1. This is a defendants appeal arising out of a suit; for a declaration of title and in the alternative for possession as trustees over four items of property.
2. The plaintiffs' case was that these properties were the private-property of Salig Ram, the father of Mt. Saraswati, on whom it had devolved through a line of spiritual ancestors, that Salig Ram made a Will of these properties on the 28th of June 1895, in favour of Mt. Saraswati and later on the 5th of November 1905, gifted them to her. Plaintiff No. 2 joined in the suit on the basis of the last-mentioned gift. The reliefs claimed by the plaintiffs were two fold. In the first place a declaration was asked for that they were owners of the entire estate and that the defendants or the public had no right of interference with it. In the second place it was prayed that even if any portion of the properties be declared to be endowed property the plaintiffs should be granted possession as managers and mutwallis.
3. The plaintiffs alleged that Salig Ram and after him the plaintiffs had been in peaceful and undisturbed possession up to the 8th of November 1921, when the defendants forcibly took possession of the temple and the other properties and turned out the plaintiffs' servant. Jagannath.
4. The defendants, on the other hand, denied that any of those properties was the private property of the plaintiffs and pleaded that they were a public trust. It was not disputed that the defendants had taken forcible possession of these properties, but it was urged that the plaintiffs had committed a breach of trust and had proved themselves incompetent with the result that the defendants with the assistance of the punches, who were alleged to have an interest in the trust property, dispossessed them.
5. The learned Subordinate Judge has found that all the items of the properties in dispute are the properties of the plaintiffs which they have acquired from Salig Ram. He has accordingly decreed the claim in to.
6. The properties in dispute consist of four items. Item No. 1 is the temple of Sri Ram Chandraji Maharaj situate in Qasba Ferozabad. Item No. 2 consists of house property adjoining the temple, Item No. 1. Item No. 3 consists of six shops to the south of the temple situate in the same Qasba. Item No. 4 is 17 bighas odd of muafi land situate in Mauza Ferozabad Mohammadpur Gajmalpur.
7. That the plaintiffs were forcibly dispossessed by the defendants admits of not the slightest doubt and is in fact not denied on behalf of the defendants. The statement of one of the defendants Ram Dayal was taken before the plaintiffs' evidence commenced, and he admitted that the defendants' possession prior to the institution of the suit had not been for more than 5 or 6 months, As a matte of fact, the statement of Jagannath the plaintiffs' servant is to the effect that he was turned out by the defendants and a number of other persons about November 1921 shortly before the suit was brought. We have no doubt that his statement is correct inasmuch as it is fully corroborated by the report which he made to the police and the telegram which he sent to his master Lachman Das. On the 8th of November 1921, he did make a report that forcible possession of the temple had been taken and that he had been turned out by the defendant and members of his party and on the same day he sent a telegram to that effect addressed to Chintamon, the father of Plaintiff No. 1.
8. The plaintiffs, however, did not bring a suit under Section 9 of the Specific Relief Act on the ground of possession, They claimed a declaration of title. The parties have accordingly led evidence on the question of title and the Court below has gone into this question at some length. The judgment, however, is not very satisfactory and we find it difficult to agree with the greater part of the findings,
9. The plaintiffs' claim that the temple and properties appertaining thereto are the private properties of the plaintiffs cannot be sustained. This temple is the only temple of Sri Ram Chandraji in Qasba Ferozabad and it is admitted that the public of Ferozabad do come to this temple generally and also attend in large numbers on the occasion of the Ram Naumi festival. Great reliance was placed on behalf of the plaintiffs on a sanad granted by the Maharaja of Gwalior about the year 1792 in order to show that this was the private property of the plaintiffs' spiritual ancestor Asa Ram. The genuineness of this document was challenged by the defendant, but after examining it we are satisfied that there is no good ground for not presuming it to be genuine. The sanad appears to be quite genuine. This document, no doubt shows that 20 bighas pukhta of land revenue-free were given by the Maharaja to Asa Ram, the priest of the Thakurdwara, for maintenance by way of a charitable gift. Even