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Sri Ram Vs. Prabhu Dayal and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Civil
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal No. 124 of 1960
Judge
Reported inAIR1972Raj180; 1972()WLN49
ActsEvidence Act, 1872 - Sections 41 and 42; Code of Civil Procedure (CPC) - Sections 92; Hindu Law
AppellantSri Ram
RespondentPrabhu Dayal and ors.
Appellant Advocate J.S. Rastogi, Adv.
Respondent Advocate S.N. Bhargava, Adv.
DispositionAppeal partly allowed
Cases Referred and Jawaharbeg v. Abdul Aziz
Excerpt:
civil procedure code - section 92 and evidence act--sections 41, 42 & 43--'judgment in rem' & legal character' explained--conclusive judgment--essential conditions of--question whether a particular temple was public or not--held, a relevant question to inquiry ;this phrase 'a judgment in rem' has not been defined, but it has all along been understood as meaning a judgment which is conclusive not only against the parties but also against the whole world. such judgments declare, define or otherwise determine the flatus of a person or a thing, that is to say. jural relationship of a person or thing to the world generally. a judgment in rem is an adjudication pronounced as its name indeed denotes, upon the status of some particular subject matter, by a tribunal having competent.....kan singh, j.1. this is a defendant's appeal brought against the judgment and decree of the learned district judge, alwar, dated 31-8-60 ordering that defendant shri bam shall be removed from the office of the pujari of shri daooji's temple situated in bazaz bazar near zenana hospital at alwar and he shall hand over charge of his office to the plaintiffs, the trustees of the temple. the learned district judge further directed that the possession of the temple and its property marked red in the site plan shall also be delivered by the defendant to the plaintiffs and further plaintiffs shall receive possession of all the articles mentioned in list ex. 27, except ornaments and mukuts, from defendant shri ram.2. the temple in question is said to be a big one. its description including the.....
Judgment:

Kan Singh, J.

1. This is a defendant's appeal brought against the judgment and decree of the learned District Judge, Alwar, dated 31-8-60 ordering that defendant Shri Bam shall be removed from the office of the Pujari of Shri Daooji's Temple situated in Bazaz Bazar near Zenana Hospital at Alwar and he shall hand over charge of his office to the plaintiffs, the trustees of the temple. The learned District Judge further directed that the possession of the temple and its property marked red in the site plan shall also be delivered by the defendant to the plaintiffs and further plaintiffs shall receive possession of all the articles mentioned in list Ex. 27, except ornaments and Mukuts, from defendant Shri Ram.

2. The temple in question is said to be a big one. Its description including the shops and residential apartments attached to it is given in para. 2 of the plaint. According to the plaintiffs, who claimed to be the trustees of this temple appointed in pursuance of a scheme prepared under Section 92, Civil Procedure Code by the District Judge of Alwar, the temple was built by one Gatru Matru about 125 years back. One Gopalji was put incharge of the temple and for three generations the same had been managed by Gopalji's family; the last manager-cum-Pujari being one Shiv Narain. It appears that as Shiv Narain and his ancestors had mortgaged some shops and other apartments of the temple from time to time and this led to certain insolvency proceedings in the course of which some shops as well as other apartments came to be sold in the course of insolvency proceedings, some representatives of the worshippers brought a suit in the courts of the District Judge at Alwar on 15-1-1938, after obtaining the requisite sanction of the Government Advocate of the ex-Alwar State.

This suit was dismissed by the District Judge but on appeal in the High Court of the State it was ordered that a scheme be framed and new trustees be appointed for the temple. There was a further appeal to the Rajendra Shasan, which was the body analogous to the Privy Council, and by its order dated 9-4-45 the Rajendra Shasan, that is, the Maharaja of Alwar in Council confirmed the decree of the High Court, Thereafter the District Judge framed a scheme and appointed a Board of Trustees, consisting of five members, for the custody and management of the temple and its estate on 3-1-47. In the course of their management the trustees filed some suits for possession of the temple property against the alienees and were successful in obtaining possession of some shops. It further appears that after the formulation of the scheme the trustees wanted to take possession of the property which remained with Shri Ram defendant, but the delivery of possession was resisted. It was for this reason that the plaintiffs, the trustees, instituted the suit for the removal of the defendants and for possession of the temple property.

3. Defendant Shri Ram contested the suit on various grounds. He denied that his father Kanhaiyalal or he were ever appointed for doing the Sewapuja in the temple. He took the stand that Gatru Matra, who had constructed the temple, had made a 'Sankalp' of the same to the ancestors of the defendant Shri Ram and since then they were in possession of the temple and the property as owners. In the alternative it was pleaded that the defendant had acquired title over the suit property by adverse possession. Several Other legal pleas were raised. The learned District Judge set down the following issues for trial.

1 D;k tk;nkn eqruktk VLVizksijVh gS o bl ij izfroknh dk dksbZ gd ekydkuk ugha gS

2 D;k f'koukjk;.k efUnj eqruktkdk eSaustj o iqtkjh Fkk vkSj D;k eqnk- ua- 1 ds firk dUgS;k yky dks f'koukjk;.kus iqtkjh fu;r fd;k Fkk vkSj mldh gSfl;r ls dUgS;kyky o mldk yM+dk Jhjke ml ijdkfct gS

3 D;k oknhx.k efUnj eqyuktk dsVLVht ugha gSa vkSj mudks nkok ykus dk gd ugha gS

4 D;k tk;nkn jax gjk eqUnjtkuD'kk dh ckcr enk;u ;g ukfy'k dj ldrs gSa tc fd bldh tk;nkn ds okcr oknh usn[ky;kch dk vyx nkok ghjkyky ds fo:) dj j[kk gS

