JUDGMENT : L. Rath, J. - The Plaintiff's suit to declare the Institution of Banabihari Dev in village Biratung and Biratung Math as adjucts or part of Mulak Choura Math and as such outside the purview of Orissa Hindu Religious Endowments Act, 1951 (for short 1951. Act') and for a further declaration that the orders passed by the Assistant Commissioner.. Hindu Religious. Endowments, Orissa in O. A. Case No. 92 of 1951/52 on 24-7-1957 declaring that the institution of Banabihari Dev with its endowments is a public temple under the 1951 Act and the Appellant No. 2 as the hereditary trustee thereof are without jurisdiction and for other reliefs having failed, this appeal has been preferred. 2. The short narration of facts leading to the institution of the suit are that the Plaintiffs-Appellants had filed a petition, u/s 64 of the Orissa Hindu Religious Endowments Act, 1939 (Orissa Act 4 of 1939) for short, (the 1939 Act', claiming the, Mulak Choura Math as neither a Math nor a temple as defined in that Act and that it was a branch of the main Math situated at Chicacola in the district of Vizag ( A.P. ). This application was disposed of by the order of the Commissioner of Endowments, Orissa on 23-2-1946 (Ext. C) finding that the institution of Mulak Choura Math had been founded at Vizag more than two hundred fifty years ago during the time of emperor Aurangzeb by Sri Mulak Das Babajee a highly reputed saint and had been endowed with large properties by Aurangzeb as atonement for his conduct against innocent and holy Sadhus. In a proceeding before the Madras High Court the claim of the Math as being a secular and charitable institution outside the jurisdiction of the Madras Hindu Religious Endowments Act had been upheld. It was found that the institution at Puri was a branch of the Parent Math of Chicacola and hence was outside scope of the 1939 Act. As regards the Birtung Math, it was however found that it had an individual existence presided over by Shri Banabihari Thakur possessing about 27 acres of land which originally belonged to a Karan family and subsequently' passed to the hands of the Mahants of Mulak Choura Math by virtue of a gift deed. As regards the Birtung Math, it was however found that it had an individual existence presided over by Shri Banabihari Thakur possessing about 27 acres of land which originally belonged to a Karan family and subsequently' passed to the hands of the Mahants of Mulak Choura Math by virtue of a gift deed. The Mulak Choura Math had no properties of its own but was maintained by subvention from the Math at Chicacola and also from the Math at Birtung. The Commissioner thus found that while Mulak Choura Math is outside the scope of 1939 Act yet the institution of the Birtung Math is a separate and independent one though at present it was managed by Mulak Choura Math. 3. While matters thus continued for some time the Guru of the second Plaintiff Mahant Sri Rajaram Das filed a fresh petition u/s 64 of the 1939 Act on 29-11-1951 before the Commissioner, Endowments with the pleadings that the Mulak Choura Math had landed properties in mouza-Birtung of which it is the owner and is managed by the income from those properties and claimed the relief for declaration that the properties of Banabihari Dev belong to Mulak Choura Math which is a private institution and to which the 1939 Act does not apply. Mahant Rajaram Das having died during pending of the application, tje Plaintiff No. 2 was substituted in his place. This application was registered as O. A. Case No. 92 of 1951/52 and was contested by the villagers of Birtung. While the application was pending the Orissa Hindu Religious Endowments Act, 1951 (for short, the 1951 Act) came into force on 1-5-1955 and the application was thereafter disposed of by the Assistant Commissioner, Endowments on 24-7-1957 declaring the institution as a public temple u/s 3 (15) of the 1951 Act with the Plaintiff No. 2 as its hereditary trustee with a right to nominate his own chela. An appeal carried before the Commissioner of Endowments which having failed the Plaintiff No. 2 preferred Miscellaneous Appeal No. 136 of 1958 in this Court. The Miscellaneous Appear was disposed of on 8-7-1958 remanding the case for fresh disposal by the appellate Court. The Commissioner of Endowments however rejected the appeal again by his order dated 18.4-1965 as against which the Plaintiff No. 2 preferred Miscellaneous Appeal No. 171 of 1965 in this Court which was dismissed on 15-11-1966. The Miscellaneous Appear was disposed of on 8-7-1958 remanding the case for fresh disposal by the appellate Court. The Commissioner of Endowments however rejected the appeal again by his order dated 18.4-1965 as against which the Plaintiff No. 2 preferred Miscellaneous Appeal No. 171 of 1965 in this