In the High Court of Orissa at Cuttack
(Before D. Dash, J.)

Duryodhan Mahanta & another
v.
Bhanjakia Girls High School & others

R.S.A. No. 436 of 2007
Decided on October 6, 2016
Citation:AIR 2017(NOC) 440 Orissa

The Judgement of the Court was delivered by

D. Dash, J.:— This appeal has been filed challenging the judgment and decree passed by the learned Addl. District Judge, Baripada in R.F.A. No. 13/68 of 2007-2008 reversing the judgment and decree passed by the learned Civil Judge (Sr. Division), Karanjia in Title Suit No. 60 of 2000.

2. The appellant as the plaintiff having filed the suit for declaration of his right, title and interest in respect of the suit land, confirmation of possession and permanent injunction against the respondent no. 1 arraigning it as defendant no. 1 and others also as defendants, the same stood decreed. The respondent no. 1 (defendant no. 1) thus having suffered from the judgment and decree of the trial court carried an appeal under section 96 of the Code of Civil Procedure. The lower appellate court in allowing the appeal has set aside the judgment and decree passed by the trial court which has resulted the dismissal of the suit. Now therefore, this appeal under section 100 of the Code has been filed by the legal representatives of the plaintiff who has been non-suited.

3. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court.

4. Case of the plaintiff is that, the suit land with other lands originally belonged to one Rathu Mahanta who died prior to the year 1930-31 leaving behind six sons namely, Jayakrishna, Mahanta, Ramachandra Mahanta, Narahari Mahanta, Mahendra Mahanta, Hemendra Mahanta and Bichitra Mahanta. It is stated that Jayakrishna, Ramachandra and Bichitra died prior to 1930-31 settlement. Jayakrishna was issue less and Ramachandra was having two daughters. Therefore, the lands of Rathu Mahanta came to be recorded in the name of Narahari, Hemendra, Mahendra and Manobodha and Sripati, two sons of Bichitra under sabik khata no. 59. It has been averred that those recorded tenants have partitioned their landed property including the suit land amicably amongst themselves and accordingly were in possession of the separate portions of the land falling to their respective shares. It is next stated that in the partition, the suit land with other lands had come to the hands of Mahendra who died 40 years next before the suit. After Mahendra, his successors came to possess the land and it is stated that they also partitioned the properties in possession of Mahendra amongst themselves and finally the suit land came to be possessed by Hemendra as of his share and thereafter in view of the dissension amongst the sons of Hemendra, there had arisen the occasion for an amicable settlement by way of distribution of the land amongst them and it was so done by Hemendra. So, the lands including the suit land falling to the share of Mahendra was distributed by Hemendra amongst his four sons and it was a family arrangement wherein the suit land is said to have come to the hands of the plaintiff who possessed the same accordingly.

5. It is stated that in the year 1964, the villagers of the villages under Banjhakia Gram Panchayat wanted to establish a High School at village Bhanjakia. Accordingly, a Committee was constituted under the Chairmanship of the Hon’ble Member of the Legislative Assembly representing the area which searched for the suitable land for establishment of such school. Finally the villagers requested the plaintiff to donate the suit land, finding it to be most suitable one for establishment of the proposed High School. It is next stated that he was pressurized for the purpose by the villagers and the people’s representatives and therefore, was constrained to execute the registered deed of gift on 10.06.1964, gifting away the suit land in favour of proposed Bhanjakia High School represented by the Committee headed by the Chairman for the purpose of establishment of the said High School. However, as it so happened, ultimately the High School was established at village Purunia under that very Bhanjakia Gram Panchayat. The suit land thus no more remained as the need for the High School. It is then stated that the plaintiff continued to possess the suit land as before having cultivation over it and planting trees over here and there. Gift is thus stated to have never been accepted. However, since the plaintiff’s other brothers raised vehement objection to such gift of land, on 11.11.1964, the plaintiff executed another deed of cancelling that registered deed of gift dated 10.06.1964. It is the further case of the plaintiff that in course of time Bhanjakia Girls High School was established in the village and its building with boundary wall all around came up on the land adjacent the suit land on its east. The Headmistress of said Girls High School all of a sudden on 15.07.2000 planted some fruit bearing trees without the knowledge and consent of the plaintiff. This when was objected by the plaintiff, the matter had been reported at the police station. In course of discussion with the Headmistress, she disclosed that the land having been gifted away in favour of the Girls High School it was so claimed on the strength of said gift deed executed by the plaintiff. The allegation now comes that in the said deed of gift, there has been manipulation by insertion of the word ‘Balika’ in between the words ‘Bhanjakia’ and ‘High School’. For all these reasons finally the suit came to be filed.

