P.C. Misra, J.
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 non-hereditary 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 adducedby 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.
4. The appellants in this appeal have challenged the legality of the judgment of the Commissioner of Endowments as well as that of the Assistant Commissioner of Endowments. This being an appeal under Section 44 (2) of the Act it is an appeal both on facts and law and, therefore, I would deal with each of the points urged in this appeal. The learned Commissioner of Endowments besides negativing the case of the petitioners on merits also held that the appeal was barred by limitation. I would like to dispose of the technical points with regard to the question of limitation as well as with regard to the question of maintainability of the appeal.
5. Coming to the point of limitation the period prescribed by Section 44 of the Act is 30 days from the dale of the receipt of the order under Section 41 of the Act Section 44 of the Act is quoted below for ready reference:--
'44. Appeal--(1) Any person aggrieved by an order passed under Section 41 or subsection (1) or (6) of Section 42, or Section 43 may within thirty days from the date of receipt of the order under Section 41 or Section 43 or from the date of publication of the order under Section 42 as the case may be prefer an appeal to the Commissioner.
(2) Any party aggrieved by the order of the Commissioner passed under sub-sec. (1) may within thirty days from the date of the order prefer an appeal to the High Court.'
The trial Court passed the judgment on 30-4-1974. The present petitioners filed an application for certified copy of the order on 18-5-1974. Requisites were called for on 8-6-1974 and the same was filed on 15-7-1974. Copy was made ready and was delivered on 27-7-1974 and the appeal was filed on 20-8-1974. If the period of limitation is to be computed from the date of the order, the limitation would expire on 30-5-1974. The application for the certified copy having been made within the period of limitation, the petitioners would be entitled to the period from 18-5-1974 to 8-6-1974 (i.e. the period occupied fur notifying the requisites to be filed) and from 15-7-1974 to 27-7-1974 (i. e. the period spent in preparing the copy) to be added to the period of limitation as the aforesaid periods were legitimately spent in obtaining the certified copy. Thus, the appeal would be seriously barred by limitation. But the language of Section 44 is to the effect that the limitation for filing of the appeal shall be computed from the date of receipt of the order and not the date of the order. As a matter of fact Sub-section (2) of Section 44 which provides for filing of the appeal to the High Court against the appellate order of the Commissioner of Endowments uses the clause 'from the date of the older' as distinguished from 'the date of the receipt of the order'. Mr. Misra appearing for the appellants, therefore, argued that two interpretations are possible in the context of the language used in the statute. Either the limitation would begin to run from the date of the receipt of the certified copy of the order or it would begin to run only when the Assistant Commissioner of Endowments serves the order passed by him on the parties. According to him the certified copy of the order having 'been received by him on 27-7-1974 and the appeal having been filed on 20-3-1974 there is a marginal delay of 2 days for which he had filed an application under Section 5 of the Limitation Act to condone the delay. But the computation of the period for the purpose of limitation would be started from the date the copy of the order is served on the appellants then there is absolutely no delay inasmuch as the copy of the order has not been served on him by the elate of filing of the appeal or even thereafter.
