JUDGMENT : D.P. Mohapatra, J. - The core question for consideration in this appeal u/s 44(2) of the Orissa Hindu Religious Endowments Act, 1951 (hereinafter referred to as the 'Act') is whether the religious institution. Sri Chaitanya Mahaprabhu of Nabada, in the district of Balasore, is a public institution with no hereditary trustees or it is a public institution with the Appellants as hereditary trustees. Initially the Appellants had claimed the institution to be a private one, but that claim is not being pressed and therefore does not arise for consideration. 2. The proceeding before the Assistant Commissioner of Endowments arose on two applications, one by the Appellants and the other by the Respondent No. 1 filed u/s 41 of the Act. The Appellants' application was registered as O.A. No. 15 of 1976 before the Asst. Commissioner of Endowments. Therein it was alleged, inter alia, that late Madhusudan Das Adhikary, their common, ancestor, took to Baishnabisim towards the last part of his life and established the suit institution to worship the said deity as his 'Ishta-Devata'. The institution was established on his land and all the expenses were borne by him. He also endowed some landed properties in favour of the deity. Neither did the public make any donation for establishment of the institution nor do they worship the deity as of right. According to the Appellants, the villagers interested in visiting the institution used to obtain permission from its founder. The management of the institution was carried on by the founder himself. After death of Madhusudan Das Adhikary, the management was inherited by his successors and the practice was continuing till institution of the suit. On these averments the Appellants claimed the institution to be their private institution. They also prayed for the alternative relief that in case the institution is held to be a public one, they should be declared as its hereditary trustees. 3. The Respondent No. 1 in his application stated, inter alia, that the deity Sri Chaitanya Mahaprabhu was installed long back by the Gaudiya Sampradaya of Nawadip for the purposes of spreading Gaudiya faith amongst local Hindus. Some properties were endowed to the deity by the then Zamindars of the locality for its Sevapuja and ancestors of the Appellants were appointed as Sebayats. Some properties were endowed to the deity by the then Zamindars of the locality for its Sevapuja and ancestors of the Appellants were appointed as Sebayats. Subsequently, about 30 to 40 years before the proceeding, a temple was constructed by members of the local public on a Bijesthali measuring about A.O. 26 decimals of land and another A.O. 57 decimals of land adjoining the Bijesthali was kept vacant for assembly of the local people during festivals. According to the Respondent No. 1, the deity is worshipped by the members of the Hindu Public and usual ritual ceremonies are observed in the institution. According to the prevailing custom amongst the Hindus in the locality whenever there is a death in the family the deity is taken to the house on the eleventh day of the funeral ceremony and special puja is offered. As the Appellants as Sebayats neglected to perform the Sevapuja of the deity and utilised usufructs of the deity's properties for their own purpose, the members of the public in a meeting held in 1970 passed a Resolution for moving the Revenue authorities and the Commissioner of Endowments to prepare a scheme for management of the institution. The Inspector of Endowments after enquiry submitted a report in 1976 recommending for framing of a scheme for the institution. Thereafter the petition u/s 41 of the Act was filed by the Respondent No. 1 to declare the institution as a public one and for framing of a scheme for its management. This petition of Respondent No. 1 was registered as O.A. No. 12 of 1976. 4. Both the aforesaid applications were taken up together, one set of evidence was led by the parties and the applications were disposed of by a common order. Both parties led oral and documentary evidence in support of their respective cases. The Asst. Commissioner on assessment of the materials on record held that the Appellants failed to establish that the institution was either a private one or that it was a public institution with hereditary trustees. On the application of the Respondent No. 1 he held that the materials on record clearly established that the institution was a public one with no hereditary trustees. This order of the Asst. Commissioner was challenged by the Appellants in appeal before the Commissioner of Endowments who confirmed the decision of the Asst. Commissioner. On the application of the Respondent No. 1 he held that the materials on record clearly established that the institution was a public one with no hereditary trustees. This order of the Asst. Commissioner was challenged by the Appellants in appeal before the Commissioner of Endowments who confirmed the decision of the Asst. Commissioner. On appeal by the Appellants, this Court in Misc. Appeal No. 103 of 1978 by judgment dated 2nd of April, 1981 remanded the appeal to the Commissioner for fresh disposal on consideration of all the evidence available on record. This Court observed that the Commissioner had not touched the oral evidence and his finding regarding rejection of some of the documents filed by the Respondents was also challenged as erroneous. Therefore, this Court deemed it appropriate to remit the matter to the appellate authority for fresh disposal. After remand, the Deputy Commissioner of Endowments, to when the appeal was transferred, on fresh appraisal of the materials on record confirmed the findings of the Asst. Commissioner and dismissed the appeal as devoid of merit by his order dated 24-2-1982. This order is under challenge in the present appeal. 5. Shri S. Misra (2), the learned Counsel for the Appellants, at the commencement of his argument stated that he does not intend to raise the question that the institution is a private institution. He confines his submission to the question whether the Appellants are hereditary trustees of the institution. The question whether the Appellants have succeeded in establishing their plea of hereditary trusteeship was considered by the Asst. Commissioner under issue No. III. Perusal of his judgment shows that on detailed discussion of the oral documentary evidence adduced by both parties the Asst. Commissioner came to hold that from the materials it has been established that the suit institution is a public one and the lands as per the schedule to the petition filed by the Respondents belong to the deity. He further held that the Appellants were Sebayats of the suit deity who used to perform Nitis and Sevapuja in the institution utilising the usufructs of the lands of the deity for the purpose, but since 4 to 6 years before institution of the proceedings the villagers have been managing the affairs of the deity though the Appellants were doing Sevapuja and Nitis of the deity, The Asst. Commissioner expressly held that from the evidence it is established that the Appellants have sold some lands of the deity without permission of the Commissioner of Endowments. The