J.P. Jain, J.
1. Plaintiffs have challenged the order of the Civil Judge, Chittorgarh dated 27-7-74 passed in civil original suit No. 17 of 1974 whereby he stayed his hands from proceeding with the suit and directed the parties to approach the Assistant Commissioner, Devasthan for taking a decision as to whether the temple in question is a public trust or not.?
2. The plaintiffs instituted a suit on 20-4-1965 in the court of District Judge, Partabgarh claiming themselves as the founders and the managers (trustees) of the temple known as temple of Bichhavat situate in Chittorgarh against Dwarka Das and two others During the pendency of the suit, Dwarka Das the alleged Pujari of the temple died. Accordingly the suit was amended and in his place his son Jagdeo Das has been impleaded as defendant No. 1. Tae other two defendants Bhagwanji and Sahkari Bhandar. Chittorgarh are proforma defendants and they are said to be the tenants in the temple property. The case of the plaintiff as sat out in the plaint is that toe temple belonged to the community of Chhipas and the idols of Shri Murlidahrji, Shri Hanumanji and Mahadeoji are installed in the temple. There is some immovable property under the temple which has been described in schedule B The list of the movable property has been set out in Schedule A. According to the plaintiffs the plaintiff on behalf of the community of Chhipas are Shebaits and trustees of the temple. They appointed Dwarka Das as Pujari of the temple sometime in Samvat 2003 and he has been taking the offerings received in the temple. But for sometime he has been misconducting his duties as a Pujari and started claiming himself to be the Shebait of the temple Defendant Dwarka Das died on 31-5-1966 and after his death his son Jagdeo Das has been in custody of the temple and has been taking rent of the property for his own use. The suit was filed in the representative capacity under Order 1 Rule 8 C.P.C. It was prayed that the possession of the property described in Schedules A and B be restored to them on behalf of the Chhipa community. The original defendant Dwarka Das bad resisted the suit and almost on the same grounds his son Jagdeo Das repudiated the allegations made by the plaintiffs. It was alleged by him that the temple is, really speaking, a Hindu Religious Monastic institution. He denied that the temple was constructed or founded by the Hindu Chhipa community. The management of the institution had always been in the hands of his father as Mahant and after his death he being his disciple became incharge of the institution and the property appurtenant thereto According to him, this institution which was dedicated to the Hindu community at large, the idols were installed is the temple at different times and they are being worshipped formerly by Dwarka Das and now by him. Vaishnavs are directly interested in this institution. He also denied the appointment of Dwarka Das as Pujari by the plaintiff or by the Chhipa community. It was also contended that the provisions of the Rajasthan Public Trusts Act, 1959 apply to this institution.
3. The case was transferred for trial to the Civil Judge, Chittorgarh. As many as 9 issues were framed and the evidence was recorded on all the issues. The issues which are relevant for the purpose of this revision application, are as follows:
1. Whether the property in dispute is that of a public trust and whether this trust requires registration under the Rajasthan Public Trusts Act?
2. If so, whether the suit is barred under Sections 29 and 73 of the Rajasthan Public Trusts Act?
4. The learned Judge did not give his finding on other issues placing reliance on the decision in Jagannath and Ors. v. Satya Narayan and Ors. 1972 WLN 709. He found that the assets of the alleged ample are of more than Rs. 30,000/-. The question as to whether the temple is a public trust or not, he left it to be decided by the authorities under the Public Trusts Ace. Accordingly ha stayed his hands from proceeding with the case.
5. Learned Counsel appealing for the petitioners has assailed this order merely on two grounds i.e. (i) hit the temple was not a public trust, it was a private trust; (ii) that the valuation of the property is less than Rs. 30,000/-. It was also urged by him the toe case of Jagannath relied upto by the learned Judge ha not been rightly decided and deserves reconsideration. On the other hand Mr. Bhandari supported the order and submitted that the decision of this Court in Jagannath's case 1972 WLN 709 is applicable with full force and it has been rightly decided. I have considered the rival contentions canvassed at the bar.
6. Reference may be made to Sections 29 and 73 of the Rajasthan Public Trusts Act, 1959 They read as follows:
29. Bar against suits by unregistered trust : (1) No suits to enforce a right on behalf of a public trust which is required to be registered under this Act but has not been so registered shall be heard or decided in any court. (2) The provisions of Sub-section (1) shall apply to claim of set off or other proceeding to enforce a right on behalf of such public trust.
Section 73 which occurs in Chapter XIII runs an under:
73 Bar of jurisdictions Save as expressly provided in this Act no civil court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or in respect of which the decision or order of such officer or authority has been made final and conclusive.