6. Mr. Mohapatra appearing for the respondents contends that the date of receipt of the order should be construed as the date of the order inasmuch as the Act and the Rule prescribed thereunder do not provide for communication of the order under Section 41 of the Act. In the Orissa Hindu Religious Endowments Act various phrases have been used in its section providing as to from which date the limitation shall to run. Section 19 (4) requires an appeal to be filed within 30 days from the date of receipt of the copy of the order or from the date of publication of the order. Section 44 (1) uses the phrase 'the date of receipt of the order' in relation to a proceeding under Section 41 of the Act. Section 44 (2) of the Act prescribes that the limitation to be computed from the date of the order. Therefore, argument that date of the order is the same as the date of the receipt of the order does not appeal to me, specially when the legislature has used both the phrases in Section 44 of the Act. Law presumes that none of the words used in the statute by the legislature was unnecessary. Merely because the rule framed under the Act does not provide the manner of communication to be made it cannot lead to a conclusion that legislature intends that limitation is to begin from the date of order. The proceedings under Section 41 of the Act are judicial proceedings and the Assistant Commissioner of Endowments is required to follow the provisions of the Civil P. C. and G. R. & C. O. of the Orissa High Court as far as practicable and in so far as they are consistent with the Ads and Rules. Order 20, Rule 1 (1), C. P. C. provides that a date is to be fixed for delivery of judgment. According to Mr. Mohapalra when a date is fixed for pronouncement of judgment, the parties to the litigation are capable of knowing the order if they choose to remain in the Court. Therefore, it would be appropriate to interpret the clause 'receipt of the Order' to mean the same as the date of the order. This argument of Mr. Mohapatra ignores the well recognised principle that where the meaning of the words in the statute is clear and does not admit any doubt, artificial meaning cannot be deduced by subtracting a word from the clause sought to be interpreted. The duty of the Court is to examine the language used in the statute with reference to the words actually used and give effect to it. The Indian Limitation Act in providing limitation for preferring any appeal and revision at various places used the phrase 'date of the judgment', date of the order, date of the decree etc.' While computing the limitation under the Indian Limitation Act it is the date of the order, judgment or decree which would be the starting point of limitation. In such cases it is immaterial whether the party intending to file appeal or revision was present in the Court when the judgment or decree or order was signed or pronounced. According to Sub-section (2) of Section 44 of the Orissa Hindu Religious Endowments Act, 1951 limitation for filing the appeal is 30 days from the date of the order. Since according to the Civil P. C. the date of the judgment is to be fixed by the Court it is immaterial whether the party intending to prefer an appeal against the judgment was present in Court on the date of the pronouncement of the order or judgment. The legislature while using the phrase 'date of receipt of the order' under Section 44 (1) shall be taken to have meant something more than what is contemplated in Sub-section (2) of the said section. The Orissa Hindu Religious Endowments Rules, 1959 have been framed by the State Government under Section 76 of the Act and, therefore, the same ate statutory Rules. The said Rules should be read together with the Act under which they have framed. The Rules cannot repeal or contradict any express provisions in the Act and have to be interpreted to carry out the purpose of the Act. If the statute provides for the purpose of enabling something to be done and the Rules are silent to mention in terms the details necessary for performances of the said Act, it is reasonable to infer by necessary implication that the law empowers the Court to work out the details. Applying the said principles to Section 44 (1) of the Act it must mean that the order of the Assistant Endowment Commissioner passed under Section 41 of the Act must be served on the parties and the date of receipt of the order would be the starting point of limitation. There being no ambiguity in the words used in the Section 44 (1) of the Act, no liberties can be taken to effectively substitute the intention of the Legislature merely because the manner of communication of the order has not been expressly indicated in the Rules. I am, therefore, of the opinion that the appeal which was presented before the receipt of the order within the meaning of Section 44 (1) of the Act cannot be said to be barred by limitation.
7. The next argument that requires a mention is that the date of receipt of the order of Section 44 (1) of the Act may mean the date of the receipt of the certified copy of the order. In my opinion, this argument suffers from the very same infirmity. Section 44 (1) of the Act does not speak of the date of receipt of the certified copy of the order. It merely speaks of the date of the receipt of the order. It would be violating language of the section to add a word for the purpose of interpretation. Rule 38 (2) of the Orissa Hindu Religious Endowments Rules provides that the appeal shall be accompanied by the certified copy of the order appealed against Therefore, it cannot be assumed that the legislature was not aware of the fact that the certified copy of the order would be required by the parties intending to prefer an appeal under Section 44 (1), In the event the date of the receipt of theorder would mean the date of the receipt of the certified copy of the order then the limitation for filing of the appeal would be controlled by the parties intending to file the appeal and one may choose to think of filing an appeal according to his sweet will, may be after years. Even after the certified copy is made ready in pursuance of an application filed in that behalf, the person applying for the copy, may not receive it and in that event he would fix the date from when the limitation begins to run by receiving a copy when he chooses. Therefore, such a construction would be impracticable and unworkable. In a decision reported in AIR 1967 Orissa 201, Keshab Chandra Ram v. State of Orissa a similar question though in different context came up for decision. Section 12 of the Orissa House Rent Control Act (Act 31 of 1958) provided that a person aggrieved by the order of the Controller may within 30 days from the date on which the order is communicated to him, present an appeal in the appellate Court, Their Lordships interpreted the word 'communication' in the above mentioned decision and held that the period of limitation begins to run not from the date of delivery of the order or knowledge [hereof by the aggrieved party but only from the date when the order is communicated in writing to the party aggrieved. Though the words used in Sub-section (1) of Section 44 of the Endowment Act do not use a word 'communication' and use the clause 'the date of receipt of the order', the purpose in both the statutes appears to be similar. So in my consideration the appeal was not barred by limitation when it was presented.