6. The defendant no. 2, Bhanjakia Girls High School in the written statement asserted the land to have been gifted to the Bhanjakia Girls High School in the year 1964 and it is said that since then it has remained in their open, peaceful and uninterrupted possession to the knowledge of the plaintiff and all others. It is stated that the plaintiff for his benevolent act had been given an employment in the said school and having worked as Class-IV employee there has also retired. He had never raised any objection with regard to the possession of the land by the Girls High School. The Girls High School started functioning over the same from the beginning and the deed of cancellation was never brought to notice. To sum up, the defendant no. 2 contested the plaintiff’s title over the suit land and as such his entitlement to the reliefs as prayed for and on the other hand it claims to have been in possession on the basis of title as the done exercising all the rights as such for all these period. So alternatively by way of adverse possession, the Girls High School also claims to have acquired title over the suit land.

7. Trial court faced with the above rival pleadings framed in total eight issues. Taking up issue no. 5 and 6 concerning the validity of the said deed of gift dated 10.06.1964, its legality and the impact as per law in so far as the suit land is concerned and consequentially the claim of right, title and interest over the suit land by the plaintiff, upon analysis of evidence in the back drop of the pleadings, the trial court has held that Ext. 2, the deed of gift was not acted upon as Bhanjakia High School was never established over the suit land. At the same time, it has held the deed of gift to be a conditional one. It has been further said that the possession of the suit land has all along remained with the plaintiff and as such the recording of the suit in the name of Bhanjakia Girls High School is an act of manipulation by purposeful insertion of the word “Balika” in between the word “Bhanjakia” and “High School” in the said deed of gift in the donee’s column. So, finally the plaintiff’s right, title, interest and possession over the suit land has been so found. Other issues have accordingly been decided in favour of the plaintiff as those are all consequential to the decisions on the crucial issues as referred to above.

8. The lower appellate court being moved by the unsuccessful defendant no. 2 appears to have proceeded in a different way. First, it held the suit as not maintainable in view of non-service of notice under section 80 of the Code of Civil Procedure upon the defendant no. 1 and 2 prior to the institution of the suit and then it has held that, even if, it is stated that the proposed school Bhanjakia High School was not established but if it is found that Girls High School has been established, so when the land had been donated for the purpose of establishment of a school, the very purpose for which the move was made stands satisfied and that itself is not a ground for revocation of the gift deed. Furthermore, it has been held that the gift deed cannot be revoked and deed of cancellation Ext. 1 thus has got no value in the eye of law as pursuant to the gift under Ext. 2, the title with respect to the suit land has legally passed from the hands of the donor. It having been accepted by the donee with the very purpose and object behind the gift sought to be achieved thereby have been accomplished, there arises no scope for its revocation. Thus it has concluded that the question of title over the suit land remaining with the donor does not arise. With these findings, the suit has been found liable to be dismissed and accordingly it has been so ordered. It has next been held that the defendant no. 2 has acquired suit land by virtue of adverse possession.

9. The appeal has been admitted on the following substantial questions of law:-
1) Whether the lower appellate court has erred in law by not holding that the gift of land being for the charitable purpose of establishment of Bjhanjakia High School over the land so gifted, the same having not been so established pursuant to the said conditional gift of land for charitable purpose, the gift did not come into effect in the eye of law?
2) Whether the finding of the lower appellate court that the defendant no. 1 has acquired title over the suit land by adverse possession is sustainable in the eye of law in the facts and circumstances and if that doctrine at all comes into play in the case?

