JUDGMENT : P.K. Mohanti, J. - This is an appeal u/s 44 of the Orissa Hindu Religious Endowments Act, 1931 (hereinafter referred to as the 'Act') against the decision of the learned Commissioner of Endowments confirming the decision of the learned Additional Assistant Commissioner of Endowments whereby the Samadhi Gossain alias Chhatia Bata situated at Chhatia under Dharmasala Police Station in the district of Cuttack was declared as the private institution of the Respondents 1 to 4. 2. The proceedings arose out of an application u/s 41 of the Act filed by Harekrushna Das and Ramachandra Das - Respondent No. 4. During the pendency of the litigation Harekrushna Das died leaving behind him Respondent Nos. 1 to 3 as his legal heirs, who were substituted in his place. 3. The case put forward by the Petitioners in the proceeding u/s 41 of the Act was that their ancestor Hadibandhu Das was a great saint and he exercised spiritual headship over a body of disciples. After his death he was given samadhi within his own premises, which is known as 'Samadhi Gossain'. Sadhubar Das, the son of Hadibandhu Das was also given samadhi in the same premises Raghubar Das, the son of Sadhubar Das installed two idols - Balabhadra and Jagannath - on the samadhis of Hadhibandhu Das and Sadhubar Das. After his death, he was also given samadhi in the same premises by his successor late Harekrushna Das and Petitioner No. 2 Ramachandra Das. The Petitioners installed the idol of Subhadra on the samadhi of Raghubar Das. Late Harekrushna Das commanded spiritual head-ship over a large under of disciples who used to visit 'Samadhi Gossain' to pay obeisance and offer 'pranami' to him. Petitioner No. 2 also commands respect and receives 'Pranami' from the disciples. The Petitioners utilised the money received from the disciples 10 building pucca structures over the samadhis. They installed a number of idols of Hindu mythology to these structures and have been worshipping them with their family members. In 1948-49, the Inspector of Endowments called upon late Harekrushna Das to render accounts treating the institution of 'Samadhi Gossain' as a public institution. Sometime thereafter, there was party faction in the locality centring round the institution. They installed a number of idols of Hindu mythology to these structures and have been worshipping them with their family members. In 1948-49, the Inspector of Endowments called upon late Harekrushna Das to render accounts treating the institution of 'Samadhi Gossain' as a public institution. Sometime thereafter, there was party faction in the locality centring round the institution. Hence, the Petitioners filed the Petitioner u/s 41 of the Act for a declaration that the institution known as 'Samadhi Gossain' is neither a temple nor a math as defined in the Act, but it is their own private institution. 4. Respondents 5 to 8, are representing the Hindu public, filed counter contending that the 'Samadhi Gossain' alias Chhatia Bata is a public religious institution Their contention was that though the institution originated from a Samadhi, it has since developed into a temple where Hindu deities are regularly worshipped. The Hindu public have free access to the temple and enjoy the right to worship the deities by offering bhog. The main temple with its subsidiary temples have been built with the subscription raised from the public. The common religious festivals, like Ratha Jatra, Data Jatra, Jhulana Jatra etc. are observed in the institution and the Hindu public participate in the same. Within the premises Hindu scriptural texts like Geeta, Bhagabat etc. are recited before a large number of devotees. It was, accordingly, contended that the institution has ceased to be a mere Samadhi and has developed the characteristics of a temple as defined in the Act. 5. The learned Addl. Assistant Commissioner, on a consideration of the oral and documentary evidence led by both the parties, held that the institution is neither a temple nor a math, but it is a private institution of the Respondents 1 to 4. The Commissioner of Endowments, on a review of the evidence, held that (1) though the institution originated from a Samadhi it has developed to take the form of a Hindu temple; (2) the institution has external features of a Hindu temple; (3) there are images in the temple which are worshipped; (4) the members of the public have free access to the temple to have darsan of the deities without restriction; (5) the institution used to hold different Hindu religious festivals like Ratha Jatra, Dola Jatra, Jhulan Jatra etc. some 8 to 10 years back which have now been stopped and members of the public used to participate in such festivals. He, however, held that though admittedly the institution is a place of religious worship, yet the evidence to prove that the Hindu community used the institution as of right was not adequate. Upon such findings, he affirmed the decision of the Addl. Asst. Commissioner. 6. 