K.B. Panda, J.
1. The appellant Shri G.C. Harichandan Jagadeb who was originally opposite party No. 13 in O. P. No. 128 of 1968 under Section 41 of the Orissa Hindu Religious Endowments Act, 1951 (hereinafter referred to as the Act) having lost both in the Court of the Assistant Commissioner of Endowments as well as in appeal in the Court of the Commissioner of Endowments has preferred this appeal alleging that the findings of the learned Courts below that he is not the hereditary trustee of the deity Shri Jagannath Swamy situated in village Arkhapur under Purusottampur police station within the district of Ganjam are not sustainable. The short facts giving rise to this appeal are as follows: Lord Shri Jagan-nath Swamy is situated in village Arkhapur within a respectable temple having a height of about 90 feet. There are certain parswa Debatas. It has a compound wall and lion's gate etc. As it appears, there is no controversy at this stage that at one time the ancestors of the Raja of Athgarh had constructed the temple and placed the deity. He had also endowed certain lands and other properties in the name of the deity. Under Ext. A, the Inam Register of 1865 it appears that the Raj family of Athgarh were the founders and Hari Panda was the priest.
Ananda Panda, Bhagirathi Panda, Kandhuni Panda and Ananta Panda filed a petition under Section 41 of the Act before the Assistant Commissioner of Endowments claiming themselves with opposite party no. 3 Kapileswar Samantra, managing trustee, as hereditary trustees of the deity. In the alternative, their prayer was for a declaration that they are the hereditary sebaks of the cleity and the properties thereof ore being enjoyed by them partly for 'Sebapuja' and partly for 'services'. The petitioners subsequently amended their petition staring that opposite party No. 3 had no right of hereditary trusteeship. But he was only a mere supervisor on behalf of the founder for which he was enjoying certain privileges such as doing Alata Chamar Seba and receiving the first prasad of the deity.
Opposite party No. 3 filed a written statement admitting that the deity had been installed by the Raja of Athgarh who created the endowment. Initially his case was that himself and his forefathers along with the forefathers of the petitioners were in charge of the management of the institution as Marfatdars. His family members were performing Alata Chamar Seba before the deity as of right and they were getting the first Prasad of the deity. He claimed this right on behalf of the Raja of Athgarh ever since the installation of the deity and under his authority and thus he claimed hereditary right to manage the affairs off the deity.
2. The Raja, present appellant (as opposite party No. 13) in a separate written statement substantially resisted the claim of the petitioners alleging that the institution was a private one belonging to his family and it is not a place of public religious worship. His further case was that it has never been delegated to the benefit of the community and opposite party No. 3 is neither trustee nor Archaka of the deity, but he is merely an agent who is to report about the management of the affairs of the deity to the Raja. He admitted in his written statement that Opposite party No. 3 had the privilege of doing Alata Chamar Seba and receiving the first Prasad of the deity as & representative of the Raja and that outsiders had no right or interest over the deity. Regarding the appointment of non-hereditary trustees which had been done by the Endowment Commissioner, he pleaded ignorance about the same. Hence his prayer substantially was for a declaration that the deity was a private one and that be was file hereditary trustee thereof.
Opposite party Nos. 6 to 9 were the villagers who first stated that the deity was installed by the predecessors of opposite party No. 13, the appellant, but later or changed their stand claiming to have installed the deity themselves.
3. The petitioners examined 3 wit-nesses of whom P. W. 1 is petitioner No. 2 From the side of the appellant (opp. party No. 13) he examined himself as O. P. W. Z supported by the evidence of O, P, W. 5, Kashinath Maharana. O. P. Ws. 4 and 5 were cited on behalf of the villagers. Several documents particularly Ext. A the pre settlement Inam, Exts. B and C the Pattas of Arakhapur granted by Khallikote Raja Saheb, Ext. D the Record of rights of the year 1953, Exts. E series which are notices issued from the Edowment Department and Exts. F, G, H, J and K which are official records of the endowment department were filed.
4. On an assessment of the oral and documentary evidence, the learned Assistant Endowment Commissioner held that the institution Jagannatha Swamy is a public temple without any right of hereditary trusteeship of any of the petitioners or of the opposite parties and thus he dismissed their claim. He however, declared the petitioners as hereditary Archakas of the deity. He further declared that opposite party No. 13 (the pre-sent appellant) has a right of Alata Chamar Seba of the deity. As against the said order, it is opposite party No. 13, the present appellant who prefened an appeal being First Appeal No. 17 of 1971 before the Commis ioner of Endowments. The learned Endowment Commissioner upheld the finding's of the learned Assistant Endowment Commis-sioner and dismissed the appeal as against which the present appeal has been preferred by the Raja of Athgarh.
