JUDGMENT : P.C. Misra, J. - This appeal is under Order 43, Rule l? of the CPC challenging the order dated 18-3-1987 passed by the Subordinate Judge, Berhampur in M. J. C. No. 36 of 1987. The Plaintiffs in T. S. No. 35 of 1985 of the said Court were Petitioners in the aforesaid M. J. C. No. 36 of 1987 praying for an injunction under Order 39, rule I, CPC to restrain the Defendant from conducting the festival of the deity ?Budhi Thakurani? which is held bi-annually under the management and control of Desibehera of the Devangi community. By the impugned order the Subordinate Judge allowed the said application and issued a temporary injunction restraining the present Appellant to conduct and manage the function of Budhi Thakurani during this year and in the years following till the disposal of the suit and further directed that the said function shall be conducted under the supervision of the Assistant Endowment Commissioner, southern range who shall constitute a body of about 7 to 10 responsible persons of the locality to oversee the function and keep proper accounts of donations, presentations etc. made to the deity during the celebration and for safe custody of all the offerings as detailed in the order. 2. An application was filed along with this appeal by the Appellant to grant stay of operation of the impugned order or in the alternative to make suitable arrangements in the manner stated in the application. When this appeal came for admission, the Respondents 1, 3 and 4 appeared through Mr. Y. S. N. Murty. Advocate and prayed to file a counter in the matter of stay. Time was granted for the purpose and it was further directed that in the mean time neither the Appellant shall proceed with the celebration of the function nor the directions in the impugned order shall be given effect to. During the pendency of the matter, an application was filed by one-Somanath Swain through Mr. S. S. Rao, Advocate praying to be impleaded as a party in this appeal and a similar application under Order I, Rule 10, CPC was filed by one ?Binayak Mohapatra through Mrs. A. K. Padhi and her associate Advocates. Later on another application was filed jointly by Satyabhama Behera, Suryanarayan Behera and Manikya Gantayat through Mr. U. C. Panda and Anr. A. K. Padhi and her associate Advocates. Later on another application was filed jointly by Satyabhama Behera, Suryanarayan Behera and Manikya Gantayat through Mr. U. C. Panda and Anr. by the Commissioner of Hindu Religious Endowments praying to be impleaded as parties in this appeal. The Respondents have also filed across-objection to modify the impugned order by vacating the directions for supervision of the festival by the Assistant Commissioner of Endowments or by the committee to be formed by him. The Appellant has filed objection against all these applications in which different persons have prayed to be impleaded as parties in this appeal and has filed a memo to delete the name of Respondent No. 2 in this appeal, who died during the pendency of the suit on 12-9-1975. The other Respondents# who appeared through Mr. Y. S. N. Murty have tiled a counter affidavit against the application for stay. Some of the persons who prayed to be impleaded as parties in this appeal have filed affidavits/counter affidavits either against the prayer made by the Appellant or the prayer made by the Respondents or by the persons intending to intervene in this .. Appeal specific reference to which is unnecessary in this appeal. The learned Counsel for all the aforesaid persons including the parties to the appeal prayed for final disposal of the appeal itself at the stage of admission as according to them, all facts and law relevant for the disposal of the appeal are necessary to be dealt with for disposal of the stay application and I also consider it expedient in the interest of justice to dispose of the appeal as well as all other matters arising therefrom at one and same time. All persons interested in the disposal of the appeal and the Misc. Cases were heard at length and on the prayer of the Appellant the entire records of the Court below were called for to be referred to at the time of hearing of this appeal. 3. The admitted facts of this case are that there is a deity called Budhi Thakurani whose temple is situated near the Utkal Cinema Hall of Berhampur town. A ceremonial function of the deity is held under the management and control of a head of the community which is called Desibehera. 3. The admitted facts of this case are that there is a deity called Budhi Thakurani whose temple is situated near the Utkal Cinema Hall of Berhampur town. A ceremonial function of the deity is held under the management and control of a head of the community which is called Desibehera. According to the Plaintiffs the office of Desibehera who used to celebrate the function at interval of two years in accordance with the time honoured custom. P. Pollaya died in the year 1983 leaving behind Plaintiff No. 1 as his widow and Plaintiffs Nos. 3 and 4 are his daughters. During the year 1985 the celebration of the festival of the deity was conducted by the Defendant who is admittedly the son of one Satyanarayan the brother of deceased P. Pollaya. It has been alleged by the Plaintiffs Petitioners that Plaintiff No. 2 had been adopted by P. Pollaya and his wife on 19-8-1975 while he was aged about 3 years which has been acknowledged by a registered deed of adoption executed by deceased P. Pollaya on 25-8.1975. It has been further alleged