JUDGMENT L. MOHAPATRA, J. — This appeal is directed against judgment and order dated 18.8.1995 passed in F.A. No.9 of 1985 by the learned Deputy Commissioner of Endowments, Bhubaneswar reversing the judgment and order dated 26.2.1985 passed by the learned Additional Assistant Commissioner of Endowments, Cuttack Zone, Cuttack in O.A. No.27 of 1983 on an application filed under Section 41 of the Orissa Hindu Religious Endowments Act, 1951. 2. Respondent No.1 was the petitioner before the trial Court. The case of the respondents is that respondent No.2, Sri Swapneswar Mahadev is the private deity of respondent No.1 San¬karsan Das and it was installed by the ancestors of respondent No.1. It was also the case of the respondent No.1 that the deity was a public endowment and as such, the place of the deity was never visited by general public. The temple was constructed and the deity was installed by the ancestors of respondent No.1 with about Ac.8.00 of land including the Bijesthali. The ancestors of respondent No.1 are recorded as Marfatdars of the deity in the record of rights and they are managing the affairs of the deity as hereditary trustees. The further case of the respondent No.1 is that he has got no other land except the deity properties and he is in cultivating possession by exercising hereditary right. Accordingly, in the application filed under Section 41 of the Act the respondent No.1 prayed for a declaration that the respondent No.2 is his private deity and he is the hereditary trustee of the deity. 3. The appellant who was one of the opposite parties before the trial Court had filed a separate written statement. The case of the appellant is that one late Jagu Choudhury of village Berhampur was the founder of the deity and he had in¬stalled it out of his own funds. He had also excavated a tank commonly known a NUA POKHARI for Sevapuja of the deity and also had raised a Bagayat adjoining to the tank with different trees. Apart from the above, the said Jagu Choudhury donated 8 acres and 50 decimals of cultivable land for maintenance of the deity be¬sides the Bijesthali. According the appellant, late Jagu Choud¬hury had entrusted the cultivable lands, Bagayats, tanks and Bijesthali of the deity to the ancestors of respondent No.1 who were then managing the affairs of the deity. Apart from the above, the said Jagu Choudhury donated 8 acres and 50 decimals of cultivable land for maintenance of the deity be¬sides the Bijesthali. According the appellant, late Jagu Choud¬hury had entrusted the cultivable lands, Bagayats, tanks and Bijesthali of the deity to the ancestors of respondent No.1 who were then managing the affairs of the deity. Late Jagu Choudhury after death of his two sons, adopted one Bharat Choudhury and after Jagu Choudhury, Bharat Choudhury with the help of some vil¬lagers managed the affairs of the deity as well as the lands belonging to the deity. The specific case of the appellant is that respondent No.1 or his father never managed the affairs of the deity and they were never doing the Sevapuja. One Biswanath Acharya on behalf of the villagers is performing the Sevapuja of the deity without any interference from any quarter. The respondents 6 to 8 filed a separate written statement claiming that they are the descendants of late Jagu Choudhury who was the founder of the deity. They supported the case of the appellant. According to these respondents, the deity is a public deity and its properties are public religious Endowments. 4. On the pleadings of the parties, the trial Court framed eight issues. While answering Issue No.2 it was held that the deity Swapneswar Mahadev was installed within a temple and, therefore, comes within the meaning of the Act. In respect of Issue Nos.3 and 4 which are most important issues for the purpose of this case it was held that although the names of some of the ancestors of respondent No.1 have been recorded as Marfatdars of the deity in respect of its land, the respondent No.1 cannot claim any hereditary right by way of succession and as such he cannot be called as a Hereditary Trustee of the deity under any circumstances. In respect of Issue No.5 it was held that the respondent No.1 is not entitled to possess or enjoy the land of the deity as he failed to prove that his ancestors and after their demise he was rendering Sevepuja of the deity. With the above findings, the application filed under Section 41 of the Act ws rejected. Challenging the judgment passed by the learned Addi¬tional Assistant Commissioner of Endowments, the present respond¬ent Nos.1 and 2 preferred an appeal before the Deputy Commission¬er of Endowments, Bhubaneswar. With the above findings, the application filed under Section 41 of the Act ws rejected. Challenging the judgment passed by the learned Addi¬tional Assistant Commissioner of Endowments, the present respond¬ent Nos.1 and 2 preferred an appeal before the Deputy Commission¬er of Endowments, Bhubaneswar. The appellate Court on reconsider¬ation of the evidence reversed the findings of the learned Addi¬tional Assistant Commissioner and allowed the appeal. The afore¬said judgment of the lower appellate Court is under challenge before this Court. 