10. Learned counsel for the appellants first of all contends that the land having been gifted under Ext. 2 in favour of Bhanjakia High School and said Bhanjakia High School when does not come forward to advance any claim over the property, the defendant no. 2 i.e., Bhanjakia Girls High School has certainly no claim over it and that has to fail with the manipulation in the deed of gift, Ext. 2 in the donee column being apparent on its face. Thus, he claims that in such factual setting and the evidence on record, the plaintiff’s suit is bound to be decreed. According to him, accepting that the land has been gifted to the Bhanjakia High School, the claim of Bhanjakia Girls High School is not at all entertainable since the very purpose for gifting away the land having not been fulfilled, the deed of gift being a conditional one, it does not remain effective in the eye of law as it stands. It is his contention that even if the deed of cancellation is given no importance yet, no finding can be rendered that defendant no. 2 has the title over the suit land and the defendant no. 2 under no circumstance can be said to have acquired title over the land by adverse possession as that very doctrine does not at all to be attracted as the possession of the original donee if any is treated in the eye of law as permissive and that nature of possession has to be the same as have so continued with the defendant no. 1. He submits that since the gift in favour of defendant no. 1 is not established and the deed relied upon is found to be a manipulated one in so far as the name of the donee is concerned and the very basis for possession fails, the claim of acquisition of the title by adverse possession is not tenable in the eye of law. Moreover, according to him, as here the defendant no. 1 does not claim to have entered upon the property independently by denying the title of the plaintiff, that question of perfection of title by adverse possession will not arise.

11. Learned counsel for respondent no. 1 in this appeal submits that here the plaintiff has to stand on his own legs in the suit for declaration of right, title, interest and possession in respect of the suit land. Therefore it is for him to prove that he has the subsisting the title over it and as such is in possession or the right to possess. It is submitted that even if the defendant no. 2’s case is not accepted yet on the failure of the plaintiff to establish its case entitling him to the reliefs claimed; the suit under no circumstance can be decreed. It is contended that the land having already been gifted away by execution of a valid registered deed of gift, it cannot be said to have been revoked in the facts and circumstances and the deed of cancellation according to him is of no value in the eye of law.

12. He also contends that the gift being for a charitable purpose for construction of a High School building thereon, on the face of the finding based on proper appreciation of evidence that defendant no. 1 is in possession of the land carrying out the Girls High School’s activity even assuming to be without construction of school building, the gift cannot be said to have not come into effect.

13. It is his further contention that the finding of lower appellate court that the defendant no. 2 has acquired title over the land by adverse possession is wholly defensible as they have possessed it as donee even though for a moment it is said that this Girls High School was not the donee but as its possession has been as such and can be well taken to be through the done, the Bhanjakia High School as per the plaintiff’s case.

14. Admittedly, in this particular suit, there is no challenge to the fact that the plaintiff had the right, title and interest over the suit property and accordingly he had executed deed of gift Ext. 2 gifting away the suit land in favour of Bhanjakia High School as is claimed by him, when it is said to be in favour of Bhanjakia Girls High School on the other hand. The plaintiff asserts that Bhanjakia High School was not established in the village where the suit land situates and it was so established in another village, though under the same Bhanjakia Gram Panchayat, as it was then. If we look at the deed of cancellation which has been executed few months after the execution of deed of gift, the picture however emerges as completely different. It is not stated that the cancellation of the gift deed is not for the reason of non-establishment of Bhanjakia High School in the village where the suit land situates. On the contrary, it is recited in the said deed, Ext. 1 as the reasons for cancellation of said deed of gift, Ext. 2, firstly that it had been executed by the plaintiff under threat, pressure and coercion from the side of the villagers and secondly, that as it has been standing to the annoyance of all the family members who are totally dissatisfied and creating trouble to the donor for the said gift in all fronts. Be that as it may, cancellation deed being done in the year 1964, no further step has been taken by the plaintiff in accordance with law in getting the legal effect of the gift nullified or wiped out by filing any suit for declaration of the said deed of gift as void and that no title over the property as such has remained in the hands of the donee. Of course this legal obstacle is sought to be avoided by setting up a case that the possession of the land in question has not been parted with. This aspect touching the deficiency in so far as the acceptance of the gift however would be dealt with later if so felt the need.