that Plaintiff No. 1 who died during the pendency of the suit had also executed a registered will dated 2-9-1975 in favour of Plaintiff No. 2 admitting him to be her adopted son and therefore, it is Plaintiff No. 2 alone who is entitled to be recognised as Desibehera after the death of his adoptive father. According to the Plaintiffs, the eldest member of the eldest branch of the family is entitled to the office of Desibehera which custom. stands recognised in a judgment of a previous suit, namely, T. S. No. 9 of 1953 (41 of 1951) of the Court of the Subordinate Judge, Berhampur. According to the Plaintiffs the Defendant cannot have any right to the said office and cannot be permitted to hold the festival or the function as Desibehera of the community. On these allegations an order of temporary injunction was sought for by the Plaintiffs in the trial Court. In the counter affidavit filed by the present Appellant, (the Defendant in the trial court) all the plaint allegations including the alleged adoption of Plaintiff No. 2 were denied and it was alleged that after the death of P. Pollaya who was Desibehera during his life time, he (the present Appellant) was accepted as Desibehera by the caste people. In the counter affidavit filed by the present Appellant, (the Defendant in the trial court) all the plaint allegations including the alleged adoption of Plaintiff No. 2 were denied and it was alleged that after the death of P. Pollaya who was Desibehera during his life time, he (the present Appellant) was accepted as Desibehera by the caste people. According to him there was a meeting of the community people attended by all the sub-headmen of the caste and they decided that the Defendant should be selected as the Desibehera of the community. According to him, an investiture ceremony was performed recognising him as the Desibehera of Devangi community as the Plaintiff No. 1 expressed her incompetency to perform the festival of the deity. A resolution had been accordingly passed on 25-3-1985 requesting the Defendant to accept the office and status of ?Desibehera? which he did. It has been further alleged that an investiture ceremony for customary recognition and conferment of such status was also performed by the Raja of Mahuri on 27-9-1975 whereafter the Defendant was installed and held the office of Desibehera of Devangi community. After being recognised as Desibehera the Defendant celebrated the festival of the deity during the year 1985 after obtaining necessary permission from the district, Collector and all other authorities. The next festival of the deity is to be performed during the current year for which the Defendant held a meeting on 1-3-1987 to fix the date of commencement of the festival and made all preliminary arrangements for the same. It has also been urged that the performance of the festival in one sense has been commenced after obtaining permission from the Collector and other public authorities and therefore the same should not be stopped at the instance of the Plaintiffs. A large number of documents were filed on behalf of both parties in the trial Court on a consideration of which the learned Subordinate Judge came to a conclusion that Plaintiff No. 2 has a prima facie case as his adoption has been prima facie established, by two registered documents and on that basis he is entitled to succeed to the office of Desibehera regardless of the investiture ceremony by the caste people recognising the Defendant as the Desibehera. He made copious reference to the judgment of the earlier suit, namely, T. S. No. 9 of 1953 (41 of 1951) and held that the office of Desibehera would devolve upon Plaintiff No. 2 who should be permitted to conduct the festival through the other Plaintiffs as he is still continuing to be a minor. As already stated, the impugned order contains certain directions as regards the supervision by the Assistant Endowment Commissioner and a committee to be constituted by him for proper performance of the festival and for safe custody of the presentations and offerings made to the deity during the festival which aspect is the subject matter of consideration in the cross-objection filed by the Respondents. 4. In this appeal, learned Counsel appearing for the Appellant has strenuously urged that the Plaintiffs in the trial Court have no prima facie case and in view of the documents filed by him (the Appellant) the learned trial Court should have held that Defendant has succeeded to the office of Desibehera and was entitled to conduct the festival of the deity. It has also been submitted that the balance of convenience is in favour of refusal of the injunction prayed for and the Plaintiffs would not suffer from any irreparable injury if the festival is conducted by the Defendant as was done in the year 1985. It was lastly contended that the Plaintiff being a minor is incapable of offering the religious ceremony required by the custom to be performed by the Desibehera during the festival for which reason the learned trial Court should not have permitted the Plaintiff to conduct the festival. The learned Counsel for the Appellant further pointed ?ut that the learned trial Court has ignored various documents filed by the Appellant in the trial Court and has been swayed away by the judgment of the earlier suit which has no application whatsoever after the change of law in the year 1956. 