JUDGMENT : G.K. Misra, J. - Respondents 1 to 6 (here in after referred to as the Petitioners) filed an application u/s 41(c) of the Orissa Hindu Religious Endowments Act, 1951 (Act No. II of 1152), here in after referred to as the Act, asking for a declaration that they are the hereditary trustees of the deity Sri Neelakantheswar Mahadeb installed in village Raigurupur in the district of Puri. They claim to be the descendants of Puri Panda. The properties described in the schedule are recorded in the name of the deity with them as Marfatdars. The temple of the deity was constructed by some Raja. Since the time of the installation of the deity, the family of the Petitioners have been managing the affairs of the temple from generation to generation. No outsiders were ever in charge of the management. Besides being Marfatdars they are also the Sevaks of the deity. One Chintamani Pati, who has be n appointed as the interim trustee by the Endowment Commissioner, and some members of the public contested the application. They admitted that the Petitioners were in possession of the debuttor properties. But their Case is that they (the Petitioners) were always subject to the general control of the villagers and were not in charge of the management of the institution but were merely sevaks. The Assistant Endowment Commissioner, who tried the application, held that the Petitioners were not the hereditary trustees. The Endowment Commissioner took a different view and concluded that the Petitioners were the hereditary trustees. Against this order the appeal has been filed. 2. Mr. Misra for the Appellant contends that the Petitioners are no t the hereditary trustees within the meaning of Sections 3(vi) of the Act which runs thus. "Hereditary trustee" means the trustee of a religious institution succession to whose office devolves by hereditary right since the time of the founder or is regulated by custom or is specifically provided for by the founder so long as such scheme of succession is in force. It is the common case that first clause of this definition has application to the present case. The onus is on the Petitioners to establish that they are the hereditary trustees of the institution. It is the common case that first clause of this definition has application to the present case. The onus is on the Petitioners to establish that they are the hereditary trustees of the institution. They must, therefore, prove the following ingredients : (i) they are the trustees of a religious institution; (ii) the succession to the office of the trusteeship is governed by hereditary right; and (iii) the line of succession by inheritance has commended from the time of the founder. That the institution is a public religious institution is not disputed. It was, however, strenuously contended by Mr. R.N. Misra that the Petitioners were mere Sevaks and not Marfatdars and that they were subject to the general control of the villagers. The Endowment Commissioner, after thorough examination of the materials on the record held that the Petitioners were Marfatdars and Sevaks. The evidence was placed before me at length as in a first appeal. The interim trustee and the public failed to cite a single instance when by the administrative control was exercised by them over the Petitioners. The Petitioners are in possession of the deity's properties. They are supplying daily Bhog and performing the Nitis of the deity. The entire responsibility in the matter of management is theirs. On certain occasions they submitted accounts before the Endowment Commissioner as required under the Act. In the settlement records, the Petitioners and their predecessors have been recorded as Marfatdars of the deity. There is, therefore, no substance in the contention that the Petitioners are mere Sevaks and not Marfatdars. The institution is a very small one. It is well known that generally in such small institutions the marfatdari and sebayati rights are combined. In one of the settlement records, the name of Ram chandra Panda, who does not belong to the family, is noted in the remarks columns. The entry in the remarks column can at best show that Ramachandra Panda was in possession of a particular item of property. His name does not find place in the proprietor's column. As the exhibit showing his name was worm-eaten and materials were not placed regarding the connection of Ramachandra Panda, the Endowment 'Commissioner rightly discarded it from consideration as establishing that he was a Marfathar of the deity's property. His name does not find place in the proprietor's column. As the exhibit showing his name was worm-eaten and materials were not placed regarding the connection of Ramachandra Panda, the Endowment 'Commissioner rightly discarded it from consideration as establishing that he was a Marfathar of the deity's property. From' the genealogy, given below, it would appear that Hadi Dibya was a sister of Syam and was married to Madhu Panda who adopted Ananda, a son of Gopal. This is how Anand's name finds place in one of the records. Taking an over-all picture of the entire matter the Endowment Commissioner came to the conclusion that no outsider was ever recorded as Marfatdar in respect of the deity's property. There is also no evidence of any outsider ever being in charge of the management of the deity's properties. The Petitioners have thus established that they are in possession of the properties of the deity and in charge of the management by hereditary succession from the time of Puri Panda. 