5. The petitioners villagers, having not come up in appeal as against the findings of the learned Assistant Endowment Commissioner which have been confirmed by the Endowment Commissioner, that matter need not be gone into. The grievance of the present appellant is that the institution should be declared to be his private temple over which, none excepting him has got the sole right. In support of his claim, he has examined himself and one witness. That the fore-fathers of the appellant had constructed the temple and installed the deity and endowed the properties can hardly be disputed. The question that arises for consideration is if the petitioner can he declared to be the hereditary trustee of the institution. In that regard his evidence is thus:
'For the benefit of our Raj family, my ancestor had installed the deity and had endowed the land. The ancestors of the petitioners were engaged by him to perform sebapuja.
As Raj family we have the seba of Alat chamar, and on our behalf, O. P. 3 and his ancestors were performing that seba.
Occasionally I used to look to the management of the temple. We are to get the first bhog of the deity, but on our behalf Santara family used to take the same.
I do not know if any Trust Board was ever formed by the Endowment Department. It i'i not a fact that the deity is a public deity and that my ancestors had not installed the deity and had not endowed the lands. There is a gift deed to that effect,'
Cross-examination on behalf of opposite party No. 3 was declined. When cross-examined on behalf of the petitioners, he stated thus:
'The Pujharies used to possess the lands of the deities and pay rent. I used to look after the accounts of the institution direct from O. P. No. 3. O. P. No. 3 is our agent to look after day to day management without our direction. O. P. No. 3 cannot per-form any thing in the temple. The petitioners are performing the sebapuja since generation hereditarily. We cannot oust the petitioners from seba pooja right, but in case of negligence of duty only we can take action and oust them and appoint another from their family but not from outsiders.' In cross-examination on behalf of other opposite parties, he stated that-
'After attaining majority, I came to know that my ancestors had installed the deity. At the age of 21 or 22 I could know the genealogy. I have not mentioned the name of the founder in my W. S. nor 1 mentioned how many generations back it was installed.
XX xx xx xx It was installed somewhere in 1700. I have not filed any such document except the copy of Inam statement. Except this Inam copy Ext. A have no other document. 1have no gift deed.
T have not seen the original Inam Register. Santara family is managing as our Agent since 7 generations.
XX XX XX XX The appointment of agent is not by written document, but by giving Sarhi.
XX XX XX XX About 5 to 6 months back father of O. P. 3 died. Mochi Santara is the elder brother of O. P. 3.
XX XX XX XX The eldest member of Santra family gets the hereditary right as agent. As agent I am Sri good term with O. P. 3. He is faithful to me till to day. I can dismiss O. p. 3, but I am bound to give the agentship to the other member of his family, say his brother.
XX XX XX XX The Archaks have not informed me regarding filing of this case. O. P. 3 has also not informed me regarding filing of this case. O. P. 3 has filed the written statement without informing me. 1 do not know if the I. E. (Inspector of Endowments) had enquired into the matter. I do not know till today what is the claim of O. P. 3. Till now I do not know what claim the petitioners have made. I have not taken any action against the petitioners. I have also not taken any action against O. P. 3.
I do not know if since more than 20 years Trustees have been appointed by Endowment Department and to-day just now only I could know this.
O. P. 3 sends accounts once a year andin every 3 years it is being destroyed. Thave accounts of the institution for the last3 years,
xx: xx xx xx It is not a fact that entire Athgarh es:-tate has been sold to khallikote, but 59 zirayati villages have been sold.
Arkhapur is a Zirayati village. I know Jagan Mohan Patnaik, Dewan of Khallikot. I do not know his handwriting. Khaladi is one of the Muthas sold to Khallikot in auction. Arkhapur is within Khaladi Mutha.
XX XX XX XX xx xx There is Jagannath temple of Athgarh of which I am the Hereditary trustee. That is excepted temple,
I have never attended Ratha Jatra ofArkhapur. Alat Chamar takes place wherethe deity comes out. I have never seenAlat Chamar of this deity,
xx xx xx xx The income of the temple has fallen down, so the condition of the temple is not good for the last 5 to 6 years. The deity has only about 9 acres of lands, which are in Arkhapur,
I do not know if villagers pay darshanto the deity.
