Harnam Singh, J.
1. Panna Lal and Piara Lal appeal from the decree passed on the 2nd of April 1947, in civil suit No. 326 of 1943 whereby the Court of first instance dismissed that suit leaving the parties to bear their own costs.
(2) On the 12th of April 1943, Parma and Piara Lal instituted civil suit No. 326 of 1943 under Section 92 of the Code of Civil Procedure to obtain a decree removing Puj Harsh Rishi from the office of trustee of the trust known as Upasara Pujan situate in Kucha Towarian, Amritsar City, for appointing a committee of management of the trust vesting the trust property in the committee of management and directing accounts. In the plaint, the plaintiffs maintained that the building bearing Khana Shumari Nos. 3619/11 and 3920/11 is a public religious institution of Swetamber Moorti Pujak Jains of Amritsar, that shop bearing 'Khana Shumari' No. 8/11, shop bearing Khana Shumari No. 3986/11 and house bearing Khana Shumari No. 3667/11 are attached to the institution and that the defendant was a trustee, of that institution. In paragraph 9 of the plaint grounds for the removal of the defendant from the office of trustee are given.
(3) Puj Harsh Rishi defendant resisted the suit pleading that there was no public religious trust known as Upasara Pujan in Kucha Towarian, that Puj Kesho Rikh was the sole and full owner of the property mentioned in paragraphs Nos. 1 and 2 and 4 (b) and (c) of the plaint and that the property described in Sub-clause (a) of Para 4 of the plaint was acquired by the defendant from his personal income and had been sold by him. In the written statement it was stated that the property Described in paragraph 4 (c) of the plaint had been sold in execution of the mortgage decree passed against the defendant in Civil Suit No. 17 of 1942.
(4) On the 15th of June 1943, the Court of first instance stayed the suit pending the derision of Civil Appeal No. 37 of 1943 by the District Judge. That appeal was decided on the 15th of May 1944, but the plaintiffs preferred an appeal in that case in the High Court and the proceedings in Civil Suit No. 326 of 1943 were stayed pending the decision of Regular S. A. No. 1169 of 1944. Copies of Judgments, Exhibits D. C. and D. B., show thatthe suit out of which Regular Second Appeal No. 1169 of 1944 arose was for declaration that the house described in paragraph No. 4 (c) of the plaint belongs to the Upasara Pujan and being wakf was not liable to sale in execution of the decree of Nand Lal and Mussammat Ram Rakhi against Puj Harsh Rishi. Panna Lal and Piara Lal plaintiffs-appellants in these proceedings, were the plaintiffs in Civil Suit No. 17 of 1942 and Puj Harsh Rishi was defendant No. 3 in that suit.
(5) Proceedings in Civil Suit No. 326 of 1943 were revived on the 22nd of February 1946. On the last mentioned date counsel for the plaintiffs stated that inasmuch as the plaintiffs' suit with regard to house No. 4667/11 has been dismissed, Civil Suit No. 326 of 1943 should be deemed to be dismissed with regard to the house described in paragraph No. 4 (c) of the plaint.
(6) On the pleadings of the parties, the Court of first instance fixed the following issues :
'1. Is there an Upasara Pujan in Amritsar in Kucha Towarian?
2. Is it a public religious trust of Swetambar Moorti Pujak Jains of Amritsar?
3. Is the defendant a trustee of that trust?
4. Is the property in suit trust property?
5. If issues Nos. 1 to 4 be proved, is the defendant not liable to removal from the possession of the property?
(7) In deciding Civil Suit No. 326 of 1943, the Court of first instance has found that the house bearing 'Khana Shumari' Nos. 3619/11 and 3620/11 is known as the Upasara Pujan, that the defendant and his predecessors were Jain Pujs, that the defendant and his predecessors were not ascetics and earned their livelihood by the practice of medicine and money-lending business, that the property described in paragraph No. 4 of the plaint was not endowed property and that house bearing Khana Shumari Nos. 3619/11 and 3620/11 was not public wakf either by user or by dedication. Finding against the plaintiffs on issues Nos. 1 to 4 the Court of first instance has dismissed the suit leaving the parties to bear their own costs.
