1. The plaint, in the suit put of which this appeal arises sets forth that in Kasba. Khatauli, District Muzaffarnagar,' there are two parties of Jains of the Digambari sect, namely, Vaishya Agarwal 'Bisas (to which the defendants belong) arid Vaishya Agarwal Dasas (to which the plaintiff belongs); that there are five Jain temples, and that all Jains of the Digambari sept; have an equal right to worship in them. In paragraph 2 of the plaint, it is alleged that one of these temples is situated in Mohalla Kanungoyan, which was constructed by the plaintiff's ancestors while the rest of, the temples were constructed from the joint subscriptions of the whole brotherhood. In paragraph 3, the plaintiff alleges' that he was the manager of the temple in Mohalla Kanungoyan, Khas, while the defendant No. 1 was the treasurer. In paragraph 4, it is alleged that a' disagreement took place in Kasha Sardhana, and that thereupon the defendants, the Bisas, sought to bring pressure upon the Dasas of Khatauli that they should cease to have anything to do with the Dasas of Sardhana, and that because the Dasas of Khatauli would not follow the injunctions of the Bisas, the latter excluded them from, worship in the Jain temples in Khatauli. The plaint then goes on to refer to certain criminal proceedings which resulted in a kind of compromise that the plaintiff should institute the present suit for a declaration of his rights in the Civil Court. The plaintiff then asked for a declaration that he was entitled to manage the temple in Mohalla Kanungoyan and worship there.
2. By an amendment of the plaint, the plaintiff extended his claim to a right to worship in all the Jain Temples in Kasba Khatauli. The amendment is not without some significance because it is quite clear, after considering the evidence and circumstances of the case, that the plaintiff has either a right to worship in all the temples or in none.
3. It clearly appears that, the dispute is really a dispute between the Bisas on one side and the Dasas on the other. What the plaintiff really claims on behalf of himself and the other Daias is a right to worship in complete equality with the Bisas and the claim to the management of the temple in Mohalla Kanungoyan Khas is really of no importance. It was probably introduced to a large extent with a view to meeting an objection on the part of the defendants, that the question was purely religious matter and, therefore, not cognizable by the Civil Court.
4. It will be convenient here to state a few matters connected with the Jain religion and the distinction between Bisas and Dasas. The critically speaking, it would seem that there is no reason why a Brahman, Rajput, a Vaishya, or a Sudra, should not follow the Jain religion. As a mattar of fact, however, practically speaking, all Jains belong to the different classes of Banias. In Northern India 4 and. certainly in Kasha Khatauli and Sardhana, all the Jains are Agarwal Vaishyas. Both the plaintiff and the defendants belong to this caste. The distinction between the Bisas and the DaSas is not a distinction which exists by reason of the fact that the parties are Jains., It is a distinction between^ them as Agarwals.
5. Some attempt was made on behalf of the plaintiff to show that the Dasas were in no way inferior to the Bisas, in fact one witness went so far as to say that the Dasas were the superior. There is, however, not the least doubt that the Dasas are looked upon as an inferior sub-caste. Jogendra Nath Bhattacharya in his work on Hindu Castes and Sects, at page 206, states:
The illegitimate offspring of the Agarwals are not altogether without a caste status, They are called Dasas; while those of legitimate birch are called Bisas'. See also Crooke's Tribes and Castes, North-Western Provinces and Oudh, Volume, I, page 17, Sherring's Hindu Tribes and Castes, Volume I, page 287, and Gazetteer, North-Western Provinces, Volume III, Meerut Division, part II of 1876, page 264.
6. The number of the Dasas as compared with the Bisas is quite insignificant as a general rule; but it happens that in Khatauli the Dasas are much stronger than elsewhere and they happen to be particularly strong in Mohalla Kanungoyan.