7. According to this Act public trust means an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, Dharmada or any other religious or charitable endowment or institution and a society formed either for religious or charitable purpose or for both. Section 17 of the Act requires registration of all public trust within a specified time allowed under that section. It would be useful to refer here Government notification dated 28-6-62 published under Section 1 of the Act and it is extracted below:
REVENUE 'A' DEPARTMENT NOTIFICATION
Jaipur, June 28, 1962
No. F. 3F(II)Rev/A/59, - In exercise of powers conferred by Sub-section (4) of Section 1 of the Rajasthan Public Trusts Act, 1959 (Rajasthan Act No. 49 of 1959), the State Government here by directs that the provisions of Chapters V, VI, VII, VIII and IX of the said Act shall come into force on the 1st day of July, 1962, and shall apply therefrom to all public trusts throughout the State of Rajasthan whose gross annual income from all sources whatsoever is not less than Rs. 30,00/ or the total valuation of the assets whereof is not less than Rs. 30,000/-, a draft notification to this effect having already been published, as required by Sub-section (5) of Section 1 of the said Act, in the Rajasthan Gazette, Extra-ordinary, Part III-B, dated May 21, 1962.
Secretary to the Government.
8. The question that falls for my determination is whether the suit as instituted by the plaintiffs is barred under Section 29 of the Act. I have noticed above while extracting Section 29 of the Ac that a suit to enforce a right on behalf of a public trust which requires to be registered under the Act shall not be heard and decided in any court. The contention of the learned Counsel appearing on behalf of the petitioners is that the temple was a private temple and it did not have the character of a public trust, Entire plaint was read out before me. I am unable to find from the plaintiff's pleadings any allegation that it is private temple, or that it does not have the character of a public temple. In para 1 of the plaint itself, it has been stated that there is a temple situated in Ward No. 5 in the town of Chittorgarh and it is known as temple of Bichhavatji and it was got constructed by the community of Hindu Chhipas and since then it is being managed by that community. The plaintiffs claimed themselves to be Shebaits (trustees) and the managers of the temple.
9. The essential distinction between a private and a public trust is that in the former the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained, but in the latter the beneficial interest must be in an uncertain and fluctuating body of persons either the public at large or some considerable portion of it answering a particular description. The fact that the uncertain and fluctuating body of persons is a Section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would not make any difference is the matter and would not make the trust a private trust. Puma facie n is rot case of the plaintiff that the temple was constructed by a particular individual and the beneficiaries are definite and ascertained individuals belonging to a Hindu family. As noticed above, temple was constructed by the Hindu Chbipa community. The beneficiaries according to these allegations are not definitely ascertainable. The community of Chhipas may grow every day and according to the plaintiffs all the members of Chhipa community are the beneficiaries of the temple. This is clearly an uncertain and fluctuating body of persons. It is not open to she learned Counsel to argue that the temple is a private temple. Yet the matter has been left open by the learned Civil Judge for the authorities under the Rajasthan Public Trusts Act to decide as to whether the temple in question is a public trust or a private trust. As a muter of fact whether the trust is a public or a private, would have to be decided in each case upon inferences which could be (sic) drawn from the evidence adduced in the case, material evidence being of actual user by by the public. Learned Counsel referred to a decision in Babu Bhagwan Din and Ors. v. Gir Har Saroop and Ors. AIR 1940 PC 9. In my opinion ii does not help the petitioners Their Lordships in text case held that the essence of a pubic foundation consists in dedication to he public and whether there has been any dedication or not must be ascertained with reference to circumstances of each individual case. By way of contrast another Privy Council case Pujari Lakshman Goundan v. Subramania 29 CWN 112 any be cited. In this case it was said that the founder of the temple dreamed that he should install at his house an idol of the God Subrammya Swami, and that the god would come to his house and enable him to foreted events. He did install that idol at his house and allowed Brahmins and other Hindus of various casts to worship the idol as if it was a public idol. He acted as a Pujari of the idol and received, as such, offerings made to the idol by worshippers and fees which he charged in respect of precessions and other religious services. He also built in the village a rest house for the use of worshippers of the idol. With the income which he derived from offerings and fees, he efficiently maintained the temple and their Lordships of the Privy Council held that in the circumstances of the case though the temple was founded by one individual but it was dedicated to the public.
10. In Narayan Bhagwant Rao Gosavi v. Goppal Vinayak Gosavi : 1SCR773 their Lordships found that the idol of Balaji Ventkatesh was discovered and installed by one individual and though at the inception Use idol belonged to family, but it had become a public endowment in course of time. The facts in that case gave rise to an inference that public were freely admitted to worship on the temple and it was sufficient dedication to the public. Thus the matter has to be decided on the facts of each case, whether a particular temple is a private or public temple.
11. The frets of the case decided by this Court and referred to above Jagannath and Ors. v. Satya Narayan and Ors. were that a suit was instituted on 27-8-1968 by the Panchas of Maheshwari community of Chittorgarh. They claimed the temple of Shri Laxmi Narainji situated at Chittorgarh as that of the community. The grievance was against the Pujari who was a leged to have been employed by them According to them, the Pujari misconducted the Sevapooj of the temple. An injunction was sought against the Pujari. One of the issues framed in the case was as follows:
1. Whether this temple is public trust, if so, whether its registration under the Public Trusts Act in essential and whether the plaintiffs are not entitled to institute or prosecute this suit ID absence of such registration.