5. One of the main questions to be decided in the suit is as to whether the office of Desibehera, if considered to be a property, would devolve upon the eldest male member of the eldest branch, as is contended by the Plaintiff-Respondents or devolves upon the eldest male member of the family as is contended by the Defendant-Appellant. 5. One of the main questions to be decided in the suit is as to whether the office of Desibehera, if considered to be a property, would devolve upon the eldest male member of the eldest branch, as is contended by the Plaintiff-Respondents or devolves upon the eldest male member of the family as is contended by the Defendant-Appellant. The common case of both parties is that the said office is hereditary and is confined to the family and would not go to the outsiders in any event. It has been stated by the learned Counsel for both parties during the course of argument that performance of bi-annual function of the deity in question brings income to the Desibehera at the offerings made to the deity during the function and thereafter are appropriated by him. The mode of devolution of the office of Desibehera as pleaded by either of the parties must be determined on evidence as to the custom regulating such devolution. As is well known, a custom to be valid and enforceable in law must have the following essential attributes: (i) it must be immemorial in origin; (ii) it must be certain; (iii) it must be reasonable and not opposed to public policy; and (iv) it must have been followed continuously and uniformly by those who are governed by it. Customs undoubtedly exist as exceptions to general law and it would override the rules of general law if the essentials of valid custom are established. Evidently neither of-the parties have so far laid any oral evidence to establish the custom? regulating the mode of succession to the office of Desibehera. The only document which may have some relevance to this issue is the judgment of the previous suit on the basis of which the learned Court below prima facie came to the conclusion that the Plaintiff No. 2 being the adopted son of deceased. P. Pollaya was entitled to succeed to the office of Desibehera after the death of his adoptive father. The learned Counsel for the Appellant has argued at length that the judgment of the previous suit is ineffective after the change of law in the year 1956 by the enactment of Hindu Succession Act the provisions of which would govern the Succession to the .office of Desibehera as the right to hold such office is a ?property?. The learned Counsel for the Appellant has argued at length that the judgment of the previous suit is ineffective after the change of law in the year 1956 by the enactment of Hindu Succession Act the provisions of which would govern the Succession to the .office of Desibehera as the right to hold such office is a ?property?. He has further argued that the rule of succession according to primogeniture which is founded on custom will stand abrogated as such a rule is contrary to the provisions of the Act. According to Mr. Murty the learned Counsel appearing for the Respondents the right to the office in question is not a ?property? the succession to which would be governed by the Hindu Succession Act as the said office though hereditary is not transferable and at any rate, the Hindu Succession Act has no application whatsoever to the succession of a religious office like the one in issue. This again is a point required to be decided in the suit at the trial after detailed examination of the incidents and emoluments attached to the said office. I do not express any opinion at this stage of the litigation as to whether the provisions of Hindu Succession Act would override the custom, if any, regulating succession to the office. 6. Assuming for the sake of argument that the provisions relating to succession to property in Hindu Succession Act, 1956 would apply to the succession to the office of Desibehera, on the face of the facts so far disclosed it would neither devolve upon the Plaintiff No. 2 alone as the Plaintiff is not the single individual who according to the said Act is not the sale heir of the deceased Desibehera, nor the Defendant can succeed to the property in the presence of Class 1 heirs to which category he evidently does not belong. I would, therefore, proceed on the basis that Hindu Succession Act does not apply which is a mere assumption for the purposes of determination of this appeal. 7. If the judgment of the earlier suit is to be relied upon for a conclusion that the office of Desibehera would devolve upon the eldest mate member of the family of the deceased P. Pollaya, it has further to be proved that Plaintiff No. 2 is his adopted son. 7. If the judgment of the earlier suit is to be relied upon for a conclusion that the office of Desibehera would devolve upon the eldest mate member of the family of the deceased P. Pollaya, it has further to be proved that Plaintiff No. 2 is his adopted son. The documents relied upon by the Plaintiffs, namely the deed of acknowledgment of adoption dated 25-8-1975 and the registered deed of will dated 2-9-1975 would prima facie establish the status of Plaintiff No. 2 as the adopted son relied upon by the Plaintiffs, namely, the deed of acknowledgment of adoption dated 25-8.1975 and the registered deed of will dated 2-9-1975 would prima facie establish the status of Plaintiff No. 2 as the adopted son of deceased P. Pollaya. This position is prima facie acceptable for the present which is without prejudice to the case advanced by the Defendant and is also subject to finding to be ultimately recorded by the Court at the trial of the suit after taking into consideration of the entire evidence both oral and documentary to be adduced by the parties. 