JUDGMENT : Narasimham, C.J. - This is an appeal by the Defendants against the judgment of the Additional Subordinate Judge of Berhampur decreeing the Plaintiff's suit for a declaration that the suit institution (which is a temple) is a private institution belonging to the family of the Plaintiff and for other ancillary reliefs. 2. The declaration of the learned Subordinate Judge is somewhat confusing. He has also given an alternative relief to the effect that the suit institution is an 'excepted temple' which necessarily involves a declaration that the institution is a public temple and that the Plaintiff is a hereditary trustee. 3. At the commencement of the hearing of this appeal Mr. R.C. Misra for the Appellant rightly raised a preliminary objection on the question of maintainability of the suit. This was issue No. 3 before the lower court and was decided against the Appellant by that Court. To appreciate this point it is necessary to state the following admitted facts. 4. On 9-9-1954 (see Ext. B) the then Commissioner of Hindu Religious Endowments, Orissa, appointed the Appellant, Natabar Panda and two other persons namely Ramachandra Samal and Srinivas Padhy as non hereditary trustees of the suit institution purporting to act u/s 27 of the Orissa Hindu Religious Endowments Act 1939 (Orissa Act IV of 1939 -hereinafter referred to as the old Act), and directed the estruses to put them in possession. The order does not show that anyone raised objection to the jurisdiction of the Commissioner to pass the said order u/s 27 of that Act either on the ground that the temple was private institution and as such outside the scope of the old Act, or on the ground that it was an 'excepted temple' in which there were hereditary trustees. After the order of the Endowments Commissioner was passed some difficulty was experienced by the newly appointed trustees in obtaining possession and when they applied to the Commissioner u/s 59 of the old Act he gave notice to all interested parties and passed an order on 11-11-1954 (see Ext. C/l) directing the issue of a writ for putting the newly appointed non-hereditary trustees in possession of the Temple and its properties. That order shows that the person who was in possession previously failed to show cause before the Commissioner though notice had been issued to him. 5. C/l) directing the issue of a writ for putting the newly appointed non-hereditary trustees in possession of the Temple and its properties. That order shows that the person who was in possession previously failed to show cause before the Commissioner though notice had been issued to him. 5. The dispossessed person was one Gour Chandra Padhy who is none else but the natural brother of the Plaintiff-Appellant though the Plaintiff is said to have been adopted away into another family. The said Gour Chandra Padhy did not challenged before the appropriate authority, either the first order of the Commissioner dated 9-9-1954 passed u/s 27 of the old Act or the second order dated 11-11-1954 passed u/s 52 of that Act. It also appears that copies of these two orders were prominently published an the front door of the temple in question. In the meantime the new Orissa Endowments Act (Orissa Act 11 of 1952) came into force on 1-1-1955 and the present suit was filed on 21-1-1955. 6. A fair reading of the plaint shows that the Plaintiff's case was that the temple was constructed by his adoptive father G.N. Padhy and that subsequently Plaintiff and his adoptive mother (G.N. Padhy's widow) endowed some properties for seva puja of its deities. It was also alleged that the Plaintiff as the sebayat of the institution was entitled to manage the temple and its properties. It was further stated that the institution was a private institution belonging to the family of the Plaintiff and that neither the villagers nor the general public had any right to question the private character of the temple. There was a reference to the order of the Commissioner in pursuance of which the Defendants were put in possession of the temple. 7. Hence the main reliefs asked for in the plaint are: (1) for a declaration that the temple in question is the private temple of the family of the Plaintiff, (ii) for a declaration that Plaintiff is the representative of the founder of the institution as such entitled to manage the affairs of the same and (iii) for an injunction restraining the Defendants from interfering with his possession of the institution. 8. 