(8) From the decree passed by the Court of first instance on the 2nd of April 1947, plaintiffs appeal.
(9) By judgment passed on the 29th of November 1945, Exhibit D. B., the Court came to the conclusion that the house bearing Khana Shumari Nos. 3637/11 described in paragraph No. 4 (c) of the plaint was not endowed property and on the 22nd of February 1946, counsel for the plaintiff stated that the plaintiffs' suit with regard to house No. 3637/11 may be deemed to be dismissed. Indisputably, house No. 3637/11 was not endowed property.
(After considering the evidence relating to the other items of the property, His Lordship proceeded):
(10-12) From what I have said above, it is plain that the Court of first instance came to a correct decision on issue No. 4. That being so, the questions that remain (or consideration, are, (1) Whether there is an Upasran Pujan in Amritsar in Kucha Towarian and (2), whether the Upasran is a public religious trust of Swetambar Murti Pujak Jains of Amritsar with 'Puj' Harsh Rishi defendant a trustee of that trust.
(13) Plaintiffs maintained in paragraphs 1 and 2 of the plaint that the house bearing Khana Shumari Nos. 3019/11 and 3620/11 is a public religious trust of the Jain Community used for the residence and abode of the Pujs and for the purpose of public worship and for the purpose of recitation of religious books, Puj Harsh Rishi defendant does not admit the averments contained in paragraphs Nos. 1 and 2 of the plaint and maintains in the evidence given by him that the house was purchased in Sambat Bikrimi 1891. Plaintiffs who have examined no evidence to show who purchased the property described in paragraphs Nos. 1 and 2 of the plaint based their claim on the following facts:
(1) That the property was acquired by Jain Pujs;
(2) that the property has always been held by the Pujs and is known to be an Upasar'a;
(3) that the property has devolved from Guru to 'Chela' from the time of Kanahaya Kikh; and
(4) that the Upasara had been used for the recitation of 'Katha' from the time of Kanahaya Rikh.
(14) As stated above, Kanahaya Rikh who purchased the property in dispute practised medicine and did money-lending business. On this point the evidence given by Lala Mohan Lal P. W. 2, Lala Harbhagwan Das P. W. 3 and Lala Bisakhi Ram P. W. 4 and Exhibit D. 14 may be seen. Sale deed, Exhibit D. 15, shows that Sham Singh and Sawan Singh sold the house in suit to Dip Chand, Harnam Rikh, and Kanahaya Rikh for rupees 300/-. In the sale deed, there is no indication that Dip Chand, Harnam Rikh and Kanahaya Rikh acquired the house in suit with public funds. Indeed, there is no evidence as to the source of the purchase money paid by Dip Chand, Harnam Rikh and Kanahaya Rikh vendees to Sham Singh and Sawan Singh Vendors. That being so, the plaintiffs have failed to show that the purchase price was the money of the Swetambar Jains of Amritsar Town. As already mentioned, plaintiffs based their claim not on dedication but on the facts set out at Nos. 1 to 4 in the preceding paragraph.
(15) That Kanahaya Rikh, Harkishan Rikh and Kesho Rikh were Jain Pujs is amply established by documents, Exhibits P. 15/A, D. 1, D. 4, D. 10, D. 26 and D. 28. In Exhibit P. 1, D. 11/A, D. 12/A, D. 5, D. 6 and D. 9 the defendant is described to be the Puj. Again, it is not disputed in these proceedings that Jain Pujs are normally persons who have renounced the world and have given up all their worldly belongings. In Exhibit P. 2/1 the house in question is referred to be an Upasara and the Court of first instance has found that the house is known as Upasara and Kanahaya Rikh. Harkishan Rikh, Kesho Rikh and Harsh Rishi belonged to that class of Jains known as Pujs.