7. Another matter about which it is important to say a few words is as to the origin of the present dispute. As already mentioned, the plaintiff alleged that the action of the defendants in excluding them from, worship was due to the fact that the Dasas refused to obey the orders of the Bisas to boycott the Dasas of Sardhana. A petition was filed in which a Dasa of Sardhana was raising an objection, to the building of a school house as and adjunct to the Jain temple in Sardhana and. it is suggested that this was the origin of the dispute. There can be no doubt that the dispute, whatever it was, commenced in Sardhana, but it is equally certain that the original dispute was not the obstruction by a Dasa of Sardhana to the building of the school house. If the Dasas and Bisas were on complete equality in matters of religion, obstruction to the building would have been equally resented by all the members of the community, whether they were Bisas or Dasas. After considering the evidence, we have not the least hesitation in saying that the dispute which started in Sardhana was the very same dispute which afterwards, extended to Khatauli, namely a claim on the part of the Dasas to equal right of worship with the Bisas.
8. It now becomes necessary to say a few words as to the nature of the claim of the parties on both sides. The Bisas do not seek to exclude the Dasas from all forms of devotion in the temples. The Bisas Recognise the Dasas as an inferior class of their own caste. They admit that they have a right to enter the temple, fold their hands before the Gods and hear the shastras recited. They also admit their right to make gifts but they say that they have no right to do puja and parikshal, that is to say, to enter the holy of holies and recite the shastras or to handle or wash the Gods. Whether the Dasas have this right of puja and parikshal, is the real question involved in the present case.
9. The learned Subordinate Judge, after reviewing the evidence, came to the conclusion that the plaintiff had not the right he claimed and dismissed the suit in so far as it claimed such a right. He went on, however, to find that the plaintiff was the manager of the temple in Mohalla Kanungoyan Khas and decreed that part of his claim.
10. The plaintiff has appealed against the decree in so far as it dismissed his suit, and the defendants have appealed against the decree in so far as it declares the plaintiff to be the manager of the said temple. As we have already stated the management of the temple, except in so far as it afforded evidence in support of the plaintiff's real case, was a matter of BO importance. His learned Counsel has stated that unless the management of the temple carries with it the full right to do puja and parikshal, the declaration is of no value to him. Both sides have referred to the Jain text-writers and have printed extracts, but we quite agree with the learned Additional Subordinate Judge that the decision of the Court must depend not upon the interpretation of these ancient texts but upon the ascertained usage and practice prevailing at Khatauli amongst the Jain community. We, therefore, pass from the texts with the remark that in them great stress seems to be laid on purity of birth and origin. A vast amount of oral evidence was adduced on both sides but we do not think that any good purpose would be served by dealing with the evidence in detail because in the main we agree with what the learned Additional Judge has said.
11. With regard to the temple in Mohalla Kanungoyan Khas, we think that the evidence clearly shows that the plaintiff has had a great deal to say to its management. We feel certain that he took a great interest in its affairs and spent money on its repairs but there is no evidence that it was built or dedicated by his ancestors or that he was ever appointed manager and, as we have already pointed out, the plaintiff by amending his plaint admitted that no distinction could be drawn between his rights of worship in this temple and the other temples.
12. The learned Additional Subordinate Judge has drawn the inference that the temple was built by the plaintiff's ancestors because a member of the family into which the plaintiff's father was received in adoption was a Kanungo and that the temple was known as the Kamingoyan temple. We do not think that the evidence justifies the inference, and the learned Additional Judge goes no further than to say that he 'is inclined to believe that the temple was built by the plaintiff's ancestors.' The plaintiff has deposed that he performed puja and parikshal in this temple and has adduced some corroborative evidence of not a very satisfactory nature. The plaintiff is evidently a fairly prosperous man; ambitious of improving his social position. Even if he did (which we very much doubt) perform puja and parikshal occasionally in the Kanungoyan temple, it would not confer on him a right which he otherwise did not possess. When the dispute was well advanced, the question of the right of worship of the Dasas was discussed at a panchayat held at a place called Hastinapur. It appears that there is an annual meeting or panchayat of the Jains at this place. We are inclined to think that the situation of affairs is fairly correctly described by a witness for the defendants, called Jagmandar Das. This witness is not alleged to be in any way prejudiced against the plaintiff, though, no doubt, he is a Bisa. He is not a Resident of either Khatauli or Sardhana. He is a member of the District Board in his district, and is also a Municipal Commissioner, pays Rs. 10,000 Government Revenue. He stated in his evidence as follows:
A panchayat in connection with Dasas and Bisas was held this year at Hastinapur. There was a general talk among the members of the community to the following effect; 'Dasas of Khatauli and Sardhana have raised a new dispute. This matter should be settled.' Then the members of the community said 'send for Mare Lal'. He was sent for. He Said before the panchayat: 'Up to this time, my father, or my elders, or I never did puja, and up to this time none of the Dasas have done so. But 1 always give subscriptions, etc., and take part in all matters, and there is no prohibition in shadras and so I wish that we may be permitted to do puja parikshal in future (see respondent's book page 36).'' It was quite true that the plaintiff had been giving subscriptions, etc., and taking part in all matters and as outsiders, we should have been well pleased if the panchayat had seen their way to grant his request. Of course, the plaintiff denies that he admitted before the panchayat that he and his ancestors had never done puja. Neverthless, we are inclined to believe Jagmandar Das.
