Judgment

RAGHUBAR DAYAL, J. : This appeal by special leave is against the judgment and decree of the Orissa High Court, confirming the judgment and decree of the Additional Subordinate Judge, Puri, dismissing the suit instituted by Mahant Gadadhar Ramanuj Das, represented after his death by Mahant Srinivas Ramanuj Das, for the setting aside of the decision of the Commissioner of Endowments, dated July 20, 1946, under S. 64 (1) of the Orissa Hindu Religious Endowments Act, 1939 (Act IV of 1939), hereinafter called the Act, and for a declaration that the Act did not apply to the properties described in Schedules Ka, Kha and Ga of the plaint.

2. The allegations in the plaint are as follows. The premises on which the residential quarters of the plaintiff existed was said to be popularly known as (i) Srinivas Kote; (ii) Rajagopal Math; (iii) Emar Math, according to the names of the different ancestors of the plaintiff, Srinivasachari, Rajagopalachari and Embarachari. It was alleged that these premises, though known as Emar Math was not a math as defined in the Act. The public had no free access to its premises and had no right of entry or worship of the deity installed therein. Embarachari and his ancestors were alleged to be grahasts. His successors to the Emar Math were celibates Srinivasachari was the grandfather of Embarachari. It is alleged that he acquired a portion of the present site of the plaintiff s residential quarters and built his residence there and installed therein his family deity Sri Raghunathji for his own spiritual benefit and the spiritual benefit of his family members and that Embarachari acquired a large plot of land adjacent to Srinivas Math as an absolute gift and constructed buildings thereon. The buildings therefore, became popularly known as Emar Math, although Embarachari was a married man and was living there with his wife and children with the private deity Sri Raghunathji.

3. The plaintiff alleged that the properties described in schedule Ka of the plaint were his personal properties, those in Schedule Ka-1 as acquired through absolute gifts to the plaintiff or his ancestors and those in Ka-2 as gifted to or purchased by the plaintiff or his predecessors and that they were wrongly recorded in the settlement papers in the name of the plaintiff as marfatdar of Lord Jagannath. The properties in Schedule Kha are alleged to be Amrit Manahi properties of Lord Jagannath held by the plaintiff as marfatdar and to have been acquired either by purchase or Karyadan or by way of gift subject to the charge of some offering to Lord Jagannath. The properties in Schedule Ga were alleged to be owned and possessed by the plaintiff as marfatdar of various private deities. It was alleged that none of the properties in these schedules was, however, dedicated to the public and that the public had no interest in or right to any of the properties. The properties, therefore, did not constitute public religious endowments within the meaning of the Act which, accordingly, could not apply to them.

4. The Commissioner of Hindu Religious Endowments Orissa, hereinafter called the Commissioner, demanded contribution under S. 49 of the Act and took steps to enforce certain other provisions of the Act against the plaintiff and the properties in Suit. This led the plaintiff to formally ask for a decision under S. 64 (1) of the Act. The Commissioner decided against him on July 20, 1946 and held that the Emar Math was a math as defined in the Act and that the properties constituted a religious endowment to which the Act applied. Thereafter the plaintiff instituted this suit and prayed for the setting aside of the decision of the Commissioner and for a declaration that the Act did not apply to the properties in suit.

5. The Commissioner, defendant No.2 contested the suit asserting that the properties in suit were public debottar properties and were public endowments to which the Act applied. It was further contended that the premise