JUDGMENT : Narasimham, C.J. - This is an appeal from the judgment of the Subordinate Judge of Cuttack dismissing the Plaintiff's suit for a declaration that Betanda Math, of village Betanda, in Killa Madhupur is an "excepted temple" and that the Plaintiff is the hereditary Mahant of the said Math and the trustee of the Devottar properties attached to the same. 2. The suit was instituted on the 28th February, 1951 when the Orissa Hindu Religious Endowments Act 1939 (Orissa Act IV of 1939) hereinafter referred to as the Act was in force. That Act VIII of 1954 which came into force on the 5th April 1954, but the present case will be governed by the provisions of Orissa Act IV of 1939. It is also conceded that though the Appellant has styled himself as 'Mahant' and described the institution as a 'math' it is only a temple within the meaning of the Act and that his status as claimed by him was only that of a 'hereditary trustee' of that temple, and that the title 'Mahant' was used merely by way of courtesy. 3. The following facts are admitted. The institution is situated within Killa Madhupur which was formerly an impartible estate in Cuttack district. The institution was originally founded and endowed with considerable properties by one of the previous Rajas of Madhupur. He did not lay down any rule of succession for the trusteeship of the temple. Early in 1946 there was a dispute between the then Mahant of the temple, namely Mahant Jagannath Das on the one hand, and the then Raja of Madhupur on the other, as to whether the temple was an "excepted temple" within the meaning of the Act, and whether Mahant Jagannath Das was the hereditary trustee of the same. The dispute was enquired into by the then Commissioner under Sub-section (1) of Section 64 of the Act, but the parties compromised the dispute and filed a petition of compromise (Ext. D) by which the contesting parties, while admitting that the temple was a public one requested the Endowments Commissioner to record both the Raja of Madhupur and Mahant Jagannath Das and joint trustees. They further prayed that the management of the institution may be placed in the hands of Mahant Jagannath Das who "shall be guided by the advice of the Raja of Madhupur and his successors". They further prayed that the management of the institution may be placed in the hands of Mahant Jagannath Das who "shall be guided by the advice of the Raja of Madhupur and his successors". In paragraph 3 of the compromise petition their further agreed that succession to the office of Mahant may take place with the sanction of the Raja of Madhupur in pursuance of long established custom. On the basis of this compromise petition, the Endowments Commissioner passed an order on the 25th January 1946 (Ext. 9) by which be declared the institution to be a 'non-excepted temple' and further directed that Mahant Jagannath Das and the then Raja of Madhupur should be recognised as joint trustees of the temple. Neither party challenged this order of the Endowments Commissioner before the Civil Court as permitted by Sub-section (1) of Section 64 of the Act. One year later, on the death of the then Raja of Madhupur on the 10th December 1917, the Endowments Commissioner appointed Madhusudan Khuntia as an associate interim trustee of the institution with the consent of parties, including the then Mahant Sri Jagannath Das. Sri Jagannath Das died on the 12th September 1950 and then the Appellant made an application before the Commissioner on the 4th October 1950 (Ext. J) stating that he was the duly appointed chela of Sri Jagannath Das, that the latter had executed a registered will in his favour, and that as his legal heir and successor he (the Appellant) was entitled to succeed to the Mahantship of the said Math. He requested the Commissioner to the appoint him as managing trustee in succession to the late Mahant Jagannath Das and to put him in possession of the properties of the same. This application was treated as one u/s 16 of the Act and the Endowments Commissioner by his order dated the 14th December 150 (Ext. 11) dismissed that application in view of the previous order, dated the 25th January 1946 holding the temple to be a "non-excepted temple" (see Ext. 9). Then the Plaintiff brought the present suit under appeal. 4. It is necessary to refer to some of the relevant provisions of the Act. 11) dismissed that application in view of the previous order, dated the 25th January 1946 holding the temple to be a "non-excepted temple" (see Ext. 9). Then the Plaintiff brought the present suit under appeal. 