal 233)”
10. From above, it is clear that the Shebait who was a manager relating to temple property had no right to transfer the property in favour of a pujari in any manner for performing Sheba Puja of the deities. As such claim of the defendant-appellant that Shebait of the plaintiff deities settled lands of Plot No.5807 in favour of his predecessor who performed Sheba Puja of the deities as pujari without any remuneration has no legal basis.
11. It is also clear that status of a pujari is of a servant of the Shebait and mere performing Sheba Puja for generation after generation cannot entitle him with any right and interest in the property belongs to deity.
12. It may be mentioned here that though defendant No.1 claim the land as chakran tenant through his predecessor but could not produce any document executed in favour of his predecessor as such claim of chakran tenant is not tenable under Section 3(16) of The Sylhet Tenancy Act, 1936. Section 30 of the aforesaid Act runs as follows:
“30(1) Every transfer shall be made by registered instrument, except in the case of a bequest or a sale in execution of a decree or a certificate signed under the Bengal Public Demands Recovery Act, 1913.”
13. Aforesaid provisions of law also nullify claim of the defendant No.1. Only basis of the claim of defendant No.1 i.e. exhibit-‘2’ ‘Ekrarnama’, also negated claim of the defendant-appellant inasmuch as in’ the ‘Ekrarnama’ it is clearly stated that property of the plaintiff deities is not transferable.
14. In such view of the matter, we do not find any reason to interfere with the judgment and decree passed by the Court below.
15. Facts and circumstances of the case referred by learned Advocate for the appellant are quite distinguishable from the facts and circumstances of the case in hand.
16. Accordingly, the appeal is dismissed without any order as to cost.
17. Judgment and decree dated 31-1-2001 passed by the learned Subordinate judge, 1st Court, Sylhet, in Title Suit No.70 of 1994 is hereby maintained.
Send down lower courts record alongwith a copy of this judgment to the court concern at once.