5 vk;k tk;nkn jax gjk eqUnjtkuD'kk ij Jhjke dk dctk cgSfl;r fdjk;snkj eqnk;yk ua- 2 gS u fd [kqn dks okyhgSfl;r ls

6 D;k nkok vUnj fe;kn gS

7 D;k dksVZ Qhl iwjh pLik gS

8 D;k lkeku eqUnjtk ,QfjLrVsEil dh izksijVh gS vkSj eqnbZ mlds ikus dk eq'rgd gS vkSj ;fn gS rks D;kfder gS

9 D;k eqnk;yk lsok iwtk dk dk;ZBhd ugh djrk vkSj ugha Hkh djrk rks D;k og dkfcy csn[kyh gS

10 D;k t;nkn eqrukft;k eqk ua-ds cqtqxksZdks ladyies nh tk pqdh gS blfy;s oknh mldh n[ky;koh ;k nkok ugha djldrs

11 D;k eqnk;yk ua- 1 dk dCtktk;nkn eqruktk ij dCtk eqvky;kuk tk;nkn vtZ 12 lky gks pqdk gS blfy;s oknh vcn[kyckth dk nkok ugha dj ldrs

12 D;k eqnk- ua- 1 tk;nkneqruktk dh rkehj ejeresa 2058A&AA; [kpZ fd;s gSa vkSj bldk nkos ij D;k vlj gS

13 tks Qklyk lu~ 1945 bl tk;nknds eqrkfyd T;qMfl;y desVhls gqok gS mldk eqnk;yk ua- 1 ij D;k vlj gS

14 okfn fdl nknjlhdk eqLrgd gS

Issues Nos. 1, 2, 3, 10 and 11 were dealt with by the learned District Judge together. The learned District Judge held that the decision given by the erstwhile Alwar High Court and Rajendra Shasan and the scheme framed by the District Judge in proceedings under Section 92, Civil Procedure Code the suit property being held the property of a public trust, the judgment of the High Court as well as the Raiendra Shasan, according to the learned Judge, were judgments in rem and consequently the defendant could not question the public nature of the temple or the property attached to it. Nonetheless the learned District Judge went into the evidence with a view to seeing whether the defendant had been able to establish his case regarding the suit property being given to his ancestors in 'Sankalp' by Gatru Matru, the founders of the temple or regarding their plea of adverse possession. The learned District Judge came to the conclusion that the 'Sankalp' story put forward by Shri Ram had not been proved by the record. He referred to the evidence of D.W. 18 Kanhaiyalal, D.W. 24 Durga Prasad, D.W. 25 Mahi Lal, D.W. 42 Badri Prasad and D.W. 47 Shri Ram defendant and reached the conclusion that this evidence was discrepant and unconvincing and apart from it, it was not receivable being based on hearsay.

4. Regarding the plea of adverse possession, the learned Judge referred to the various pieces of evidence relied on by the defendant, such as, (1) Shri Ram and his ancestors letting out certain apartments of the temple on rent orally or by rent notes; (2) Shri Ram and his ancestors permitting marriage parties and other persons to stay in the temple from time to time; (3) Shri Ram and his ancestors carrying out repairs to the temple property or making new constructions in the residential portion of the temple property; (4) Shri Ram and his ancestors employing certain other persons for doing Sewa Puja on their behalf; (5) Shri Ram's father installing image of Shri Hanumanji in the temple and they having prepared 'Poshak' and 'Patra' for the deity; and (6) Shri Ram and his ancestors receiving offerings made before the deity by the worshippers and their having incurred expenses of the deity. This evidence was attacked by learned counsel for the plaintiffs on various grounds, but the learned District Judge was impressed by one consideration and held that even assuming the reliability of this evidence it nevertheless failed to prove that the defendant had acquired title over the suit property against the deity. Here, I may read the relevant portion of the judgment of the learned District Judge:--

'I do not consider it necessary to go into this question about the reliability or genuineness of the evidence produced by the defendant but suffice to say that even if this evidence is believed into for argument's sake then it does not prove that the defendant has acquired his title over the plaint property against the deity. It is well settled that the adverse acts of the priest of a temple cannot alter the real nature of the property. In AIR 1954 SC 69 it was observed that if a shebait by acting contrary to the terms of his appointment or in breach of his duty as such shebait could claim adverse possession of the dedicated property against the idol it would be putting a premium on dishonesty and breach of duty on his part and no property which is dedicated to an idol would ever be safe. The shebait for the time being is the only person competent to safeguard the interests of the idol. His possession of the dedicated property is the possession of the idol whose sevait he is and no dealing of his with the property dedicated to the idol could afford the basis of a claim by him for adverse possession against the idol.'

The learned District Judge also referred to the evidence led by the plaintiffs and particularly the statement given by Kanhayalal, father of the defendant Shri Ram, of 2-10-1937 (Ex. 17 on record) as also that of Shri Ram and observed that he had no hesitation in arriving at the conclusion that the status of Shri Ram and his ancestors was that of a Pujari employed by Sheo Narain and his ancestors who were the managers of the temple and its property with the result that Shri Ram cannot defeat the plaintiffs right to the temple and its property. In the result, the learned Judge decided issues Nos. 1, 2, 3, 10 and 11 in favour of the plaintiffs. As a consequence he also decided issues Nos. 4 and 5 in favour of the plaintiffs.

5. Regarding issue No. 6, the learned Judge held that Art. 144 of the Limitation Act applied and the period of limitation began from 2-2-1947 when the defendant resisted the taking of possession of the property pursuant to the scheme framed by the learned District Judge.