Ext. A is a pre-settlement inam of 4 acres of lands. It is in one place. One of the pujaries possessses the same. It is not a fact that we have no connection with this temple. In 1954 Khalikot Raja is in management of the estates sold to him. Lady members of our family do not use to go to this temple.
I have got papers to show that I have private right. It is not a fact that petitioners,O. P. 3 and myself have conspired.To Court he stated thus:--
'I claim private right over the institution. The institution is a minor Inam. In my accounts there is record to show that other 5 acres were given by Chandan mala dei.
That was Darmila Inam, I cannot say why that was not enquired into
xx xx xx xx Brundaban Harichandan Jagadeb has granted Darmila Inam to Athgarh Jagannath afterinam enquiry. Hail Panda has been recorded as owner of the lands. None of our family member had objected to it, rather our family had agreed to it.
XX XX XX XX Without my Agent's permission, nobody can pay Darshan. Some Krushna Padhy wanted permisssion to read Bishnusahasranama and I had permitted.
I do not know if O. P. 3 was a member of the Trust Board. I do not know if at any time Madras Board had taken contribution. I do not know if contribution is being paid. I have not paid rent to Khallikot or Athagarh.
The lands are quit rent paid to Tahsildar Kodala since long, and now full rent is assessed.'
The evidence of the supporting witness Kashinath Moharana does not further the case of the appellant any way. He has stated in chief that opposite party No. 3 had been appointed by the Raja Saheb to look after the management. On his own admission, he constructs the chariot for the Rathajatra. In cross-examination he admits that the petitioners perform the sebapooja, Bhograg and Seba and before them their ancestors were performing the same. Out of the usufructs of the lands of the deity they perform nities, festivals etc. and also appropriate the same towards their remuneration. He admits that he has got no lands and that Santara family opposite party No. 3 were Sahus originally, but after getting Sarhi, they became Samantaras. At one stage he states thus :
'Khallikot Raja has given Sarhi to Sahu family. Again says Athagarh Raja has given Sarhi to their family. I cannot say if this village is under Khallikot Raja Saheb.xx xx xx xxI cannot say on what terms and conditions O. P. 3 uses to manage on behalf of RajaSaheb.
XX XX XX XX I do not know if trustees are being appointed in this institution since 18 to 20 years.'
6. Apart from this evidence, no document has beep filed on the side of the appellant to establish his claim as trusteeship much less as hereditary trusteeship. As I have already said that the ancestors of the appellant were the founders of the institution goes without doubt. But the assertion of the appellant that he was looking after the management of the deity all through and that opposite party No. 3 and his ancestors who were reporting about the management to him is not supported by any evidence nor circumstances. He has admitted that the three years' accounts are with him, but those have not been produced. O. P. 3 has not chosen to examine himself nor the appellant got him examined on his side. The learned Commissioner of Endowments has dealt with this aspect of the case which need not be reiterated here. Evidently the seat of the deity is four miles away from the residential house of the appellant and he admits that his family members do not go to the temple. In the absence of any evidence that the appellant is in management of this temple or that without his permission nobody can as of right have Darsan and further in view of the fact that he has never participated in the ceremonies of the deity it follows that he was not at all interested in the affairs of the deity at any time. Even in the settlement records (Record of Rights of 1953) his name does not appear. Panda family had been described as Sebayats there. The utter inactiveness of the appellant in the affairs of the deity is a significant factor weighing against his claim that the deity is a private deity. Further at least from 1955 as the Debottar Department record shows as far back as on 15/19-3-1955 Shri B.K. Patra, J. (as he then was Commissioner of Endowments) had passed the following order in respect of this temple thus:
'4. Save, in so far herein provided the trustees shall have all the rights and powers and shall be subject to all the liabilities of trustees provided under the Act and the Rules duly made or deemed to be made thereunder.
5. The ex-trustee, persons in charge shall make over possession of the temple and its properties to the trustees appointed.
Sd. B.K. Patra
Commissioner of Endowment,
1. Sri Mochiram Samantra
2. Sri Ghanashyama Patnaik
3. Sri Ananda Panda
The Inspector of Endowments, Berhampur
The Tahsildar, Kodala for favour of
Publication and report.