8. The next argument on the question of limitation was that the appeal after being presented on 20-8-1974 was dismissed for default on 11-10-1974 as the defects pointed out were not removed. But on 31-1-1975 a petition for restoration of the appeal memo was filed and from the orders of the Court it appears that he has proceeded with the appeal as if it has been restored. It is submitted that the restoration application was beyond 30 days of the order of dismissal. The appeal could not be restored. The learned Commissioner of Endowments has held that the restoration or readmission of the appeal was without jurisdiction and the appeal is, therefore, not maintainable. It may be noted that Rule 42 of the Orissa Hindu Religious Endowments Rules provides that if an application or appeal is not in accordance with the provisions of the Rules, the Commissioner, Assistant Commissioner or the Government as the case may be may return the same for being brought into such conformity and represented within a reasonable period to be specified which may, however, be extended at his or. their discretion. In this case the appellant was directed to remove the defects by 11-10-1974 and on which date the appeal was dismissed for non-compliance of the order. A petition was filed on 31-1-1975 and on that date the Court directed for taking steps for rectification of the defects. Notice was thereafter issued on 7-2-1975 and the respondents entered appearance on 8-4-1975. The Court heard the limitation matter on 6-6-1975 and admitted the appeal on 23-6-1975. In view of the provision of Rule 42 of the Orissa Hindu Religious Endowments Rules, the Commissioner of Endowments was not justified in dismissing the appeal and therefore, the readmission of the appeal shall amount to correction of its own mistake which every Court is entitled to do in exercise of its inherent powers. In that view of the matter of question of limitation in praying for re-admission of the appeal does not arise for consideration. It may be mentioned in this connection that after the readmission of the appeal it was disposed of by judgment dated 5-3-1976 dismissing the appeal on merits against which the appellant had filed M.A. No. 58/76 in this Court. The M. A. was disposed of by this Court on 24-7-1979 remanding the appeal for a fresh hearing and disposal on merits. The point that the re-admission of the appeal was illegal and without jurisdiction was not taken either before the then Commissioner of Endowments when it was disposed of on 5-3-1976 or in M.A. No. 58/76 in this Court, which after hearing was remanded for fresh disposal. It would, therefore, be legitimate to conclude that the said point is no more available to be canvassed after remand.
9. Another objection has been taken to the effect that previously a proceeding under Section 64 of the Orissa Hindu Religious Endowments Act, 1939 was filed in which Chakradhar Samantara prayed for a declaration that the deity Sidha Baladeb Jew and the endowments thereof are his private deity and the proceeding was dismissed on contest by the Assistant Commissioner of Endowments by his judgment dated 19-8-1955. The said judgment dated 19-8-1955 was exhibited as Ex. H in this case and the matter was carried up in R.A. No. 8 of 1955-56 before the Commissioner of Endowments in which the Commissioner of Endowments observed that the finding in respect of hereditary nature of the trusteeship was beyond the purview of the proceedings inasmuch as though the application was initially filed under Section 64 of the old Act the enquiry was conducted under the provisions of the new Act and that there was no prayer in the application so as to enable the Court to enquire into the nature of the trusteeship. As a matter of fact, the Commissioner of Endowments came to a finding as to the nature of the institution and did not consider the correctness of the finding as to whether the temple was an excepted temple within the definition of the old Act He having found that the institution was a public one, the applicant Chakradhar Samantra filed M. A. No. 160 of 1957 under the provisions of Section 44 of the new Act in the High Court. The learned Judge while confirming the decision, of the Court below that the institution is a public one made it clear that it is open to the appellant to make an appropriate application for enquiry as to whether he holds or held office as a hereditary trustee under Section 41 (1) (c) of the new Act. Thus, the contention of the respondents that the present proceeding is hit by the principles of res judicata is not tenable.
