In the case of a public endowment, it is the sebait alone who can represent the deity to bring such a suit for recovery of possession of the properties improperly alienated by a sebait.

MOHAPATRA, J.

( 1 ) THIS is a plaintiff's Second Appeal against the judgment and decree dated 4-348, of Sri B. K. Patra, Subordinate Judge of Puri in Title Appeal No. 10/47. Admittedly the deity (plaintiff 1) Artatran Alekhagadi Bramha is the owner of the property in dispute. Plaintiffs 2 to 19 are the villagers of the village in which the deity is situate. The suit is for a declaration that the sale deed dated 4-1-44, executed by defendant 3 in favour of defendants 1 and 2 is invalid as not being for justifying necessity of the deity. The plaintiffs have prayed for confirmation of plaintiff's possession in respect of the property in suit. The plaintiffs allege that the deity is a public one and that the villagers had founded the deity and are marfatdars. For performing Sebapuja of the deity they have brought defendant 3 from mouza Benupada. According to the plaintiffs, therefore, it is the villagers who are the marfatdars of the deity and defendant 3 is merely in the position of a servant. The present suit was brought on behalf of all the villagers represented by plaintiffs 2 to 19 under the provisions of Order 1, Rule 8, Civil P. C. , and the permission of the Court under the said rule was also obtained.

( 2 ) THE defence plea was that it was defendant 3 who founded the deity and he is the marfatdar; plaintiffs 2 to 19 have no right to represent the deity and the suit must fall as being not maintainable and the transaction dated 4-1-44 is for justifying necessity of the deity.

( 3 ) THE case had a chequered career and it will not be out of place to give a short history of the case. The learned Munsif who first tried the case held the deity to be a public one and that there was no legal necessity for executing the transaction in favour of defendants 1 and 2. The learned Munsif decreed the suit even though he did not come to a definite finding as to whether defendant 3 or the villagers were the marfatdars. His judgment was based on the position that plaintiffs 2 to 19, even though they are mere worshippers, can maintain the suit as defendant 3, by his own conduct, made himself unfit to bring the present suit. In appeal, it was found that it was only a marfatdar who could maintain a suit of this nature to set aside an alienation; the villagers cannot effectively represent the deity and as such, the suit is to fail if plaintiffs 2 to 19 are not marfatdars. In this view, therefore, he remanded the entire case for disposal in accordance with law and directed the Munsif to come to a clear finding as to whether plaintiffs 2 to 19 are the marfatdars of the deity. The learned Munsif, after remand, found that the villagers are the marfatdars and even went on to find as a position of law that any worshipper, interested in an endowment, is entitled to maintain a suit of this nature. The learned lower appellate Court in his judgment, which is under appeal before us, has found as a matter of fact that it is defendant 3 who is the marfatdar and plaintiffs 2 to 19 are not. On the position of law on a review of many eases he has come to the decision that the marfatdar alone can maintain the suit and, as such, he has dismissed the plaintiff's suit.

( 4 ) IT is to be mentioned here that the two findings remain unchallenged and final, that the deity is a public deity and that the transaction, was for no legal necessity. Mr. B. N. Das, appearing on behalf of the plaintiffs-appellants, has taken up two points: (i) that the learned lower appellate Court has gone wrong in coming to the finding that defendant 3 alone is the marfatdar; and (ii) that even the villagers as worshippers of the deity have got the right to represent the deity as defendant 3 has by his own conduct disqualified himself to bring the suit. The first point seems to be a question of fact which is concluded by the finding of the lower appellate Court. In the Current Settlement record of rights in respect of the properties standing in the name of the deity, defendant 3 has been