T.S. Misra, J.
1. This is a defendants' appeal. In the suit which gave rise to this appeal the plaintiff alleged that the temple in which the deity of Bhuteshwar Mahadeoji Maharaj is installed is situate in old plot No. 47 which corresponds to the new plot No. 76. According to the plaintiff this temple was constructed by his ancestors. Thereafter a common ancestor Sri Man Nath be-came the sole owner of the temple and received the total offerings. He had three sons, Bal Nath, Gulab Nath and Nand Nath. The plaintiff claimed to be entitled to half share in the offerings made in the said temple. This suit was contested by the appellants, who denied the various allegations made by the plaintiff and disputed the right of the plaintiff to receive the offerings made in the said temple. It was alleged by the defendants that out of the old plot No. 47 of 1872 twelve plots were carved out in the year 1901 which included the plot No. 76. The temple of Bhuteshwar Mahadeoji Maharaj was constructed in plot No. 76 which according to the defendants corresponds to the plot No. 1649.
2. The trial Court decreed the suit. Against that decision the defendants preferred an appeal which was also dismissed. The defendants have now come to this Court in second appeal. By an order dated 23rd September 1972 this Court remitted three additional issues to the appellate Court below for fresh findings thereon. The appellate Court below has returned its findings on those issues. The defendants appellants have filed objections to those findings.
3. It was urged on behalf of the appellants that as the plaintiffs had failed to prove the case set up by them they were not entitled to the reliefs claimed in the suit. It was also urged that the plaintiffs could not prove their title to the property involved in the suit nor to the land on which the temple stands. This contention has, however, no force. It was admitted by the defendant Kailash Chandra that Bal Nath and the predecessors of the plaintiff were co-sharers in plot No. 76 and also in the temple situate in that plot. The courts below have recorded concurrent findings of fact to the effect that the plaintiff was the son of Sanjai Nath, that the temple in question was an old one in which the plaintiff was also a co-sharer to the extent of 5/12th and that it was not established that there were two temples in plot No. 47 of 1872 or 76 of 1901.
The court below found that the temple in question is an old one coming down from the time of Man Nath, ancestor of the plaintiff and was not built by Mohan Nath and Budh Nath, as alleged by the defendants first set. The appellants in para. 5 of their written statement admitted that the temple in dispute is in fact situate in plot No. 76 of the settlement of 1901 which corresponded to plot No. 1649. The settlement extract of the khasra of the settlement of 1901 indicates that the old plot No. 47 was sub-divided in 10 sub-plots and plot No. 76 was carved out of the old plot No. 47/4 'Minjumla'. The settlement Khasra further discloses that the temple was situate in this plot. There is thus no manner of doubt that the temple in question is situate on a land in which the plaintiffs have had right, title and interest.
4. It was next urged that the plaintiffs have no right to receive offerings. It was argued that the offerings were made to the deity and as such they became the property of the deity installed in the temple and as such they became the property of the said deity. In support of this proposition the learned counsel referred me to certain observations made on page 194 of a book captioned as 'The Hindu Law of Religious and Charitable Trusts' by B. K. Mukherjea, third edition. The relevant paragraph on which reliance has been placed reads as follows:
'Like the trustee in English law, a Shebait has to act gratuitously and he cannot charge the Debutter estate for any remuneration on account of the time and labour he spends over his affairs. The position would certainly be different if there is a provision in the deed of dedication to that effect, or in the absence of any deed of endowment there is a usage sanctioning such remuneration to the shebait. The law is well established that in the absence of any provision in the deed of dedication or any usage to that effect, a shebait has no right to take anyportion of the income of the Defaulter estate nor even the surplus that remains after meeting the expenses of the deity. In this income would be included not merely the rent and profits of the Debutter property but the offerings which are made to the deity by its devotees. As a matter of fact however, such provisions usually occur in the deed of dedication and where no document exists in almost every case he is given the right to a part of the usufruct, the mode of enjoyment and the amount of usufruct depending upon usage or custom. In fact, it is entirely consistent with Hindu ideas to give the Shebait some sort of personal interest in the endowment whatever its exact nature might be.'