'Temple' has been defined in Section 3(XV) of the Act to mean a place, by whatever designation known, used as a place of public religious worship and dedicated to or for the benefit of, or used as of right by, the Hindu community, or any class or section thereof, as a place of public religious worship and also includes any cultural institution or mandap or library connected with such a place of public religious worship. According to the definition, an institution is a 'temple' if two conditions are satisfied. One is that it is a place of public religious worship and the other is that it is dedicated to, or for the benefit of, or is used as of right by, the Hindu community, or any section thereof, as a place of religious worship. 7. The learned Commissioner has come to a clear finding that the premises of Chhatia Bata is a place of public religious worship. Having gone through the records and having heard the learned Counsel for the parties, I am satisfied that the said finding is fully borne out by the evidence on record. The main question for consideration is whether the place was dedicated to, or for the benefit of or used as of right by the Hindu community or any class or section thereof as a place of public religious worship. 8. The considerations for distinguishing a public temple from a private one have been indicated by Mr. B.K. Mukherjea in the Hindu Law of Religious and Charitable Trusts'. Firstly, if the public have been in the habit of worshipping in the temple in an open and unconcealed manner for a long period of time and were never denied any access to it, that would be a strong evidence of dedication. The second consideration is the conduct of the founder and his descendants. If they in fact held it to be a public temple, a very strong presumption of dedication would arise. The second consideration is the conduct of the founder and his descendants. If they in fact held it to be a public temple, a very strong presumption of dedication would arise. The third consideration is that if repairs and additions to the temple building are made with public subscriptions and if festivals in the temple are also performed with the aid of public funds, then these facts would certainly fortify the inference of the temple being a public one. Proof that the members of the pubic had contributed for the construction of the temple or for the extension of its building is another indication for showing that it is a public temple. The fourth consideration is the association of strangers in the management. Even the location of the temple and its structures are yet other important indications. The remission of land revenue in respect of the land on which the temple stands or grant by the Rulers towards expenses of the temple would be almost decisive for showing that the temple is a public one. 9. The Supreme Court in the case of Deoki Nandan Vs. Murlidhar held as follows: ...proof of user by the public without intederence would be cogent evidence that the dedication was in favour of the public. 10. An important circumstance in this case is that the institution owns 8.50 acres of land out of which an area of 7.28 acres was granted by the Darpan estate free of rent and the rest of the area consists of lands dedicated by members of the public. In the settlement record-of-rights published in the year 1911, the land on which the temple stands has been recorded in the name of 'Samadhi Gossain' through marfatdar Raghubar Das (vide Ext. 2). Petitioner No. 2 who was examined as P.W. 7 stated in cross examination that Darpan estate had given the land to Hadi Das and no rent is paid for the same. It also appears that late Harekrushna Das filed an application before the S.D.J.M., Jajpur on 21-4-1966 for demarcation of the lands by an Amin and in that application (Ext. B/1) he had admitted that an area of 7.28 acres was granted by 'Sarkar' and that the rest of the area consisted of lands gifted by other people. 11. Reference to the institution in the R.O.R. (Ext. B/1) he had admitted that an area of 7.28 acres was granted by 'Sarkar' and that the rest of the area consisted of lands gifted by other people. 11. Reference to the institution in the R.O.R. (Ext. 2) as 'Samadhi Gossain' would not make it not a temple if it otherwise satisfied the requirements of the definition given in the Act. Presumably the recording of the land in favour of Samadhi Gossain and description of Raghubar Das as a mere marfatdar were made because the land had been dedicated for the benefit of the Hindu public and not of any private individual or family. Rent free character of the land has continued up-to-date and that is a strong circumstance which is in favour of holding that the land was dedicated for the public benefit. 12. An encroachment case was Started against the Petitioner No. 1 by the Collector, Cuttack for excavation of a tank and late Harekrushna Das filed an objection (Ext. A) stating that many people used to visit Chhatia Bata daily and mote so on festive occasions and that as there was scarcity of water in the area, the people of the locality held a meeting and passed resolutions for requesting the Government for permission to excavate a tank 'on behalf of Chhatia Bata' and that accordingly permission had been accorded by Government for excavation of the tank over the Government land. 13. Ext. C is an application dated 20.5.1960 filed by late Harekrushna Das before the Divisional Forest Officer, Athgarh requesting for issue of timber permit, free of royalty, for construction of the chariot for the Car Festival of the temple as per usual custom. This clearly shows that Car Festival was being held in the temple. 