(16) In the Court of first instance the plaintiffs examined evidence that because the defendants and his predecessors were Pujs and the building was known as an Upasra there was a public trust. In the evidence given by the witnesses examined by the plaintiff it was stated that an Upasra is 'wakf'. In cross-examination Doctor Benarsi Das P. W. 1 admitted that even the house of a non-Jain can be an Upasra end if a Puj takes a house on rent andbegins to live in it the house will be an Upasara.(17) Now, the house in suit is a four-storeyed building with paintings of Lord Krishna, Lord Vishnu, Guru Nanak Devji and Shivji. In this connection the evidence given by Lala Mohan Lal P. W. 2 and Puj Harsh Rishi defendant may be seen. No witness has, however, given evidence that he ever saw painting of any Jain god and there is no satisfactory evidence that there was at any time any idol in this house which is claimed to be a temple of Murti pujak Jains.
(18) In Regular First Appeal No. 1169 of 1944 the plaintiff's contended that the parties were Swetambar Jains, that the property had been held by Pujs, that the property was acquired by the Pujs and that the property had devolved from 'Guru' to 'Chela'. On those facts Sir Abdur Rahman J. said:
'The first circumstance was that the parties were Swetambar Jains and that the property had always been held by the Pujs, i.e., Jain ascetics. That by itself cannot lead me to any conclusion particularly when it is admitted that the property in suit had never been used for any religious purpose. The fact that the Pujs had been living in this house could not show that the property was dedicated.
The next circumstance on which reliance was placed was that the property was acquired by Pujs. There is first of all no evidence on the record as to when and by whom it had been acquired; but even assuming, without conceding, that the property was acquired by Pujs, its mere acquisition by one of them would not make it a dedicated property. It has been so held by their Lordships of the Privy Council in a number of decisions to which reference was made by Division Bench of this Court in 'Puj Maya Rishi v. Ram Chand', 1945 47 P. L. R. 404.
It is unnecessary to refer to those decisions in this case. The third circumstance was that the property had devolved from Guru to Chela on four occasions at least. That again has been held by their Lordships of the Privy Council to be inconclusive. It may have some importance but it cannot lead one necessarily to the conclusion in favour of the appellants. Circumstances to be of any value must be unambiguous.'
In Regular Second Appeal No. 1169 of 1944 the question that arose for determination was whether the house described in paragraph No. 4 (c) of the plaint in Civil Suit No. 326 of 1943 was endowed property. In these circumstances, I am clear that the circumstances setj out at Nos. 1, 2 and 3 above are wholly inconclusive and do not show the religious character of the property.
(19) In 'Puj Maya Rishi v. Ram Chand' (47 Pun. L. R. 401) Harries C. J. (Mahajan J. concurring) said:
'The mere fact that the person acquiring property in dispute is an ascetic does not establish that he acquired the properly for religions purposes, though it is a circumstance that ought to be taken into consideration in determining whether it is religious or secular. The reason is, a man's religious opinions or professions do not make him incapable in law of holding property.'
In the same judgment it was said that the descent of property from Guru to Chela does not warrant the presumption that it is religious property and that in considering whether the property acquired by a Jain Puj is religious or secular, in the absence of any direct evidence of dedication, the nature of the user of the property by the Jain community or Jain monks and whether such user, if any, was as of right or by permission and the length of time during which the user is suggested, have to be considered. Clearly, the house in question called Upasara would not be a public religious trust unless there was evidence of dedication or of user by the public as of right. In the present case 'Puj' Harsh Rishi was not the 'chela' of Puja Kesho Rikh and succeeded to him on the basis of the will, Exhibit D. 1.
(20) Admittedly, there is no evidence of dedication and the case of the plaintiffs-appellants rests mainly on the evidence of user.
(21) In order to prove that the Upasara is a religious public trust of the Jain community the plaintiffs have to establish that the Jain Community or the Jain monks have been using the Upassra 'as of right for public purposes.'
In the present case there is not a syllable in the evidence given by the witnesses for the plaintiffs about the user of the Upasara by the Jain community or Jain monks as of right.