4. It is necessary to refer to some of the relevant provisions of the Act. The expression "excepted temple" has been defined in Clause (5) of Section 6 of the Act as meaning and including a temple the right of succession to the office of trustee or the offices of all the trustees (where there are more trustees than one) whereof has been hereditary, or the succession to the trusteeship whereof has been specially provided for by the founder. Similarly, the expression 'hereditary trustee' is defined in Clause (6) of Section 6 of the Act as "the trustee of a religious endowment, succession to whose Office devolves by hereditary right or by nomination by the trustee for the time being, or is otherwise regulated by usage, or is specially provided for by the founder, so long as such scheme of succession is in force". The two expressions are clearly inter-linked and if a temple has a hereditary trustee it necessarily becomes an excepted temple. Section II of the Act confers general powers of superintendence on the Endowments Commissioner, while Section 16 confers on him emergency powers where there is a vacancy in the office of hereditary trustee of an institution. The Commissioner's powers over hereditary trustees are somewhat limited, but over non hereditary trustees his powers of disciplinary control are very wide-see Sections 27, 28 and 29. Section 64 (with which we are primarily concerned in this appeal) may be fully quoted. 64. (1) If any dispute arises as to whether an institution is a math or a temple as defined in this Act, or whether a temple is an excepted temple, such dispute shall be decided by the Commissioner. (2) Any person affected by a decision under Sub-section (1) may within one year institute a suit in the Court to modify or set aside such decision; but subject to the result of such suit, the order of the Commissioner shall be final. (2) Any person affected by a decision under Sub-section (1) may within one year institute a suit in the Court to modify or set aside such decision; but subject to the result of such suit, the order of the Commissioner shall be final. If any dispute arises as to whether a particular institution is an excepted temple or not, the Commissioner is required to decide the dispute in the first instance, the aggrieved party is then given the right to file a suit in the civil court to modify or set aside that decision within one year from the date thereof. Subject to the result of the civil suit the decision of the Commissioner is final. 5. On the facts stated above and in view of the express provisions of Sub-sections (1) and (2) of Section 64 of the Act, Mr. S. Mohanty for the Respondents raised a preliminary point that as more than 5 years had elapsed since the decision of the Endowment Commissioner under Sub-section (1) of Section 64, the suit was hopelessly time-barred and that the order of the Endowments Commissioner became final. I agree with the learned lower court that this preliminary objection must succeed. By his order (Ext. 9 dated 25-1-1946), the Endowment Commissioner unambiguously declared the institution to be a "non-excepted temple". Under Sub-section (2) of Section 64 the aggrieved party should have instituted a suit within one year from that date for modification or cancellation of that order. As this was not doe the order of the Commissioner became final. 6. Mr. M. Mohanty for the Appellant however raised an ingenious contention. He urged that as admittedly the said order of the Commissioner was passed in pursuance of the compromise petition (Ext. D) the facts as admitted in that petition should be looked into in order to decide whether, on those facts, the institution can be held to be an "Excepted temple" or a "non-excepted temple". According to Mr. Mohanty the facts admitted in Ext. D) the facts as admitted in that petition should be looked into in order to decide whether, on those facts, the institution can be held to be an "Excepted temple" or a "non-excepted temple". According to Mr. Mohanty the facts admitted in Ext. D by all the parties concerned, only showed that institution was an "excepted temple" within the meaning of the definition contained in Clause (5) of Section 6 of the Act and that the Commissioner, by an erroneous construction of the said compromise petition, and of the definition of the expression "excepted temple" in Clause (5) of Section (sic) of the Act, wrongly declared the institution to be a "non-excepted temple". In my opinion this contention is not permissible. It may be that the order of the Commissioner was passed on the compromise petition filed by both parties, but whatever may be the basis of that order it clearly declared the institution to be a "non-excepted temple". If he wrongly construed the contents of the compromise petition and also the definitions of the expressions "excepted temple" and "hereditary trustee" (as given in Clauses (5) and (6) of Section 6 of the Act) the aggrieved party ought to have filed a suit in the civil court within the time prescribed in Sub-section (2) of Section 64. The finality given by Sub-section (2) of Section 64 to the order of the Commissioner passed under Sub-section (1) of Section 64 does not depend on whether