Decided on September 13,1978

Purna Ch. Acharya Appellant
Sri Kakhareswar Baidyanath And Ors. Respondents


B.K. Ray, J. - (1.) THE unsuccessful Appellant in both the Courts below has preferred the present appeal under Section 44(2) of Orissa Hindu Religious and Endowments Act (hereinafter called the Act). The Appellant and Respondents Nos. 1 and 2 being villagers of village -Karkacha filed an application under Section 41 of the Act before the Additional Assistant Endowment Commissioner of Orissa Hindu Religious Endowments for a declaration that the institutions Kakhareswar Baidyanath Dadhibaman Jew of the aforesaid village are public religious institutions without any hereditary trustees. Their case was that the aforesaid two deities were founded by Ex. Rulers of Mayurbhanj state who also endowed certain properties for their Sevapuja and maintenance. The institutions were dedicated for the benefit of the general Hindu public. Since the foundation of the institution, the villagers of the said village have been managing the affairs of the deities through village committees formed from time to time. Respondent Nos. 6 to 11 being members of Sardar family of the village were recorded as marfatdars of the deities for facilitating payments of rent, and fighting out litigations in respect of the deities "properties". They had no right, title or interest whatsoever in the institutions or their properties. In spite of this when the Respondent Nos. 6 to 11 claimed hereditary trusteeship in respect of the institutions, the Appellant was obliged to file the application for the aforesaid relief.
(2.) THE case of Respondent Nos. 6 to 11 as made out in their objection to the petition under Section 41 of the Act was that one Govind Chowdhury. their common ancestor, founded the institutions and endowed properties in favour of the deities. At the inception though the institutions were private ones of the family of Govinda Chowdhury in course of time, the deities became public and the villagers of the village -Karkacha came to exercise that right of worship and Darsan of the deities. In spite of the fact that the institutions became public ones in course of time, Govind Chowdhury and after him his successors in interest including Respondent Nos. 6 to 11 were managing institutions and their properties hereditarily and so were recorded as marfatdars. The management of the institution was all along in the family of Respondent Nos. 6 to 11 from its inception till the date of initiation of the proceeding under Section 41 of the Act. The case thus instituted by the Appellant was disposed of by the Additional Assistant Commissioner of Endowments, Orissa who after hearing the parties, dismissed the same by his order dated, 11 -2 -1975 in C. A. No. 11.3 of 1974 add declared that the Respondent Nos. 6 to 11 were hereditary trustees of the institutions which were public ones. Being aggrieved by the decision of the Additional Assistant Commissioner the Appellant carried an appeal to the Commissioner (Vide F.A. No. 4 of 1975). The Commissioner having upheld the decision of the Additional Assistant Commissioner thereby dismissing the Appellant 's appeal before him, the Appellant has come to this Court with the present appeal.
(3.) BOTH the Courts below have concurrently found that Respondent Nos. 6 to 11 have failed to prove that their ancestor Govind Chowdhury founded the institutions. Inspite of this finding, it has been found by both the Courts that Respondent Nos. 6 to 11 and before them their ancestors were managing institutions all along without the assistance horn any villager. Upon this finding, the Courts below have arrived at the conclusion that Respondent Nos. 6 to 11 are hereditary trustees of the institutions.;

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