JUDGMENT : L. Rath, J. - An application u/s 41 of the Orissa Hindu Religious Endowments Act, 1951 (for short the 'Act') by the Respondent Nos. 1. 2, 4 and the father of the Respondent Nos. 3(a) and 3 (b) claiming Sri Bije Baidyanath Swamy of Jagamohan in Aska Taluk to be declared a public religious institution with them as the hereditary trustees having been allowed by the Additional Assistant Commissioner and also confirmed in appeal by the Deputy Commissioner of Endowments, Orissa the Appellants, have come before this Court assailing the same. 2. It was the case of the Respondents that Bije Baidyanath swamy was founded and installed by the Raja of Dharakote who was the Dharmakarta and donated some lands for Sevapuja, Bhograg and Janijatra and that he was also continuing as the hereditary trustee. The ancestors of the Respondents were appointed as Sebayats and Archaks of the deity. Since then the sebayatship and archakship have devolved upon their successors on the basis of heredity. Since the founder was not interested in the management of the affairs of the deity it being a temple with not much properties, at his instance the archaks were functioning as the trustees managing the affairs of the deity including its landed properties. While they were continuing as such, hereditary trustees, non-hereditary trustees were appointed by the Additional Assistant Commissioner of Endowments which necessitated filing of the petition u/s 41 of the Act. The relief claimed in the petition was to declare them as the hereditary trustees and hereditary archaks and in the alternative to declare the Raja of Dharakote as the hereditary trustee and marfatdar with the Respondents and their successors as the hereditary arcbaks of the institution and further to declare the properties both movable and immovable as public religious endowments. 3. The claim of the Respondents was resisted by the Appellants filing written statement contending the villagers of Narayanpur to be the real trustees of the deity and managing the affairs thereof. It was pleaded that the land had been settled in favour of the deity in O.E.A. Case Nos. 774 and 775 of 1970 with the Appellants as marfatdars and that in the consolidation appeal and revision cases, the Appellants had been recorded as the marfatdars of the deity. 4. It was pleaded that the land had been settled in favour of the deity in O.E.A. Case Nos. 774 and 775 of 1970 with the Appellants as marfatdars and that in the consolidation appeal and revision cases, the Appellants had been recorded as the marfatdars of the deity. 4. Both the Additional Assistant Commissioner and the Deputy Commissioner on an analysis of the evidence held the Appellants not to have been able to establish the fact of the villagers to have collected the funds and constructed the temple as was contended by the Appellant No. 2 examined as O.P.W. 1. Relying on the admissions of O.P.W. 1 and O.P.W. 2 as also the consistent evidence led by the. Respondents the conclusion was reached which is indeed irresistible that the temple was in fact established by the Raja of Dharakote with all the lands of the deity endowed by him. This aspect of the, finding is also not seriously challenged before me. 5. Admittedly the temple is a public religious institution as is the common case of the both parties. The only question to be determined is whether the Respondents are the hereditary trustees in respect of the temple. The authorities under the Act have come to bold the Respondents as the hereditary trustees since the Raja of. Dharakote failed to implead himself, as a party to the petition even if publication of notice under Order 1, Rule 8, CPC was issued and since it appears from the evidence of P.Ws. 1 to 5 that the archaks possessed the deity's properties and managed it. 6. To obtain a declaration of hereditary trusteeship, it must be shown by the person claiming the status that he satisfies one of the three modes of succession of hereditary trusteeship as defined u/s 3(vi) of the Act. Such modes are that succession to the office either devolves by hereditary right since the time of the founder or that the succession is regulated by custom or it is specifically so provided for by the founder in the scheme of succession so long such scheme is in force. It being the admitted case of the Respondents that the Raja of Dharakote was the founder and the hereditary trustee, it was incumbent upon them to have proved as to by what process the hereditary trusteeship devolved upon them. It being the admitted case of the Respondents that the Raja of Dharakote was the founder and the hereditary trustee, it was incumbent upon them to have proved as to by what process the hereditary trusteeship devolved upon them. The manner in which the hereditary trusteeship is claimed has to be specifically pleaded so as to satisfy the requirements of the statute. There is no such specific pleading in the application u/s 41 of the Act. It is not the case of the Respondents that the hereditary trusteeship has devolved upon them since the time of the founder and hence the claim does not come