Deoki Nandan, J.
1. This is a plaintiff's second appeal in a suit for a perpetual injunction prohibiting the defendants from interfering with the possession of the first plaintiff deity, through the second plaintiff its Sarvarkar, over the temple and land of plot No. 871 of the village concerned with trees, and the amount of offerings in any manner whatsoever. The temple is a public temple. The land and the property belonged to the deity. The dispute between the parties relates to the shebaiti rights. The second plaintiff claimed to have been the Sarvarakar for the last about thirty-five years having been appointed, as such, by the earlier Sarvarakar, Laxmipati. According to the plaintiffs it was an ancient temple. The Sarvarakar also worked as the Pujari and arranged for the Rag Bhog, Dhup Deep and Pujan Archa of the deity. The offerings belonged to him, and. according to the custom of the endowment, the Sarvarakar nominated his successor during his lifetime or by will. Further according to the plaintiff's the first defendant was very clever and rich, and since his return from Bombay and taking up residence in the village, he had acquired control over the second defendant and wanted to forcibly acquire control over the land and the property of the deity and threatened to interfere with the performance of his duties as Sarvarkar of the first plaintiff by the second plaintiff, hence the suit.
2. The two defendants filed a joint written statement. They pleaded that the plaintiffs had no cause of action against the answering defendant that the temple was very old and the ancestors of the answering defendants had been performing the Puja and managing its affairs since times immemorial, that the Pujari of the temple took the offerings and also the income of the property and that the temple never had a Sarvarkar. About the Pujari it was said that he was not appointed by any one, but a person of religious bent in the family became a Pujari and managed the temple. Laxmipati it was said, was never the Sarvarkar and never appointed the second plaintiff to be the Sarvarkar of the first plaintiff nor did he have any power to do so. On the other hand, it was said that Tarpati was the Pujari. After him, Laxmipati and Jainarainpati became pujaris and after them Girjapati was the Pujari and. during the absence of Girjapati, the second defendant worked as the Pujari and managed the temple. About the second plaintiff it was said that he was a very bad and infamous kind of man who had no concern with any Puja nor did he ever do any Puja in the temple nor was he ever the Pujari or Sarvarakar. About himself, the first defendant said that he never lived at Bombay for thirty years. The answering defendant again said that the second plaintiff was of bad and infamous character and because of that he lived separate from his father Jainarainpati who never allowed him, the second plaintiff to enter the temple. It was lastly said, that due to consolidation of holdings, there was litigation between the parties which had led to animosity, and, on account of that, the suit had dishonestly been filed to misappropriate the temple property.
3. From the father's name of the second plaintiff Heerapati, and of the first defendant Girjapati, it appears that both of them are the sons of Jainarainpati, the second plaintiff being the elder of the two.
4. The following were the issues on which the parties went to trial :--
1. Whether the plaintiff No. 2 is the 'Pujari' and Sarvarakar' of the temple in suit as alleged?
2. Whether the plaintiff No. 2 has noright to sue along with the plaintiffNo. 1?
3. Whether the court-fee paid is insufficient?
4. Whether the suit is not maintainable?
5. To what, relief if any, are the plaintiffs entitled?
5. The trial Court dismissed the suit on the finding that the second plaintiff is not the Pujari or Sarvarakar of the first plaintiff deity, and that he had accordingly no right to sue on behalf of the deity or to maintain the suit. The lower appellate Court confirmed these findings and maintained the dismissal of the suit.
6. The penultimate finding of the lower appellate Court may well be quoted in its own words:--
'What is borne out from the evidence is that the management of this temple was being carried out by the family members of plaintiff No. 2 and defendants. Laxmipati and Jai Narainpati are said to be the members of the same branch from which plaintiff No. 2 and defendants descend. It has been brought in evidence that plaintiff no. 2 were three brothers and defendant No. 1 is his real brother while his another brother died leaving behind defendant No. 2. The bone of contention now between these two persons is the offerings of the temple. They are fighting and quarrelling for the share of the religious offering made in the temple which is the most unpious act of the persons managing the affairs of the temple, in these circumstances the plaintiff No. 2 had not been able to establish even the custom by which the appointment or nomination could have been made. What rests to his credit is only that he was eldest in his family and he only have a privilege to act as Pujari and Sarvarakar of the temple. This fact is also ruled out by the circumstances of the case which has been fully enumerated by the learned Munsif in his judgment.'
7. It is clear from the above findings of the lower appellate Court that the second plaintiff alone was not entitled to be the Sarvarakar or Pujari of the deity. The first defendant was equally entitled to be the Sarvarakar and the Pujari of the deity. The third defendant was in the next degree, being the son of the deceased brother of the second plaintiff and the first defendant. Neither of the parties would in this situation restrain the others from performing the Sewa Puja and Rag Bhog of the deity or managing its property as its Shebaits cum pujaris' of course if the conduct of any of the Shebaits or the Pujaris was so improper as to warrant his removal or in case the management of the temple came to standstill, the general public who were the beneficiaries, could step in and take proper proceedings in an appropriate forum for removal of such person and/or for the framing of a scheme for the proper administration of the endowment. But, so far as the subject matter of the present suit is concerned, the dispute is confined to the members of a family about the sharing of the right to receive offerings made to the deity and the income from its property. Neither of the three namely, the second plaintiff or the two defendants could restrain each other from enjoying a share in the offerings. Since the second plaintiff on the one side and the two defendants on the other do not appear to be pulling on well the only means of enabling them to have their share in the offerings is partition which is effected in cases of this kind by fixing turns for the performance of Rag Bhog and Sewa Puia of the deity by the several co-sharers in the Shebaiti rights to enable them to enjoy the offerings and the income of the deity in proportion to their respective shares.
8. The suit for injunction, at the instance of one of the brothers against the others and a nephew all of whom are co-sharers in the Shebaiti and Puiari rights, was not maintainable at all and has rightly been dismissed by both the courts below.
9. I cannot, but observe in view of a paper No. 92-ka which purports to be signed by some 375 persons, and state that the second plaintiff is not a proper person to be the Pujari that so long as the worshippers of the plaintiff deity in this case, fail to have a proper scheme framed for the management of its affairs the property rights in the nature of Shebaitship of the deity have to be allowed to be enjoyed by the heirs entitled to them and when the heirs son too may not be able to pull on together the only remedy is partition and since partition in this case cannot be effected by metes and bounds, the only way of effecting it is by fixing turns. It is unfortunate that it is so, but that seems to be the law.
10. In the result, the appeal fails and is dismissed, but in the circumstance, I leave the parties to bear their own costs of this Court.