Court which was dismissed on 15-11-1966. An APPLICATION for leave to appeal to the Supreme Court in S.C. A. No. 5 of 1967 was also rejected on 14-5-1969 by this Court. While the leave application was pending, the present suit was filed on 21-12-1968. The suit was contested by Respondent Nos. 2 and 3 who were respectively Defendant Nos. 2 and 3 in the suit as representing the villagers of Birtung and the Hindu Public contending that the suit was not maintainable, the civil Court had no jurisdiction to try the suit, the suit was barred by limitation and that the Birtung Math and its presiding deity Shri Banabihari Dev are not the adjuncts and part and parcel of the Mulak Choura Math, Puri. The learned Subordinate Judge who tried the suit held that the suit was not maintainable since the civil Court had no jurisdiction to decide the dispute it being barred u/s 73 of the 1951 Act, the suit to be barred by limitation and also on merits held that the institution of Sri Banabihari Dev is not an adjunct of Mulak Choura Math. 4. Mr. R. K. Mohapatra, the learned Counsel appearing for the Appellant assails the judgment of the Subordinate Judge on the following grounds: (i) the application made by the Plaintiff-Appellant No. 2 u/s 64 (1) of the 1939 Act claiming declaration regarding the properties of Birtung Math as outside the scope of Section 64 (1) of the 1939 Act and the order passed thereon relating to such properties was beyond the authority of the Commissioner acting under that Section; (ii) since the order u/s 64 was without jurisdiction, the findings therein would not be res judicata and consequently the civil Court would have jurisdiction to decide the suit; (iii) the suit is not barred by limitation;and (iv) on evidence, it appears that. Birtung Math and Banabihari Dev are only part of the Mulak Choura Math and hence the findings cannot be sustained. 5. To appreciate the contentions of Mr. Mohapatra it is necessary to refer to Section 64 of the 1939 Act. 64. Birtung Math and Banabihari Dev are only part of the Mulak Choura Math and hence the findings cannot be sustained. 5. To appreciate the contentions of Mr. Mohapatra it is necessary to refer to Section 64 of the 1939 Act. 64. Settlement of dispute as to whether an institution is a math or temple as defined in this act: (1) If any dispute arises as to whether an institution is a math or temple as defined in this Act or whether a temple is an excepted temple, such dispute shall be decided by the commissioner. (2) Any person affected by a decision under Sub-section (1) may within one year, institute a suit in the Court to modify or set aside such decision; but subject to the result of such suit, the order of the commissioner shall be final. As the Section itself shows, it is a provision empowering the Commissioner to decide, if a dispute arises, as to whether all institution is either a math or a temple and if necessary decide further whether the temple is an excepted one. Thus the scope of the dispute contemplated u/s 64 (1) was a limited one conferring jurisdiction on the Commissioner only to decide the character of the institution either as a math or a temple and so far as it is a temple, whether it is managed by hereditary trustees. The argument of Mr. Mohapatra that the Commissioner can exercise jurisdiction only when it is claimed that an institution is either a math or a temple as defined in the Act but not where the institution is claimed to be a private math or temple is not acceptable since what is contemplated under the provisions is raising of a dispute which must necessarily include the positive as well as the negative. If a claim is made that an institution is a private one, it necessarily implies that the institution is not a public one and hence so far as the Commissioner has the jurisdiction to decide the institution as a public one, he has also the jurisdiction to negative a contention that institution is not a public one. If a claim is made that an institution is a private one, it necessarily implies that the institution is not a public one and hence so far as the Commissioner has the jurisdiction to decide the institution as a public one, he has also the jurisdiction to negative a contention that institution is not a public one. Maths or temples governed either under the 1939 Act or the 1951 Act are nothing but public religious endowments and thus the commissioner would have the jurisdiction even if the claim is made in a negative way that the institution is a private, one to decide and declare that the claim is unfounded and the institution in fact is a public religious endowment. In Natabar Panda and Anr. v. Kishore Chandra Padhi and Ors. ILR 1962 Cutt. 533, a Division Bench of this Court decided a suit for declaration of institution as a private institution belonging to the family of the Plaintiff and for other ancillary reliefs as not maintainable since the relief claimed by the Plaintiff was for a declaration that the institution was a purely private one .and a declaration that he was the hereditary trustee of the said institution and consequently it was an excepted temple. Both the reliefs claimed were held to be within the ambit of Section 64 (1) of the 1939 Act and the suit was only maintainable if the Plaintiff had made an application to the Commissioner under that Section and it bad been decided that the institution was one to which the 1939 Act did not apply. The suit was accordingly dismissed as not being maintainable. 