under the first part of the definition. There is also no pleading that the hereditary trusteeship is devolved upon the Respondents by any custom and/or usage and there is also no evidence to such effect and hence the second part of the definition also does not apply. The third part of the definition is equally not applicable since there is no pleading absolutely that a scheme was framed by the founder under which, the family of the Respondents are the hereditary trustees and 'that the scheme is still in force. On this score alone the claim of the Respondents is bound to fail. Even apart from that, it transpires from the evidence of P.W. 1,the son of Respondent No. 1 that his great grand father was the first archak appointed by the Raja and that they have been doing the sevapuja for the last three generations and that the Zamindar left the management of the deity in their hands after abolition of the estate and since then they have been working as archaks-cum-trustees. It was also his specific evidence that the Raja of Dharakote still continues as the hereditary trustee. Because of such admitted position of the Raja of Dharakote still being the hereditary trustee and the statement that the Raja had left the management in their hands only since the abolition of the estate under the Orissa Estates Abolition Act, 1951; the claim of hereditary trusteeship must signally fail. There cannot be any question of archaks becoming, hereditary trustees when the Raja continues as the hereditary trustee and even if the hereditary trustee left the management wits some archaks for sometime,they do not become hereditary trustees thereby. It was held by this Court in Akul Kumar Pati v. Parsuram Badhsi and Ors. Misc. App. There cannot be any question of archaks becoming, hereditary trustees when the Raja continues as the hereditary trustee and even if the hereditary trustee left the management wits some archaks for sometime,they do not become hereditary trustees thereby. It was held by this Court in Akul Kumar Pati v. Parsuram Badhsi and Ors. Misc. App. No. 351 of 1982, decided on 24-4-1987 as follows: A hereditary trusteeship is otherwise not assignable unless it is made within the same family. Neither can the office of the hereditary trustee be acquired by adverse possession since such concept would be foreign to the definition of the hereditary trustee. It is also at possible far the hereditary trustee to surrender his office in favour of somebody else outside the family who are intelligible to be the hereditary trustees because that again would be contrary to the provision of the definition. Hence the only way by which the office of the hereditary trustee would cease to be so either an outsider of the hereditary trustee from the management by some other people and the office is not reclaimed back or is a complete abandonment of the office such trustee and the management being taken up by some other people. In either case there must be a complete severance of connection with the office of the trusteeship either by one's own volition or through some other agency. The interruption in the management would only mean a complete break of the office since short of that, there would not be cessation of the office and consequently, if there has been no such cessation of office but only phases in which either other persons are associated with the management or while others are in management with the consent and acknowledgment of the hereditary trustee but a right of control is retained in him, then it would not constitute interruption in the office. Thus considered from either aspect i.e. his interruption in (succession or interruption in management, the result is the same that unless the office ceases and the eligible persons are displaced the claim is not vanquished.... Applying the aforesaid principles to the facts of the present case, it is to be held that even if the Respondents might have been put in charge of the management or associated with the management yet they do not by that became the hereditary trustees. Applying the aforesaid principles to the facts of the present case, it is to be held that even if the Respondents might have been put in charge of the management or associated with the management yet they do not by that became the hereditary trustees. Indeed the very alternative prayer of the Respondents is to declare the Raja as the hereditary trustee. Even otherwise complete abandonment of the trusteeship by the Raja of Dharakote would not ipso facto confer hereditary trusteeship upon the Respondents and since the Raja also has not come forward to contest the case or to claim hereditary trusteeship himself, no such declaration could also be made in his favour. 7. Both the forums below lost sight of the aforesaid principles in deciding the case and hence the judgments have become vitiated. 8. In the result, the appeal is allowed. The orders of the Additional Assistant Commissioner and of the Deputy Commissioner of Endowments are set aside and the application u/s 41 of the Act is dismissed, with costs through. Appeal allowed. Final Result : Allowed