JUDGMENT : D.P. Mohapatra, J. - The core question that arises for consideration in this appeal is whether the Respondents 2 to 4 have successfully established that, they are hereditary trustees of the public religious institution of Sri Amrtiteswar Dev bije at Asarala-desh in the district of Puri. The Deputy Commissioner of Endowments having answered the' question in affirmative the appellate filed this appeal u/s 44(2) of the Orissa Hindu Religious Endowments Act (for short 'the Act.) challenging the said decision. 2. The Respondents 2 to 4. purporting to represent Respondent No. I, Sri Amruteswar Deb, filed O. A. No. 14 of 1978 before the Asst. Commissioner of Endowments, Bhubaneswar u/s 41 of the Act to declare them as the hereditary trustees of tbe institution and to further declare that they are entitled to all honours, emoluments and per-quisites available in the institution. The Hindu public were initially represented through the Appellant No. 1 Uchhab Mohapatra and Balaram Sahoo. Subsequently by amendment, the Appellants, thirteen in all, were impleaded as opposite parties in 'the proceeding. The case of the applicants shortly stated, is that the institution of Sri Amruteswar Dev bije at village Asarala-Desh with the attached endowment is a public religious institution as defined in Clause (xiii) of Section 3 of the Act and as the same is existing since time immemorial all details about, its foundation have been lost in antiquity. According to the applicants one of their ancestors was engaged to render personal services to the deity and in lieu of such service he was allowed to possess all the properties of the deity and to maintain his family from its income besides meting all expenses of the institution. It is the further case of the applicants that besides appropriating tbe daily 'Annabhog' and other Bhogs offered to the deity towards their remuneration, they are in enjoyment of all honours, perquisites and emoluments as are available in the institution from time to time. Such practice having been introduced right from the time of foundation of the institution and having been unceasingly and openly followed till the filing of the suit, it has ripened into a custom. Such practice having been introduced right from the time of foundation of the institution and having been unceasingly and openly followed till the filing of the suit, it has ripened into a custom. The applicants allege that the institution having been endowed with small extent of property, the ancestor of the applicants was also entrusted to manage tbe institution and to look after all the affairs of the suit institution besides rendering personal services to the deity and such right of managing all the affairs of the' suit institution including rendering personal services to the deity has been unceasingly enjoyed by the applicants family members successively from father to son right from the time of foundation till filing of the suit. It is the further case of the applicants that except paying 'Darsan' to the deity the general Hindu public including the residents of the locality, have never entered into management of the institution either with the marfatdars or excluding them; the general Hindu Public have also never exercised any control over the activities of the marfatdars in relation to the affairs of tbe suit institution, The ancestors of the applicants having remained in exclusive management of the suit institution, they have been recognised as marfatdars in all Government revenue records and have been recorded as such during successive settlement operations, The applicants specifically state in, paragraph 10 of the application that to help them in the smooth management of affairs of the institution the Endowment Department appointed two associated trustees, but the non-hereditary members of the said board or of the subsequent boards have neither entered into management nor in any way interfered with tile right of management by the applicants. The applicants contend that by such appointment their right of management has in no way been interrupted or interfered with, nor have they been dispossessed from its properties. The applicants further submitted that by remaining in the management of all the affairs of the institution including Seva puja to the deity right from the time of foundation till filing of the suit and there having been no interference at any material' times' they have acquired hereditary right of trusteeship besides the right of appropriating the 'Annabhog' and enjoying all honours, emoluments or perquisites available in the institution from time to time. It is the case of the applicants that notwithstanding the aforesaid position some persons of the village inimically disposed towards them, are now trying to get themselves appointed as non-hereditary trustees by completely excluding the applicants and thus the cause of action arose for the proceeding. 