JUDGMENT

A. S. NAIDU, J. — The judgment dated 29th June, 2004 passed by the Deputy Commissioner of Endowments, Orissa, Bhuba¬neswar in F.A. No.2 of 2002, in exercise of the powers conferred upon him under Section 44(I) of the Orissa Hindu Religious Endow¬ments Act, 1951 is assailed in this appeal.

2. The appellants as petitioners filed Original Applica¬tion No.16/97 under Section 41(1)(i) of the Orissa Hindu Religi¬ous Endowments Act before th Court of Addl. Asst. Commissioner of Endowments, Berhampur, inter alia, praying for a declaration that they were the hereditary trustees of the deity Sri Sri Sidheswar Mohadev bije at village Maradakote in the district of Ganjam. According to the petitioners, the said religious institution was founded by the then Raja Saheb of Khallikote more than 160 years back. He had endowed substantial landed properties for carrying out the Seba Puja, Nitikanti and Management of the deity. He engaged the ancestors of the petitioners for performance of the Seba Puja of the deity. Some lands were earmarked for the ances¬tors of the petitioners for performing the Seba Puja. According to the petitioners they acted as sebayats and except them no other persons had got any right, title, interest and possession over the land endowed by the founder. Since the date of founda¬tion of the religious endowment the ancestors of the petitioners, from generation together are performing the seba puja, janiyatra of the suit deity and they are also managing the suit institution hereditarily as per the prevalent customs. It was alleged that the opposite parties, who were villagers of the nearby villages were trying to constitute a Non-hereditary Trust Board under Section 27 of the Orissa Hindu Religious Endowments Act for the management of the suit institution and as the said action would be prejudicial to the rights and interest of the petitioners, they filed the Original Application for appropriate adjudication and declaration.

3. The opposite parties appeared and filed a counter taking a stand that the Commissioner of Endowments in exercise of the powers conferred under Section 7 of the Orissa Hindu Religi¬ous Endowments Act, 1951 have appointed them as members of an Interim Trust Board for smooth management of the institution. It was averred that the petitioners have no locus standi to remain in management of the institution and that in fact they were never in management. The Zamindar of Khallikote was the trustee in respect of the institution, which is a public religious Endow¬ment, and the institution was managed by the villagers. The opposite parties also strongly repudiated all the averments made in the Original Application.

4. The Asst. Commissioner in the light of the pleadings framed five issues. In order to substantiate their case the petitioners examined three witnesses and exhibited twenty documents and opposite parties examined three witnesses and exhibited several documents. The Asst. Commissioner after dis¬cussing the evidence both oral and documentary held that the institution is a public religious endowment and the petitioners from the time of their ancestors were managing the suit institu¬tion and its property. On the basis of such conclusions the Asst. Commissioner held the petitioners to be the hereditary trustee of the suit institution.

5. Being aggrieved by the said order, the opposite parties filed FA No.2 of 2002 before the Deputy Commissioner of Endowments, Orissa, Bhubaneswar. The lower appellate authority in paragraph-5 of the judgment observed that no proper notice satis¬fying all the ingredients of Order 1 Rule 8 of the Civil Proce¬dure Code was issued. It was also observed that though a petition under Order 1 Rule 8 of the Civil Procedure Code was filed by the petitioners before the Asst. Commissioner the same did not dis¬close the names of the persons chosen to represent the case on behalf the Hindu Public. It was also observed that the cause title of the amended plaint does not disclose