10. The next point that was urged on behalf of the respondents regarding maintainability of the proceedings under Section 41 of the Act is that there has been an appointment of non-hereditary trustees under Section 27 of the Act on the basis that there are no hereditary trustees in the institution. Mr. Mohapatra contends that the decision of the Assistant Commissioner of Endowments to the effect that there are no hereditary trustees has not been challenged and assumed finality. Thus, according to him a declaration under Section 41 of the Act to the effect that there are hereditary trustees would result in two inconsistent findings by the same Court which the law prohibits. The contention of Mr. Mohapatra ignores the authoritative principle of law laid down in Bench decision reported in (1970) 36 Cut LT 897 : (AIR 1970 Orissa 141), Bharamarabar Santra v. State of Orissa. Their Lordships while examining the scope of Section 27 of the Act have laid down that Section 27 does not in terms authorise the Assistant Commissioner of Endowments to make an enquiry as to whether there are hereditary trustees or not in a religious institution. Their Lordships were of the opinion that the application of Section 27 of the Act should be confined only to cases where there has been a prior determination of the controversial right mentioned in Section 41 of the Act They have gone to the extent of laying down that appointment of non-hereditary trustees under Section 27 of the Act without a prior determination as to the nature of the institution and as to whether there are hereditary trustees in respect thereof is without jurisdiction. This decision of their Lordships have been confirmed by the Supreme Court in the decision reported in AIR 1976 SC 1059, Hindu Religious Endowments v. R. Samitra, that apart Ex. D itself which is the order of appointment of non-hereditary trustees clearly mentions that the persons named therein are appointed as interim non-hereditary trustees. The said order does not speak that any decision has been taken to the effect that there are no hereditary trustees in the institution. As already stated even if a final decision would have been taken under Section 27 of the Act that there are no hereditary trustees the sains would have been without jurisdiction in view of the decisions referred to above.
11. Another objection has been taken by Mr. Mohapatra that there was a previous proceeding under .Section 41 of the Act by Chakradhar which .was dismissed on 1-1-1968. According to him the dismissal of the said application would bur another proceeding of the same nature under the provision of Order 9, Rule 9, C. P. C. Order 9, Rule 9, C. P. C. provides that where a suit is wholly or partly dismissed under Rule 8 the plaintiffs shall be prejudiced from bringing a fresh suit in respect of the same cause of action. Therefore, the application of the bar under Order 9, Rule 9, C. P. C. would depend upon as to whether the dismissal of the proceeding under Section 41 was under the provision of the Rule 8 of the Order 9, C. P. C. Rule 8 of Order 9 would apply where the defendant appears and the plaintiff does not appear when the suit is called on for hearing and as a consequence thereof the suit is dismissed for default of the plaintiff. It is not known and there are no records to prove as to whether the prior application under Section 41 of the Act was dismissed under the provision of Rule 8 of Order 9, C. P. C. Thus, to hold that the present proceeding is barred under Order 9, Rule 9, C. P. C., under these circumstances, would be merely speculative and not based on material on record.
12. Coming to the merits of the case of the parties whether tae appellants are hereditary trustees or not long arguments have been advanced from either side. Before discussing the oral and documentary evidence on record in support of the case of either of the parties I would like to define the ingredients that are necessary for holding that the appellants are hereditary trustees of the institution. Section 41 (c) of the Act clothes the Assistant Commissioner, of Endowments with the jurisdiction to enquire into and decide whether a trustee holds or held office as a hereditary trustee. The proviso to Section 41 places the burden of proof on. the person claiming the institution to be private or the property or money to be other than that of a religious endowment which are matters covered by Clauses (a) and (b) thereof. But in a proceeding where a person, prays for declaration that he holds or held office as a hereditary trustee the burden of proof will be on him us he conies as a petitioner. Hereditary trustee has been defined in Section 3 (vi) of the Act. According to the definition the terms heredity trustee means the trustee of a religious institution succession to whose office devolves by hereditary right since the time of the founder or is regulated by custom or is specifically, provided for by the founder, so long as such scheme of succession is in force. The appellants claim the right of hereditary trusteeship on the basis of 1st clause namely, that the succession to the office of trusteeship has devolved by hereditary right since the time of the founder. Therefore, consideration of other clauses is not relevant so far as this case is concerned. The definition is clear to say that any person claiming to be a hereditary trustee must satisfy the definition of a 'trustee' and must show that he has been enjoying the said office hereditarily from the times of the founder. The word 'trustee' has been defined in the Act to mean a person by whatever designation known, in whom the administration of a religious institution and endowment are vested, and includes any person or body who or which is liable as if such person or body were a trustee.
