1. This is a first appeal by defendant 1, Sahdeo Das, against a decree of the District Judge of Azamgarh passed under Section 92, Civil P.C. directing the removal of the appellant from the office of manager of a temple at Bahadurpur within a mile of Dohrighat in Azamgarh District. The chief point which has been raised before us in appeal is whether this temple is a public temple or a private temple. In other words, whether it is a trust created for public purposes of a religious nature which would come within the wording of Section 92, Civil P.C. and whether the plaintiffs are persons having an interest in the trust. The plaintiffs have shown that they have obtained the permission of the Legal Remembrancer to bring the present suit. The descent of the gurus and chelas of this temple is contained in the following table which is admitted by both parties.
Janki Das Sheo Ram Das
Baldeo Das Hari Das
Shitla Saran Das Mathura Das
Sahdeo Das defendant 1 Raja Ram Sahu
2. The history of the building is also common ground. Sheo Ram Das built this Thakurdwara in Bahadurpur and installed the idols of Bam and Janki in it. Hari Das his disciple purchased some property in the name of the deity. The present defendant appellant has succeeded by virtue of his being chela of Mathura Das. We do not agree with the proposition of law laid down by the learned District Judge in the following terms:
All Hindu temples are presumed to be open to the public for worship and any one who alleges that a certain temple is private has to prove that fact.
3. We consider that a correct statement of the law is contained in : AIR1928Mad879 , Kelu Achan v. C.S. Siva Rama Pattar, which is that there is no presumption that any particular temple is public or private, and whether it is public or private depends on the facts proved in each case. Now having considered the evidence on both sides we find that there are the following facts proved in the present case.
4. (1) This temple has been held by processed ascetics in succession from gurus to chelas. (2) The zamindari which belonged to the temple was purchased by the gurus in the name of the deity. (3) There are subscriptions received from the public to maintain the temple. These subscriptions do not follow any very definite rule as to what amount they are but it is shown by the evidence of several witnesses for the plaintiffs that merchants who import grain by river or by train into Dohrighat pay a small proportion of half a seer or more per maund. The defence witnesses admit that it is open to any one visiting the temple to make an offering, (4) The public visiting the temple could perform darshan. A certain amount of confusion has been introduced into the paper book by the translator at one place using the word 'worship', as a translation of 'pooja' and at another place using the word 'worship' as the translation of 'darshan.' 'Pooja' is the ceremony performed by a pujari and 'darshan' is the worship which members of the public render when they attend a temple. It is also admitted, as stated already, that members of the public attending the temple may make offerings (charahwa). (5) The property came to the defendant by his being a chela of his Guru Mathura Das. It did not come to him by any deed of gift or will. The case therefore differs from those cases in which there was a definite deed creating a religious foundation of a private character. The mere fact that offerings were received in a case where there was a deed creating a private endowment would not in our opinion be sufficient to alter the private nature of the endowment. But in the present case there is no deed creating any private endowment. The evidence before us, in our opinion, shows that the endowment was a public endowment, and that this was a trust for the benefit of the public and therefore that Section 92 applies.
5. As to the right of the plaintiffs to bring the present suit they have established that they were in the habit of worshipping at this temple and of making offerings and of giving subscriptions. We consider that in virtue of these facts they are entitled to apply for the permission of the Legal Remembrancer which they have obtained and therefore they are entitled to maintain the suit under Section 92, Civil P.C. There was ample evidence before the lower Court of breaches of trust. At one period between 1909 and 1918 the defendant made transfers by mortgage deeds of the entire zamindari property of this temple. A suit was then brought against him with the permission of Legal Remembrancer, and he entered into a compromise on 8th December 1920 by which he was removed from the management. He then went on pilgrimage. Jamuna Das who had been appointed manager died about 1923 and the defendant again took possession of the temple. Since 1923 the defendant is proved to have sold various groves and executed leases for seven years to various tenants. The only landed property left to the defendant is certain occupancy holdings and the patwari produced on behalf of the defendant stated that the oacupancy holdings had been leased to sub-tenants for saven years on the terni3 that the sub-tenants paid Rs. 31 to the zamindar and Rs. 29 per annum to the defendant. The only income therefore from the endowed property is Rs. 29 per annum. It is obvious that the temple must depend on offerings for its maintenance. We consider that the defendant has clearly wasted the property. The order of the learned District Judge removing the defendant from the management is correct. Accordingly we dismiss this appeal with costs.