SRI JHADESWAR MAHAPRABHU Vs. SUKRASENA RANA

JUDGEMENT

(1.) THIS is an appeal under Section 44(2) of the Orissa Hindu Religious Endowments Act (hereinafter referred to as the 'Act'). The appellants have impugned the order of the Additional Assistant Commissioner of Endowments declaring the respondents to be hereditary trustees of the institution 'Sri Sri Jhadeswar Mahaprabhu and Sri Sri Mukteswar Mahaprabhu' of Kamagada in the district of Ganjam and the appellate order of the Deputy Commissioner of Endowments affirming the decision of the Additional Assistant Commissioner. The respondents filed an application under Section 41 of the Act claiming hereditary trusteeship over the institution on the allegation that the two deities were installed by the Raja of Dharakot and the founder granted the properties for the Bhograg and other festivals of the deities. It is the further case of the respondent that the said founder appointed the forefathers of the respondents as hereditary archaks to perform the sevapuja and management of the institution had been given to the forefathers of the respondents and in exercise of their said right, they are continuing in possession of the lands and are managing the affairs of the institution from generation to generation. The appellants are the members of the non -hereditary trust board appointed under Section 27 of the Act and they filed objection in the said, proceeding denying the allegations made by the respondents and further they challenged the maintainability of the proceeding in view of an earlier decision of the Commissioner of Endowments in O. A. No. 11 of 1981.

(2.) ON these pleadings, the learned Additional Assistant Commissioner framed four issues and on Issue No. 3 recorded a finding that the proceeding before him was maintainable. On Issues Nos. 1 and 2, the said Additional Assistant Commissioner came to hold that the respondents were managing the institution and were in possession of the deities, properties from the time of foundation and hence a presumption arose that they were the hereditary trustees of the institution. Having reached the aforesaid conclusion, the learned Additional Assistant Commissioner ordered that the institution was public in nature and trusteeship was hereditarily held by the respondents. On an appeal being carried to the Commissioner of Endowments, the same was disposed by the Deputy Commissioner of Endowments who has affirmed the conclusions of the Additional Assistant Commissioner. Hence, the present appeal.

(3.) THERE is no dispute between the parties, and it is well -settled that this being an appeal under Section 44(2) of the Act, this Court can go both into facts and law and is not subject to the limitations placed on a second appellate Court by Section 100 of the Code of Civil Procedure. Mr. Das, the learned counsel for the appellants, also does not challenge the correctness of the conclusion of the two forums below to the effect that the present petition filed under Section 41 is not barred by the principles of res judicata as well as the conclusion regarding the maintainability of the application under Section 41 of the Act. The only question, therefore, remains for consideration is whether on the evidence on record, the conclusion that the respondents have proved to be the hereditary trustees of the institution is sustainable or not.