5. Shri Ashok Mukherjee, the learned Senior Advocate appearing on behalf of the appellant challenged the finding of the lower appellate Court with reference to the evidence adduced on behalf of the respondents 1 and 2 as well as the evidence led on behalf of the appellant. Revering to some of the depositions of P.W.1 Sankarsan Dash, P.W.2 Gourahari Mishra and P.W.3 Suren¬dra Maharathi it was contended that the said Sankarsan Dash could not say as to who installed the deity and there was no record to show that the lands had been recorded in the name of his father. Referring to evidence it was also conceded that there is no whisper as to who was managing the properties of the deity during the minority of respondent No.1. In support of his contention that the deity is a public deity Shri Mukherjee referring to the evidence of P.W.1 submitted that this witness has categorically admitted that in Sivaratri public used to come to the temple. Again referring to the evidence of P.W.2 it was contented on behalf of the appellant that this witness has also failed to say as to who was managing the properties of the deity during the minority of respondent No.1. It was also contended that this witness has admitted that outsiders and many other villagers used to visit temple in Jagar Yatra as well as Chandan Purnima and have Arnachhatra during that period in the premises of the tem¬ple. Referring to the evidence of P.W.3 it was contended that this witness has not stated anything with regard to the person who was rendering Sevapuja of the deity from 1958 to 1970 and he has also admitted that the public used to come to the temple on the day of Jagar. Referring to the evidence of P.W.3 it was contended that this witness has not stated anything with regard to the person who was rendering Sevapuja of the deity from 1958 to 1970 and he has also admitted that the public used to come to the temple on the day of Jagar. Referring to their own witnesses O.P.W.1, O.P.W.2 and O.P.W.3 it was contended that these witnesses have specifically stated that the deity was a public deity and Jagu Choudhury had installed the deity and also donated 9 acres of land in the name of the deity. Shri Mukherjee has also referred to the evidence of witnesses examined on behalf of the other respondents and submitted that on consideration of the entire evidence, it would appear that the deity is a public deity found¬ed by Jagu Choudhury. 6. Shri S. Mishra-2, the learned counsel appearing for the respondents 1 and 2, on the other hand, referring to the evidence of very same witnesses contended that the evidence of these witnesses clearly give a picture that the deity is the private deity of the family of respondent No.1 and only on the day of Jagar the villagers used to visit the temple. 7. The sole question that requires determination is as to whether the respondent No.2, deity is the private deity of the family of respondent No.1 or is a public deity. In support of the respective cases of the parties, evidence has been led before the Court. P.W.1 in his deposition has stated that some of his ances¬tors had installed the deity and had also donated the lands for the deity. He has also stated that from the date of installation of the deity, his forefathers were doing Sevapuja and at present he is managing the properties of the deity. In cross-examination he has stated that he does not know who had installed the deity and there is no record to show status of the land of the deity prior to 1921. This witness has also stated that he cannot say as to whether late Jagu Choudhury had gifted the Bagayat and about 8 acres of land and the tank to the deity. At a later stage, he has again denied that suggestion. This witness has also stated that he cannot say as to whether late Jagu Choudhury had gifted the Bagayat and about 8 acres of land and the tank to the deity. At a later stage, he has again denied that suggestion. P.W.2 has stated that he has got right to have a free Darhsan of the deity and by taking permis¬sion of the Pujaka he used to go to the temple to have a Darshan of the deity.This witness has also stated that the family of the respondent No.1 was doing the Sevapuja of the deity since the date of its installation and the properties of the deity were also managed by the said family. This witness has also stated that at present respondent No.1 is managing the properties of the deity and he is also doing Sevapu¬ja of the deity. The question raised by Sri Mukherjee, the learned Senior Advocate appearing has been answered by this witness by stating that during minority of respondent No.1 his uncle Jogindar Panda was doing Sevapuja and after respondent No.1 became a major, he started doing Sevapuja. This witness has of course admitted that during Jagar Yatra the villagers also visit¬ed the temple and during Chandan Purnima the villagers used to contribute and have Arnachhatra outside the premises of the temple. More or less P.W.3 supported the case of respondent No.1. O.P.W.1 examined on behalf of the present appellant in his depo¬sition has stated that late Jagu Choudhury was the founder of the deity and he died also twelve years prior to the examination of the said witness. During his lifetime he had adopted one Bharat Choudhury as his son and Gopi Choudhury was the son of said Bharat Choudhury. He has stated in his evidence that late Jagu Choudhury is not only the founder of the deity but also donated 9 acres of land in the name of the deity and also gifted a tank. This witness has also stated that the deity is a public deity. In examination in-chief this witness has also admitted that the father and grandfather of respondent No.1 were looking after the management of the deity since 1921. In cross-examination this witness has also stated that neither he had seen Jagu Choudhury nor Bharat Choudhury. This witness has also stated that the deity is a public deity. In examination in-chief this witness has also admitted that the father and grandfather of respondent No.1 were looking after the management of the deity since 1921. In cross-examination this witness has also stated that neither he had seen Jagu Choudhury nor Bharat Choudhury. He has also stated that there is no record to show that Jagu Choudhury had gifted the lands in the name of the deity. He has also admitted that there is no record to show that the Bagayat had been gifted to the deity by Jagu Choudhury. It is also stated by this witness that the record in respect of the Bagayat, tank and lands indicates in the name of the public and have not been recorded in the name of the deity. This witness has also admitted that he was not paying contribution for the deity and statutory returns to the Endowment Department. O.P.W.2 examined on behalf of the appellant has stated that he is Pujak of the temple and has been doing Sevaupja for the last 32 years. It is also stated by him that prior to him his brother was doing the Sevapuja. According to him the Village Pooja Committee has appointed him for doing Sevapuja of the deity and there is no document to show that he was appointed as Pujaka. O.P.W. 3 exam¬ined on behalf of the appellant in cross-examination has also admitted that he has not seen any record to show that Jagu Choud¬hury had installed the deity or donated the lands, Bagayat and tank to the deity. 