13. There are on the record the depositions of some witnesses of respectability from Bombay, Gwalior and other places, who gave evidence for the plaintiff to the effect that Dasas were entitled to perform puja parikshal with the Bisas, but these 'witnesses were not Agarwal Jains and seem to be ignorant of the usages in Northern India. There was also the evidence of Chimmal Lal, a Bisa Agarwal, whose evidence might have been of some importance if it did not also appear that he was an outcaste (see evidence of Dalip, respondent's book, and the petition at page 123 of the respondent's book). The plaintiff's case on the evidence, even if it stood uncontradicted, was not particularly strong. This cannot be said of the defendants' case. They produced some 102 witnesses. The learned Advocate for the plaintiff points out that most of them are Bisas and reside in places where the numbers of Dasas are very small. This is, no doubt, to some extent true. But everywhere save in Khatauli (and in Mohalla Kanungoyan in particular), the members of the Dasas are very insignificant compared with the Bisas. The defendants like the plaintiff produced certain foreign' witnesses. There were a number from Delhi and from Meerut. But the foreign' witnesses of the defendants, unlike the foreign witnesses of the plaintiff, were of the same caste and religion as the parties to the suit, viz., Agarwal Jains. The evidence of Agarwal Jains residing at Delhi and Meerut was obviously' of far more weight in the present suit than the evidence of Umud Jains from Bombay and Barasyas from Gwalior. From the point of view of credibility, many of the witnesses for the defence were entitled to the greatest respect. Take, for example, the Hon'ble Sultan Singh, a member of the Legislative Council in the Punjab and a Fellow of the Punjab University. The plaintiff's case was that the Dasas worshipped on complete equality with the Bisas. Granted that local disputes and quarrels might have induced the Bisa residents of Khatauli and Sardhana in attempt to interfere with their weaker brethern exercising their religious rights, it is impossible to believe that they could have induced the leading members of the same community resident in Meerut and Delhi to join their conspiracy.
14. We have already made a brief reference to the panchayat at Hastinapur. There can be no doubt that the Bisa and Dasa controversy was discussed at this panchayat and that the case of the Dasas was put forward and it is equally beyond doubt that the claim of the Dasas was denied by the vast majority of those present it was a panchayat of Bisas and Dasas and many were present who were not residents of either Khatauli or Sardhana.
15. We agree with the, learned Additional Subordinate Judge that the plaintiff has failed to make out a case entitling him to a declaration that he is competent to perform puja and parikshal in the Jain temples at Khatauli.
16. There remains the defendants' appeal against that part of the decree which declares the plaintiff to be the manager of the Kanungoyan temple. We have already pointed out that there is no evidence that he was ever appointed manager. Far less is there the smallest evidence that he is a hereditary manager. As already stated, we suspect that this part of the claim was introduced to meet the objection that the suit was not cognizable by a Civil Court. The management of the temple was not the plaintiff's real case and his learned Counsel has fairly admitted that if the management of the temple does not carry with it fall rights of worship, the plaintiff attaches no value to the management.
17. We allow the appeal and set aside the decree of the Court below in so far as it decreed the plaintiff's claim. The appellants will have their costs in both Courts including in this Court fees on the higher scale.