3. The main test centres round the fact whether the Petitioners have established succession by hereditary right since the time of the founder. The exact year when the institution was founded is unknown. Petitioners allege that some ancient Raja founded the deity and dedicated the properties to the deity. The identity of the Raja has not been traced out, The position, at it transpires on evidence, is that for the last four to five generations covering a period of one hundred years, the members of the family of the Petitioners are in charge of the management 3.13 Marfatdars. As to how the succession was from the time of the founder till the time of Puri Panda is hidden in mist of antiquity. The genealogy as mentioned in the petition is given hereunder: Puri Panda Braja Dinabandhu Bhaiga Satyabadi Gopal Govinda I Iii I Kelu Binod Banshi (sic) Ananda I (Petnr.3) (Ptlnr.4) (Petnr.5) (Petnr.6) alias Keshi Ananta (Petnr. 2)(Adopted to Madhu) Borla Hadi Dibya Syama Madhu (H) Krushna (Petnr. 1). Though in some record of rights there was some slight mistake in the relationship, the endowment Commissioner discussed the evidence and held that the error in the record-of-rights stood rebutted by the evidence on record and accepted the genealogy as correct. The correctness of this finding is not assailed before me. 4. 1). Though in some record of rights there was some slight mistake in the relationship, the endowment Commissioner discussed the evidence and held that the error in the record-of-rights stood rebutted by the evidence on record and accepted the genealogy as correct. The correctness of this finding is not assailed before me. 4. The result of the aforesaid analysis is that the Petitioners are trustees of the institution and have established that they are succeeding to the marfatdari right by hereditary succession. 5. The only question to be answered is whether they can be declared hereditary trustees within the meaning of Section 3(vi) of the Act in the absence of any evidence as to how succession devolved in between the date of the foundation and the time of Puri Panda. 6. It is difficult to get oral evidence of matters that transpired before 100 years. One fact however is clear that during the 100 years preceding the application u/s 41(c) of the Act, the member's of the family of the Petitioners had held the office of trustee continuously for over 100 years. There is no evidence that members of any other family ever held the marfatdar right. In Anangamanjari v. Tripura Sundari 14 Ind. App. 101. Their Lordships of the Judicial Committee invoked backward presumption. They observed thus: When the state of possession for a long period of years has be (sic) satisfactorily proved, in the absence of evidence to the contrary, "presumitur retro". That such a presumption can be invoked was accepted in Ambika Prasad v. Ram Ekbal Rai (1966) VI S.C.D. 485. The relevant passage is to be found in para 15 thus: Now, if a thing or a state of things is shown to exist, an inference of its continuity within a reasonably proximate time both forward and backward may sometimes be drawn. The presumption of future continuance is noticed in Illustration (d) to Section 114 of the Indian Evidence Act, 1872. In appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this section, though on this point the section does not give a, separate illustration. The rule that the presumption for continuance may operate retrospectively has been recognised both in India and England. The broad observation that there is no rule of evidence by which one can presume the continuity of things backwards cannot be supported. The rule that the presumption for continuance may operate retrospectively has been recognised both in India and England. The broad observation that there is no rule of evidence by which one can presume the continuity of things backwards cannot be supported. The presumption of continuity weakens with the passage of time. How far presumption may be drawn both backwards and forwards depends upon the nature of the thing and the surrounding circumstances. It would be clear that this presumption would vary in the facts and circumstances of each case. On the finding that for the last 100 years the Petitioners and their predecessors are in possession of the deity's properties as Marfatdars be hereditary right of succession and that no outsider ever held such trusteeship, the backward presumption should be invoked that they have been in possession of the marfadari right ill such character ever since the time of the founder. Otherwise it would lead to fantastic results. There would be difficulty in establishing hereditary trusteeship after passage of time. This does not, however, mean that this presumption must necessarily be drawn in every case dehors the facts and circumstances. The identical view was taken in Dhruba Charan Swain v. Jagannath Panda 26 C.L.T. 293. His Lordship observed thus: But when a founder is unknown and the time of the founder is not known, and there is no deed regarding foundation, one is to rely upon the theory of lost grant and has to presume that the system as is obtaining from the time immemorial was the system that has been continuing from the time of founder. This view has my respectful concurrence. 7. In the aforesaid analysis, the Petitioners are hereditary trustees and they were rightly so declared by the Endowment Commissioner. 8. In the result, the appeal fails and is dismissed with costs. Final Result : Dismissed