5. The question however that arises for consideration is whether the decision on an application to decide an institution either as a math or a temple does necessarily involve also a decision regarding the properties as belonging to that institution or not. It is urged by Mr. Mohapatra that Section 64 (1) of the 1939 Act did not clothe the commissioner with a power to determine the property rights either as belonging to a public religious endowment or as a private property. It is urged by Mr. Mohapatra that Section 64 (1) of the 1939 Act did not clothe the commissioner with a power to determine the property rights either as belonging to a public religious endowment or as a private property. It is his contention that no doubt 'Religious Endowment' has been defined in Section 6 (5) of the 1939 Act as meaning all properties belonging to or given or endowed in support of Maths or temples, but however the authority vested in the commissioner u/s 64 (1) is not for any declaration regarding religious endowments as such but only to determine the character of the institution either as Math or temple and to further decide in case' of a temple whether it is an excepted one or not. On a reading of Section 64, the submission made by. Mr. Mohapatra appears to have force since in terms of the Section a, determination regarding property is not envisaged. The question directly came up for decision in T.K. Thiruvengadam Pillai and Another Vs. The Madras Hindu Religious Endowments Board wherein a similar question arose with reference to Section 84 (1) of the Madras Hindu Religious Endowments Act (Act 4 of 1927) which was almost identically worded as Section 64 (1) of the 1939 Act. In the case a trustee of a charity had been called upon by the Madras Board to pay annual contribution holding that the charity was one which was attached to Sri Nachiar Temple at Sri Villiputtur. The Appellants in that case moved a petition u/s 84 (1) and thereafter moved the District Judge u/s 84 (2). The District Judge after investigation came to the conclusion that the charity did constitute a specific endowment of the temple. The Appellants notwithstanding the fact that they had relied upon Section 84 (2) and had moved the District Judge for redress, yet filed a regular suit before the Subordinate Judge contending that the application made by them u/s 84 was not open to them. Even though the Appellants in that case had adopted a complete turn around, yet their stand in law was confirmed by the Madras High Court holding that Section 84 clearly did not apply to the case and applies only to disputes whether an institution is a temple or math or whether the temple is an excepted one. Even though the Appellants in that case had adopted a complete turn around, yet their stand in law was confirmed by the Madras High Court holding that Section 84 clearly did not apply to the case and applies only to disputes whether an institution is a temple or math or whether the temple is an excepted one. The dispute whether a particular charity constitutes a specific endowment of a temple was not within the scope of Section 84 since the Appellants could also independently file a suit to challenge the decision of the Board when it levied contribution. In Sri Iswarananda Bharathi Swami of Ednir Mutt Vs. The Board of Commissioners for Hindu Religious Endowments the question was whether a suit for declaring that the building in which the Plaintiff resides and in which the worship of the deity is performed though popularly called a math is not an institution to which the Madras Act of 1927 applied was maintainable. The suit was dismissed by the District Judge since the Plaintiff had not moved u/s 84 (2) of the Madras Act. The decision of the District Judge was confirmed by the Madras High Court relying on an earlier decision of the same Court in His Holiness Sinha Sri Vythilinga Pandara Sannadhi Avergal Vs. Sir T. Sadasiva Aiyar and Others. The decision is distinguishable since the relief claimed therein was of declaring the institution either as private or public and not whether certain specific properties were