6. Issue No. 7 was not pressed. Regarding issue No. 8, the learned Judge held that it was admitted by Shri Ram that the clothes and utensils as mentioned by the plaintiffs in the list marked Ex. 27 belonged to the deity. That being so, the learned Judge held that the plaintiffs were entitled to get possession of all the articles mentioned in Ex. 27 except ornaments and 'Mukats' which were not admitted by the defendant to be in his possession. Regarding issue No. 9, the learned Judge held that the plaintiffs are entitled to remove the defendant. Regarding issue No. 12, the learned Judge observed that in view of the findings on issues Nos. 1, 2, 3, 10, 11 and 13 it was not necessary to give a finding regarding this issue. In the result, he decreed the plaintiffs' suit as mentioned at the outset.

7. In the forefront of his arguments learned counsel for the appellant placed the question whether the judgments of the erstwhile Alwar High Court including that of the Rajendra Shasan were judgments in rem and, therefore, binding on all including the defendant so as to preclude any enquiry about the public character of the temple and the property appurtenant to it Learned counsel submitted that these judgments were not such as related to the legal character or status of a person as contemplated by Section 41 of the Evidence Act and therefore, they could not be regarded as judgments in rem though these judgments might be relevant under Section 13 of the Evidence Act. Learned counsel placed reliance on Ahmad Adam v. M. E. Makhri, AIR 1964 SC 107.

8. Learned counsel for the respondents has tried to support the judgment of the trial Court. Besides the cases which have been referred to by the learned District Judge, learned counsel for the respondent invited my attention to two cases namely, Suraj Gir v. Bramh Narain, AIR 1946 All 148 and Raje Anandrao v. Shamrao, AIR 1961 SC 1206.

9. Here I may deal with this question because there will be no necessity of going into the evidence in the event of my holding that the previous judgments were judgments in rem.

10. Relevancy of judgments is dealt with by the group of Sections 41 to 43 in the Evidence Act. I may read Sections 41 and 42:

'Section 41. Relevancy of certain judgments in probate, etc., jurisdiction. A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.

Such judgment, order or decree is conclusive proof--

that any legal character, which it confers accrued at the time when such judgment, order or decree came into operation;

that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person;

that any legal character which it takes away from any such person ceased at the time from which such judgment order or decree declared that it had ceased or should cease;

and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.'

'Section 42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in Section 41. Judgments, orders or decrees other than those mentioned in Section 41, are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.'

Normally a judgment binds only those who are parties to it. Such judgments are known as judgments in personam. Judgments for which provision is made in Section 41 of the Evidence Act are usually referred to as judgments in rem. This phrase 'a judgment in rem' has not been defined, but it has all along been understood as meaning a judgment which is conclusive not only against the parties, but also against the whole world. Such judgments declare, define or otherwise determine the status of a person or of a thing, that is to say, jural relationship of a person or thing to the world generally. A judgment in rem is an adjudication pronounced as its name indeed denotes, upon the status of some particular subject-matter, by a tribunal having competent authority for that office (vide passages referred to in the Sarkar's Law of Evidence, Twelfth Edition at page 464). The term 'legal character' as used in Section 41 means something equivalent to status. The legal character assigned to a person announces to all the world what the legal status of a person is. The term must be narrowly construed, for it must be remembered that an action in rem is not an action against a thing but an action availing against all the world (In re Ven-kataramanayya, ILR 54 Mad 640).

11. A bare reading of Section 41 denotes that: (1) the judgment must first be a final judgment or a decree of a competent court; (2) it must be in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction; (3) it must confer upon or take away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing; not as against, any specified person but absolutely, such judgment, order or decree is conclusive proof that any legal character which it confers, accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person; that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property. To my mind, the judgment in the suit under Section 92, Civil Procedure Code in the present case was not one delivered in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction. Therefore, one of the necessary conditions for the applicability of this section is wanting. There can be no gainsaying the fact that the judgment relates to matters of 'a public nature relevant to the inquiry' within the meaning of Section 42 of the Evidence Act. Undoubtedly the question whether a particular temple was a public temple or not is a matter of a public nature. The determination of the question was relevant to the inquiry that resulted in the aforesaid judgments. Consequently the judgment is a relevant fact.

12. Section 43 of the Evidence Act lays down that judgments, orders or decrees other than those mentioned in Sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provisions of the Act. Reading all these three sections together, I am satisfied that the judgment cannot be characterised as Judgment in rem so as to be conclusive of the matter within the meaning of Section 41 of the Evidence Act. To be conclusive a judgment must squarely fall within the four corners of Section 41 of the Evidence Act.

13. I may now turn to the cases referred to by the learned counsel.

14. In AIR 1964 SC 107, a suit was filed under Section 92, Civil Procedure Code by certain persons representing Cutchi Memons community on the ground that a certain mosque belonged to Cutchi Memons community. The persons representing the Cutchi Memons community had prior to the filing of the suit applied for sanction under Section 92, Civil Procedure Code on the specific ground that the mosque in question belonged to the Cutchi Memons community. Some of the defendants that were impleaded in the suit were non-Cutchi Memons. They were persons who were impleaded as trespassers and their interest was to defend the suit in their individual rights to manage the property. The question arose whether the decree in the suit could create a bar of res judicata against persons claiming interest not represented in the suit. In the light of these facts their Lordships considered the scope of a suit under Section 92, Civil Procedure Code and observed:

'Where a representative suit is brought under Section 92 and a decree is passed in such a suit, law assumes that all persons who have the same interest as the plaintiffs in the representative suit were represented by the said plaintiffs and, therefore, are constructively barred by res judicata from reagitating the matters directly and substantially in issue in the said suit.

A similar result follows if a suit is either brought or defended under Order 1, Rule 8. In that case, persons either suing or defending an action are doing so in a representative character, and so, the de cree passed in such a suit binds all those whose interests were represented either by the plaintiffs or by the defendants. Thus, it is clear that in determining the question about the effect of a decree passed in a representative suit, it is essential to enquire which interests were represented by the plaintiffs or the defendants. If the decree was passed in a suit under Section 92, it will become necessary to examine the plaint in order to decide in what character the plaintiffs had sued and what interests they had claimed. If a suit is brought under Order 1, Rule 8, the same process will have to be adopted and if a suit is defended under Order 1, Rule 8, the plea taken by the defendants will have to be examined with a view to decide which interests the defendants purported to defend in common with others.'