5. In the present case there is no deed of dedication. We have, therefore, to see whether there is any usage or custom to take any portion of the offerings made to the deity and enjoy the same. The plaintiffs had pleaded that they had such a right. It was, however, not pleaded by the defendants in reply that the entire offerings were the properties of the deity and none has had a right to take any portion of the same. The defendants no doubt denied the right of the plaintiff to share in the offerings but at the same time they contended that ever since the construction of the temple Mohan Nath and Budh Nath and thereafter the defendants had been taking the offerings and the income of the temple and enjoying the same. Kailash Chandra (D. W. 1) also deposed to the same effect.
From the evidence of the defendants it is thus clear that the offerings made to the deity were not kept apart as the property of the deity but were enjoyed by the defendants. This position is disputed by the plaintiff. The courts below have found that the plaintiff has a right to share in the offerings made to the deity. Sanjai Nath deposed that his predecessors-in-interest had been receiving the offerings and that he had also a right to receive the same. As observed by Sri Mukherjea that where no document exists 'in almost every case he is given the right to a part of the usufruct, the mode of enjoyment and the amount of usufruct depending upon usage or custom.' The Courts below were, therefore, justified in holding that the plaintiffs had 5/12th share in the offerings made to the deity. This is entirely consistent with Hindu ideas and is certainly not repugnant to law.
6. It was next argued that the suit was barred by the provisions of Section 92 C. P. C. inasmuch as the temple in question was a public temple and the plaintiffs had, inter alia, sought the determination of the turn of worship. This contention too has no force. There is no presumption that a temple is a public or a private temple. The origin of the temple, the manner in which its affairs were managed, the nature and extent of the gifts received by it, rights exercised by devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple are factors that go to establish whether a temple was public or private. The de-dermination of the question whether the temple was public or private did not depend on some facts or set of facts alone.
The entire evidence, both documentary and oral, had to be considered as a whole. In the instant case origin of the temple had been proved. It also appears that the management had remained throughout in the members of the family of the contesting parties and they had appropriated to themselves the offerings made to the deity by the devotees. The temple in question could not, therefore, be held to be a public temple. Moreover, Section 92, Civil P. C. does not apply where there is no trust, express or constructive, for public purposes of a charitable or religious nature. To attract the provisions of Section 92, Civil P. C. it must be established that the beneficial interest is vested in an uncertain and fluctuating body of individuals and the trust is of a permanent character. One of the distinguishing features between a private trust and a public trust is that in the former the beneficiaries are specific individuals whereas in the latter they are the general public or a class thereof.
The primary object of Section 92, Civil P. C. is to stop misuse of the income of the charitable institution and provide for proceedings of a special nature. But for Section 92, Civil P. C to apply all the con-ditions enumerated in Sub-section (1) thereof must co-exist If any one of those conditions is missing the suit will not come within the mischief of that section. A private trust is outside the operation of Section 92, Civil P. C. In the present case the plaintiff has sought declaration and enforcement of his private rights. Such a suit is obviously not covered by the provisions of Section 92, Civil P. C.
7. The appellants have filed objections to the findings returned by the appellate Court below on the three additional issues. It was urged that as it was not possible for the court below to legally conclude that plot No. 76 is equivalent to plot No. 1649 the finding recorded by it that the temple in question lies in the municipal abadi No. 1649 is incorrect. This submission runs counter to the admission made by the defendants appellants in para. 5 of their written statement. They had clearly admitted that the temple in dispute stood on plot No. 76 of settlement year 1901 and on the plot No. 1649. The Courts below have found that the plaintiffs have share in the lands covered by the temple. I find no reason to interfere with the findings recorded by the court below.
8. No other point was urged.
9. In the result the appeal fails and is accordingly dismissed with costs.