8. Having gone through the deposition of the relevant witnesses it appears that the witness No.1 examined on behalf of the appellant in his cross-examination has admitted that the family members of respondent No.1 are doing Sevapuja of the deity. The witness No.2 examined on behalf of the appellant makes a contradictory statement and says that he has been appointed as Pujaka by the Village Pooja Committee to perform Sevapuja and there is no document to show that he was appointed as such by the Village Puja Committee. The witnesses examined on behalf of the appellant have clearly admitted that there is no record to show that either the deity was installed by Jagu Choudhury or that he had donated the lands, Bagayat and tank in favour of the deity. The witnesses examined on behalf of the appellant have clearly admitted that there is no record to show that either the deity was installed by Jagu Choudhury or that he had donated the lands, Bagayat and tank in favour of the deity. On the other hand, the evidence of O.P.W.1 clearly indicates that the Bagayat, tank and the lands have been recorded in the name of the public and not in the name of the deity. Therefore, the only evidence on which the appellant relied upon are the statements of P.Ws.1, 2 and 3 that only during Jagara the villagers used to visit the temple. In this connection, reliance was placed by Sri Mukherjee, the learned Senior Advocate appearing for the appel¬lant on Tagore Law Lectures compiled by Sri B. K. Mukherjee on the Hindu Law of Religious and Charitable Trusts (Fourth Edition). Much reliance was placed in paragraph 4.37A, which is quoted below:- “4.37A. User by the public.- User by the public is a factor of importance. The fact that by long usage and acceptance the public were visiting a temple and performing poojas therein and participating in the processions and daily poojas by itself raises strong presumption against the private character of the temple; and the existence of moolasthanam, mahamadapam, prakaram, idols of the chief and other deities, uthsavamoorthis, daily poojas, special poojas, processions during the navrathri festival, and worship by the local public belonging to different communi¬ties-are all factors which positively give the impression that the temple is a public one. In the absence of such evidence, it has been held that the “Sai Mandir” situated in Mylapore (Madras) is not a place of public worship for the members of the Hindu community, and hence is not a ‘temple’ as defined in Section 6(2) of the Madras Act 22 of 1959.” As is evident from the paragraph quoted above, that user by the public is a factor of importance. The fact that by long usage and acceptance the public were visiting a temple and performing poojas therein and participating in the processions and daily poojas by itself raises strong presumption against the private character of the temple. So far as the present case is con¬cerned, there is clear evidence to show that only during Jagara Yatra the villagers used to visit the temple. So far as the present case is con¬cerned, there is clear evidence to show that only during Jagara Yatra the villagers used to visit the temple. There is no evi¬dence on record to show that the villagers used to visit the temple daily to offer pooja or that they were participating in all the functions of the deity. 9. I am, therefore, of the view that the requirements of the public temple have not been proved in this case by the appel¬lant. On the other hand, Sri Mishra, the learned counsel appearing for the respondents 1 and 2 relied on the decision of this Court in the case of Shri Akul Kumar Pati v. Sri Parsuram Badheei and others reported in (1987) C.L.T. (Supplementary)414. This decision lays down that the only way by which the office of the hereditary trustee would cease to be so is either by ouster of the hereditary trustee from the management by some other people and the office is not reclaimed back, or on complete aban¬donment of the office by such trustee and the management being taken up by some other people and the office is not reclaimed back. 10. On consideration of the evidence adduced before the trial Court, I find that there is no evidence to show that the hereditary trustees were ever ousted by public or that the management was taken over by the public. On the other hand, the evidence of O.P.W.1 clearly indicates that the family of respondent No.1 were managing the properties of the deity and were doing the Sevapuja. Shri Mukherjee, the learned Senior Advocate appearing for the appellant had also put much stress on the question as to who was managing the properties of the deity from 1958 to 1970. As stated earlier P.W.2 in his deposition has stated that during minority of respondent No.1, his uncle was doing Sevapuja and nothing in the cross-examination has been brought out to disbelieve this part of the evidence of the said witness. 11. In view of the discussions made above, I do not find any merit in the appeal and the same is accordingly dismissed. Appeal dismissed.