15. The principles laid down in that case are fully applicable to the present case. The defendant-appellants were not parties to the suit under Section 92, Civil Procedure Code for the settlement of a scheme. Indeed when in pursuance of the scheme the trustees wanted to take possession of the property, they were resisted. The necessity for the suit under Section 92, Civil Procedure Code was felt because the Pujaris had made alienations of the temple property. In that event it cannot be said that the plaintiffs in the earlier case were representing the same interest as the defendant.

16. This is apart from the fact that the plaint in the earlier suit had not been produced as explained in the cited passage. It is necessary in such cases to examine the pleadings and the issues in order to decide in what character the plaintiffs had sued and what interests they had claimed or represented. Raje Anandrao's case, AIR 1961 SC 1206 which was cited by learned counsel for the respondents has been considered in this case. Also the Madras cases namely, Ramadas v. K. Hanu-mantha Row, (1913) ILR 36 Mad 364 and Hassanulla Khan v. Royal Mosque Trust Board, AIR 1948 Mad 134 were considered. Regarding these cases this is what their Lordships had observed in para. 15 of the judgment:--

'The first point which has been pressed before us by Mr. Setalvad is that the present suit is barred by reason of the tact that in the earlier suit instituted under Section 92 of the Code a scheme had already been framed by a Court of competent jurisdiction and the decree by which the said scheme was ordered to be drawn binds all parties interested in the Trust. A suit under Section 92, it is urged, is a representative suit, and so, whether or not the present respondents actually appeared in that suit, they would be bound by the decree which had framed a scheme for the proper administration of the trust. In support of this argument, reliance is placed on the decision of this Court in 1961-3 SCR 930 at p. 940 = (AIR 1961 SC 1206 at p. 1211), where it is observed that though the Pujaris were not parties to the suit under Section 92, the decision in that suit binds the Pujaris as worshippers so far as the administration of the temple is concerned, because a suit under Section 92 is a representative suit and binds not only the parties thereto, but all those who are interested in the Trust. Mr. Setalvad has also relied on the two decisions of the Madras High Court, in (1913) ILR 36 Mad 364 and in ILR (1948) Mad 257 = (AIR 1948 Mad 134). The effect of these two decisions is that a decree passed in a suit filed under Section 92 framing a scheme is binding on all and it prevents every person whether a party to the suit or not from asserting in a subsequent suit rights which conflict with or attack the scheme.'

Then having said this, their Lordships proceeded to consider the basis of the decisions aforesaid that a suit under Section 92 of the Code of Civil Procedure binds all parties. Their Lordships observed:

'The basis of this view is that a suit under Section 92 is a representative suit and is brought with the necessary sanction required by it on behalf of all the beneficiaries interested in the Trust. The said section authorises two or more persons having an interest in the Trust to file a suit for claiming one or more of the reliefs specified in Clauses (a) to (h) of Sub-section (1) after consent in writing there prescribed has been obtained. Thus, when a suit is brought under Section 92, it is brought by two or more persons interested in the Trust who have taken upon themselves the responsibility of representing all the beneficiaries of the Trust. In such a suit, though all the beneficiaries may not be expressly impleaded, the action is instituted on their behalf and relief is claimed in a representative character. This position immediately attracts the provisions of explanation VI to Section 11 of the Code. Explanation VI provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. It is clear that Section 11 read with its explanation VI leads to the result that a decree passed in suit instituted by persons to which explanation VI applies will bar further claims by persons interested in the same right in respect of which the prior suit had been instituted, Explanation VI thus illustrates one aspect of constructive res judicata. Where a representative suit is brought under Section 92 and a decree is passed in such a suit, law assumes that all persons who have the same interest as the plaintiffs in the representative suit were represented by the said plaintiffs and, therefore, are constructively barred by res judicata from re-agitating the matters directly and substantially in issue in the said earlier suit.

A similar result follows if a suit is either brought or defended under Order 1, Rule 8. In that case, persons either suing or defending an action are doing so in a representative character, and so, the decree passed in such a suit binds all those whose interests were represented either by the plaintiffs or by the defendants. Thus, it is clear that in determining the question about the effect of a decree passed in a representative suit, it is essential to enquire which interests were represented by the plaintiffs or the defendants. If the decree was passed in a suit under Section 92, it will become necessary to examine the plaint in order to decide in what character the plaintiffs had sued and what interests they had claimed. If a suit is brought under Order 1, Rule 8, the same process will have to be adopted and if a suit is defended under Order 1, Rule 8, the plea taken by the defendants will have to be examined with a view to decide which interests the defendants purported to defend in common with others. The decision of this question would be material in determining e correctness of the argument urged by Mr. Setalvad before us.'

17. Then their Lordships considered the plaint in the suit under Section 92 and came to the conclusion that only the Cutchi Memons community could be said to have been represented. Thus, according to their Lordships, the party who was held precluded from filing a subsequent suit was constructively represented in the earlier litigation and the provisions of Explanation VI to Section 11 applied. This is far from saying that a suit under Section 92 would result in a decision which will be a judgment in rem so as to be conclusive against the whole world. The decision can bind only such parties or interests as were represented in that suit, but not others.