8. The learned Counsel appearing for the Appellant has Produced a large number of documents in support of his plea that after the death of the previous ?Desibehera? he was nominated and accepted as the . ?Desibehera? by the caste men and several sub-heads of Devangi community. The documents also prima facie establish that there was an investiture ceremony for customary recognition and conferment of the status of Desibehera with the Defendant both by prominent caste men and the caste sub-heads and caste head, namely, the Raja of Mahuri. After the investiture ceremony the Defendant obtained necessary permission from the Collector and also from other public authorities and took some steps fer initiating that festival and. according to him, brought the sacred pillar and installed the same in the Desibehera street in front of his house. Admittedly, the said festival of the deity held in the year 1985 was conducted by the Defendant in the capacity of Desibehera of the community. according to him, brought the sacred pillar and installed the same in the Desibehera street in front of his house. Admittedly, the said festival of the deity held in the year 1985 was conducted by the Defendant in the capacity of Desibehera of the community. The learned Counsel, appearing for the Defendant has laid ?special emphasis on the fact that the Defendant having held the function in the year 1985 as Desibehera and he having made arrangements for the performance of the festival this year at a huge cost, there is no justification for issuing an order of injunction against him and permitting the Plaintiff to hold the function in, preference to the Defendant. He has also argued that there has, been already commencement of the festival by installation of the sacred pillar in front of his house and in the circumstances, he should be permitted to continue with the festival this year. According to the Defendant, he being the eldest male member of the family is entitled to succeed to the said religious office and his assumption of the office has been recognised by the caste men and sub-heads of Devangi community the best proof of which is the investiture ceremony. The mode of devolution to the office in accordance with the custom as previously observed is yet to be established on evidence at the trial. Yet, according to the learned Counsel for the Appellant, the very fact that so many caste people who are supposed to be acquainted with the custom regulating the devolution to the said office having accepted the Defendant as Desibehera, the Court must assume a custom in his favour. It is well settled in law that custom cannot be created by agreement and the one who alleges the existence of a custom has to prove the same. The evidence should be such as to prove the uniformity and continuity of the course of conduct and conviction of those following it that it is imperative or proper to do so. The existence or absence of a custom cannot be inferred by mere assertion thereof. The circumstances evidenced by the documents filed by the Defendant in this case are insufficient for a presumption in his favour. The existence or absence of a custom cannot be inferred by mere assertion thereof. The circumstances evidenced by the documents filed by the Defendant in this case are insufficient for a presumption in his favour. In the previous suit (T. S. No. 9/53) which was a suit for partition between P. Pollaya (the deceased Desi-behera) and P. Satyanarayan (the present Defendant-Appellant) the Court came to a conclusion that the office of Desibehera belongs only to the eldest member of the eldest branch of the family who alone has the? right to conduct the festival of the deity. What has been stated in said judgment, prima facie holds the field at present. In this view of the matter, it just be inferred that the Plaintiff has got a prima facie case for the present purpose. 9. Even though the Plaintiff has a prima facie case to be entitled to the office of Desibehera, the same is not enough for the grant of temporary injunction against the Defendant. In this connection, learned Counsel appearing for the Appellant has brought to my notice that from the very nature of the acts necessary for the performance of the festival cannot be performed by the Plaintiff who is a minor for which reason the Defendant should be chosen to conduct the festival and not the Plaintiff. In the objection the Defendant alleged that among other things some sacred pots are required to be carried by the ladies of Devangi community and that too the main pot should be carried on the head of the wife of Desibehera. This being a part and parcel of the festival, the same cannot be accomplished by the Plaintiff who is a minor and unmarried. On this basis the learned Counsel appearing for the Appellant has urged that the religious function necessary for performance of the festival cannot be performed by the Plaintiff and the Defendant alone amongst the members of the family, qualifies for performance of the different religious rites. In answer to the aforesaid argument of the learned Counsel for the Appellant, Mr. Murty, learned Counsel appearing for the .Respondents urged that this was not a point which was pressed in the trial Court for which reason the same cannot be taken into consideration by this Court sitting in appeal. The objection