13. In order to prove that they are hereditary trustees of the institution the appellants have relied upon Ex. 1 which is Robakari showing Narayan Samantata as the marfatdar of the deity. They have also relied upon Ex. 2 series which are the record-of-rights of the year 1898 which shows Markanda, Bhagaban and Chakradhar, ancestors of the present appellants to be the marfatdars of the suit institution. In the reeord-of-rights their share in the marfatdary right have also been carved out. Exs. 3 to 3 (b) are all record-of-rights of the year 1911 showing the petitioners-appellants' ancestors as the marfatdars of the deity. Exs. 4 to 4 (a) and 5 to 5 (a) and 6 to 6 (b) are the record-of-rights of the year 1927 in which some of the petitioners and ancestors of the rest have been described as marfatdars of the deity. Thus, it is clear that right from 1842 up to year 1927 i.e. till the last settlement the ancestors of the petitioners and thereafter the petitioners have been described as marfatdars of the disputed institution. They were also admittedly in possession of the deity and its properties till they were dispossessed by the orders of the Court (Endowment authorities) in the year 1973--vide Exs. B, B-1 and B-2. The question that arises for consideration is as to whether the possession of the appellants or their ancestors was in the capacity as trustees. The word 'marfatdar' usually means a trustee. In none of the records exhibited in this case anybody else other than the family members of the appellants have been described as marfatdars or mentioned to be connected with the institution in any manner whatsoever. The description in successive record-of-rights thus establishes that the members of the family of the appellants have been accepted as trustees/ marfatdars of the institution for more than a century. The learned Commissioner of Endowments in the impugned judgment has referred to Exts. F and G and has relied on the said documents for the conclusion that the foundation of the institution can be referred to the 7th Anka of Raja Dibyasingha Deb who had also endowed 140 acres of land to this deity. In other words, the learned Commissioner of Endowments has come to the conclusion on the basis of the said documents that the evidence of foundation of the institution is not lost in antiquity, f would deal with the consequence of such a finding on the issue to be determined later on but in my opinion the aforesaid conclusion is not available from a plain reading from Exts. F and G. Exhibit F is a book titled as ''Sakhigopal Mahatmya ba charita'. The said booklet has been mentioned to have been published by one Sri Chandrasekhar Nanda and Biswanath Das in the year 1923. The introductory note (Bhumika) of the said booklet mentions that the contents of this booklet has been collected from the book 'Sri Chitnya Charitamurta' some mythological and historical books (without mentioning the names of those books and the authors thereof), and other popular, legends. It acknowledges their gratitude to one Bata Krishna Misra as some portion thereof has been collected from his writings. There is no evidence on record to show that the publishers of this booklet were historians far less of any repute. At page 15 of the said booklet it has been mentioned that 3 images of Jaganath, Balaram and Subhadra has been consecrated at village Patjesipur under P. S. Kuansa in the district of Puri near Kanpurhat. It does not mention the name of the suit deity as the name of the deity is described as Sri Sri Sidha Baladev Jew. Even if the aforesaid writing in the Ext. F referred to the deity in question, it does not show anything about its founder, far less about the trustees thereof. Exhibit F, therefore, is of no assistance for deciding the question in issue. Exhibit G is said to be a certified copy of a portion of another booklet 'Rajakhanja Nakal' and it is mentioned to have been copied on 14-5-1950. It bears a seal of 'The Jaganath Temple Historical Research Society, Puri'. For reasons known to the contesting O. Ps., the original of Ext. G, was not produced in Court. A signature of Sri Sadasiv Rath Sarma appears at the bottom of the said copy without indicating as to whether it is he who has prepared the