S.M. SIKRI, J.
1. This appeal by special leave is directed against the jugdment and order of the High Court of Orissa in the appeal filed by Raja Bahadur S.A.N.M. H. Mohapatra, since deceased, ex-Ruler of the erstwhile State of Narasinghpur, hereinafter referred to as the original appellant, under Section 44 of the Orissa Hindu Religious Endowments Act, 1951, hereinafter referred to as the Act.
2. The appeal to the High Court arose out of the proceedings started under Section 41 of the Act at the instance of Bidyadhar Nayak, respondent before us, for a declaration that the institutions, numbering 67, were public religious endowments. The original appellant filed objections and his plea was that most of these institutions were his private institutions. In the alternative he prayed that he be declared as a ‘hereditary trustee’ as defined under the Act. Before the High Court the appellant did not contest the findings of the Assistant Commissioner of Endowments and the Commissioner of Endowments that they were public institutions. We may mention that the learned counsel for the appellant tried to resuscitate this point but we did not allow him to raise this question.
3. The only question which the High Court had then to deal with was whether the original appellant ought to have been declared as a hereditary trustee within the meaning of the words “hereditary trustee” under the Act.
4. The learned counsel for the appellant urges that the High Court has dealt with the appeal under a misapprehension as to its powers and duties under Section 44 of the Act, and complains that the High Court has not dealt with questions of fact as a Court of appeal.
Section 44 reads thus:
“44. (1) Any person aggrieved by any order passed by the Assistant Commissioner under Section 41 of sub-sections (1) and (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 the publication of the order under Section 42, as the case may be, appeal to the Commissioner.
(2) Any party aggrieved by the order of the Commissioner under sub-section (1) or under sub-section (1) or (6) of Section 42 may appeal to the High Court within thirty days from the date of the order or publication thereof as the case may be”.
5. In our opinion it does seem as if the High Court misunderstood its powers and duties under Section 44 of the Act. It was urged before this Court in Sri Sadasib Prakash Brahmachari v. State of Orissa1 that “a mere right to appeal to the High Court would virtually be in the nature of a limited appeal confined to challenge only on certain basic matters and probably limited to questions of law.” Jagannadhadas, J., speaking for the Court, repelled this contention in the following words:
“We can find no warrant for any such apprehension. The right of appeal is given in very wide and general terms. Obviously the appeal can be both on facts and on law and would relate not merely to the merits of the scheme but also to all basic matters whose determination is implicit in the very framing of the scheme.”
6. If this is the scope of the appeal it is quite apparent from the judgment of the High Court that it did not discharge its duties under Section 44 of the Act, for the High Court observed:
“From the evidence on record, the Courts of Fact were competent to come to the conclusion that it has not been established that the appellant was really exercising any act of management so as to be termed as hereditary trustee in respect of the institutions in question. On a scrutiny of the evidence there is not satisfactory evidence to be traced out as to the origin and foundation of the endowments in question. The evidence regarding management prior to 1926 seems to be not very clear. In my view, the Courts of Fact were competent to come to the finding that the appellant was not exercising any act of management so as to be termed as hereditary trustee as claimed.”
7. It may be that the findings of the Assistant Commissioner of Endowments and the Commissioner of Endowments could not be successfully challenged even after going through the evidence, but the High Court must first consider the evidence and come to its own conclusions.
8. In view of our conclusion we must set aside the judgment of the High Court and remit the case to it to dispose of it in accordance with law. Costs in the appeal will be costs in the cause.