The Ganjam Accounts Section'. This order (Ext. H) indicates that three persons were appointed as trustees and notices were duly given to the Inspector of Endowments and the Tahsildar, Kodala for favour of publication. Official acts are deemedto be correct and regularly done unless the contrary is shown. From this if follows thatthe appointment of the three trustees under Ext, H has been duly published. Althoughthis order indicates that prior to this there was also a Board of trustees, yet no proofof the same has been adduced in this case. Ext. E dated 4-4-1962 is to the followingeffect:
'This matter coming on for final disposal before the Assistant Commissioner of Endowments, this day, it is hereby ordered as follows:
1) That Sri Kapileswar Samantra, 2) Sri Arjuna Padhan, 3) Sri Jogindra Sahu, 4) Sri Juri Padhan, 5) Sri Khalli Gantayat are here-by appointed as non-hereditary trustees of the above temple under Section 27 of the O. H. R. E. Act, 1951 for a period ending 81-3-1965 from the date off this aider.
Sri Kapileswar Samantra shall be the managing trustee. (O. P. 3)'.
Be it stated here that under Ex. H. Mochiram Samantra the brother of Opp. party No. 3 bad been appointed as one of the non-here-ditary trustees. The present petition by the panda family has been filed in the year 1968 When the appellant says that opposite party No, 3 was and is in his confidence till now, it is really surprising that though he was appointed as a non-hereditary trustee and so too his brother in 1955, he has kept this matter a secret to the appellant. Remaining in the confidence of the appellant and working to his prejudice are things which are not compatible. Even the restricted right which the family of the founders kept for themselves, according to the appellant, namely, Alata Chamar Seba and getting the first Bhog that he admits to have transferred to his agent opposite party No. 3. There is no evidence that with the gift of the Sarhi to the leading member of the Samantara family, he becomes the agent. It is in evidence that younger members of the Samantara family without any such Sarhi had previously become the members of the Board of non-hereditary trustees. As it appears, it is in view of these admitted telling circumstances that neither opposite party No. 3 nor anybody from his family did venture to come to the dock to depose in favour of the appellant. The appellant himself also felt shy to cite any of these people as witness.
7. In this context, a significant feature not noticed by the Courts below nor urged before me may be mentioned. The appellant admits that the village Arakhapur is a Zeriyati village. Khaladi is one of the Mutha sold to Khallikote in auction and village Arkhapur is within that Khaladi Mutha. From this it is clear that the entire village Arakhapur with the seat of the deity in it' has been sold to Khallikote Raja. The supporting witness for the appellant Sri Maharana also in an unguarded moment had blurted out how Khallikote Raja had given Sarhi which he subsequently corrected. However, that supporting witness of the appellant to a direct suggestion gave the following reply:
'I cannot say if this village is raider Khallikot Raja Saheb.' From this evidence on record it appears that the appellant has lost his title and ownership over the village Arakhpur and consequently over the deity. This is only compatible with his disinterestedness in the affairs of the deity. Be that as it may, since that point has not been looked into, I would leave it there.
8. Next coming to the vital question whether the appellant was aware of the appointment of non-hereditary trustees by the Endowment Commissioner, it may be said that his plea of ignorance of the same can hardly be accepted. Though on evidence it is shown that at least from 1955 there has been appointment of non-hereditary trustees, the indications are that prior to that even there were such appointments. The plca of the appellant that at the time of deposing in this proceeding be knew about the appointment of non-hereditary trustees by the Endowment Commissioner does not inspire confidence at all, particularly more so when a man of Ms confidence as opposite party No. 3 was in the Board and the institution was only four miles from his place of residence. If really he was looking after the management of the institution, this could not have escaped his notice and the very fact of his assertion that he did net know about it only establishes the facts that he was taking no interest at all in the affairs of the deity. Mr. Harichandan's learned Advocate for the appellant, only contention was that since the appellant had not been divested of his being non-hereditary trustee that light continues and that by the appoitment of non-hereditary trustees, without his knowledge, he cannot be divested of his rights. In support of his contention, he cited ILR (1961) Cut 109 (Raja K.C.M. Harichandan v. Commr. of Endowments Orissa); and (1970) 36 Cut LT 897 = (AIR 1970 Orissa 141) (Bhramarbar Santra v. The State of Orissa. The facts of the former case are entirely different from the present case. There, admittedly the Raj family of Parikud had established a deity and by a Seba Samarpanapatra had transferred the Seba Puja to certain persons who failing to do so surrendered the Seba Samarpana Patra to the Raj family. The question arose whe-ther during the time when the Raf family was not