copy. Exhibit G makes the declaration that the copy granted by Jaganath Temple, Puri can be utilised as proof of the facts mentioned therein and there is a prohibition to publish it in any newspaper or magazine. In these circumstances, Ext. G cannot be taken as a document admissible in law. Assuming for the sake of argument Ext. G is admissible and can be relied upon it refers to a deity Sri Paramesidha Baladeb which is one, different from that of the disputed deity. Further assuming that Ext. Q makes a reference to the disputed institution it merely shows that the disputed deity was founded during the period when Raja Dibyasingha Deb was the Raja of Puri and that he had endowed some properties to the deity and fixed the extent of expenses to be spent in different festivals and also certain other directions relating to the performance of its sebapuja. In the worst Ext. G can be said to be a document from which the time of the foundation of the institution and the creation of the endowments can be ascertained. In other words it can be said that the foundation of the institution has not lost in antiquity. These documents do not however, disapprove the evidentiary value of the successive record-of-rights referred to above that the members of family who are the appellants were holding of the office of trustees from generation to generation. The appellants rely on the theory 'Lost grant' in order to bring their case within a definition of 'Hereditary trustee'. Before considering as to whether the theory of 'Lost grant' is available to be applied in this case, it is necessary to deal with the effect of another document Ext. E on the status of the ancestors of the present appellants, which has been relied upon by the respondents for a finding that the appellants are mere sevaks and not trustees,
14. Exhibit E is a report of Sadar Kanungo late Dayanidhi Das. The time when that report was given does not appear from Ext. E. In Col. I Naran Samantra, the original ancestor of the present appellants stands recorded as Marfatdar. It may be noted that the Robakari of the year 1842 also mentions the name of very same person as the marfatdar. Col. 13 indicates that the said marfatdar has acted according to his own will disregarding the Khania previously fixed for the institution. Col. 14 of the said report shows that the marfatdar is like a servant and in case of default in performance of service he is liable to be removed. Col. 17 gives somewhat a detailed account of the various defaults committed by the murfatdars. On the basis of Ext. E it has been argued on behalf of the respondents that the status of Narayan Samantaray was of a mere servant who was liable for removal for default in duty. They further contended that a servant of institution cannot be termed as trustee whose continuance in service was dependent on performance of the duties properly.
15. There is no bar in law that a person who is in charge of rendering the religious duty of the deity to be the trustees of the institution. As already indicated the definition of trustee in the Act includes any person by whatever designation known in whom the administration of religious institution is vested. Functions of a trustee i.e. administration of the institution and that of a Sebak who has been entrusted to render religious duties of the deity can be united in the same person and there are various instances of the same in this State. In a decision in (1951) 17 Cut LT 132: (AIR 1952 Ori 152). Commissioner, Hindu Religious Endowments v. Basta Patra the said position has also been accepted. Be he termed as a sebak or a marfatdar if he is in charge of the administration of a religious institution, is trustee and is bound to be subjected to the control of some authority. The controlling authority may be the sovereign power of the State, the founder of the institution or his successors or even the members of the public for whose benefit the institution has been founded. Therefore, the fact that the marfatdar was liable for removal in default of duty would not mean that he was not a trustee. In this background, I am of opinion that the Ext. E cannot be construed to mean that the ancestors of the appellants were not holding the office as trustees.