finding that the Appellants were mere Sebayats and not trustees was based on the documents like the rent schedules, Khatians and the settlement parchas, Exts. A, D series and E series respectively. Regarding the evidence led by the Appellants, the Assistant Commissioner observed that not a single document is forthcoming to show that their ancestor Madhusudan Das Adhikary installed the suit deity and endowed the properties in the name of the said deity. He further observed that there is no evidence in the case that the management of the suit institution is being inherited by the Appellants in succession from their so-called ancestor. On the aforesaid findings the Asst. Commissioner gave its decision against the Appellants, as noticed earlier. From the judgment of the first appellate authority it is clear that the Deputy Commissioner has independently assessed the evidence on record before coming to his findings similar to those arrived at by the Asst. Commissioner. The deputy Commissioner has observed that P.W. 3 in his evidence admits to have transferred some lands of the deity without the sanction of the Commissioner of Endowments from which it is manifest that he had gone against the interest of the deity. The appellate authority further observed that in none of the revenue records the Appellants were recorded at any time as Marfatdars of the deity. Therefore in the absence of any evidence to show that the trusteeship of the deity in respect of the endowments in question was being enjoyed on hereditary basis as of right by members of the founder, the case of the Appellants could not be held to have been established. 6. Shri Misra placed before me the relevant evidence adduced in the case. On perusal of the same I find that the appreciation of the evidence by the forums below is fair and proper. The observations made in relation to the documentary evidence are also correct. 6. Shri Misra placed before me the relevant evidence adduced in the case. On perusal of the same I find that the appreciation of the evidence by the forums below is fair and proper. The observations made in relation to the documentary evidence are also correct. The term 'hereditary trustee' is defined in Section 3(vi) of the Act as follows: '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. Under Clause (xvi) of the said section, 'trustee' is defined to mean a person by whatever designation known, in whom the administration of a religious institution and endowments are vested, and includes any person or body who or which is liable as if such person or body were a trustee. The basic criteria to be established to enable a person to succeed in proving his claim of hereditary trusteeship has been considered by this Court in several decisions. In the case of Mohan Sahu and Ors. v. Sashibhusan Padhi and Ors. 48 (1979) C.L.T. 23, B.K. Ray, J., held that the definition of the term 'hereditary trustee' provides for three distinct ways by which a claim of hereditary trusteeship can be proved, namely, (i) when succession to such office devolves by hereditary right since the time of the founder, (ii) when succession to office is regulated by custom, and, (iii) when it is specifically provided for by the founder according to the scheme of succession so long as such scheme is in force. The mere fact that a person was a trustee for a very long period will not be sufficient for a declaration that he is a hereditary trustee. In the case of Adikanda Panda and Ors. v. Gobinda Chandra Pradhan and Anr. 1973 (1) C.W.R. 438, S.K. Ray, J. (as he then was) construing the definition of I the term 'hereditary trustee' held that unless devolution by hereditary right is shown to have continued uninterruptedly from the time of the founder of the institution, the trustee cannot be considered to be a 'hereditary trustee'. A similar view was taken by Narasinham, C.J., in the case of Biswanath Das and Another Vs. A similar view was taken by Narasinham, C.J., in the case of Biswanath Das and Another Vs. Jagannath Misra and Another, Therein the Court laid down that a person cannot succeed in his claim to be a hereditary trustee unless he shows that from the time of the founder of the institution his family has been holding the office of trustee as of hereditary right, provided further that such a scheme of succession has been in force all along. If there is any interruption in the trusteeship, there can be no question of acquisition of hereditary right of trusteeship in view of the narrow definition given in the hew Act. 7. Applying the principles laid down in the aforesaid decisions to the present case, it is manifest that none of the basic criteria required to establish the case of hereditary trusteeship can be said to have been established from the evidence adduced on behalf of the Appellants. As observed by the forums below and in my opinion rightly, the Appellants have failed to prove that their ancestor late Madhusudan Das Adhikary installed the suit deity and since then the trusteeship devolved to the members of the family of the founder by way of hereditary right. It is not the case of the Appellants that succession to such office is either regulated by custom or it is specifically provided for by the founder according to the scheme of succession which is in force. It is clear from the evidence adduced by the Appellants that the members of their family along with members of the public were managing the affairs of the deity and since 1970 the members of the public have taken over the management completely. In view of the evidence noticed above, the conclusion is evident that the Appellants failed to establish their claim of hereditary trusteeship of the religious institution in question. The Assistant Commissioner and the Deputy Commissioner, therefore, rightly rejected the Appellants' claim in this regard. 8. A contention was raised on behalf of the Respondents that the appeal is hit by principle of res judicata since one appeal has been preferred against the decisions in the two cases registered before the Assistant Commissioner. This contention has no force. The Assistant Commissioner and the Deputy Commissioner, therefore, rightly rejected the Appellants' claim in this regard. 8. A contention was raised on behalf of the Respondents that the appeal is hit by principle of res judicata since one appeal has been preferred against the decisions in the two cases registered before the Assistant Commissioner. This contention has no force. The disputes raised in the two applications, O.A. No. 12 of 1976 and O.A. No. 15 of 1976, were conjointly taken as one dispute and tried as such before the Assistant Commissioner. As noticed earlier, one set of evidence was led and both the case were disposed of by a common order. Against the order of the Assistant Commissioner one appeal (First Appeal No. 23 of 1977) was preferred before the Commissioner of Endowments. In these circumstances, the principle of res judicata has no application to the present appeal. 9. In view of the discussions in the foregoing paragraphs, the appeal is devoid of merit and the same is dismissed, but in the circumstances of the case without any order as to costs. Final Result : Dismissed