of Mr. In answer to the aforesaid argument of the learned Counsel for the Appellant, Mr. Murty, learned Counsel appearing for the .Respondents urged that this was not a point which was pressed in the trial Court for which reason the same cannot be taken into consideration by this Court sitting in appeal. The objection of Mr. Murty is not acceptable, firstly because the aforesaid point was taken in the objection in the trial Court and was pressed as has been argued by the learned Counsel fat the Appellant and mere omission on the part of the learned trial Court to discuss the point would not preclude the party from canvassing it before the appellate Court and secondly because the judgment of the earlier suit which is the sole basis for holding that the Plaintiff No. 2 has got a prima facie case itself recites that the privilege of carrying ?Chattan? belongs exclusively to the wife of Desibehera alone. Thus the performance of one of the religious rites necessary for the performance of the festival cannot be performed if the Plaintiff during his minority and unmarried state is allowed to conduct the festival. It is probably for this reason that the learned trial Court in the impugned judgment has directed that the function would be conducted and managed by the minor Plaintiff No. 2 through other Plaintiffs. If the Plaintiff himself is incompetent for performance of the festival observing all the religious rites, there is no justification for permitting the other Plaintiffs who are his sisters (as the Plaintiff No. 1, the mother, had expired). As already stated, the Defendant had admittedly performed the festival in the year 1985 and there is some evidence on record that several members of the caste and the community had selected him for the purpose. This year also the Defendant has made some preparation for conducting the festival. In the circumstances. I do not think it appropriate to issue an order of, injunction against him not to conduct the festival. All these circumstances lead me to the conclusion that the balance of convenience,is against that grant of injunction prayed for by the Plaintiffs for which reason, the Plaintiffs shall not be entitled to an order of injunction as prayed for by them. 10. All these circumstances lead me to the conclusion that the balance of convenience,is against that grant of injunction prayed for by the Plaintiffs for which reason, the Plaintiffs shall not be entitled to an order of injunction as prayed for by them. 10. The learned trial Court has directed that the festival should be conducted under the supervision of the Assistant Endowment Commissioner, Southern Range, who shall, in his turn, constitute a body consisting of respectable persons of the locality who would assist in conducting the festival smoothly and keeping proper accounts of the income of the deity during the celebration. But the intervention of the Assistant Commissioner of Endowment has been objected to by the learned Counsel for both the parties and as a matter of fact the Respondents have filed a cross-objection in this appeal to delete the restrictions so imposed in the impugned order. Mr. A. S. Naidu, also filed an application to be permitted to be heard in the matter on behalf of the Commissioner of Endowments, according to whom, the Commissioner has jurisdiction to supervise and take steps for peaceful performance of the festival. It is the common case of all parties concerned that the public in general and the Devangi community in particular participate in the month-long celebration of the festival. There having been sharp differences between the parties to the suit, as discussed earlier, it would be in the interest of the parties ~s well as the persons interested in the performance of the festival that the conducting of the festival should be supervised by the Assistant Commissioner of Endowments in the manner as detailed in the impugned order. In this view of the matter, I do not find any merit in the cross-objection filed by the Respondents which is accordingly dismissed. Mr. Naidu, appearing for the Commissioner of Endowments has assured that the Assistant Commissioner of Endowments, Southern Range would help in the performance of the festival peacefully without interfering with the religious rites customarily followed during the festival. 11. Several others who claim to have interest in the deity in question have filed applications to be impleaded as parties in this appeal. Evidently they are not parties in the suit nor in the M. J. C. application out of which this appeal arise. 11. Several others who claim to have interest in the deity in question have filed applications to be impleaded as parties in this appeal. Evidently they are not parties in the suit nor in the M. J. C. application out of which this appeal arise. So far as this appeal is concerned, they are neither necessary nor proper parties and all those applications are accordingly rejected. They may, however, make similar applications in the trial Court, if so advised, which if made shall be considered by the trial Court and disposed of in accordance with law. 12. In the result, the appeal is allowed, the impugned order is set aside, but in the facts and circumstances of the case, there shall be no order as to costs. It may, however, be noted that the Subordinate Judge should expeditiously dispose of the suit without being influenced by any of the conclusions reached in the M, J. C. application or by this Court in this appeal. Final Result : Allowed