3. Opposite parties 1 to 13 (Appellants 1 to 13) in their written statement denied all the material allegations in the application filed u/s 41 of the Act. Apart from the pleas based on technical grounds, like the proceeding being not maintainable, want of cause of action for initiating proceeding. Proceeding being barred by limitation etc., the case of the said opposite parties is that the suit institution is a public temple managed by the non-hereditary trust board appointed by the Asst. Endowment, Commissioner u/s 27 of the Act. In the long past the villagers founded the statue of Lord Shiva and different persons endowed about 30 acres of land for Seva Puja of the deity. Since then the villagers have been appointing temporary paid servants for daily Seva Puja from time to time. The properties were always in possession of the villagers. The opposite parties alleged that 'Ranas' and 'Mohapatras' appointed as Sevakas had no connection with the family members of the applicants. The religious minded members of the Hindu public endowed about 30 acres of land and from out of the usufructs of the said land the villagers have been managing all the affairs of the deity. The applicant No. 2 was one of the Sevakas appointed by villagers having no hereditary right. It is the specific case of the opposite parties that since 1953 the institution is being managed by the Board of trustees appointed by the Endowment Department. Prior to it the village committee was managing the affairs of the deity. As one of the applicants was appointed as managing trustee, the Department was demanding statutory returns from him according to law. As the previous managing trustee, applicant No. 2, mismanaged and misappropriated properties of the deity, sold lands of the deity and settled some lands in the name of his sons in O. L. R. cases, the villagers raised objection and initiated a proceeding u/s 28 of the Act. In the said proceeding the applicant No. 2 was suspended from the non-hereditary trust board and one Purusotam Gumansingh was appointed. In the said proceeding the applicant No. 2 was suspended from the non-hereditary trust board and one Purusotam Gumansingh was appointed. He contested the O. L. R. Case and recovered possession of the lands of the deity tram the sons of applicant No. 2. Since then the applicant No, 2 has started several litigations against villagers including Purusotam Gumansingh. This proceeding u/s 41 of the Act, is one such litigation. According to the opposite parties the applicant No. 2 and opposite party No. 1 and one Satrughana Mohapatra were appointed as Sevakas as applicant No. 2 neglected the Seva Puja be was removed from service by Purusotam Gumansingh and other Sevakas have been performing the Seva Puja of the deity since then. Neither the applicants Nos. 2 to 4 nor any body else has any right "of management of the institution and the villagers have been in charge of management of the endowment all along. On these allegations the opposite parties prayed that the institution be declared as a public religious endowment having no hereditary trustee. 4. 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 applicants failed to establish their right as hereditary trustees of the institution and accordingly dismissed the petition u/s 41 of the Act. On appeal by the applicants the Deputy Commissioner of Endowments reversed the order of the Asst. Commissioner and allowed the petition filed by the applicants. Therefore, the opposite parties have filed this appeal u/s 44(2) of the Act.. 5. For the sake of convenience I propose to set out some relevant provisions of the statute at the outset. As defined in Section 3(vi) of the Act "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 Section 3(viii) non-hereditary trustee is defined to mean a trustee who is not a hereditary trustee. Under Section 3(xvi) of the Act "trustee" means a person by whatever designation known, in whom the administration of a religious institution and endowment are vested, act includes any person or body who or which is liable as, if such person or body were a trustee. Under Section 3(xvi) of the Act "trustee" means a person by whatever designation known, in whom the administration of a religious institution and endowment are vested, act includes any person or body who or which is liable as, if such person or body were a trustee. Section 27 of the Act which deals with non-hereditary trustees their number and appointment provides, inter alia, that (1) the Asst. Commissioner shall, in cases where there is no hereditary trustee, appoint non-hereditary trustee in respect of each religious institution other than Matha and specific endowments attached thereto and in making such appointments, the Asst. Commissioner shall have due regard to the Claims of persons belonging to the religious denomination for whose benefit the said institution is chiefly maintained: (2) A non-hereditary trustee shall, unless he sooner removed or dismissed or otherwise ceases to be a trustee, hold office for a period of two years from the date of his appointment: provided that the Asst. Commissioner may, for, sufficient reasons to be recorded by him, from time to time extend the aforesaid term of office of trustee, so, however, that the total extension so granted shall in no