14. Ext. E is a receipt book for collection of subscription from the public for construction of the temple at Chhatia Bata. There is an appeal by the Petitioners to the subscribers printed on the back of the outer foils, describing Chhatia Bata as a holy place like Puri, Bhubaneswar and Konarka and requesting the subscribers to contribute for construction of the temple at Chhatia Bata. There are several counterfoils in the receipt book showing collection of subscriptions from different persons for construction of the temple. On the back of the outer foils in Ext. There are several counterfoils in the receipt book showing collection of subscriptions from different persons for construction of the temple. On the back of the outer foils in Ext. E there is a rubber stamp containing a warning from late Harekrushna Das to the subscribers not to give money without receipt. Ext. F is a printed pamphlet containing an appeal made by the Petitioners to the members of the public for subscriptions for construction of the temple. These documents to show that the Petitioners themselves held out and represented to the public that the institution is a public temple. 15. The counterfoils in Ext. E have been signed by one Dayanidhi Satpathy and Ext. F has been signed by one Radhanath Sarangi. According to P.W. 7, the said Radhanath Sarangi is one of his disciples. O.P.W. 9 proved the documents by identifying the signatures of Dayanidhi Satpathy and Radhanath Sarangi and stated that those persons were collecting donations and subscriptions from the public for construction of the temple. The learned Commissioner held that Exts. E and F could not be accepted as proof of the facts contained therein as no witness was examined to testify the same. No doubt, neither Dayanidhi Sapathy nor Radhanath Sarangi nor any other person who had paid subscriptions under Ext. E series has been examined, but there is no reason why the evidence of O.P.W. 9 should be discarded. His house adjoins the temple premises and he claimed to have obtained Exts. E and F from Dayanidhi Satapathy. Late Harekrushna Das who was Petitioner No. 1 in the case did not come to the box to dispute the genuineness of Exts. E and F. Petitioner No. 2 who was examined as P.W. 7 stated that late Harekrushna Das (Petitioner No. 1) was not able to depose in the Court as he was suffering from blood pressure. His own witness Indramani Das (P.W. 3) however stated that Harekrushna Das was not suffering from any physical infirmity. No effort was also made to examine late Harekrushna Das on Commission. Ext. H is a petition dated 15-2-1967 filed by the Petitioners before the Assistant Commissioner of Endowments raising objection to the proposal for appointment of trustee for the temple. Therein, it is stated as follows: It is not a fact that the temples have been constructed by the public funds. Ext. H is a petition dated 15-2-1967 filed by the Petitioners before the Assistant Commissioner of Endowments raising objection to the proposal for appointment of trustee for the temple. Therein, it is stated as follows: It is not a fact that the temples have been constructed by the public funds. No doubt, some donations are received from some members of the public but the said donations are not meant for the construction of the temple. In another petition dated 1.7.1967 (Ext. 1) filed on behalf of the Petitioners before the Commissioner of Endowments, they stated that they were receiving money as Dakhina from devotees but they were not maintaining any accounts for the same. 16. Petitioner No. 2 (P.W. 7) stated that funds were being collected from the Sisyas as pranami and he used to get money from Sisyas by postal money orders also. The O.P.Ws. have categorically stated that donations and subscriptions were collected from the public for construction of the temple. Thus, the oral and documentary evidence on the record clearly establishes that the temple was constructed with the aid of public funds. The Petitioners own witness Indramani Das (P.W. 3) stated that accounts were maintained by late Harekrushna Das for construction of the temple. The accounts have not been produced. 17. It is in evidence that the temple adjoins the public road which is known as Jagannath Trunk Road. There is a lion's gate abutting the public road. The words 'Chhatia Bata' have been written on the gate. P.W. 6 Khetrabasi Parida stated that anybody intending to go inside the temple has to obtain permission of the gate-keeper. This evidence has not been supported by P.Ws. 2 and 3. The gate-keeper has not been examined. The evidence of the O.P.Ws. shows that the members of the public have free access to the temple. 18. The evidence of P.W. 1 Upa Swain, who is a resident of the locality, shows that the temple and the residential house of the Petitioners are separated by the public road. P.W. 2 Laxmidhar Routray, who is an ex-employee of the Darpan estate, also stated that the residential house of the Petitioners and the temple are intervened by a road. Thus, the residential house is quite separate from the temple. It is unusual for a person to construct a temple for private worship outside his dwelling house. 