18. Anjuman Islamia v. Latafat Ali, AIR 1950 All 109 proceeds on the view taken in the Madras cases. The position that results from Ahmad Adam's case, AIR 1964 SC 107 is that before the previous judgment under Section 92, Civil Procedure Code can be held binding on a party, interest of such a party should have been represented in the earlier suit. For holding a judgment to be conclusive, being a judgment in rem, it should come within the four corners of Section 41 of the Evidence Act or for that judgment to be binding it must fall within the ambit of Section 11, Civil Procedure Code. Where a suit was filed under Section 92. Civil Procedure Code then the interests or the parties which are sought to be bound must be shown to have been represented in such suit. Applying the tests laid down in AIR 1964 SC 107, I am unable to hold that the party can be held bound by such judgment. Such a judgment would undoubtedly be a relevant evidence within the meaning of Section 42 of the Evidence Act, as already observed, and will have to be considered along with other evidence.

19. Learned counsel for the appellant canvassed for remanding the case for a proper appraisal of the evidence by the trial Court. I was disinclined to accept this prayer for two reasons: firstly, this appeal has come up for hearing almost after 12 years, and secondly, even though the learned District Judge has considered the judgment in the suit under Section 92 to be a judgment in rem, he had nonetheless gone into the evidence, though I may add that the plaintiffs' witnesses have not been individually discussed in the judgment.

20. The crucial question in the case is whether the temple in question is ft public temple as claimed by the plaintiffs or it is a private temple as asserted by the defendant-appellant The distinction between a public and a private temple involves important legal consequences. When the donor or the founder had expressed himself in an indenture while dedicating the temple, no difficulty arises. The difficulties arise where no express dedication is proved. In that event the question whether the temple is a public temple or a private one will have to be decided from certain proved facts. The considerations for distinguishing a public temple from a private one have been indicated by B. K. Mukherjea in his monumental work intituled 'Hindu Law of Religious and Charitable Trust'. The first indication is long user. If the public have been in the habit of worshipping in the temple in an open and unconcealed manner for a long period of time and were never denied any access to it, that would be a strong evidence of dedication. With regard to period of user no hard and fast rule has been laid down. There is no minimum which must be fulfilled and there is no maximum which compels the inference. Each case would depend upon its own circumstances. The second indication is the conduct of the founder and his descendants. If they in fact held it to be a public temple, a very strong presumption of dedication would arise.

The next indication is that if repairs and additions to the temple building are made with public subscriptions and if festivals in the temple are also performed with the aid of public funds, then these facts would certainly fortify the inference of the temple being a public one. Proof that the members of the public had contributed for the construction of the temple or for the extension of its building is another indication for showing that it is a public temple. The next important consideration is the association or strangers in the management. Then the location of the temple and its structure are yet other important indications. The existence of a Prakaram, Dhwajastambam, Balipeetam and Nandikeswara would be circumstances to show that the temple is a public temple. Then the remission of land revenue in respect of land on which the temple stands or grant by the rulers towards the expenses or the temple would be almost decisive for showing that the temple is a public one. By far the most important thing to determine is whether the public can have access to the temple as a matter of right. A private temple is generally meant for private individuals or ascertain-able group, whereas a public temple is for the benefit of public at large. The weight to be attached to the several factors found in a case would depend on the circumstances of that case and several of the factors may be present, but the decision as to the character of the temple must be made on a conspectus of the entire chain of circumstances (vide pages 168 to 180 of 'Hindu Law of Religious and Charitable Trust' by B. K. Mukherjea, Second Edition).

21. In a recent case G. S. Maha-laxmi v. Shah Ranchhoddas, AIR 1970 SG 2025, their Lordships examined the previous judgments, such as, Shri Govindlalji Maharaj v. State of Rajasthan, AIR 1963 SC 1638, Narayan Bhagwant Rao Gosavi Balajiwale v. Gopal Vinayak Gosavi, AIR 1960 SC 100, Deoki Nandan v. Murlidar, AIR 1957 SC 133 and a few Privy Council cases and then laid down that generally the Courts have to address themselves to the various questions, such as, (I) Is the temple built in such imposing manner that it may prima facie appear to be a public temple? (2) Are the members of the public entitled to worship in that temple as of right? (3) Are the temple expenses met from the contributions made by the public? (4) Whether the sevas and utsavas conducted in the temple are those usually conducted in public temple? and (5) Have the management as well as the devotees been treating that temple as a public temple? Their Lordships went on to say that the circumstance that the public or a section thereof have been regularly worshipping at the temple as a matter of course and they can take part in the festivals and ceremonies conducted in that temple apparently as a matter of right is a strong piece of evidence to establish the public character of the temple. If votive offerings are being made by the public in the usual course and if the expenses of the temple are met by public contribution, it is safe to presume that the temple in question is a public temple. In brief, ac-cording to their Lordships, the origin of| the temple, the manner in which its affairs are managed, the nature and extent of gifts received by it, rights exercised by the devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the character of the temple I are factors that go to establish whether a temple is a public temple or a private, temple.

22. Let us now turn to the evidence in the case. The plaintiffs had examined five witnesses and the defendant had examined in all 47 witnesses. P.W. 1 is Dhannalal who has his shop in the Bazar. He had stated that the temple is known as Daooji's temple. It is located in the Bazar. It has 7 shops and above them is the temple which is reached by a staircase. He stated that he had heard it from his forebearers that the temple had been constructed by Gatru Matru. It was a public temple. Its manager was Sheo-narain who was dead. During Sheo-narain's time Kanhaiyalal, the father of Shri Ram defendant was doing the Sewa Puja of the temple. He, however, stated that he had not seen anyone going into the temple. He had not seen any festivals in the temple. He has admitted that the upper storey had been in possession of Bampyari, Kanhaiyalal and Shri Ram. P.W. 2 was Gordhanlal. He had also heard that Daooji's temple which is in the Bazar of Alwar was constructed by Gatru Matru. This temple was not anyone's private property and he had seen Kanhaiyalal and Shri Ram doing Sewa Puja in the temple. According to him, Sheonarain was the manager. P.W. 3 was Swami Gopilal. He too stated that the temple had been constructed by Gatru Matru Bohras and is known as Gatru Matru's Mandir. He stated that this temple was a public one though while so stating he added that Sheonarain was the owner of the temple. He stated like this:

^;g eafnj ifCyd eafnj gS Af'koukjk;.k bl eafnj ds ekfyd Fks buds cqtqxksZ dks lsok iwtk ds fy, o ifCyd dsvkjke ds fy, eafnj fn;k Fkk] crkSj esustj ds dke djrs Fks o iqtkjh oxSjkg viuhrjQ ls j[krs Fks A*

According to this witness Kanhaiyalal was working as Pujari for Rs. 3/- a month and he had been kept by Sheonarain. Further, according to him, the offerings were taken by the Pujari. P.W. 4 Jagannath stated like the other witnesses that the temple was a public one and on the occasion of marriage of a girl Re. 1/-would be given for the temple by the people. This used to be given to Sheonarain who was the manager. He added that Kanhaiyalal and Shri Ram were the Pujaris of the temple. The last witness Chaju Ram (P.W. 5) had also stated the same thing that the temple was a public one and Sheonarain was the Pujari and he had kept other Pujaris on his own behalf. He added that the festivals like Janma-shtami and Basant Panchami used to be held in the temple. Besides this there is the documentary evidence produced by the plaintiffs and it consists of Ex. 6, a copy of the judgment of the High Court of Alwar dated 19-11-41, statement of Kanhaiyalal dated 2-10-37, statement of Sheonarain Ex. 13 dated 11-10-38, and statement of Shri Ram dated 23-12-41 in a miscellaneous case No. 42. Besides this there was Ex. 4, the judgment of the Rajendra Shasan, i.e., the Maharaja aided bv his ministers and Ex. 7 a Likhtam dated 23-4-1872, making a grant of 2 Takas a day for the Sewa Puja in the temple by the Alwar State. Further there was Ex. 9 an Ikrarnama regarding Bhogkharch by a tenant who executed it in favour of the mortgagee when a shop of the temple was mortgaged by Sheonarain. There were some other documents, but as they have not been referred to in the arguments, I need make no mention of them.

23. The defendants led evidence in rebuttal both documentary and oral. He had produced 47 witnesses and almost 80 documents. The documentary evidence can conveniently be characterised as: (1) rent notes-- they are Exs. A-55, A-56, A-59, A-60 to A-66, A-68, A-69, A-70 to A-75, A-76/1, A-77 to A-79; (2) Receipts Ex. A/1, Ex. A/53, Ex. A/54 and Ex. A/ 76; (3) the third category consists of the various repairs that the defendant had made in the temple; (4) the fourth category consists of notices issued by the Municipal Board for making certain necessary repairs. They were: Ex. A/2, Ex. A/57 and Ex. A/58; (5) the fifth category was regarding the staying of certain marriage parties and travellers (Tarns') in the temple. Amongst the oral evidence four witnesses were regarding the story of the 'Sankalp' of the temple in favour of the defendant's ancestors by Gatru Matru; they were: D.W. 18 Kanhaiyalal, D.W. 24 Durga Prasad, D.W. 25 Mahilal and D.W. 42 Badri Prasad. The more important of the other witnesses which alone were referred to me were D.W. 17 Khermal, D.W. 20 Amrat Singh, D.W. 21 |agdish Prasad, D.W. 22 Ram-kumar, D.W. 24 Durga Prasad, D.W. 25 Mahilal. D.W. 26 Laxmi Narain, D.W. 27 Budhalal, D.W. 28 Shiv Prasad, D.W. 33 Ladu Ram, D. W. 34 Govind Sahai, D. W. 42 Badri Prasad and D. W. 46 Jagat Narain, D.W. 47 was the defendant Shri Ram himself.

I need not discuss these witnesses at any great length. Suffice it to say that many of the defendant's witnesses have admitted such facts as would unmistakably point towards the public character of the temple. D.W. 8 Chandulal has admitted (at page 83 of the paper book) that the Pujari of the temple was Kanhaiyalal and he had been kept on behalf of Sheonarain. D.W. 12 Heeralal has admitted (at page 96 of the paper book) that Kanhaiyalal was a servant and was doing Sewa Puja. D.W. 4 Pyarelal had stated (at paere 73) that public goes into the temple. D.W. 11 Nawal Kishore has admitted (at page 93) that he had pone into the temple like a member of the public and others were also going like that. D.W. 13 Ramjilal had admitted (at patre 98) that the people pro and take 'Prashad' at the temple and there is no obstruction to anybody from going into the temple. The samething has been said by D.W. 14 Paneyalal as also by D.W. 18 Kanhaiyalal. D.W. 20 Amrat Singh has stated that the festivals are held in the temple and people of Alwar and from other villages go for 'Darshan' in the temple. He has also admitted that marriage parties and travellers stay at the temple, though he added that thev do so with the permission of the Pujari (at page 112 of the paper book).

D.W. 21 Jagdish Prasad has admitted that the festivals are held in the temple and there is no obstruction to anyone for going into the temple. According to him, the travellers also stay there (page 115 of the paper book). D.W. 22 Ramkumar has also admitted that festivals are held and students coming for examination and marriage parties also stay in the temple but for it rent is charged. D.W. 24 Durga Prasad has stated in unmistakable terms that the temple is meant for the public at large. It is of Gatra Matru. He further stated that people come at the time of 'Aarti' and also join the festivals. D.W. 25 Mahilal, D.W. 33 Ladu Ram, D.W. 34 Govind Sahai and D.W. 41 Chiranjilal had also stated so. According to D.W. 26 Laxmi Narain the expenses of the temple are met by the offerings and from the rent that is received from the travellers staying there. None other than D.W. 47 Shri Ram has admitted that the public come for 'Darshan' in the temple and they make offerings, but he adds that they are so received by him as the owner. He has also admitted that there is no obstruction to anyone in coming to the temple.

