BALA KRISHNA KAR Vs. GANESH PRASAD BHAGAT

JUDGEMENT

(1.) These two consolidated appeals arise out of two suits tried together by the Subordinate Judge, Cuttack, and are covered by the same judgment. Title Suit No. 32 of 1944 was filed by Ganesh Prasad Bhagat and others (hereinafter referred to as the plaintiffs) against the appellant, as representing the public, for a declaration that the suit temple of Baldev Jieu and the endowments connected therewith, in Jaginipur Zamindari, are the private 'Devotter' properties of the plaintiffs and thati the order passed by the Commissioner of Hindu Religious Endowments, under Sub-section (2) of Section 64 of the Orissa Hindu Religious Endowments Act. 1939 (Orissa Act IV (4) of 1939) declaring the said temple to be an "excepted temple" Is wrong. Title Suit No. 11 of 1945 is a representative suit filed by Balakrushna Kar, the appellant before us, on behalf of the general public, against the Bhagatas, plaintiffs in Title Suit No. 32 of 1944, for a declaration that the suit temple and its endowments are the public endowments, and that the order of tile Commissioner declaring the temple to be an "exempted temple" is erroneous and should be set aside. In both the suits, the main question that arises for decision is about the character of the suit temple, and whether the plaintiffs are the hereditary trustees thereof.

(2.) The learned Subordinate Judge found that the temple and the endowments attached to it are the private 'Devotter' properties of the plaintiffs and set aside the order of the Endowments Commissioner. He declared the plaintiff's suit and dismissed the suit filed by Balakrushna Kar, The present appeals have been filed against these judgments.

(3.) The case for the plaintiffs in Title Suit No. 32 of 1944 is that Baldev Jieu, Jagannath, Subhadra and Sudarsan, were the family idols of an up-country ascetic living at Puri and that he gave the idols to his 'Pujari', a Brahmin of Jaginipur, who took them to his village, and, after performing the 'seba puja' for some time, made them over to a Sanyasi who owned extensive properties including the zamindary of Jaginipur. The Sanyashi, it is said belonged to the Bharati Sect of the Dasnami Order and styled himself as Tapanidhi Goswamy. It is alleged that these Goswamis belonging to the Bharati cult, marry and beget children and generally lead the life of a 'gruhastha' and their sons are known as 'chelas' and their residence is known as 'Mutt.' One Topandhi Purusottam Goswami who had five sons executed a deed of gift described as a "Danachopa" dated 29-7-1856 (Ex. 4) by which he dedicated his village of Jaginipur to the deities mentioned above and created an endowment in favour of the deities. He also appointed four of his sons and his grandson (the son of a predeceased son), as the trustees for conducting the daily worship of the dieties and the usal festivals connected with that worship. It is said that the temple in which the idols are installed, as well as a tank known as Chandan Tank were constructed during the time of the Bharatis. The plaintiffs subsequently acquired the zamindary of Jaginipur and other properties of the deities, together with the right of worship, by several deeds of sale and through Court sales, between the years 1906 and 1938, from the ' five branches of Purusottam Goswami, the creator of the endowment. (His Lordship reviewed the evidence on both sides and proceeded:)