19. P.W. 2 Laxmidhar Routray, who is an ex-employee of the Darpan estate, also stated that the residential house of the Petitioners and the temple are intervened by a road. Thus, the residential house is quite separate from the temple. It is unusual for a person to construct a temple for private worship outside his dwelling house. 19. Petitioner No. 2, who was examined as P.W. 7 admitted during his evidence that the main gate of the temple faces the public road and the words 'Chhatia Bata' have been written on the gate; that the construction of the temple was made out of the money received from- the disciples by way of pranami; that some shop keepers at Chhatia supply oil for alati in the evening; that in the evening some religious discussion is held in the temple; that there are images of Kali, Durga Radhakrushna, Jagannath, Balabhadra, and Subhadra; that bal-bhog is offered to these images; that Brahmins have been engaged to carry on sevapuja and to offer bhog to the deities; and that there is a Mukhasala in front of the temple and the height of the Mukhasala is about 30 feet. His evidence also shows that there are some naked images on the walls of the temple built of lime and sand and there is an almirah in the temple premises where bhog articles are kept and in a notice bung up near that almirah the word 'Sarbasadharan' has been written. He admitted the existence of Snana Mandap and Jhulan Mandap. He also admitted that there is a tank which was excavated on the land recorded as Sarbasadharan and that the land was granted by the Government for exceavating a tank for use by the people visiting Chhatia Bata. In Ext. B/1, late Harekrushna Das described the tank as 'Chakratirtha'. P.W. 3 also described this tank as 'Chakratirtha'. P.W. 7 further admitted that there is a wooden Biman in which the images of Radhakrushna have been kept and that there are four pujaris who take the offerings made by the visitors. 20. P.W. 1 Upa Swain stated that public visit the institution for having darsan of the deities; that there is a bhogshop inside the temple promises; and that daily nitis are performed with the money given by the visitors to the Samadhi Gossain. 20. P.W. 1 Upa Swain stated that public visit the institution for having darsan of the deities; that there is a bhogshop inside the temple promises; and that daily nitis are performed with the money given by the visitors to the Samadhi Gossain. P.W. 2 Laxmidhar Routray stated that many people from different villages attend the religious discourses held in the institution and that nobody is denied entry into the premises, if he goes voluntarily. P.W. 3 stated that Nama-sankirtan is held in the institution and every day people go there in large numbers without taking per mission from anybody. He also stated that anybody going there takes food without being invited. His evidence reveals that bal-bhog is offered to the deities in the morning and evening and on Durgapuja Day feast is held. 21. O.P.Ws. have stated that Hindu festivals like Ratha Jatra, Dola Jatra and Jhulan Jatra are held in the temple, but for the last 8 to 10 years Ratha Jatra has been stopped. Prior to that, idol of Lord Jagannath used to be carried on the car to village Champapur and on the occasion of Jhulan Jatra the deity Madan Mohan is worshipped on the Jhulan Mandap. They have also stated that members of the public visit the temple and offer bhog as of right and participate in the festivals and contribute for the same. The Petitioners' witnesses denied observance of the festival and participation of public in the same. The evidence of the O.P.Ws. gains corroboration from the statements made in Ext. C and the fact of existence of Snana Mandap, Jhulan Mandap and wooden Bimans inside the temple premises. The evidence of O.P.Ws. 3 and 9 reveals that the institution has got a Dharmasala where the visitors are accommodated. 22. The Commissioner of Endowments during his local inspection held in presence of both the parties found Jhulan Mandap and Snana Mandap in the temple precincts. He also found wooden Bimans kept on the Jhulan Mandap indicating that Jhulan festival was held in the temple. He further found that the temples are built of stones and architectural designs, the biggest of them being more than 40 feet hight. His memorandum of local inspection shows that images of Goddess Kali, Durga and God Sesadeva housed separately in small temples and there are separate accommodation for Sivalinga, Srikrushna, Hanuman and other Hindu deities. He further found that the temples are built of stones and architectural designs, the biggest of them being more than 40 feet hight. His memorandum of local inspection shows that images of Goddess Kali, Durga and God Sesadeva housed separately in small temples and there are separate accommodation for Sivalinga, Srikrushna, Hanuman and other Hindu deities. The outside walls of the temples and the inner roof of the corridor bear big images and paintings describing events of Hindu mythology. All over the area and inside the temples and structures there were sufficient signs to indicate that the deities were worshipped daily. 