8. The main question for consideration is whether in view of the aforesaid pleadings and in view of the previous orders of the Endowment Commissioner dated 9-9-1954 and 11-11-1954 the Plaintiff can claim an independent right of suit in the civil court in respect of the reliefs asked for. The aforesaid orders were issued when the old Act was in force; but the suit was filed on 21-1-1955 by which time the old Act was replaced by the Orissa Hindu Religious Endowments Act 1951 (Orissa Act 11 of 1952) (hereinafter referred to as the new Act). u/s 64(1) of the old Act whenever there was a dispute as to whether a particular institution was a public or private temple or else whether it was an excepted temple, the dispute should first be decided by the Endowments Commissioner and the party aggrieved by his decision was given a right of suit u/s 64(2) of the old Act. In the new Act however, Section 64 was replaced by Sections 41 and 44 and the right of suit was altogether taken away; instead, the Assistant Endowments Commissioner was conferred jurisdiction to decide in the first instance whether an institution was a private or public institution or whether a person was a hereditary trustee or not (see Section 41) and the aggrieved party was given a right of appeal first to the Endowments Commissioner u/s 44(1) and then to the High Court u/s 44(2) of the new Act. Proceedings which were pending on the date of commencement of the new Act were saved by Section 78 and 79 of the new Act. But here as admittedly no suit was filed against the order of the Commissioner, (as provided in Section 64(2) of the old Act), prior to the commencement of the new Act, the aforesaid two savings sections have no application. 9. But here as admittedly no suit was filed against the order of the Commissioner, (as provided in Section 64(2) of the old Act), prior to the commencement of the new Act, the aforesaid two savings sections have no application. 9. There are several Division Bench decisions of this High Court to the effect that the provisions of the old Act and the new Act were both intended to exclude the jurisdiction of the Civil Court in respect of matters for which express provisions have been made therein, and that the aggrieved party should either seek his remedy before the Endowments Commissioner u/s 64(1) of the old Act (before resorting to a suit u/s 64(2)), or by way of an application u/s 41 of the new Act to the Assistant Endowments Commissioner, with a right of first appeal in the first instance to the Endowments Commissioner u/s 44(1) and second appeal to the High Court. u/s 44(2). I need only refer to 27 C.L.T. 311 and ILR 1961 Cutt 872. 10. Mr. Srinivas Misra for the Appellant raised two contentions. 11. Firstly he urged that even though some of the reliefs asked for in the plaint may not be available to him in the present litigation the Appellant was entitled to a declaration by the Civil Court that he was the trustee of the suit institution. According to him, neither the old Act nor the new Act confers jurisdiction on the Commissioner or any authority subordinate to him, to decide the question as to whether a person is a trustee of the institution and consequently it cannot be said that the general jurisdiction of the Civil Court to decide this question was altogether taken away by these two Acts. In my opinion this ingenious attempt to dissect the reliefs asked for in the plaint is not only unnatural but is also not tenable in law. A fair reading of the plaint shows that the Plaintiff claimed two alternate reliefs. Firstly he asked for a declaration that the institution was a private institution outside the scope of the two Acts altogether (see paragraphs 13 and 21). Alternatively, he asked for a declaration that the temple was an 'excepted' temple and the Plaintiff was a hereditary trustee of the same as he was the representative of the original founder being his adopted son (see paragraph 25). Alternatively, he asked for a declaration that the temple was an 'excepted' temple and the Plaintiff was a hereditary trustee of the same as he was the representative of the original founder being his adopted son (see paragraph 25). Thus his claim to hereditary trusteeship was based on the said right devolving on him from the founder viz. his adoptive father. u/s 6(5) of the old Act 'excepted temple' was defined as meaning temple the right of succession to the office of trustee or trustees whereof was provided for specially by the founder. u/s 8(6) of the old Act 'hereditary trustee' was defined as the trustee of the religious endowment, succession to whose office devolved by hereditary right or by the nomination of the trustee for the time being etc. In the new Act the definition of hereditary trustee has been made somewhat narrower in Section 3(vi) but this difference has no bearing so far as the present appeal is concerned. The Plaintiff claimed hereditary right of trusteeship saying that as the representative of his adopted father he was entitled to be the trustee