those belonging to the institution. Such a question plainly fen to be decided by the civil Court so far as the 1939 Act is concerned. As a matter of fact in the 1951 Act specific provision was made in Section 41 authorising the Asst. Commissioner to decide such questions relating to property which gives a clue that decisions regarding properties were outside the reach of Section 64 of the 1939 Act and that such dual forums, one for the declaration of the character of institution, and Anr. for determination of the property rights were done a way in the new Act. The decision in T. K. Thiruvengadam Pillai and Anr. v. Madras Hindu Religious Endowments Board, Madras, through its President2, applies with full force to the facts of the present case since so far as the order made u/s 64 (1) in 1946 (Ext. for determination of the property rights were done a way in the new Act. The decision in T. K. Thiruvengadam Pillai and Anr. v. Madras Hindu Religious Endowments Board, Madras, through its President2, applies with full force to the facts of the present case since so far as the order made u/s 64 (1) in 1946 (Ext. 6) is concerned it consisted of two parts; (1) a declaration that the Mulak Choura Math is neither a math or a temple as defined under the 1939 Act and hence outside its scope, and (2) that Birtung Math is a separate and independent one though it was managed by the Mahanta of Mulak Choura math. So far as the second part is concerned it was not declared that Birtung math is a math or not or whether it is a math or temple and if a temple whether it is an excepted one. It was only found that the Birtung institution presided over the deity by Banabihari Dev Thakur has 27 acres of land which originally belonged to a Karan family and subsequently was gifted away to the Mahanta of Mulak Choura Math. The finding was reached as it appears, on an enquiry by the inspector of endowments. Such a finding was plainly outside the scope of an enquiry u/s 64 (1). As a matter of fact, in the order it was also never found whether the gift from the Karan family to the Mahanta of Mulak Choura Math was for the benefit of the' Birtung Math as a separate endowment. Consequently it is to be held that the decision in Ext. C could not be a bar to the maintainability of the suit. 6. For similar reasons the application dated 29-11-1951 (Ext. D) was also not within the scope of Section 64 (1) of 1939 Act. In effect the application sought for a declaration that Mulak Choura Math had landed properties at Birtung of which the Appellant No. 2 was the 16 annas owner and it had no property anywhere else. The application was being made by the Mahant of the Mulak Choura Math, admittedly a private institution, to declare certain properties to be 'of that of the private institution. This was nothing but seeking a declaration by a private person that the properties be declared as his own. The application was being made by the Mahant of the Mulak Choura Math, admittedly a private institution, to declare certain properties to be 'of that of the private institution. This was nothing but seeking a declaration by a private person that the properties be declared as his own. As discussed earlier such a decision was not, contemplated to be made by the Commissioner u/s 64 (l). 7. Even though the previous applications made u/s 64 were not maintainable and hence could not bar the institution of the suit, yet the subsequent developments clearly throw the Appellants out of Court. While Ext. D was pending, the 1951 Act came into force on 1-5-1955 repealing the 1939 Act. Section 79 of the Act provided for effects of the repeal. Section 79 (1) and Section 79 (2) (c) were as follows: 79. Repeal and effect or repeal of the Orissa Hindu Religious Endowments Act, 1939: (1) The Orissa Hindu Religious Endowments Act, IV of 1939, is hereby repealed. (2) Notwithstanding the repeal of the Orissa Hindu Religious Endowments Act IV of 1939. xxx xxx xxx (c) all proceedings pending before the State Government or the Commissioner under the provisions of the said Act and the rules made thereunder at the Commencement of the Act, may in so far as they are not inconsistent with the provisions of this Act, or the rules made thereunder be continued by the appropriate authority under this Act. xx xx xx Thus the application u/s 64 (1) which was pending at the commencement of the 1951 Act was to be continued before the appropriate authority under the new Act. A determination of the kind sought for in the application (Ext. D) was fully covered by Section 41 of the 1951 Act which admittedly is of much wider scope than the Section 64 and expressly provides not only for determination whether the institution is a public religious institution and is a temple or math but also inter alia whether any property or money