that order was based on a correct appreciation of the admitted facts or on correct view of the law. That order can be challenged only in a properly constituted civil suit, and if no such suit is filed within the prescribed time the order is final. Doubtless, if there are clerical or arithmetical errors in the order, this Court may be justified in ignoring the same. Mr. M. Mohanty fairly conceded that he could not go to the extent of saying that Ext. 9 contained any clerical or mathematical mistakes. I must accordingly hold that the suit under appeal was barred by time. 7. Mr. M. Mohanty then raised the following contentions. In a single Judge decision of this Court reported in P.C. Das, Commissioner of Hindu Religious Endowments v. Mahant Purushottam Panda and Ors. ILR 1955 Cut 447, it was pointed out, relying on T.R.K. Ramaswami Servai and Another Vs. 7. Mr. M. Mohanty then raised the following contentions. In a single Judge decision of this Court reported in P.C. Das, Commissioner of Hindu Religious Endowments v. Mahant Purushottam Panda and Ors. ILR 1955 Cut 447, it was pointed out, relying on T.R.K. Ramaswami Servai and Another Vs. The Board of Commissioners of the Hindu Religious Endowments. that a decision under Sub-section (1) of Section 64 of the Act by the Commissioner need not be given on an independent application made under that section, but may also be implied in any order passed by him under other sections of the Act if such an order necessarily requires a decision of a dispute with reference to matters specified in Sub-section (1) of Section 64; In that case the trustee was removed u/s 29 of the Act which applied to non-excepted temples. Hence the order of removal necessarily involved a decision that the temple was a non-excepted temples. The learned Judge therefore held that order itself would amount to an implied decision under Sub-section (2) of Section 64 and that the only remedy open to the aggrieved party was to file a suit under Sub-section (2) of Section 64 and there need not be an independent application to the Commissioner, nor a separate decision under Sub-section (1). Relying on this decision, Mr. Mohanty urged that the order of the Commissioner dated the 14th December 1950 (Ext. 11) rejecting the Appellant's application would, in law, amount to a decision that the temple was a non-excepted temple and that the period of limitation for the purpose of filing the civil suit should be computed from the date of that order. The Commissioner treated the application as one u/s 16 of the Act which is applicable to hereditary trustees, and then dismissed it on the 14th December, 1950, in view of the order of his predecessor dated the 25th January, 1946 (Ext. 9). If this be treated as an implied decision that the Petitioner is not a hereditary trustee, limitation for the purpose of Sub-section (2) of Section 64 would, according to Mr. Mohanty, run from that date, and the suit must be held to be within time. 8. This argument also does not appeal to me. In the aforesaid single Bench decision there was no previous express decision given by the Endowment Commissioner under Sub-section (1) of Section 61 on an independent application. Mohanty, run from that date, and the suit must be held to be within time. 8. This argument also does not appeal to me. In the aforesaid single Bench decision there was no previous express decision given by the Endowment Commissioner under Sub-section (1) of Section 61 on an independent application. Hence, it was held that an order u/s 29 of the Act which involved a decision as to whether a particular trustee was a hereditary trustee or not would necessarily amount to a decision under the aforesaid Sub-section (1) of Section 64, for the purpose of computing limitation under Sub-section (2). The learned Judge did not say that even if there is a previous decision of the Commissioner under Sub-section (1) of Section 64, and there are subsequent orders under other sections of the Act passed while implementing or following that decision, the date of every such subsequent order will be the starting point for the purpose of computing limitation under Sub-section (sic) of Section 64. Such a contention, if accepted, would lead to fantastic results and would practically take away the finality attaching to any order passed by the Commissioner under Sub-section (1) of Section 64. To take one instance, an institution may have been declared to be a "non-excepted temple". The Commissioner then gets wide powers of management over that institution and also over the trustees appointed by him. If say, ten years after that decision, he dismisses a non-hereditary trustee u/s 29 of the Act or appoints another non-hereditary trustee u/s 27, it cannot be said that very such order of appointment or dismissal of a non-hereditary trustee necessarily involves a decision that it is an "non-excepted temple" and