15. At this stage, it need be stated that the trial court has found the gift to have been made in favour of Bhanjakia High School as has been noted in the certified copy of the gift deed and Bhanjakia Girls High School, the defendant no. 2 has not proved the original gift deed in spite of challenge that their claim as the donee is made by manipulation in the said original deed of gift. The lower appellate court has not gone to further address that aspect in detail. It has however in a different way held the gift to be having legal force. Thus it has to be taken that Bhanjakia High School was the donee.

16. In my considered view as per the case of the plaintiff, the trial court having held the gift to be in favour of Bhanjakia High School which is not overruled by the lower appellate court, now two questions fall for decision as to what was the nature of gift and then whether it was a conditional one or not.

17. Undoubtedly, the gift on the admitted case as projected is a gift for charitable purpose being made in favour of Bhanjakia High School. Let us have a close look at the terms and conditions of the gift so as to find out their legal effect as spelt out.

18. The law of gift is, in a sense, a collection of equitable principles but crystallized for India under the British from Anglo-Saxon jurisprudence. Since Independence, gifts from public have escalated and in our country today popular gifts to public charitable purposes are a new dimension of Community involvement in developmental activities. And so the rule of law must rise to this rule of life by facilitating the fulfillment of benevolent objects but vigilantly guarding against perversion, inaction and unjust enrichment where public gifts have been raised.
Relevant Recitals now be reproduced
“AMBHARA BHAGA BABADA JAMI MADHYARU NIMNA NUMBER MUTABAKA AKAMANA CHAUDA GUNTHA ATHA BISWA CHARI GANDA JAMIRE BHANJAKIA PRASTABITA HIGH SCHOOL GRUHA NIRMANA KARIBARA ABASYAKA HEUTHIBARU AMBHE SWATA PRABRUTA HOYEE AMBHARA UPARUKTA JAMIKU HIGH SCHOOL SAKASE DANA KALU: APANA ADYA TARIKHA THARU UKTA JAMIRE HIGH SCHOOL GRUHA BAGICHA ADIJAHA ICHHA TAHA KARIPARIBE, HIGH SCHOOL SAMBANDHIYA KARJYA CHHADA TAHA APANAKA BYAKTIGATA KARJYARE LAGAYEE PARIBE NAHIN: BHABISYATARE UKTA STANARE HIGH SCHOOL NAKALE AMBHE JAMI AMBHE PHERI PAYEEBU.”

19. It is simply recited that for construction of house for the proposed Bhanjakia High School, the land being needed, the same is so gifted. It is not indicated that only to build the school block there, the land is gifted. But it recites that the land so gifted to the school can be so used even for garden and all other required purpose so connected with the running of the school but not for private use of individuals obviously hinting at the members of the Committee and also others coming to stand in future. Thus, the gift of land is to the High School and it cannot at all be so said that the donor had expressed the wish that unless the school house is built over there, the gift would not take effect and that only when the building would come up over there; the acceptance would be complete as otherwise not. The restrictive covenant for its user is for anyone in his individual capacity be it by any member of the committee or any other individual for his own purpose whatever it may be meaning thereby so as to derive benefit unto himself/themselves but not to the Community at large.

20. Be that as it may, admittedly the High School has not come up over there and it has been found out by the lower appellate court that the possession is with Bhanjakia Girls High School and for that it is used.