(22) Lala Bisakhi Ram stated when the Pul went out the house was locked from outside and that he did not know whether there was any restriction on any Puj for the period he could stay out. To similar effect ip the evidence given by other witnesses. Hans Raj P. W. 20 said:
'I cannot say whether the property purchased by a Puj belongs to him or to the Upasara. There is no Jain text on that point. An Upasara is 'dharamarth'. A Puj cannot restrain a Jaini from going into an Upasara.' Hans Raj P. W.20 has given no evidence that the members of the Jain community performed Katha and offer prayers in the Upasara in question as of right. The evidence that a Puj cannot restrain a Jaini from going into an Upasara does not prove that the members of the Jain community performed Katha and offered prayers in the Upssara in suit as of right.
(23) Lala Mohan Lal Jain, Lala Harbhagwan Das and Lala Bisakhi Ram stated that Puj Hari Kishan and Puj Kesho Rikh practised medicine. Lala Uttam Chand P. W. 22 gave evidence that Kesho Rikh used to charge fees for his attendance on patients. Exhibit D. 25 shows that Puj Kanahaya Rikh, Puj Harikishan Rikh and Puj Kesho Rikh did money-lending business. Inside the Upasara in suit there are paintings of Lord Krishna. Lord Vishnu. Guru Nanak Devji and Shivji but no painting of a Jain god or idol for Jain worship. Harikishan Rikh kept Mussummat Har Kaur in the Upasara as his mistress and Puj Kanahaya Rikh made a gift of one house to Mst. Ganga Devi on the 13th of October 1868, by deed of gift, Exhibit D. 4. In these circumstances, the mass of evidence examined by the plaintiffs showing that ever since the time of Kanahaya Rikh the house had been known to be an Upasora, and that it had been resorted to by the Jain community for religious instructions and worship is wholly insufficient to prove the existence of a public trust. In 'Raghbir Lal v. Mohammad Said', AIR 1943 PC 7, Sir George Rankin said:
'But it is out of the question to suppose that a man's religious opinions or professions can make him incapable in law of holding property. He may fail to act up to them or take heretical and inconsistent views without incurring any penalty or disability at law.' (24) Clearly, Kanahaya Rikh did not live like an ascetic. That Harikishan Rikh and Kesho Rikh acted like house-holders is apparent on the facts on the record. In such circumstances professions of complete asceticism as a religious doctrine or philosophical position would seem to go but a little way to show that Kanahaya Rikh, Harikishan Rikh and Kesho Rikh were ascetics. (After considering further evidence his Lordship proceeded:)
(25-27) Exhibit P. 3 is a copy of the written statement filed by Puj Harsh Rishi in Civil Suit No. 931 of 1933. Paragraph No. 4 of the written statement reads;
'The 'kothri' bearing house enumeration No. 3619 is not separate from house No. 3620. Moreover, it is wrong that the house was owned by the gaddi.'
In 'Raghbir Lala v. Mohammad Said',AIR 1943 PC 7, Sir George Rankin said:
'The word gaddi is used very loosely and indifferent senses; in one use of the word agaddi appears to be a necessary part of the.dignity of a religious ascetic of the highestclass. The words here are 'of his owngaddi' and the phrase is wholly insuffcientto raise against him any kind of trust or toshow that the money was not his own.'
(28) In evidence Harsh Rishi maintained that he meant by the word 'gaddi' in paragraph No. 4 of the written statement a gaddi of 'Hikmat', and there is ample evidence, oral and documentary, that Kanahaya Rikh, Harikishan Rikh and Kesho Rikh practised medicine. (His Lordship considered further evidence and proceeded:)
(29-36) For the reasons given above, I am of the opinion that the cumulative effect of the evidence referred to by the learned counsel for the plaintiffs-appellants cannot lead me to the conclusion that the plaintiffs have discharged the onus of issues Nos. 2 and 3.
(37) Finding as I do that the Upasara is not a public religious trust of the Jain community, that the defendant is not a trustee and that the properties described in paragraph No. 4 of the plaint are not endowed properties. I maintain the decision of the Court of first instance on issues Nos. 1 to 4 set out above.
(38) In the result, I dismiss with costs Regular First Appeal No. 228 of 1947.
(39) Khosla, J.