this sanad shows that the Thakurdwara existed prior to this grant. If this document had stood by itself there might have been some difficulty in holding that this was an express dedication to the Thakurdwara itself. There is no doubt, however, that the grantee treated this grant as a grant to the temple itself. This is fully borne out by the parwana granted by the same Maharaja about a year afterwards in which it is recited that Asa Ram Brahman was claiming an allowance of eight annas in the revenue for himself and 20 bighas of land as having been granted for the expenses of Thakurdwara. A clear distinction was drawn between the personal allowance to Asa Ram and the grant of the 20 bighas of land for the expenses of the Thakurdwara. On the premises there is a stone slab containing an inscription to the effect that the Maharaja of Scindhia had in 1850 S. dedicated 20 bighas pukhta of land in favour of Sri Ram Chandraji. This inscription also shows that the 20 bighas of muafi land granted by the Maharaja had been dedicated to Sri Ram Chandraji. Another strong piece of evidence in favour of the defendants' contention is the entry in the wajib-ul-arz of the year 1877 prepared at a time when Salig Ram was alive. Paragraph 2 of the waiib-ul-arz clearly states that the muafi land in the name of the temple was under the sarbarakar-ship of Salig Ram the pujari of the temple and that the sarbarakar had no power to make a transfer by sale or mortgage. The same statement is repeated in the khasra abadi of that year. It is the temple which is entered in the column of the proprietor. Similarly in the khewat of 1877, of which the plaintiffs only produced an extract but the defendants have produced a fuller copy there is a note to the effect that Salig Ram the pujari was the pujari of the temple and sarbarakar and had no right to transfer the property by means of sale or mortgage. The property was there also entered in the name of the temple.
10. We may note that Mr. Conybear in Vol. 7 of his Historical Account of the N.W.P. of India at page 740 noted that at Ferozabad there was a temple dedicated to Sri Ram Chandraji built by Duli Chand Brahman. In the Gazetteer of the Agra District at page 274 the same statement is repeated. It is admitted that there is no other temple in Ferozabad dedicated to Sri Ram Chandraji.
11. Even the Plaintiff No. 1 and the father and guardian of Plaintiff No. 2 have admitted and treated the muafi property as trust property. When Salig Ram died in 1905 an application was made for mutation of names by the plaintiffs in their private capacity for entry of their names as proprietors. An objection was raised on behalf of some of the residents that the property was trust property. Instead of pressing their case that the property was their property the plaintiffs got their application amended and the name of the temple was entered as proprietor and their own names as sarbarakars. This entry has continued ever since then and the plaintiffs have never repudiated their position as sarbarakars.
12. As regards part of the house property which is included in Item No. 2 there is a sale-deed of the 21st of March 1858, under which 107 square yards of land were purchased for the Thakurdwara (temple). The boundaries given in the sale-deed tally exactly with those of the property described as Item No. 2. The evidence of the plaintiffs' witness Makundi Lal shows that Baldeo Prasad was the grandfather of Hiraman whose house is now on the west side. The western boundary in the deed of sale is shown as the house of Baldeo Baqqal. The eastern boundary is a Shivala which exists at present. On the north there is admittedly a lane. The southern boundary of the property acquired is the Thakurdwara of Ram Chandraji.
13. We are, therefore, satisfied that the portion of the house property other than the temple and the shops was acquired by the Thakurdwara through Baba Mohan Das Bairagi and not by the plaintiffs' ancestor in his private capacity. The treatment of these properties by Salig Ram also goes to show that they were regarded as properties appertaining to the temple. With the exception of a half-hearted assertion in the Will of 1895 and a clear assertion of title in the gift of 1905 made by Salig Ram there is nothing to show that he ever put forward his own proprietary right in these properties. The learned Subordinate Judge has not attached due weight to all this documentary evidence which is really all on one side. There are, no doubt, some leases and counter-leases by and in favour of Salig Ram, but they are in no way inconsistent with Salig Ram's possession as trustee of a trust property. We are, therefore, satisfied that neither the temple nor the house property No. 2 appertaining thereto, nor the muafi property, is the private property of the plaintiffs.