case exceed six months in the aggregate. Section 28 which deals with power to suspend, remove or dismiss trustees provides that the Commissioner in the Case of a hereditary trustee, and the Asst. Commissioner in the case of non-hereditary trustee, may remove or dismiss the trustee of a religious institution referred to in Section 27 of the Act on the ground stated and in the manner prescribed in the said section. Under Section 28(4) of the Act a trustee, who is suspended, removed or dismissed by an Assistant Commissioner under Sub-section (1), may within one month from the date of receipt of the order of suspension, removal or dismissal, appeal to the Commissioner against such order in the prescribed manner and the Commissioner shall pass such orders on the appeal as he may think fit and similarly It is provided under Sub-section (5) of Section 28 that any hereditary trustee aggrieved by an order passed by the Commissioner under Sub-section (1) may within thirty days from the date of receipt of the order appeal to the High Court against the order. 6. 6. Before proceeding to assess the evidence on record it will be convenient to notice a few decisions of this Court, wherein the scope and ingredients of Section 3(vi) of the Act was considered. In the case of Biswanath Das v. Jagannath Mishra and Anr. 31 (1965) C.L.T. 189, it was observed that the definition of the expression 'hereditary trustee' in Section 3(vi) is very restricted and does not admit of acquisition of any such right by prescription. 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. In the case of Krushna Mohan Panda and Ors. v. Radhashyam Panda and Ors. 1971 (2) C.W.R. 379, R.N. Mishra, J. (as he then was), considering the claim of hereditary trusteeship u/s 3(vi) of the Act observed that in order to succeed in the claim the claimant has to satisfy any of the three requirements of the definition of the term u/s 3(vi) of the Act. The Court relying on the Robkari and the evidence of P.W. 1 found that by trusteeship of the deity it remained in the family for over 100 years, uninterruptedly and therefore the applicant had established the claim of hereditary trusteeship of the institution by satisfying the first aspect of the definition of the term in the Act. Taking a similar view, S.C. Ray, J. (as he then was) in the case of Adikanda Panda and Ors. v. Gobinda Chandra Pradhan and Anr. 1973 (1) C.W.R. 438 observed as follows: ... The case of the Appellants is confined to the first part of the definition of the 'hereditary trustee'. Since the Endowment Department took Over management of the institution since the year 1939, thereby divesting the Appellants of their right of trusteeship, if any, and kept them out of their such right, without any protest from them for over 27 years, till the application u/s 41 was filed, the burden is heavy on them to establish their claim to the hereditary trusteeship. They must prove that Mukunda Panda is the founder of the religious institution and installed the deity, that he was in exclusive management of the institution and that the succession to the office of trusteeship has devolved by hereditary right without a break, since his time till the date of dispute which gave the cause of section for a petition u/s 41 of the Orissa Hindu Religious Endowments Act..... The Court referred with approval passage in the case of Commissioner of Hindu Religious Endowment, Orissa v. Dadhibaban Deb. 27 (1961) C.L.T. 437 " In the new Act the position has been made absolutely clear that unless revolution 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'. In the case of Radhamohan Thakur Vs. Pruna Chandra Kanungo and Others reported in P.C. Misra, J. considering the same question observed that in order to be the hereditary trustee of the institution within the meaning of the definition given in the Act the Appellant must prove that the office of the trusteeship has devolved upon him by the hereditary right since time of the founder. 7. Next it is to be seen whether by the standards laid down in the aforementioned cases the applicants have been able to establish that the suit under religious endowment is one having hereditary trustee and they are its hereditary trustees. There is no controversy that the onus to establish this is on the applicants. Of the witnesses examined for the applicants. P.W.4 Giridhari Mohapatra, (applicant No. 2), P.W. 1 Ramchandra Sundarai P.W. 2 Ganeswar Kar. P.W. 3 Natha Nayak are residents of different villages other than Asarala-desh where the religious institution is situated. I have carefully perused their evidence. In cross-examination P.W. 1 has stated that there is a Mahadev temple in his village; Giridhari is also Pujari of tbe said Mahadev temple and tbe temple is managed by Giridhari and another P.W..2 has stated in the cross-examination that he can Dot state full particulars of the ancestors of Giridhari Mohapatra and his brothers or their family genealogy. He could not say the Dames of the family members of Giridhari Mohapatra. He frankly admitted that he could not say the father's name of Giridhari Mohapatra