is of a religious endowment or specific endowment. There is nothing inconsistent between the provisions of Section 64 (1) of the 1939 Act and that of Section 41 of the 1951 Act. An application u/s 64 (1) pending at the commencement of the 1951 Act can very well be continued and conducted by the appropriate authority u/s 41 of the 1951 Act and hence Ext. There is nothing inconsistent between the provisions of Section 64 (1) of the 1939 Act and that of Section 41 of the 1951 Act. An application u/s 64 (1) pending at the commencement of the 1951 Act can very well be continued and conducted by the appropriate authority u/s 41 of the 1951 Act and hence Ext. D stood transferred to the Asst. Commissioner for disposal by operation of the statute. The Asst. Commissioner being the appropriate authority u/s 41 of the 1951 Act. 8. It has been submitted by Mr. Mohapatra that the application, Ext. D being not one contemplated u/s 64 (1) has to be taken as a still born application and hence was not alive in taw to be transferred u/s 79 (c) for disposal u/s of the 1951 Act. The submission is devoid of merit. The application was factually pending before the Commissioner at the commencement of the Act. While it was so pending, it could not have been rejected automatically as one not contemplated u/s 64, without an order to that effect being passed. The Appellant No. 2 was himself the applicant. He never withdrew the application nor did the Respondents move for its rejection. The application thus continued on record and on coming into force of the new Act stood statutorily continued u/s 79 (c). It was of course liable to have been thrown out after coming into force of the 1951 Act if it was not an application contemplated under the 1951 Act. But since the application was one which the Asst. Commissioner had the jurisdiction to decide u/s 41 of the new Act, there was nothing wrong for him to assume jurisdiction on the application and to decide it accordingly. It must thus be held that the order of the Asst. Commissioner in Ext. F declaring the institution of Banabihari Dev with its endowments a public temple and the Appellant No. 2 as the hereditary trustee thereof with a right to nominate his Chela belonging to his own denomination to succeed as the trustee of the institution was a decision contemplated u/s 41 of the Act and that the decision could appropriately be delivered while deciding Ext. D. This finding by the Asst. Commissioner was confirmed in appeal by the Commissioner. Endowments against which the Appellant No. 2 came before this Court in Misc. D. This finding by the Asst. Commissioner was confirmed in appeal by the Commissioner. Endowments against which the Appellant No. 2 came before this Court in Misc. Appeal No. 136/85 wherein the matter was remanded to the Commissioner for fresh disposal. As has been seen earlier the Commissioner in Ext. G. by his order dated 10-4-1985 again dismissed the appeal and on appeal to this Court Miscellaneous Appeal No. 171/65 also stood rejected and an application to leave to Supreme Court also was rejected. It is clear that the decision of the Asst. Commissioner u/s 41 had become final. 9. The present suit instituted on 21-12-1978 was thus not maintainable in view of the provisions of Section 73 of the 1951 Act. The Section bars any suit or other legal proceeding in respect of the ad ministration of religious institutions or in respect of any other matter under dispute for the determination or decision of which provisions have been made in the Act, and requires that all such questions must be determined only in accordance with and in conformity with the provisions of the Act. The Section imposes a specific matter of which is capable of being decided under the provisions of the 1951 Act. The question whether the Birtung Math and Banabihari Dev are part of Mulak Choura Math or are public religious endowments and whether the properties of Banabihari Dey are that of Mulak Choura math are not only questions which can be decided u/s 41 of the 1951 Act but also in fact have been so decided. The suit as such is not entertainable since the jurisdiction of the civil Court to try such a suit has been expressly taken away u/s 73. As a matter of fact even if the application in Ext. D would not have been continued under the 1951 Act, yet the suit having been filed much after the coming into force of the 1951 Act was not entertainable since the very prayers claimed by it were within the frame work of Section 41 of the 1951 Act. 10. In view of such conclusion that the suit was not maintainable, it is unnecessary to decide the other questions raised on merit as well as regarding limitation. 11. In the result, there is no merit in this appeal and hence is dismissed. Costs to abide the result. Final Result : Dismissed