that the date of such order or appointment or dismissal would be the starting point for limitation under Sub-section (2) of Section 64. The Madras case on which the aforesaid single Bench decision was based, also does not go so far as contended by Mr. M. Mohanty. Section 81(1) of the Madras Hindu Religious Endowments Act 1927 (Madras, Act II of 1927) corresponds to Section 64(1) of the Orissa Hindu Religious Endowments Act, 1939. In that case a decision under that section was given by the Endowment Board on the 2nd May, 1945 though not in an independent application but in another proceeding dealing with the settlement of a scheme. In that case a decision under that section was given by the Endowment Board on the 2nd May, 1945 though not in an independent application but in another proceeding dealing with the settlement of a scheme. There was a previous decision dated the 21th September, 1938. The previous decision was challenged before the Board as having been passed without jurisdiction, and was urged that the whole matter was res integra. Then, the Board by its order dated the 2nd May, 1945 gave a fresh decision to the effect that the institution in question was an "excepted temple". Their Lordships of the Madras High Court merely held that the decision of the Madras Board dated the 2nd May, 1945 must be held to be a decision under Sub-section (1) of Section 84 for the purpose of computing limitation under Sub-section (2) of that section. Here, however, the order of the Commissioner dated the 14th December, 1950 (Ext. 11) rejecting the petition of the Appellant u/s 16 of the Act merely implemented the previous decision. The validity of the previous decision wad not under challenge before the Commissioner on that occasion, nor did he after re-examining the question afresh, came to an independent finding to the effect that the institution was a "non-excepted temple". Hence the Madras decision will not be of any help in this case. 9. But as this is not a final court of appeal we thought it advisable to dispose of the entire appeal on merits, instead of merely contenting ourselves with giving our view on the preliminary objection raised by the Respondents. 10. The main question for consideration is whether the Plaintiff-Appellant has established that he is a hereditary trustee of the institution. I have already given the definition of the expression "hereditary trustee" in Clause (6) of Section 6 of the Act. According to this definition the trustee of a temple becomes a hereditary trustee if succession to his office devolves (i) by inheritance (ii) by nomination by the trustee for the time being, (iii) by regulation according to usage and (iv) by special provisions made by the Founder. 11. In the plaint the Appellant urged that the institution was founded by a spiritual ancestor of the Plaintiff who was a Nihangi Baishnab, (celibate Baishnab), and that succession to the sebaitship decended from Guru to senior chela if there were more than one chela. 11. In the plaint the Appellant urged that the institution was founded by a spiritual ancestor of the Plaintiff who was a Nihangi Baishnab, (celibate Baishnab), and that succession to the sebaitship decended from Guru to senior chela if there were more than one chela. In paragraph 5 he gave an instance where, after the death of Mahant Ramanuja Das, his senior chela, Bairagi Das, succeeded in preference to his junior chela, Agani Das. He claimed to be the chela of the previous Mahant Jagannath Das and, as such, entitled to succeed to the office of Mahant. In paragraph 11 he has doubtless-referred to the compromise between his Guru Jagannath Das on the one side and the Raja of Madhupur on the other, but he further stated that the then Mahant being illiterate, did not realise the change in the status brought about by the order of the Commissioner passed on that compromise petition. Thus the Plaintiff's case, as put forward in the plaint, attract the first part of the definition of "hereditary trustee" as given in Clause (6) of Section 6 of the Act, i.e., succession to the office of trusteeship devolves by hereditary right, from Guru to senior chela (if there are more chelas than one) or to his sole chela (if there is only one). This rule is analogous to the Rule of lineal primogeniture, the chela being in the position of a spiritual son to the Guru. 12. If the evidence adduced by the Plaintiff himself is carefully scrutinised, as claimed in the plaint, has not only been not proved, but different rules of succession have been put forward by the Plaintiff himself on different occasions. Thus, when he applied on the 4th October, 1930 u/s 16 (Ext. J) on the death of Mahant Jagannath Das, he did not claim any right to succeed on the ground that he was the sole chela. On the other hand in paragraph 3 of Ext. J he claimed his right on the basis of nomination by his predecessor in his registered Will. This would be inconsistent with hereditary right of succession by virtue of his being a chela. 