LINGARAJ SAMANTARAY Vs. SRI SIDHABALADEVJEW

JUDGEMENT

(1.) This is an appeal under Section 44 (2) of the Orissa Hindu Religious Endowments Act, 1951. The petitioners in a proceeding under Section 41 of the Act are the appellants. They had instituted the said case for a declaration that they are the hereditary trustees of the institution of Sri Sidha Baladeb Jew, Bije Sodhapur, P.O. Badu in the district of Puri impleaded in the proceeding as the Opposite Party No. 1. Their case is that the institution was established by some unknown founder the origin of which has been lost in antiquity. From the date of foundation, the institution has been all through treated as a public religious institution and is being maintained out of the income of the properties endowed by the founder for its maintenance. It has been alleged by the petitioners that one Narayan Samantra was their original ancestor who was entrusted with the management of all affairs of the said institution. According to the petitioners the said Narayan Samantara and after him his successors right up to the petitioners have been all through rendering sebapuja and managing all the affairs of the institution from generation to generation and there has been no interference in the exercise of their aforesaid rights by anybody whatsoever. They have been recognised and recorded as marfatdars in respect of the deity in all the successive record-of-rights and all other public records. According to them the office of the trusteeship has been inherited from father to son hereditarily and the petitioners are the hereditary trustees as per the definition given in the Act. The petitioners are alleged to have been enjoying lands belonging to the Endowment in lieu of the service they have been rendering to the deity arid they have been in possession of the deity and its endowments in the capacity as marfatdars. In usual course of their management they realise the usufruct from out of the lands of the deity, pay rent and defray all the expenses in rendering seba puja and managing all other affairs exclusively. It is further alleged that members of the Hindu Public except paying Darsan and offering bhog to the deity have never exercised any control so far as the administration of the institution is concerned and they never contribute for carrying on the saba puja and festivals of the deity. The petitioners allege that as there was some disputes with regard to the management of the institution, a proceeding under Section 64 of the old Act was instituted which went up to the Hon'ble High Court. As per the observations of the Hon'ble Court, a proceeding was thereafter filed under Section 41 of the new Act for declaration about their hereditary trusteeship by one Chakradhar Sarnantara which was dismissed for default. In the meanwhile non-hereditary trust board was appointed under Section 27 of the new Act. As a consequence of which the non-hereditary trustees interfered in the smooth management of the institution by the petitioners giving rise to the several disputes and the criminal cases. The petitioners have, therefore, tiled this proceeding for declaration of their status as hereditary trustees.

(2.) The opposite party No. 5, Bhikari Charan Moharaj who is one of the trustees appointed under Section 27 of the Act contested the case by filing written statement. He denied all the allegations by the petitioners made in the application under Section 41 of the Act. According to him the petitioners are made sebaks and are not trustees far less hereditary trustees. Various technical objections were raised by the said opposite parties against the maintainabilily of the application. It was pleaded that in the year 1955 an application under Section 64 of the old Act was filed by Chakradhar Sarnantara claiming the institution and its properties to be their private properties which was dismissed. The matter was carried up to the Hon'ble High Court in appeal and the decision of the trial Court was upheld. The said Chakradhar Samantara, thereafter filed another application under Section 41 of the new Act registered as O.A. No. 62 of 1959-60 which was dismissed for default. The present proceeding is contended to be barred by res judicata and hit by the principles of Order 9, Rule 9, C. P. C. According to the opposite party No. 5 the appointment of nonhereditary trustees under Section 27 of the Act is valid and legal. He has been selected as the managing trustees of the said board, and has already taken possession of the deity and its properties under Section 68 of the Act and has been carrying on the functions of a trustee. The claim of the petitioners that they are hereditary trustees of the institution was seriously disputed in the written statement.

(3.) The Assistant Commissioner of Endowments after recording the evidence adduced by the parties, both oral and documentary, dismissed the application under Section 41 with a finding that there are no hereditary trustees in respect of the institution and, therefore, the claim of the petitioners that they are hereditary trustees was not accepted. The present appellants preferred F. A. No. 20 of 1974 before the Commissioner of Endowments and in his judgment dated 25-4-1979 which is impugned in this appeal, dismissed the appeal confirming the findings of the trial Court.