of the institution. Thus the two main reliefs asked for by the Plaintiff were (1) a declaration that the institution was a purely private institution and (2) a declaration that he was the hereditary trustee of the said institution and consequently it was an "excepted" temple. Both these reliefs could have been granted, either by the Endowments Commissioner if the Plaintiff had applied to him u/s 64(1) of the old Act, or by the Assistant Endowments Commissioner if the Plaintiff had applied to claim in the first instance u/s 41 of the new Act. Thus on the facts alleged in the plaint the declaration as to the character of the institution is closely linked up with the declaration as to whether the Plaintiff is a trustee of the institution or not, and one cannot be divorced from the other. The first question for decision is whether the institution is public or private. This can be decided in the first instance only by the Commissioner under he old Act or by the Assistant Endowment Commissioner under the new Act. The same authority has the further jurisdiction to decide whether the Appellant is a hereditary trustee of the institution. The first question for decision is whether the institution is public or private. This can be decided in the first instance only by the Commissioner under he old Act or by the Assistant Endowment Commissioner under the new Act. The same authority has the further jurisdiction to decide whether the Appellant is a hereditary trustee of the institution. It is only after that authority first decides that the institution is not a public institution and as such is outside the scope of the Endowments Acts that the jurisdiction of the Civil Court to decide purely civil rights, as to whether the Appellant is a trustee of the institution or not would arise for consideration. On the pleadings therefore, it must be deciding whether the Appellant is a trustee of the temple will not lie and that he must first exhaust the remedies provided in the old Act and the new Act. 12. Mr. Misra then contended alternatively that the orders of the Endowments Commissioner dated 9-9-1954 and 11-11-1954 may be taken as implied decisions given u/s 64(1) of the old Act. In support of this contention he relied on Commissioner of Hindu Religious Endowments v. Purusottam Panda and Ors. ILR 1955 Cutt 447 where it was held that a decision u/s 64(1) of the old Act may be given while passing an order for removal of trustee u/s 29 of that Act and that a separate application u/s 64(1) was not necessary. But this decision has been explained and distinguished in the later Division Bench decision reported in ILR 1961 Cutt 87 (already cited) where it was pointed out that the principle laid down in the earlier decision would apply only if, when the Endowments Commissioner passed his order for the removal of the trustee there was some dispute as to whether the institution in question was a private or public temple or an excepted temple and whether the Commissioner had jurisdiction to enquire into the same. Here the order of the Commissioner u/s 27 and 59 of the old Act (Exts. Band C-1) do not show that there was any such dispute at all. On the other hand in Ext. C-1 the Commissioner stated that when notice was issued to the person in possession he failed to show cause. Here the order of the Commissioner u/s 27 and 59 of the old Act (Exts. Band C-1) do not show that there was any such dispute at all. On the other hand in Ext. C-1 the Commissioner stated that when notice was issued to the person in possession he failed to show cause. Thus, even impliedly the aforesaid two orders passed by the Endowments Commissioner cannot be said to be orders u/s 64(1) of the old Act. 13. Apart from this, as the present suit under appeal was brought on 21-1-1955 after the new Act came into force the Appellant lost his right to bring a suit u/s 64(2) of the old Act, and his remedy is only by way of an application u/s 41 of the new Act subject to the law of limitation if any. Moreover under the new Act the right of suit is altogether taken away. I may refer in this section to Section 73 of the new Act which expressly bars the jurisdiction of the Civil Court to entertain suits in respect of any other matter in dispute for determining or deciding which provision is made under this Act. 14. For these reasons we are satisfied that the decision of the lower court on the question of maintainability of the suit under appeal was wrong. (see issue No. 3). It is unnecessary to discuss the other issues involved in this litigation. 15. The appeal is allowed the judgment and decree of the lower court are set aside and the Plaintiff's suit is dismissed with costs as not maintainable. Barman, J. 16. I agree. Final Result : Dismissed