12. Learned Judge dealing with this case elaborately discussed the scheme of the Public Trusts Act. He took notice of Sections 29 and 73 of the Act. He answered the pointed question arising in that suit as to whether it can be characterised as one for enforcement of right on behalf of public trust. He observed:
Here the discussion would proceed on the assumption that it is a public trust, because as will be clear from what I am going to say the question his yet to b determined in accordance with law. Let us also assume that the temple is a private one, as contended by the plaintiffs. Then, can it be said that this was a suit for enforcement of a right on behalf of a private trust? If the answer to the question in either case is the same then I should think Section 29 would have its play.
In para 15 learned Judge observed as follows:
Now, the Pujaris are discharging certain duties in relation to the temple when they perform the 'Sewa Pooja' and make use of the articles or the properties of the temple. When the Pujaris are removed and they are eventually called upon to hand over the properties and articles of the temple to the Shebaits or the trustees then the question calls attention is whether the Shebaits are not enforcing a right on behalf of the trust or temple, be it a private temple. If the Shebatis have no rights of their own then they are certainly acting for someone else & if not for temple, then for whom they are acting. I have to manner of doubt that a suit to recover the articles or the properties belonging to the temple is undoubtedly one for enforcement of a right on behalf of the temple. Here I may not decide the controversy whether the temple is a public temple or a private one. I may only concentrate on the word to enforce a right on behalf of a public or private trust. The present suit is undoubtedly for enforcement of the rights on behalf of trust and the bar created by Section 29 of the Act cannot be avoided once it can be held as a result of any inquiry in accordance with law that this was a public temple.
He proceeded to observe:
Now the next question is who is to hold this inquiry and till then what is to happen. Section 73, which I have set out above, lays down that no civil court shall have jurisdiction to decide or deal with any question which is by or under this Act required to be decided or dealt with by any officer or authority under this Act unless it is provided otherwise in the Act. No other provision has been brought to my notice. The question whether Shri Laxmi Narainji's temple is a public temple as asserted by the defendants appellants & the Davasthan Commissioner or a private temple belonging to the Maheshwsri Community as claimed by the plaintiffs is a mixed question of law and fact and is required to be determined by the authorities under the Act provided certain other conditions are also satisfied.
13. There after the learned Judge referred to the notification. According to him if the condition as regards valuation falls within the ambit of the notification, the matter has to by the decided be competent authority under the Act. He then concluded as follows:
In construing the language of the plaint in the case one has to look to its substance and not to its outward form Though it has been argued that it was a suit by a Shebait for the possession of property in the hands of a Pujari who has been removed and thus was not a suit to enforce any right of the public trust as such, I am afraid, the plaintiffs cannot be said to file the suit on their own behalf. They are themselves not claiming any lights in the property that is said to be with the defendants appellants. They may not like to say, in so many words, that they were suing on behalf of the temple, but, to my mind, the sun is very much for and on their of the temple of Shri Laxmi Narainji and thus the impact of Section 29 of the Act cannot be avoided. As I have already observed, I express no opinion on the question whether Shri Laxmi Narainji's temple is a public temple as contended by the defendants appellants and the Devasthan Commissioner or it is a private temple belonging to the Maheshvari Community as claimed of the plaintiffs This question will be decided by the authorities concerned in accordance with law.
14. As a result of his discussion he directed the lover court to find if temple in question satisfies the requirement of valuation, then he shall stay his bands and leave the parties to approach the Assistant Commissioner Devasthan to decide the question whether Shri Laxmi Narainji's temple is a public trust or not It is the decision of this Court which has been fallowed by the learned Civil Judge while making the order under challenge. I am unable to subscribe my view to the contention pf Mr. Parekh that this case has not been rightly decided and deserves reconsideration. As matter of fact, the facts of the present case stand on stronger footing. As noticed above it pas pot been the case of the plaintiffs that the temple is a private temple. However the matter is still open and the plaintiffs can show it they can (sic) do before the Devasthan Commissioner that it is a private temple and the provisions of the Public Trusts Act do not apply to this case. I respectfully agree with the view expressed in Jagannjath's case that by virtue of Section 73, it is not open to the Civil Court to decide or deal with any question which by or under this Act required to be decided or dealt with by any officer or authority under the Public Trusts Act. If it is a public trust and the property values more than 30,000/- as it has teen held by the learned Civil Judge, the Civil Court will not proceed to hear the case for the enforcement of a right without the trust having been registered.
15. Now coming to the second question the learned Judge has found on facts that the temple and the properties appurtenant thereto, values more than Rs. 30,000/-. Learned Counsel for the petitioners has tried to impress upon me that the chowk situate towards the east of the temple is not a part of the temple property. I am unable to accept this contention. The immovable property belonging to the temple has been shown in schedule B and Schedule B includes this chowk as a part of the temple property. The finding of the learned Judge is well supported by evidence on record that the temple and the property under it are of more than Rs. 30,000/-. It does not call for any interference by this Court.
16. No other point was argued.
17. In the result the revision application fails and it is hereby dismissed. In the circumstarcts of the case, I piss no order as to cost.