JUDGMENT : A. Misra, J. - 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. 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. In this appeal, the concurrent findings of the Courts below relating to the validity of the Seba-Samarpanapatra executed by Defendants Nos. 1 and 2 in favour of Defendant No. 3 is not challenged. The learned Counsel for the Appellant has confined his attack only to the finding of the lower appellate Court about the non-maintainability of the suit under the provisions of the Orissa Hindu Religious Endowments Act. The lower appellate Court has referred to Section 73(1)(2) and Section 25 of the Orissa Hindu Religious Endowments Act and relying on the observations of this Court in a decision reported in Nabaghana Samal and Others Vs. Bhagawata Gossain and Others, held, that the jurisdiction of the civil Court is barred under the provisions of the Orissa Hindu Religious Endowments Act. This finding of the lower appellate Court is challenged by the learned Counsel for the Appellant on three grounds. Firstly, it is contended by him that the Plaintiff having been recognised as hereditary trustee by the Endowment Commissioner in a proceeding u/s 41(c) of the Act, he must be deemed to be a trustee appointed under the Act, and as such the suit will be maintainable u/s 73(2) of the Act. Firstly, it is contended by him that the Plaintiff having been recognised as hereditary trustee by the Endowment Commissioner in a proceeding u/s 41(c) of the Act, he must be deemed to be a trustee appointed under the Act, and as such the suit will be maintainable u/s 73(2) of the Act. Secondly it is contended that even if the Plaintiff is found not to be a trustee appointed under the Act, as the suit is one in respect of administration of the religious institution and as rules u/s 25 has not been prescribed by the date of institution of the suit, Section 73(1) will not be a bar to the present suit. Thirdly, it is contended that Section 73 which excludes the jurisdiction of the civil Court is to be strictly construed and the exclusion of civil Court's jurisdiction should be confined to proceedings for which express provision exists in the Act. 4. 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 u/s 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 u/s 41 will not arise. By exercising the jurisdiction u/s 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. Unless a dispute arises, the question of a decision u/s 41 will not arise. By exercising the jurisdiction u/s 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 u/s 41(c) that, the Plaintiff was the hereditary trustee, the latter should be deemed to be a trustee appointed u/s 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 u/s 73. 5. The other contentions raised by the learned Counsel for the Appellant have considerable force. Admittedly the new Act came into force on 1st January, 1955. Section 19(1) of the Act prohibits transfer, exchange, sale, mortgage or lease for a term exceeding five years of any immovable property belonging to an Endowment except with the sanction of the Commissioner and lays down that any transfer made without such sanction shall be invalid and inoperative. Section 25 of the Act runs as follows: 25, In case of any alienation, in contravention of Section 19 of this Act or Section 58 of the Orissa Hindu Religious Endowments Act, 1939, of any immovable property belonging to or given or endowed for the purpose of any religious institution, the Commissioner ; after summary enquiry as may be prescribed and on being satisfied that any such property has been so alienated may send requisition to the Collector of the district to deliver Possession of the same to the trustee of the institution or a person discharging the functions of the said trustee. The Collector in exercising his powers under this section shall be guided by rules, made under the Act. Any person aggrieved by the order of the Collector may institute a suit in the civil Court to establish his right. The Collector in exercising his powers under this section shall be guided by rules, made under the Act. Any person aggrieved by the order of the Collector may institute a suit in the civil Court to establish his right. Under this provision, the Endowment Commissioner has been given jurisdiction to make summary enquiry with a view to determine or decide whether there was any alienation in contravention of Section 19 of the Act, and in case he is satisfied that there was any such contravention to send a requisition to the Collector of the district for delivery of possession of the alienated property to the trustee and against such an order the aggrieved party is given a right to file a suit, Section 73 reads thus: 73(1). No suit or other legal proceeding in respect of the administration of a religious institution or in respect of any other matter on dispute for determining or deciding which provision is made in this Act shall be instituted any Court of law, except under, and in conformity with, the provisions of this Act. (2) Nothing contained in this section shall affect the right of the truste appointed under the Act of a