R. K. PATRA, J. ( 1 ) THIS appeal is directed against the judgment and order of the Deputy Commissioner of Endowments, Orissa, Bhubaneswar in F. A. No. 33 of 1988 affirming the judgment dated 30-11-1988 passed by the Additional Assistant Commissioner of Endowments, Cuttack Zone, Cuttack in O. A No. 18 of 1987 by which he has allowed the petition under Section 41 of the Orissa Hindu Religious Endowments Act, 1951 (hereinafter referred to as 'the Act') ( 2 ) A petition under Section 41 of the Act was filed on behalf of Kanteisuni Thakurani Bije Rampur Kaitha and respondent 1 to 4 praying for a declaration that the deity Sri Sri Kanteisuni Thakurani (hereinafter referred to as 'the deity') is a temple without any hereditary trustee and the disputed land is public religious endowment. Their case is that the deity was installed by the villagers of Rampur Kaitha about 300 years ago and since then the villagers have been worshipping the deity as their Gramadebati and its affairs are managed by the villagers. With the passage of time, the deity came to own about 7 acres of land (in short, the disputed land) and its usufructs are used for the daily seba puja of the deity. Prabodh Chandra Dhir Birabar Harichandan Mahapatra (who was arrayed as opposite party No. 3 and was appellant No. 2 in this appeal and after his death being represented by his legal representatives) was the zamindar of the locality and his name was formally recorded as marfatdar of the deity although he never took any part in the management of the affairs of the deity at any point of time. The villagers of Rampur Kaitha as well as people belonging to the neighbouring villagers take part in the Janijatra of the deity and have been offering bhog to the deity as of right since the time of its foundation. The deity is a public one. Original appellant No. 2 having no manner of right, title and interest over the institution or in respect of the disputed land illegally alienated the property of the deity including the Bijesthali in favour of the present appellants 3 to 28 by means of registered sale deed. On the aforesaid allegations, it was prayed for a declaration that the deity is a public religious institution (temple) without any hereditary trustee, was made. On the aforesaid allegations, it was prayed for a declaration that the deity is a public religious institution (temple) without any hereditary trustee, was made. ( 3 ) THE contesting appellants filed written statement denying the averments made in the petition under Section 41 of the Act. Their case is that the disputed land is the ancestral property of the original appellant No. 2. The deity was installed by his father about 50 years back and since then the same is being treated as his private family deity for all practical purposes. The villagers had no role at all at any time in the management of the deity nor have they any right of Darshan or offering puja. Father of original appellant No. 2 and after his death the original appellant No. 2 managed the affairs of the deity. During 1987 he transferred his marfatdari rights over the institution in favour of appellants 3 to 28. The deity is a private one and the disputed land is the private property of the deity. ( 4 ) ON the basis of evidence adduced in the case, the Assistant Commissioner of Endowments held that the institution in question is a public religious one had a 'temple' within the meaning of clause (xv) of Section 3 of the Act. He further held that neither the original appellant No. 2 nor any one is the hereditary trustee in respect of the institution and the institution is being managed by non-hereditary trustees. He also recorded a finding that the disputed land is public religious endowment and not the private property of anyone. Being felt aggrieved by the said decision, the appellants preferred appeal which came to be disposed of by the Deputy Commissioner of Endowments. The appellate authority after considering the evidence concurred with the findings of the Assistant Commissioner of Endowments and has dismissed the appeal. ( 5 ) COUNSEL for the appellants challenged the findings recorded by the authorities and contended that on the facts and in the circumstances of the case, the petition under Section 41 of the Act has no merit. It is the specific case of the appellants that the institution in question is a private one. ( 5 ) COUNSEL for the appellants challenged the findings recorded by the authorities and contended that on the facts and in the circumstances of the case, the petition under Section 41 of the Act has no merit. It is the specific case of the appellants that the institution in question is a private one. Proviso to Section 41 (1) (g) of the Act states that the burden of proof in all disputes or matters coming under clauses (a) and (b) shall lie on the person claiming the institution to be private. In view of the aforesaid provision, the burden lay on the appellants to establish that the institution in question is a private one. Prabodh Chandra Dhir Birabar Harichandan Mohapatra (original appellant No. 2) claimed the institution to be his private one. Strangely he did not choose to be examined in the case in support of his claim for the reasons best known to him. It is an undisputed fact that the seat of the deity is situated far away from his residential premises. Witnesses of both parties deposed that the deity was installed under a tree in an open place before construction of the house and the place is surrounded by thorny bushes and there is an approach road from the village to the Bijesthali of the deity. The witnesses examined on behalf of the contesting respondents stated that the deity is worshipped by public without any restriction. Nothing substantial was brought out in their cross-examination to discredit their sworn testimony. As a matter of fact in paragraph 10 of the written statement, the original appellant No. 2 candidly admitted that the villagers of Kaitha had been worshipping the deity as their Gramodebati. The appellants heavily relied upon the record as rights finally published in the year 1929 wherein one Purna Chandra Dhir was described as the marfatdar. It has been found by the appellate authority that the said H. C. A. itself describes the disputed land as Debottar Niskar. This description is a solid of circumstance to negative the theory of private ownership. It has been found by the appellate authority that the said H. C. A. itself describes the disputed land as Debottar Niskar. This description is a solid of circumstance to negative the theory of private ownership. In the sale deed executed by the original appellant No. 2 in favour of appellants 3 to 28 as well as in the Seba Samarpan patra executed in favour of the aforesaid persons, there is no mention that the disputed property is the absolute private property of the original appellant No. 2 instead he claimed that he was a mere marfatdar in respect of the disputed property. On overall consideration of the evidence and the circumstances of the case, the institution has rightly been held to be a public religious one and a 'temple' within the meaning of Section 3 (xv) of the Act. ( 6 ) THE original appellant No. 2 has also failed to establish that he was the hereditary trustee in respect of the deity. He claimed that succession in respect of the institution devolved on him by hereditary right since the time of the founder. O. P. No. 3 who looks after the estate of the original appellant No. 2 stated that at present the deity is not managed by him. Even C. P. W. has stated that the original appellant No. 2 no more continued to be the marfatdar of the deity. From the evidence of those two witnesses, it is clear that the original appellant No. 2 was not managing the affairs of the deity. In his written statement, the original appellant No. 2 admitted that he ceased to be the trustee of the deity being divested of the management since 3-11-1987 by executing a Seba Samarpan patra in favour of appellants 3 to 28. He has also stated in paragraph 7 of his written statement that due to his pre-occupation he could not look after the affairs of the deity properly for about one year and the appellants 3 to 28 used to help him in the management of the deity. He has also stated in paragraph 7 of his written statement that due to his pre-occupation he could not look after the affairs of the deity properly for about one year and the appellants 3 to 28 used to help him in the management of the deity. This admission on the part of the original appellant No. 2 goes to establish that prior to the execution of the sale deed as well as the Seba Samarpan patra, appellants 3 to 28 had been associated with the management of the deity and the right, if any, of the original appellant No. 2 in respect of the deity has got interrupted. In the circumstances stated above, the authorities have rightly held that the institution in question is a 'temple' without any hereditary trustee. After giving my anxious consideration to the submissions made by the counsel for the parties and after perusing the impugned judgments and the evidence in record, I am of the considered opinion that the petition filed under Section 41 of the Act was rightly allowed. ( 7 ) IN the result, I do not find any merit in this appeal which is accordingly dismissed. Appeal dismissed. .