G C HARICHANDAN JAGADEB Vs. JAGANNATH SWAMY

JUDGEMENT

(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.