1. [After setting out the facts the judgment proceeded:] At the hearing of the suit Mr. Vakeel on behalf of defendant No. 1 raised a preliminary issue, viz., whether the suit as framed was maintainable. He has contended that the present suit would fall under Section 92 of the Code of Civil Procedure and as the plaintiffs have not filed it with the consent of the Advocate General it cannot be maintainad. Prayer (g) of the prayers of the plaint is that defendant .No. 1 may be ordered to render a complete account of the income and offerings of the said temple and the rents and profits of the said shop. That relief along with the relief claimed under prayer (b) of the prayers to the plaint, namely, that it may be declared that the rents and profits of the shop opposite the said temple are dedicated for the use and benefit of the said temple, are abandoned by the plaintiffs. It is unnecessary therefore to consider the force of defendant No. 1's objection relating to the maintainability of the suit so far as these two prayers are concerned.
2. Mr. Vakeel has contended that the remaining prayers of the plaint would fall under Clause (1) (h) of Section 92, namely, granting such further or other relief as the nature of the case may require. In Abdur Rahim v. Abu Mahomed (1927) 30 Bom. L.R. 774 their Lordships of the Privy Council have held that the words 'further or other relief,' contained in Clause (1) (h) of Section 9 2, must, on general principles of construction, be taken to moan relief of the same nature as clauses (a) to (g). In the same case their Lordships have held that a prayer for a declaration that the property in suit is wakf (public charitable) property and not the personal property of the defendants, is a prayer for relief not covered by Section 92. Our Courts are bound by this ruling. In Thackersey Dewraj v. Hurbhum Nursey I.L.R. (1883) 8 Bom. 432 Scott J. hold that any person interested in the proper observance of a religious endowment may sue in his own name to have the trust property administered and that Section 539 (now Section 92) did not prohibit a private suit or make the sanction of the Advocate General a condition precedent.
3. In Muhammad Abdullah Khan v. Kallu I.L.R. (1899) 21 All. 187 a Divisional Bench, of the Allahabad High Court held that a suit for a declaration that a certain piece of land was a grave-yard dedicated to the use of such persons as had no grave-yard of their own was not a suit which fell within the purview of Section 539 (now Section 92) of the Code of Civil Procedure. Similarly, in the later case of Jamal-uddin v. Mujtaba, Husain I.L.R. (1903) 25 All. 631, the same Court held that Section 589 (now Section 92) of the Civil Procedure Coda of 1882, presupposes the existence of a trust for the administration of which it is necessary to make provision; and that section cannot apply to a suit in which the object of the plaintiff is to obtain a declaration that certain property is endowed property, the fact of endowment being denied on the other side.
4. The plaintiffs as members of the Hindu public would be entitled to access to the temple for the purpose of worship if the temple is a public charitable trust. Whether they are entitled to remain at the temple as Pujaris would then be a matter between them and the Advocate General in whom the temple would be vested on behalf of the Crown. Defendant No. 1 would not then be entitled to dismiss them from their office of Pujari unless he claimed to be a Shebait or trustee. The plaintiffs in their personal capacity are entitled to maintain this suit as defendant No. 1 has denied the alleged endowment and claims the temple as his private property. It is a material issue in this case whether the temple in suit is a public endowment. The plaintiffs affirm and defendant No. 1 denies it. Until it is established or conceded that the -temple is a public endowment there is no scope in my judgment for Section 92 to come into operation. The position taken up by the Advocate General on this point that he submits himself to such order or decree as the Court may deem fit to pass in this suit and submits further that, in the event of it being declared that the temple and the shop mentioned in the plaint (the shop now goes out) are a public charity of a religious nature, proper trustees may be appointed, and, if necessary, a scheme may be framed for the administration and management of the charity.
5. I answer the preliminary issue in the affirmative.