or any of his family members. He could not say the Dames of the family members of Giridhari Mohapatra. He frankly admitted that he could not say the father's name of Giridhari Mohapatra or any of his family members. He had not seen any land of the suit deity. P.W. 3 in his examination-in-chief stated that he could not say who was looking after the management of the affairs of the deity prior to the Petitioners. In cross-examination he stated that he had never entered inside the suit temple at any time. P.W. 5 in his examination- in-chief stated that he has been Seeing Giridhari managing affairs of tbe deity. He came to know that the deceased brothers of Giridhari were,also in the management and he beard from his father that the ancestors of Giridhari were also in the management. In cross-examination he stated that he could not say how many brothers father of Giridhari Mohapatra had. Giridhari Mohapatra bad alone performed Seva Puja of the deity. P.W. 4 Giridhari Mohapatra has of course asserted that he and other Petitioners and one Uchhab Mohapatra are the hereditary marfatdars of the deity. Prior to them his father Madan Mohapatra and before him Mukunda Mohapatra and prior to him Pattani preceded by Gadadhar Mohapatra managed the institution as hereditary trustees from tbe time of installation of the deity. He also stated that their ancestors have founded the deity. In examination-in-chief he stated that at the instance of the Inspector of Endowments he acted as trustee along with Uchhab Mohapatra and an outsider Lokanath Hota in the year 1970, and in the next board another outsider Balarani Sahu was inducted with them. He also stated that he and his brother were also doing Seva Puja of the deity. In cross-examination P.W. 4 stated that he could not say who appointed his ancestors as trustees and marfatdars of the institution. He did not have any document to show that his ancestors were allowed to possess the property of the deity. He filed a Civil Suit (0.S. No. 10 of 1978) in the Court of the Munsif Khurda wherein he claimed as a Sebaka of this deity, He did not know if his sons filed O.L.R. cases bearing Nos. 85/78, 86/78. and 88/78 making him a party and got the lands recorded u/s 4(5) of the Act. He filed a Civil Suit (0.S. No. 10 of 1978) in the Court of the Munsif Khurda wherein he claimed as a Sebaka of this deity, He did not know if his sons filed O.L.R. cases bearing Nos. 85/78, 86/78. and 88/78 making him a party and got the lands recorded u/s 4(5) of the Act. O. P.W. 1, Purnachandra Panda, O.P.W. 2 Banchhanidhi Nanda, O.P.W. 3 Sarang Barik, O.P.W. 4. Satrughana Mohapatra. O.P.W. 5 Bhramarbar Tripatny and O.P.W. 6 Lokanath Hota are all residents of village Asarala where the suit institution is situated. They have categorically denied that the applicants or their predecessors have ever been trustees of the institution; according to the witnesses the applicants and their predecessors were only small Sebakas of the deity. It further appears from their evidence that since 1952 the Trust Board is looking after the management of the institution. The Sebakas as well as some villagers were included in the Board. The witnesses further stated that the villagers established the institution, donated properties for its maintenance and appointed Sebaka from time to time and that Giridhari Mohapatra was performing Seva Puja of the deity for sometime before he was removed in the proceeding u/s 28 of the Act. Incross-examination of these witnesses nothing material has been Elicited to question their credibility. 8. On perusal of their evidence it is clear that they have no personal knowledge about management of the property of the suit institution.. Their statements in this point are mostly based on what they have beard from their ancestors or from others. Further, they have made some vague statements that they have been Madan Mohapatra, father of Giridhari Mohapatra, looking after the management of the deity or looking after affairs of the deity. The details of the alleged acts of management have not beens pelt out in the evidence. It is clear from the statement of these witnesses that the applicant Giridhari Mohapatra and his brother Uchhab Mohapatra performed the Seva Puja of the deity and they appropriated the Dakhina and the Chanda offered to the deity. From this it appears that there is a ring of truth in the case of the opposite parties that the fore-fathers of the Petitioners and for sometime the Petitioners were Sebakas of the deity in the suit institution. 9. From this it appears that there is a ring of truth in the case of the opposite parties that the fore-fathers of the Petitioners and for sometime the Petitioners were Sebakas of the deity in the suit institution. 