13. The Plaintiff's witnesses have given another rule of succession. On the other hand in paragraph 3 of Ext. J he claimed his right on the basis of nomination by his predecessor in his registered Will. This would be inconsistent with hereditary right of succession by virtue of his being a chela. 13. The Plaintiff's witnesses have given another rule of succession. Thus P.W. 3 Uchhab Rout admitted in cross-examination that no body claiming to be the Mahant must meet the Raja and he can be installed as Mahant with the approval of the latter. This right of approval given to the Raja of Madhupur will be inconsistent with any hereditary right of succession by the senior chela. As already pointed out if the Raja of Madhupur has the right to approve or disapprove of a particular person, for appointment as a trustee, he can change the line of succession by bringing in some other person. Similarly, P.W. 5 who claims to be the Rajguru of the Raja of Madhupur admitted, in cross-examination that nobody can succeed as the Mahant of Betanda Math without a parwana from the Raja of Madhupur. It was however, contended that this approval by the Raja of Madhupur was nothing more than a ceremonial formality which has been going on in the institution for a long time and that it did not affect the line of succession to the Math by the senior chela of the Guru as alleged in the plaint. The aforesaid two witnesses were not re-examined with a view to elicit that the approval of the Raja or granting of a parwana by him was only a formality. Their evidence seems to indicate that he had full powers of approval or disapproval. P.W. 6 also admitted that when one of the previous Mahants, Bairagi Das, died there was a gap of about two years before another Mahant Jagannath Das, was appointed to succeed him and during that interval the affairs of the math were managed by the Raja of Madhupur through his own employees. He also admitted that whenever, there was any dispute regarding the management of the math, the Raja used lo decide it when a complaint was made to him. He also admitted that whenever, there was any dispute regarding the management of the math, the Raja used lo decide it when a complaint was made to him. The math was founded by one of the previous Rajas of Madhupur and there is nothing improbable in the evidence of this witness to the effect that the Raja had reserved to himself the right of approval whenever there was any question of succession to the Math. 14. Thus from the evidence of the Plaintiff's witnesses themselves it may be taken as well established that the rule of succession as alleged in the plaint has not been proved. It was not stated anywhere in the plaint that the right of the chela to succeed his Guru was based not only on his being the senior chela but also on his being nominated by his Guru (either through a will as mentioned in Ext. J or otherwise). If the Guru had the right of nomination be can nominate anyone he chooses not necessarily the senior chela. On the other hand the evidence of P.Ws. 3, 5 and 6 show that the appointment of the Mahant required the sanction of the Raja of Madhupur who can have his own choice in the matter and he need not necessarily select the senior chela of the previous Mahant and can even carryon the management of the Temple himself without appointing any Mahant. 15. The evidence of the defence witnesses clearly shows that there was no rule of succession to the hereditary trusteeship of the temple at all. I lay special emphasis on the evidence of P.W. 4 (Bholi Panda) who is the own brother of the previous Mahant Jagannath Das. This witness stated that Jagannath Das was known as Raghu Panda before he became the Mahant, that after the death of Bairagi Das sometime in 1910 or 1911 no Mahant was appointed to look after the institution, but the Raja himself managed it for about 9 to 10 years, and then he sent for Raghu Panda and made him the Mahant. In cross-examination it was brought out, from this witness, that the Mahant of the Temple is generally selected by the Raja after considering the qualifications of the person to be installed as Mahant and a chela need not necessarily become the Mahant. In cross-examination it was brought out, from this witness, that the Mahant of the Temple is generally selected by the Raja after considering the qualifications of the person to be installed as Mahant and a chela need not necessarily become the Mahant. Though some attempt was made to be little the testimony of this witness on the ground that there was some dispute between his nephew Ranka Panda on the one band and the Plaintiff on the other, there is absolutely no reason to disbelieve him especially when the Plaintiff's own witnesses P.Ws. 3, and 6 admitted that the Raja of Madhupur had always exercised over-ridding powers and bad actually managed the institution for considerable period when there was no Mahant. I would therefore accept the evidence of P.W. 4 and hold that there was no prescribed rule of succession to the Mahantship and whenever there was any vacncy, the then Raja of Madhupur, as the descendant of the original founder, used to manage the institution himself for sometime and then appoint anyone who, in his opinion, was best qualified to fill that office. The plaint allegation about the rule of succession to the Mahantship is thus definitely disproved. 