24. A survey of the defendant's own evidence leads to the conclusion that for long the public have been going to the temple for the 'Darshan'. They have been making offerings to the deity, also the public join the festivals and marriage parries and other persons visiting Alwar stay in the temple. They may be taking the permission of the Pujari for staying at the temple, but that would not derogate from the public character of the temple, if it is otherwise so. Somebody's permission has to be taken even for staying in a Dharam-shala or a temple, but that is of no consequence. It is also clear from the evidence that the expenses of the temple or the deity are met from the offerings and by whatever rent is derived on account of the travellers or 'Yatris' staying in the temple. Even the oral evidence therefor does not leave any doubt in one's mind about the character of the temple being a public one. Then of all other documents Ex. 17, the statement of Kanhaiyalal, the father of defendant Shri Rarn, recorded on 2-10-37 gives a lie to the claim that the temple had been given in 'Sankalp' by Gatru Matru, the founders, to the ancestors of Shri Ram. In Ex. 17, Kanhaivalal stared that he was doing the Sewa Puja at the Daooji's temple. This temple was constructed, according to him, by Gatru Matru some 125 years back. This shows that the temple is now almost 160 years old. Kanhaiyalal could not say as to whom Gatru Matru entrusted the temple for Sewa Puja. He also admitted that the ancestors of Sheonarain were managing the temple. He further stated that since he reached the age of discretion he had seen Sheonarain managing the affairs of the temple. He, however denied that he had been taking any salary from Sheonarain and added that his family had never taken any salary, but were spending their own money for Sewa Puja. He claimed that he was a Muafidar Jagirdar and he used to spend from the income of his Jagir.

This statement is remarkable in one respect and it is that Kanhaiyalal the father of the defendant, had not claimed that the temple belonged to him, nor had he stated that it was given in 'Sankalp* by Gatru Matru to his ancestors. Indeed he could not say to whom Gatru Matru had given this temple. He had also admitted that Sheonarain and his ancestors were the managers of the temple. Then he has stated that it is Daooji's temple where he was doing Sewa Puja. This statement is very much in keeping with what many of the defendant's witnesses have admitted. The story of the 'Sankalp' as also the version of the defendant that the temple belonged to him is wholly unacceptable. Then, apart from every thing, the judgments rendered by the High Court of the former Alwar State Ex. 6 and that of Rajendra Shasan Ex. 4 further show that it is a public temple. In Ex. 4 the two of the members of the committee namely, Servashri S. M. Bapna, President and Chain Singh, Member, after referring to the evidence, observed:

'In face of the above documents we have come to the irresistible conclusion that the shops in dispute were meant for the maintenance of the temple and belonged to it as trust property. As stated elsewhere this documentary evidence has not been rebutted and the counsel for the appellants could not say anything satisfactory which could lead to any other decision. Hindus of a religious temperament are anxious only so long as a public religious endowment is not created for the benefit of their souls. That done they do not as a rule think it necessary to make effective arrangements for its continuance at a later stage and do not worry even about the fate of the endowment thereafter.'

The third member rendered a separate opinion though concurring. When the case was submitted before His Highness the Maharaja, he recorded the following order:--

'We agree to the opinion of the majority of the members of the Judicial Committee of Shri Rajendra Shasan. A decree shall be passed in terms of this opinion.

With regard to the separate ' opinion recorded by a single member of the above Committee we find that there is nothing in it which goes against the majority's opinion.

Sd/- Tej Singh,

9-4-1945.

His Highness.'

This judgment is of no mean importance. Maharaja and his officers could have correctly appreciated the situation regardingthis temple on account of their nearnessto the scene. The perusal of the severaldocuments establishes one thing very clearly and it is that as long as the former Alwar State was existing, the defendant hadat no time put forth the story that thetemple was a private one. Of the rentnotes produced by the defendant, Ex. A/78 is of 15-7-1909 and Ex. A/79/D.W. 46is of 18-8-1909. Ex. A/78 is by one Govind Sahai in respect of a 'Kotdi' towardsBaggi Khanna. In it Kanhaiyalal, fatherof the defendant is described as a Pujari.Likewise, in Ex. A/79 which is in respectof a 'Chabutra' of the stair-case, Kanhaiyalal is described as Pirjari of Daooji's temple. Ex. A/76/1 is of Asoj Sudi 12 ofSamvat year 1967. It is also in respectof a 'Kotdi'. In it Kanhaiyalal is described as Pujari of the temple. Then there isEx. A/56 which is a rent note of 23-11-42. It is remarkable that in this the description of the shop adjacent to the one

Which was rented out is given as^nqdku Jh nkth egkjkt* %A Theshop is said to be nqdku Jh nkth andShri Ram, the defendant, is described as a Muafidariqtkjh Jh 108 Jh nkth egkjkt Thesame thing is found in the rent not Ex. A/55 which is of10th July, 1945. In Ex. A/60 whichis of 17th January, 1947 the description ofthe site of the rented premises isgiven as ^eafnj Jh nkth egkjkt dk pcwrjk* Then in Ex. A/63 which is dated31&5&47, the description of the two 'Kothas' is given asiwoZ eafnj nkth egkjkt- Then inEx. A/63 dated 3-9-47, the description ofJh nkth pcqrjh &&& isgiven as nqdku Jh nkth egkjkt onone side and eafnj Jh nkth egkjkt dh Fkh

25. The upshot of all these documents is that Shri Ram was no doubt managing the property and he was residing in certain apartments in the premises. He was also deriving income from rents and utilising it both for himself as well as for the purposes of the temple. The notices issued by the Municipal Board of Alwar from time to time namely, Ex. A/2, Ex. A/ 57 and Ex. A/58 also go to show that it was the defendant who was managing the affairs of the temple. He was again allowing marriage parties to stay in the temple and so also was the case in respect of the travellers who would be staying at the temple premises. These documents, however, do not establish that the temple was a private one. The learned District Judge was, therefore, right in holding that the status of defendant Shri Ram was that of a mere Pujari and he had got no title over the temple or the properties appurtenant to it.