23. Although direct evidence of dedication is not forthcoming, yet the evidence adduced in the case is sufficient to hold that the dedication was for the benefit of the public and that the Hindu public have been using the temple premises as a place of religious worship and offering bhog as of right. The cumulative effect of the following facts and circumstances proved in the case clearly establish that the dedication was for the benefit of the public and that the temple premises are being used as of right by the public as a place of religious worship: (1) The existence of idols, some of which have been permanently installed and images of minor deities in the temple. (2) The institution has external features of a public temple. (3) Hindu religious festivals temple and the members in the same. (4) The members of the public visit the place without restriction and are in the habit of offering worship as of right. (5) The land on which the temple stands has not been dedicated to any private individual or a family but to the 'Samadhi Gossain' through an ancestor of the Petitioners as the marfatdar and the land is held tent free are celebrated in the of the public participate. (6) That the temple was constructed with the aid of public subscriptions. (7) That Pujaris have been engaged to carry on sevapuja of the deities and to offer bhog daily. (8) Existence of a shop in the temple premises for sale of bhog articles to the visitors. (9) The devotees visiting the temples are given food and shelter in the temple. (10) The temple is located by the side of a public road at a place quite separate from the residential house of the Petitioners. (8) Existence of a shop in the temple premises for sale of bhog articles to the visitors. (9) The devotees visiting the temples are given food and shelter in the temple. (10) The temple is located by the side of a public road at a place quite separate from the residential house of the Petitioners. (11) Existence of a tank known as 'Chakratirtha' excavated on a land recorded as Sarbasaaharan. (12) Existence of a Dharmasala in the temple premises for accommodation of the visitors. (13) Absence of evidence that any members of public was denied access to the temple at any time. (14) The Petitioners have themselves held out and represented to the public that the institution is a public temple. 24. In coming to the conclusion about the private nature of the institution, the learned Commissioner of Endowments seems to have been influenced by the facts that the Petitioners have ceased to hold the festivals for the last 8 to 10 years and that they also closed the main gate of the temple for about 3 years without any opposition by the public. He, however, overlooked the fact that the Petitioners stopped celebration of the festivals and closed the main gate only after an attempt was made by the Endowment Department to assume jurisdiction over the institution. The Petitioner themselves admitted in their application u/s 41 that in the year 1948-49 an Inspector of Endowments called upon them to render accounts. It also appears that subsequently there was a proposal for appointment of trustees by the Endowment Department and the members of the public filed several complaints before the Commissioner regarding mismanagement of the institution and in reply to those complaints the Petitioners filed counters in Exts. Hand I. The institution cannot be held to be a private one merely because the Petitioners, who are marfatdars, stopped the festivals and closed the main gate for some years, if it otherwise satisfies the definition of a temple as given in the Act. 25. On a consideration of the facts and circumstances, as discussed above, I am satisfied that all the essential features of a public temple are found in the institution and it, therefore, clearly falls within the definition of temple as given in the Act. 26. 25. On a consideration of the facts and circumstances, as discussed above, I am satisfied that all the essential features of a public temple are found in the institution and it, therefore, clearly falls within the definition of temple as given in the Act. 26. It was admitted by both the parties before the Commissioner of Endowments that the institution first came into existence during the lifetime of Hadibandhu Das. It was also admitted by them that the members of the Petitioner's family have been managing the affairs of the institution since the time of the founder. The materials on record lend ample support to the view that he and management of the institution have all along been with the Petitioners' family since the time of the founder. There is no evidence to show that the members of the public took part in the management of the institution at any time. I would, therefore, hold that the institution of Chhatia Bata is a temple as defined in the Act with Respondents 1 to 4 as the hereditary trustees thereof. 27. The appeal is allowed to the extent indicated above and the decisions of the forums below are set aside. Parties to bear their own costs throughout. Final Result : Allowed