16. It was next contended by Mr. M. Mohanty that even if it be held that the rule of succession as alleged in the plaint was not established the Plaintiff must be held to be a hereditary trustee inasmuch as the present Raja of Madhupur by the parwana (Ext. 4) dated the 14th October, 1950 recognised the Plaintiff as the Mahant. If there has been some evidence to show that when the institution was founded by the Raja of Madhupur he had laid down this rule of succession of the Mahantship, there may be something in favour of this contention. But is admitted that no such rule of succession was laid down by the Founder. The Plaintiff also did not claim his right to succeed by virtue of this parwana, given to him by the Raja of Madhupur (Ext. 4). On the contrary, before the Commissioner he contended in 1930, that he claimed the Mahantship by virtue of his nomination by his previous Guru in a registered will. The Plaintiff also did not claim his right to succeed by virtue of this parwana, given to him by the Raja of Madhupur (Ext. 4). On the contrary, before the Commissioner he contended in 1930, that he claimed the Mahantship by virtue of his nomination by his previous Guru in a registered will. Once the rule of succession as urged in the plaint has been found to be a not established, it will not be proper for this Court to consider further) whether any alternative rule of succession could possibly be made out, on the evidence adduced by the Plaintiff's witnesses and by the Defendant's witnesses. The evidence of P.W. 4 about the Right of the Raja of Madhupur to appoint anyone he chose as a trustee of the Temple whenever there was any vacancy will not attract the definition of 'hereditary trustee' as given in Sub-section (6) of Section 6 of the Act because according to this witness there was no duty cast on the Raja to appoint a Mahant whenever there wad a vacancy. For nerely 10 years there was no Mahant at all and the Raja himself managed the institution. Hence in my opinion, from the facts as found it cannot be said that there was "any usage regulating succession to the trusteeship of the institution" so as to make the Appellant a hereditary trustee as soon as the present Raja of Madhupur recognised him by issuing a parwana (Ext. 4). 17. I may now briefly deal with the facts as admitted in the compromise petition (Ext. D). There the predecessor in interest of the Appellant, Sri Jagannath Das, clearly admitted that succession to Mahantship of the Math would take place with the sanction of the Raja "in accordance with long established custom". He also agreed to the Raja of Madhupur being made a joint trustee with him. In 1947 when the then Raja died, he consented to a stranger, namely Madhusudan Khuntia, being appointed as an associate interim trustee with him. If there was really any hereditary right of succession, be would not have allowed a stranger to be made a joint trustee with him. Then, again, in Plaintiff's own application dated the 4th October, 1950 he requested the Endowments Commissioner to appoint him as managing trustee of the institution. A hereditary trustee has no need to ask the Commissioner to "appoint" him as managing trustee. Then, again, in Plaintiff's own application dated the 4th October, 1950 he requested the Endowments Commissioner to appoint him as managing trustee of the institution. A hereditary trustee has no need to ask the Commissioner to "appoint" him as managing trustee. On the 8th June, 1951 the Plaintiff entered in to an agreement with the public of the place (Ext. L) by which he vested in a committee consisting of elected representatives of the local public the right to manage this institution and also the control its activities. If really he had a hereditary right of succession to the trusteeship he would not have agreed to divest himself of all his rights and to work under the supervision and control of an ad hoc committee appointed by the local public. 18. For the aforesaid reasons, I would, in agreement with the lower courts, bold that the evidence adduced in the case does not show that the Plaintiff is a hereditary trustee of the institution. The institution is not an "excepted temple" within the meaning of the Act. The appeal fails and is dismissed with costs. Barman, J. 19. I agree. Final Result : Dismissed