THE COMMISSIONER OF HINDU RELIGIOUS ENDOWMENTS Vs. BAMAN MOHAPATRA AND AFTER HIM PARAMANANDA MOHAPATRA AND ORS.,

JUDGEMENT

(1.) THIS is an appeal by Defendant No. 1, the Commissioner of Hindu Religious Endowments, Orissa, (hereinafter referred to as Commissioner) against the decision of the Subordinate Judge, Puri, declaring the temple in question to be a private temple of the family of the Plaintiff and Defendants 2 and 3, an d as such outside the scope and provisions of the Orissa. Hindu Religious Endowments Act, 1939 (hereinafter referred to &s the Act).

(2.) IN a proceeding before the Commissioner under Section 64(1) of the Act the temple was declared to be a public temple and the member 's of the Plaintiff 's family were recognised to be hereditary trustees thereof. The Plaintiff filed the suit against the said declaration of the Commissioner, and the suit having been decreed as aforesaid this appeal was preferred by the Commissioner. This appeal coming up for hearing before a Division Bench of this Court on the 22nd of November, 1960 was allowed on the preliminary ground that the suit was not maintainable as the Plaintiff had not impleaded the public in accordance with the requirements of Order 1, Rule 8, Code of Civil Procedure. Against the said decision, an appeal was preferred in the Supreme Court on behalf of the Plaintiff, which was allowed on the ground that the High Court was in error in holding that in the suit brought by the Plaintiff under Section 64(2) of the Act, the members of the public were necessary parties and it was incumbent on the Plaintiff to follow the provisions of Order 1, Rule 8, Code of Civil Procedure. The High Court 's view being thus overruled, the judgment and decree of this Court were set aside, and this appeal was remanded to this Court for disposal in accordance with law.

(3.) DEFENDANT No. 1, the Commissioner of Endowments; in his written statement contested the suit, infer alia, on the following grounds: That the suit deity was never the family deity of Dayanidhi; that the members of the public freely offered bhog to the deity and had unrestricted Darshan thereof, and the temple which is a fairly big temple situate at a conspicuous place just by the side of the public road and away from the residential house of the Plaintiff and other members of the family, and that the temple has all the general features of a public temple such as the Garudastambha, the Jagamohan and the Mukhasala and that the feeding of Abhyagatas, the manner of performing the different annual festivals and such other circumstances make it quite clear that the institution is a public one and not a private temple. Mostly on the above grounds Defendant No. 1 supported the Commissioner 's order declaring the institution to be a public excepted temple. Defendants and 3 filed a separate written statement supporting the Plaintiff 's case to the extent that the suit deity was not a public deity and that the aforesaid order of the Commissioner was illegal. They however asserted that the suit deity was their family deity as also of the Plaintiff, having been installed by their ancestor Dayanidhi Mohapatra and that the Plaintiff alone was not the sole marfatdar of the temple.