16. The next question that arises for consideration is as to whether the theory of 'Lost grant' would be available to be applied in the facts of this case. Theory of 'Lost grant' has been the subject matter of discussion in a large number of cases. The essence of the principle upon which a 'lost grant' is presumed is that the present state of affairs which is found to be continuing for a sufficient length of time, is otherwise not explainable. Where there has been long continued possession in assertion of a right courts of law have come to conclusion that the said right should be presumed to have had a lawful origin, and the further, presumption may be available that the facts necessary for creation of such right were done. In a decision reported in (1960) 26 Cut LT 293, Dhruba Charan Swain v. Jagannath Panda, his Lordship relying upon a decision reported in (1913) ILR 36 Mad 364. Ramdass v. Hanumantha Rao, held that where the office of a trustee has been held by the head of a family for four successive generations and there is no suggestion that the trusteeship had ever been held outside the family, the trusteeship would be regarded as hereditary. His Lordship has relied upon the theory 'lost grant' to conclude in the facts of that case that the system as is found from the time immemorial was the system that has been continuing from the lime of the founder. In that case as in the present one it was contended that the persons in the management were the mere sevaks but it was found that the management really vested in them and they were trustees for six generations. In the language of his Lordship the inference is, irresistible that it is they who were the hereditary trustees of the temple. In a decision reported in (1968) 34 Cut LT 1111, Chintamani Pati v. Krishna Chandra Panda it has been held that the settlement record-of-rights were in favour of the respondents in that case so far as succession is concerned and that from generation to generation, the respondents were in possession of the properties, doing seba-puja of the deity and were in management of the deity. There was no evidence of any outsider ever being in charge of the management of deity's properties. There was no evidence to show that the line of succession began from the alleged founder, which is hidden in mist of antiquity. In those circumstances the backward presumption was invoked to the effect that they have been in possession of the marfatdari light in such character ever since the time of the founder. His Lordship also expressed that unless such a presumption is invoked it would lead to fantastic results, inasmuch as there would be difficulty in establishing hereditary trusteeship after passage of time. In a decision reported in (1971) 2 Cut WR 379, Krushna Mohan Panda v. Radhyshyam Panda, his Lordship relied upon the aforesaid decision reported in (1968) 34 Cut LT 1111, Chintamani Pati v. Krishna Chandra Panda and held that where the trusteeship of the deity has remained in the family for over 100 years, thc claim of hereditary trusteeship of the institution is established as it satisfies the first aspect of the definition of the term in the Act. The Division Bench of this Court in the decision reported in ILR (1971) Cut 578, Raja Bahadur A.N.M.H. Mohapatra v. Bidyadhar Nayak, also approves the aforesaid view. In all those decisions, however a word 'caution' has been given that such a presumption may not be drawn in every case. The expression 'since the time of founder' occurring in the definition of 'hereditary trustee' was not there in the old Act, 1939. By introduction of the expression 'since the time of founder' the legislative intention is clear that it has to be proved that the succession to the office of the trusteeship by hereditary right commenced from the time of the founder of the institution. In order to come within the definition of 'hereditary trustees', it has, therefore, been held that in justifying circumstnaces the theory of 'lost grant' may be applied by which the system found to fee existing from time immemorial would fee presumed to have been continuing from the time of founder. Thus where it is not possible to have any direct evidence, and or documentary to trace the line of succession to the office of trusteeship from the time of the founder, the said principle of 'lost giant' would be available. The above principle has also been correctly followed in several decisions of this Court including those reported in (1971) 37 Cut LT 575; (1977) 43 Cut LT 108; (1978) 46 Cut LT 471 and (1981) 51 Cut LT 169 : (AIR 1981 NOC 178).
17. Mr. Mohapatta appearing for the respondents wanted to distinguish the said case's referred to above by showing that where the name of the founder or the time of foundation is known or stand proved, the theory of 'lost grant' cannot be applied. It is true that in most of the cases referred to earlier it has been observed that where the founder is unknown and there is no deed regarding foundation, one has to rely on the theory 'lost grant' and has to presume that the system as is obtaining from the time immemorial was the system that has been continuing from the time of the founder. But the theory of 'lost grant' as already stated is based upon the principle that in the absence of actual evidence due to long lapse of time, back-was (sic) to presumption may be available that the existing state of affairs had a lawful origin and has been continuing to exist from the inception. The principle can therefore be resorted to because the actual evidence beyond a particular time is not possible to be available. The theory of 'lost grant' is not confined lo endowment cases where the questions as to who founded the institution and from when are relevant. Thus, merely because the approximate time of foundation or the name of the founder of the institution becomes known cannot be a ground to discard the application of the theory of 'lost grant'. The long uninterrupted possession in assertion of a right should raise a presumption of its legal origin, provided such legal origin was possible. In the facts and circumstances of this case my conclusion is that even if Ext. G is relied upon to prove that the deity in question and its endowment was founded during the time of Raja Dibyasingha Deb, that fact alone is not sufficient to disentitle the appellants from relying upon the principle of 'lost grant'. It has been proved on evidence that trusteeship is being enjoyed by the petitioners-appellants and their ancestors from the year 1842 i.e. for more than a century, and as such it shall be presumed that they have been functioning as trustees from the time of its founder which satisfies definition of 'hereditary trustee' in the Act
18. The appellants are thus entitled to be declared as hereditary trustees of the institution in question. The appeal is accordingly allowed; But there will be no order as to costs.