(1.) THE Plaintiff is the Appellant. His case, in brief, is that he is the hereditary trustee of the deities and their properties in dispute and has been in possession of the same. Defendants Nos. 1 and 2 having no right and interest in the endowment executed and registered a Seba -Samarpanapatra in favour of Defendant No. 3 on 23 -4 -1958 and 24 -4 -1958 respectively. As Defendant No. 3, by virtue of this void and inoperative document, tried to interfere with the possession and management of the endowed properties, the Plaintiff filed the suit praying for a permanent injunction restraining the Defendants from interfering in any manner with the possession of the Plaintiff, of the endowed properties and the seba -puja of the deities. The suit proceeded ex -parte against all the Defendants except Defendant No. 3 who is Respondent No. 1. He resisted the suit firstly on the ground that the suit is bad for non -joinder and mis -joinder of parties; and secondly that the Plaintiff is not in exclusive possession of the endowed properties and is not the sole marfatdar. Defendants Nos. 1 and 2 having been declared co -sebaits and co -marfatdars along with the Plaintiff in a previous litigation and they being in possession of the suit properties, the Seba. Samarpanapatra executed by them in favour of Defendant No. 3 is quite valid. Secondly, be contended that the suit by the Plaintiff is not maintainable in the civil Court, in view of the provisions of the Orissa Hindu Religious Endowments Act.
(2.) THE trial Court found that the suit is not bad for non -joinder or mis -joinder of parties; that the Plaintiff alone is not the hereditary trustee, but he along with Defendants Nos. 1 and 2 are the co -trustees; that the Seba -Samarpanapatra executed by Defendants Nos. 1 and 2 in favour of Defendant No. 3 is void in law and that the jurisdiction of the civil Court is not barred under the provisions of the Orissa Hindu Religious Endowments Act and as such maintainable. On these findings, it decreed the suit on contest against Defendant No. 3, while it dismissed the suit ex -parte against the rest. In appeal against this judgment and decree of the trial Court by Defendant No. 3, the finding that the Seba -Samarpanapatra is void and the finding about the maintainability of the suit were only challenged. The finding of the trial Court that the Plaintiff alone is not the exclusive hereditary trustee was not challenged by the Plaintiff by cross objections. Therefore, that finding has become conclusive. The lower appellate Court, while confirming the finding of the trial Court that the Seba -Samarpanapatra executed by Defendants Nos. 1 and 2 in favour of Defendant No. 3 is void and invalid, disagreed with the other finding about the maintainability of the suit and held that such a suit is barred under the provisions of the Orissa Hindu Religious Endowment Act. Accordingly, it allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit. The present appeal has been preferred by the Plaintiff against the aforementioned judgment and decree of the lower appellate Court.
(3.) SO far as the first contention if concerned, I do not find any merit in it. Section 3(vi) of the Act defines the expression "hereditary trustee" and C1. (viii) defines the expression "non -hereditary trustee". There is no provision in the Act which provides for or contemplates appointment of a hereditary trustee. The definition of the expression excludes the possibility of any such appointment under the Act as in the case of hereditary trustee, succession to office devolves by hereditary right. It is contended by the learned Counsel for the Appellant that the expression "appointed" means fixed before band or fixed by authority. When under Section 41(c) the Endowment Commissioner recognised the Plaintiff as the person to hold office as hereditary trustee, it should be construed to mean that he was appointed under the provisions of the Act. Such a construction, in my opinion, is not acceptable. Section 41(c) gives jurisdiction to the Commissioner to decide a dispute whether a trustee holds or held office as hereditary trustee. Unless a dispute arises, the question of a decision under Section 41 will not arise. By exercising the jurisdiction under Section 41(c), it cannot be said that the Endowment Commissioner recognises or appoints a hereditary trustee. It only means that the Endowment Commissioner by virtue of this provision decides a dispute as to whether a person is a hereditary trustee or not. The contention of the Appellant that the Endowment Commissioner having decided under Section 41(c) that, the Plaintiff was the hereditary trustee, the latter should be deemed to be a trustee appointed under Section 73(2) cannot be sustained. Therefore, I reject the contention that the Plaintiff can be deemed to be a trustee appointed under the Act and as such will be competent to maintain the suit under Section 73.