GAJESWAR MAHADEB Vs. PRAFULLA KUMAR JENA

JUDGEMENT

(1.) This appeal under S. 44(2) of the Orissa Hindu Religious Endowments Act, 1951 (hereinafter referred to as the 'Act') is directed against the order dated 22-11-1979 passed by the learned Commissioner of Endowments in F. A. No. 11 of 1979.

(2.) Appellants 2 to 9 filed a petition before the learned Assistant Commissioner of Endowments, Orissa under S. 41 of the Act for a declaration that the deity Sri Gajeswar Mahadeb at Deulapada, appellant No. 1, is a 'temple' within the meaning of the Act and the families of appellants 2 to 9 are the hereditary trustees with rights of management of the deity and its properties. This petition was registered as O. A. No. 45 of 1978. The appellant's case is that the deity which has been existing from time immemorial was founded by their ancestors who also endowed their personal lands for the management and other expenses of the deity. From the date of inception of the deity, the appellants' ancestors and thereafter the appellants were in exclusive management of all the affairs of the deity being the hereditary trustees. The lands endowed to the deity were recorded in the name of the deity and appellants 2 to 9 were recorded as the Marfatdars. One Prafulla Kumar Jena, and outsider, attempted to interfere with the management of the institution. So appellant No. 8 representing the families of the appellants filed a petition under S. 41 of the Act for declaration that they were the hereditary trustees of the institution. It may be noted that this Prafulla Kumar Jena was described as opposite party No. 1 in the original petition filed by appellants 2 to 9, but by order dated 30-4-1979 of the learned Assistant Commissioner of Endowments, the name of opposite party No. 1 was expunged at the instance of the appellants. Inadvertently in F. A. No. 11 of 1979 before the learned Commissioner of Endowments and in the present appeal the said Prafulla Kumar Jena continues to be described as respondent No. 1. However, according to the appellants, the petition under S. 41 of the Act filed by appellant No. 8 which was registered as O. A. No. 258/57-58 was dismissed on the ground of non-joinder of necessary parties by order dated 27-3-1963 of the learned Assistant Commissioner of Endowments. First Appeal No. 19/64 filed against the aforesaid order of dismissal was dismissed by the learned Commissioner of Endowments on the ground of limitation. It is claimed that the appellants' families have continued to be the hereditary trustees of the deity without let or hindrance by any member of the public. In the month of September, 1978 the appellants learnt that the learned Assistant Commissioner of Endowments had appointed a non-hereditary Trust-Board and Prafulla Kumar Jena was appointed as the managing trustee by order dated 22-4-1978. This order was passed without any notice to the appellants. Accordingly the appellants have prayed that the deity should be declared as a 'temple' within the meaning of the Act with the families of appellants 2 to 9 as the hereditary trustees.

(3.) Respondents 2 and 3 who were opposite parties 2 and 3 in O. A. No. 45 of 1978 had filed a joint written statement. They have denied the claim of appellants 2 to 9. They have denied that the deity was founded by the ancestors of appellants 2 to 9 and that the appellants were the hereditary trustees of the deity. It is also denied that Prafulla Kumar Jena was the managing trustee of the deity. It is stated that respondent No. 2 was the managing trustee along with respondent No. 3 and others who were co-trustees. The respondents have further pleaded that the application under S.41 is not maintainable being barred by the principles of res judicata and estoppel.