religious institution to institute a suit to enforce the pecuniary or property rights of the institution or the rights of such institution as a beneficiary. As has been observed in the decision reported in Nabaghana Samal and Others Vs. Bhagawata Gossain and Others, Sub-section (1) of Section 73 consists of two parts, the first part dealing with suits or legal proceedings in respect of the administration of a religious institution and prohibiting institution of such a suit or proceeding except under, and in conformity with, the provisions of the Act dealing with such administration. The second part provides that where there is a provision in the new Act for determining or deciding a matter or dispute in respect of a religious institution, a suit can be brought only under, and in conformity with, the provisions of the Act. Thus, these provisions make it clear that the jurisdiction of the civil Court is barred only in respect of matters for which provision is made in the Act and further lays down that they shall not be so instituted except under, and in conformity with, the provisions of the Act. Thus, these provisions make it clear that the jurisdiction of the civil Court is barred only in respect of matters for which provision is made in the Act and further lays down that they shall not be so instituted except under, and in conformity with, the provisions of the Act. In that case, the reliefs sought by the Plaintiff in the suit were for a declaration that the alienations were illegal and should be set aside and secondly for restoration of possession of an the alienated properties to the Plaintiff-deities. The question arose whether such a suit is barred and the Court held that the general right of suit for non-appointed trustees or any other persons interested in the institution, to directly approach the civil Court is now canalised and they could apply for the said relief to the Commissioner u/s 25 of the Act. While so doing, it observed that apparently the legislature wanted that heavy expenditure and delay which are the necessary evils in civil litigation should be avoided for recovery of possession of properties of an endowment unlawfully alienated. Mr. A.K. Das, learned Counsel appearing for Respondent No. 1 contends that in Section 25, the Act makes a provision for a proceeding in which the reliefs claimed by the Plaintiff can be awarded, and as such/the suit is barred. He however does not dispute that if the present suit is not of the nature which would come within the scope of Section 25 of the Act, the bar u/s 73 will not apply. A perusal of Section 25 clearly shows that a dispute of the present nature is not within the scope of the powers of the Endowment Commissioner under that provision. As already stated, u/s 25 the Endowment Commissioner is to make summary enquiry and if satisfied issue a requisition to the Collector of the district to restore possession of the property from the alienee to the trustee of the institution. In the present suit, the relief sought is for grant of a permanent injunction restraining Defendant No. 3, the alienee from interfering with the possession of the endowed properties and the seba-puja of the deities. This is not a case where the Plaintiff seeks restoration of possession of the properties from the alienee. u/s 25, the Endowment Commissioner is not empowered to issue a permanent injunction as prayed for by the Plaintiffs. This is not a case where the Plaintiff seeks restoration of possession of the properties from the alienee. u/s 25, the Endowment Commissioner is not empowered to issue a permanent injunction as prayed for by the Plaintiffs. Therefore, as it cannot be said that Section 25 makes provision for grant of the relief sought for in the suit, the Plaintiff could not have approached the Endowment Commissioner u/s 25 for obtaining the said relief. In this view of the matter, Section 73 does not appear to be a bar to the present suit (sic) this ground alone, the Appellant is bound to succeed. 6. Apart from it, another contention raised by the learned Counsel for the Appellant also has considerable force. Section 25 of the Act provides that the Commissioner after enquiry as may be prescribed and on being satisfied about the alienation being in violation of Section 19 may issue a requisition to the Collector. The suit was filed in 1958. The rules were framed u/s 25 on 15-1-1959. By the date of filing of the suit, therefore, in the absence of rules the Endowment Commissioner could not have proceeded with the enquiry u/s 25 and as has been observed by Das, J. in that case, Section 25 was ineffective and as such the only course open was to bring a suit in the civil Court and not to resort to the provisions of the Endowment Act. On these two grounds, I hold that the lower appellate Court has erred in holding that the present suit by the Plaintiff for a permanent injunction is barred under the provisions of the Orissa Hindu Religious Endowments Act. 7. In the result, I allow the appeal with costs, set aside the judgment and decree of the lower appellate Court and restore the judgment and decree of the trial Court. Final Result : Allowed