14. As regards the shops the plaintiffs' case stands on a different footing. Even Ram Dayal defendant, admitted that these shops were built by Salig Ram about 30 years ago. The defendants' case was that they were built either out of the income of the temple or by public subscriptions. The defendants' witnesses, however, are unable to show that any subscription was really raised for this purpose. All that they suggest is that money was borrowed by Salig Ram from creditors and later on it was paid out of subscriptions. There is no satisfactory evidence to show either that any large sum was actually raised by subscription or that anyone contributed towards the construction of these shops. None of the defendants admittedly did so. The defendants' witnesses are not even in a position to suggest that any of the so-called 'punches,' who are after all a self-constituted body, ever contributed a farthing towards the construction of these shops. The only circumstance relied upon by the defendants is that these shops are adjacent to the properties appertaining to the temple and are on either side of its main gate. This circumstance by itself cannot be conclusive. There was nothing to prevent Salig Ram from building shops of his own. Both in the Will and in the gift he clearly asserted that these shops were his exclusive property and had been exclusively built by him alone. Some rent notes relating to these shops also show that he was in possession of these shops and realized the rent. There are also two documents which strengthen the plaintiffs' case as to the proprietary interest in these shops. In 1709 some land in front of an existing shop and close to the Thakurdwara was purchased by Asa Ram in his own right. After the lapse of 200 years it is not now possible to identify this property with the property in suit, but it does show that Asa Ram was acquiring some land in his own right. In 1831 a claim was put forward by one Fakir Chand against Asa Ram's representative with regard to three houses. This representative urged that these houses had been gifted to Asa Ram and had remained in his possession for a long time. It is not possible to identify this property because no boundaries are given, but the rubkar of the criminal Court shows that the three houses were in fact at that time used as three shops. It is not suggested that there were any other shops which were in the possession of Asa Ram. The oral evidence adduced on behalf of the defendants to show that these were built out of the income of the temple is absolutely worthless. We must, therefore, uphold the finding of the learned Subordinate Judge that these six shops, which were admittedly built by Salig Ram, are not trust property and must be deemed to belong to the plaintiffs as Salig Ram's representatives.
15. As regards the temple, the muafi land and the house it seems to us wholly unnecessary in this case to decide whether they are held under a public trust or a private trust. As remarked previously the plaintiffs came to a Court with an alternative case that these properties were a private trust. The defendants have taken possession of these properties forcibly and are trespassers. They have absolutely no right to dispossess the plaintiffs who had been in peaceful possession for a very long number of years. We do not, therefore, think that this is a proper suit in which the question of the true nature of the endowment should be determined finally. In a properly constituted suit brought by public persons having a real interest in the endowment the question whether the property is of a public or a private nature can be determined thereafter. This point, therefore, we leave open.
16. We are clearly of opinion that even if the property is a public trust and not merely a private trust the decree for possession in favour of the plaintiffs must be maintained. The suit, no doubt, was not brought under Section 9 of the Specific Relief Act but, as it was pointed out by the Full Bench in the case of Wali Ahmad Khan v. Ajudhia Kandu (1891) 13 All. 537.
even independently of Section 9 of the Specific Relief Act a person who has been ousted by a trespasser from the possession of immovable property to which he had merely a possessory title, is not debarred from bringing a suit in ejectment on the basis of his possessory title even after the lapse of six months from the date of dispossession.
17. The recent Full Bench case of Lachman v. Shambu Narain  38 All. 174 is clearly distinguishable inasmuch as it was found in that case that the defendants had actual title to the property of which they had forcibly taken possession from the plaintiffs. Banerji, J., at page 1085 of 7 A.L.J., remarked;
Of course, in some instances, previous possession may afford evidence of title and where the defendant is a trespasser and the plaintiff was in continuous and peaceful possession he would be entitled to retain such possession.
18. We, therefore, think that in justice and equity the plaintiffs must be restored to the possession of these properties.
19. The last contention urged on behalf of the appellants is that in view of the assertion of proprietary title made by the plaintiffs in the plaint they have disqualified themselves from any right to obtain possession. Reliance was placed on the Privy Council case of Srinivasa Chariar v. Evalappa Mudaliar A.I.R. 1922 P.C. 325. That case, in our opinion, has no application, for it was a suit brought under Section 92 of the Civil P.C., by persons interested in trust property against trustees who, by reason of their assertion of private right, were found to be disqualified and fit to be removed. The present case is not a suit under Section 92 and the question of the plaintiffs having committed any breach of trust or not does not arise.
20. We accordingly uphold the decree for possession passed by the Subordinate Judge with this modification that we dismiss the plaintiffs' claim for declaration of proprietary title with regard to items Nos. 1, 2 and mentioned in the plaint, but we do maintain the declaration given by the Court below with regard to item No. 3. The decree for possession of the entire property is maintained. We maintain the decree for costs made by the Court below, but we direct that the parties should bear their own costs of this appeal.