managing the deity they had lost their right off Sebayatship. It was held that even if the Raja was completely out of management for the period when the exe cutants of the Seba Samarpana Patra or their ancestors were acting as Sebayat, yet the right of the founder to trusteeship was always these and it again devolved upon him to carry an the Sebayat ship. Hence the Raja was the hereditary trustee of the deity. So the facts of that case are not applicable to the facts of the instant case. The latter case (1970) 36 Cut LT 897 = (AIR 1970 Orissa 141) also has no application to the present case. There when the character of the in-stitution had not been determined under Section 41 of the Act, steps were taken for appointment of non-hereditary trustees. So it was held that without first recording a finding that a prima facie case was esiablished that the irjstfrution was public and that the petitioners were not the hereditary trusses, the order for appointment of non-hereditary trustees under Section 27 of the Act and the direction for delivery of possession under Section 68 are without jurisdiction. It is now well settled that a marfatdari right itself is a property right. Besides the petitioners are admittedly in possession of the temple and it? properties. They cannot be divested, of the same without a finding that the institution is public and they are not hereditary trustees thereof. So the dispute there was that when a petition under Section 41 way pending, there was no justification for taking action under Section 27 of the Act Such is not the case here and as such it does not help the appellant in any way. As the facts of this case unmistakably show even if it be assumed that Arkhapur has not been transferred to the Raja of Khallikote and the opposite party No. 13's ancestors who-' had installed the deity, yet the impact of administration of the temple by the Endowment Department has to be judged. In the case of Adikanda Panda v. Gobinda Chandra Pradhaa (1973) 1 Cut WB 438, it has been held that-
'Since the Endowment department took over management of the institution since the year 1939, thereby divesting the appellants of their right of trusteeship, if any and kept them out of their such right, with-out any protest from them, for over 27 years, till the application under Section 41 was filed, the burden is heavy on them to establish their claim to the hereditary trusteaship. They must prove that Mukunda Panda is the founder of the religious institution and installed the deity, that he was in exclusive management of the institution and that the succession to the office of trusteeship has devolved by hereditary right without a break, since his time till the date of dispute which gave the cause of action for a petition under Section 41 of the Orissa Hindu Religious Endowments Act It has likewise been held in at decision of this Court in the case of Commissioner of Hindu Religions Endowments, Orissa v. Dadhibaban Deb (1961) 27 Cut LT 437 and the relevant passage of that decision is quoted herein below: -- 'In the new Act the position has been made absolutely clear that unless devolution by hereditary right is shown to have continued uninterruptedly from the time of the founder of the institution, the trustee cannot be considered to be a hereditary trustee.
The principle laid down here has been universally accepted. If there is no continuity in the right claimed, obviously it suffers from an infirmity. In the instant case, not that there is any proof of any continuity of the management of the deity by the founder or his successors, rather contrary is the evidence in as much as at least from 1955 onwards the Endowment Commissioner has appointed non-hereditary trustees for the institution. In the settlement records, there is no reference to the appellant or his ancestors, Whatever right he has claimed according to his own showing is being exercised through opposite party No. 3 who himself was at one time a member of the Board of non-hereditary trustees. In this setting, the claim of the appellant that the institution is a private temple and that he is the hereditary trustee thereof has been rightly rejected.
According to the appellant, the headman of the Santra family was looking after the institution on his behalf: and doing the Alat Chamara Seba and getting the first Bhog of the deity which he is entitled to. Thus appointment of any of the Santra family members by the Endowment Department as non-hereditary trustee cannot be without the knowledge of the appellant At any rate knowledge has to be presumed in the circumstances. To bring an action for possession of a hereditary office, the limitation is twelve years when the defendant takes possession of the office adversely to the plaintiff At least the evidence being clear that from the year 1.955 the Endowment Department had taken over the management the cause of action arose then, and any right to claim such hereditary office becomes barred by 1967. Admittedly the present proceeding started in 1956. In that view of the matter the claim has also been barred.
The learned Endowment Commissioner regarding the right of Alat Chamar Seba to the appellant has observed that since no such right was claimed nor there was any contest, he has simply by-passed it. I also agree with him that no finding on this is warranted,
9. In the result, therefore, the appeal fails and is dismissed with costs.