21. The lower appellate court as it appears having made the detail analysis of evidence on record both oral and documentary has found the suit land to be in possession of Bhanjakia Girls High School for quite a long length of time. This Court finds absolutely no infirmity therein. Learned counsel for the appellants in course of hearing has not been able to point out that the lower appellate court has either omitted to take any such material evidence into consideration for the purpose which if would have been so taken into account, the finding, might have been otherwise. Also nothing has also been pointed out that the finding of possession of the suit land resting with defendant no. 2 as recorded by the lower appellate court is founded upon inadmissible evidence or that any such inadmissible evidence has been given weightage for the purpose. I have carefully gone through the relevant paragraph of the judgment of the lower appellate court, wherein it has discussed evidence and other circumstances as those emerge out of evidence with regard to the factum of possession of the suit land which is claimed by plaintiff as well as defendant no. 2. The finding appears to be a well reasoned one and no such perversity surfaces therein calling for interference. As per the settled principle of law, there remains no scope for this Court to further re-appreciate the evidence on that score and even if a different view is taken by this Court, the same cannot act as supplant to have a total march over the finding of the lower appellate court which is impermissible.

22. Therefore, it cannot be said for a moment that, the land gifted is not used for charitable purpose and has thus not stood accepted, the charitable purpose being not accomplished. It also cannot be said that the possession that has remained with the Girls High School is just as the trustee. On the other hand, the possession has to be treated in that case as on behalf of the original donee, that is Bhanjkia High School which is not disputed by the plaintiff and being so permitted.

23. In that event, the suit being not filed within twelve years since the gift, even taking the extreme view, the same is barred by limitation. Moreover, when in the gift deed it is stated that High School would be there, the user being by Girls High School, the donor’s wish cannot be said to have at all been frustrated if we look at its user as of now. The objective for having a High School or a Girls High School remain the same which need not require to be highlighted.

24. Even if we say that the specific purpose of the gift was for the user of the High School and instead a Girls High School which is running is using the land for the reason of shifting of High School, the land being no more needed for the High School; for this land’s user by Girls High School, the purpose of gift cannot be said to have been frustrated as the objective remains the same, more particularly when the gift is not a conditional one as so specific that unless the building of High School comes over there, the gift would not take effect. Taking a narrow view if we say that now this Girl’s High School is confined for admission of girl students and not boys, that also makes absolutely no difference in terms of the objective of the gift which is aimed at imparting education to the students at the secondary level. So, this possession by Girls High School for the present has to be treated as nothing else but with the permission and consent with the High School authority. Now it’s remains a matter between them where the donor has no say at all against this defendant no. 2 in the suit wherein the High School has not been made a party.

25. It is the settled position of law that legal effect of registered deed of gift cannot be nullified as also its legal value cannot be reduced to zero merely by executing a deed of cancellation of said deed of gift unilaterally. Moreover, the question of acceptance of the gift by the done in the present case looses all its importance in the eye of law, when it is seen that the donor himself has executed a deed of cancellation of the said gift deed assigning some other reasons but not for non-fulfillment of the condition so imposed when by then even the proposed High School had not even established in the new site and there was no occasion for even non-fulfillment of the condition and objective as desired. Had it not been the case of acceptance, the question of cancellation on the grounds stated therein would not have arisen at all since the gift would have been said to have failed to take its effect for such non-acceptance. Moreover interestingly as already stated in the present suit, the donee under Ext. 2 i.e., Bhanjakia High School which is in existence and is running as has been admitted by the plaintiff has not been made a party for the reason best known to the plaintiff when the suit is for declaration of title essentially pleading a case that by the gift there has passed no title over the suit land to the hands of done as named.

26. Judging from all possible legal angles together examining the case as set up by the parties with evidence on record through the legal prism, in my considered view, the plaintiff’s suit as laid and for the reliefs claimed is bound to fail.

27. The aforesaid discussion and reasons thus provide the answer to the first substantial questions of law against the plaintiff and in that view of the matter, the second substantial question of law does not stand for being answered as it now merely remain academic having no further bearing in the suit.

28. Thus the result of dismissal of the suit as laid and for the reliefs claimed firmly stands.

29. Resultantly, the appeal stands dismissed. However, in the peculiar facts and circumstances, the parties are to bear their respective cost all throughout.