9. Coming to the documents filed by the applicants on which the first appellate authority has placed great reliance, they are the settlement record of rights' of the year 1961 filed as Ext. 1 series, the Patta granted by British Government in favour of deity filed as Ext. 2 and the Record-of-rights of the year 1988 filed as Ext. 3. In these documents in respect of some of the properties of the institution Giridhari Mohapatra, his father Madan Mohapatra and his grand father Mukunda Mohapatra and other family members have been described as Marfatdars of the deity. Amruteswar Deb. These documents, if accepted, will only show that for some period the applicants' family have been recorded as Marfatdars.. But as discussed earlier the uncontroverted factual position is that management of the institution was placed in the non-hereditary Trust Board appointed by the authorities of the Endowment Department. Even assuming that for a certain period members of the family of the applicants were setting as marfatdars of the deity that by itself will not be sufficient to establish their case that they are hereditary trustees as provided in Section 3(vi) of the Act. The other criteria like succession to' office of the trustee being devolved by hereditary right since the time of the foundered being regulated by custom and such scheme being enforced till the date of filing of the application u/s 41 of the Act have not at all been established by any acceptable evidence led by the applicants. Therefore, the appellate authority, clearly erred in declaring the applicants as the hereditary trustee of the institution u/s 3(vi) of the Act. 10. As held in the decided cases discussed earlier the applicants in order to succeed in the case are to establish that the members of their family had been in charge of the management of the affairs of the deity as trustees and succession to their office devolved on, them by hereditary right since the time of the founder and the said scheme was in force till the filing of the application u/s 41 of the Act. The evidence led on behalf of the applicants falls very much short of the statutory requirement. Further, the factual position which IS not in controversy is that since 1952 the institution has been managed through the Board of nonhereditary trustee appointed by the Commissioner of Endowments. Some of the applicants were included in the Board of non-hereditary trustees along with other villagers. No step was taken by the applicants to question the competence of the authority to appoint non-hereditary trustees. The arrangement had continued for about 26 years by the date of filing of the application u/s 41 of the Act. The only explanation offered by the applicants is that, since one member of their family was always included in the board of trustee appointed by the authorities of the Endowment Department and the management was being carried on by such members they did not feel the necessity to challenge the constitution of the board. This explanation on the face of it, is not acceptable. The hereditary trustee has hereditary right to the office of the trustee of the endowment and the right cannot be taken away from him except in the manner prescribed in the statute. The power to appoint nonhereditary trustees u/s 27 of the Act is based on the assumption that there is no hereditary trustee in the institution in question. Therefore, if the applicants were really the hereditary trustees the Endowment Commissioner or any subordinate of his who was authorised to exercise power u/s 27 of the Act would have no competence to appoint any non-hereditary trustee for the institution. Therefore the facts that the authorities have appointed successive board of non-hereditary trustees for the institution, included some of the applicants in the said board and the position continued for long 26 years without any protest challenge from the applicants clearly show that the applicants themselves accepted the position that they were not hereditary trustees of the institution, but only its Sebakas. This position also emerges from the evidence adduced on behalf of the opposite parties and the copies of the orders appointing non-hereditary trustees as per Exts. A, Band C. As stated by O.P.W. 1. the Sebakas as well as some villagers were the members of the non-hereditary trustee Board and Giridhari Mohapatra was its managing trustee. This position also emerges from the evidence adduced on behalf of the opposite parties and the copies of the orders appointing non-hereditary trustees as per Exts. A, Band C. As stated by O.P.W. 1. the Sebakas as well as some villagers were the members of the non-hereditary trustee Board and Giridhari Mohapatra was its managing trustee. The evidence of this witness further reveals that Giridhari Mohapatra did not act properly, which resulted in his suspension in a proceeding u/s 28 of the Act. This was followed by a civil suit filed by Giridhari Mohapatra. O.S. No. 10 of 1979 in the court of the Munsif, Khurda, wberein be himself claimed to be a hereditary 'Mali Sebaka'. Subsequently he filed a petition to withdraw the suit. 11. In the result, the appeal is allowed, the order passed by the appellate authority, the Deputy Commissioner of Endowments in F. A. No. 21 of 1981 is set aside and the order passed by the Asst. Commissioner of Endowments in O. A. No. 14 of 1978 is confirmed. Parties will bear their respective costs of this proceeding. Appeal allowed. Final Result : Allowed