As regards the performance of the Sewa Puja by the defendant Shri Ram, the learned District Judge came to the conclusion that the plaintiffs had failed to prove that the work of Sewa Puja was not being properly performed by Shri Ram and that being so Shri Ram could not be ousted from the Office of the Fujari on this ground. However, the learned Judge found that as Shri Ram claimed the temple and its estate as belonging to himself, it amounted to grave misconduct and this entailed his removal from office. This is what the learned Judge has said:--

'It was urged by learned counsel for the plaintiffs that since Sri Ram claimed the temple and its estate as belonging to him it is such a grave misconduct that entitles bis removal from tbe office. I find much force in this contention. The fact that Shri Ram has claimed the temple and its estate as belonging to him is indeed indicative of a grave misconduct on his part as a pujari. That being so, the plaintiffs are therefore entitled to remove him on this ground. This issue is therefore decided accordingly.'

20. Learned counsel for the appellant has, however, submitted that on account of the events that had happened the present defendant was not to blame so much in this connection and his claim though wrong was a bona fide one. Learned counsel maintained that where the claim put forth appears to be bona fide the Pujari or the Shebait for that matter need not be removed and he referred me to Loke Nath v. Abani Nath; AIR 1941 Cal 68; Ramjilal v. Pitam Chand, ATR 3948 E.P. 18 and Jawaharbeg v. Abdul Aziz, AIR 1956 Nag 257. In AIR 1941 Cal 68, it was observed:--

'Mere assertion in a suit under Section 92 by a trustee that trust properties are private properties is not by itself a sufficient ground for his removal. If he committed any breach of trust before the suit, his conduct in the course of the suit is an important element to be taken into consideration in deciding whether the breach should be condoned and he should be allowed to retain the office.'

27. In AIR 1948 EP 18 the learned Judges observed:--

'In a suit against a pujari of a temple for a declaration that the temple is a public wakf, the defendant pleaded that this temple and the land attached thereto were his private jagir and that the income derived therefrom was his private income. The suit was decreed, the Court holding that the temple and the land attached thereto were public wakf properties. In a subsequent suit filed against the pujari for his removal on the ground of his mismanagement and breach of trust, it was contended that the assertion by the defendant of a private claim and the denial of the existence of a public trust, in the previous suit were sufficient in themselves to justify the removal of the defendant: Held, that it was open to the defendant to defeat the plaintiffs claim by all means in his power and the fact that he chose a particular means would not entitle the plaintiffs to bring a fresh suit against him.'

The last observations are, to my mind not quite apposite to the present case. The decision turned, more on the maintainability of the fresh suit against the Pujari than on consideration of denial of existence of a public trust in the previous suit.

28. In AIR 1956 Nag 257, the learned Judges observed:

'Laying a claim to the wakf property by a mutawalli under a bona fide mistaken belief in itself may be no ground for his removal, but when the conduct of the mutawalli in claiming the wakf property is not bona fide and upto the time of the dispute the property was in good repair but it was only since the dispute arose that it was not kept in good repair it is necessary, in these circumstances that the mutawalli should not be kept in charge of the management of the property.'

The fate of the case turned on the subse-quent conduct of the mutawalli in not keeping the property in good repair which induced the learned Judges to hold that the mutawalli should not be kept incharge of the management of the mosque and its property.

29. There is no manner of doubt that in this case Sheonarain, the person who is said to be the manager of the temple, had done a good deal of bungling. He had mortgaged the shops appurtenant to the temple which resulted in insolvency proceedings against him and the auction sale of some of the shops and apartments in the course of insolvency proceedings. It was this misconduct of Sheonarain that resulted in Section 92 Civil Procedure Code suit and the framing of scheme thereto. It further appears, as already observed, that 3 of the rent notes namely, Ex. A/78, Ex. A/79 and Ex. A/76/1 were old documents in favour of Kanhaiyalal. Seeing that his father Kanhaiyalal had been managing the affairs of the temple and renting out its premises, the present defendant could bona fide believe that the temple had been given by the founders to their forefathers. At the time of recording of his statement on 8-7-60, defendant Shri Ram was of 41 years. The disputes about the alienations of temple property had arisen long before, that is, around 1937 when the defendant would be a boy of 18 when at that time his father was alive and he may have acted on whatever his father had told him.

Shri Ram and his ancestors had been residing in the temple premises almost for 4 generations and when there was nothing wrong in performing the Sewa Puja of the temple I should think he should not be disturbed from it and should be allowed to reside in a portion of the temple premises as long as he faithfully discharges his duty as a Pujari. The possession of the temple and its property shall, however, be that of the trustees. Learned counsel has demarcated the the premises No. 7 on the map Ex. 1. The portion marked red, that is the temple, shall he handed over to the plaintiffs-trustees. The defendant shall be able to go into the red portion only for purposes of performing Sewa Puja as usual. He shall not let out any portion of the residential apartment No. 7, but will be entitled to use them for the residence of himself and his family as long as he faithfully continues to perform Sewa Puja of Shri Daooji Maharaj under the lawful directions of the plaintiffs-trustees.

30. The result is that I allow this appeal in part and modify the judgment and decree of the learned District Judge in the above terms. In all other respects the decree shall stand as it is. The parties shall bear their own costs of this appeal.

31. Before parting with the case I pay tribute to both the learned counsel for presenting their respective cases with thoroughness and fairness.


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