B.K. Mukherjea, J.
1. This is an appeal by the plaintiffs who instituted a suit on behalf of themselves as well as the Hindu public of Garulia in the Court of the 2nd Munsif at Sealdah for certain declarations as well as consequential reliefs. There were two defendants to the suit, the first being the commissioners of the Garulia Municipality and the second the Shamnagar Jute Factory Ltd. The plaintiffs' case in substance is, that on a small plot of land which constitutes dag No. 12/34, in Khatian No. 85 of Mouza Garulia there exists three Shiva Lingas which are worshipped by the Hindu public of the locality from time immemorial. The said idols have no pucca temples and as birds from overhead electric wires drop bones and other unclean objects on the idols and thereby defile their sanctity the Hindu public decided to build a pucca temple over the deities and having raised money by public subscriptions applied to defendant 1 for sanction. The Municipality refused sanction on the ground that defendant 2, the Shamnagar Jute Factory Ltd., had asserted title to this land and had objected to any building being erected thereon. In spite of the refusal of the sanction, the plaintiffs, it is said, actually laid the foundation stone of the building on a Saraswati puja day, but though no building was actually errected, the Municipality started prosecution under Section 501, Bengal Municipal Act.
2. The plaintiffs assert that defendant 2 have no title to the land which is a dedicated land belonging to the idols and had been used as a place of public worship by the Hindu public from time immemorial. Defendant 1, it is said, had no right to refuse sanction on the ground of the alleged want of title, and its refusal was ultra vires.
3. The prayers in the plaint stand as follows; (a) That the land in dispute may be declared to be the debasthan of the Sivalinga deities and a public place of worship of the Hindu public and that the public had acquired an absolute and indefeasible right to the use of the same as a debasthan by long and uninterrupted user from time immemorial and to build the temples of the deities and for a declaration that the Shamnagar Jute Factory has no right and title thereto or any right to interfere with the building of the temple on the disputed land; (b) for a declaration that the action of the defendant municipality in refusing sanction for the construction of the temple of the deities was illegal and ultra vires; (C) for a declaration that the action of the defendant in prosecuting the plaintiffs under Section 501, Bengal Municipal Act, was illegal; (d) for an injunction restraining the defendant Municipality from proceeding with the prosecution; (e) for an injunction upon the defendants from interfering with the public right of worship and entry on the land; (f) for costs of the suit and (g) for any other relief to which they might be entitled under law. Both the defendants contested the suit and their defences in substance were that the suit was not maintainable in the absence of the Telinipara and Halishar zemindars who are the recorded proprietors of the land in suit. It was said further that Sivalingas were not on the land from time immemorial nor were they public deities; but two of them be-longed to one Basanta Kumar Banerjee and the third which is a broken one belonged to one Swarup Das. Defendant 2 asserted a leasehold right to the land in suit under a purchase from a previous lessee and it was contended that the plaintiffs had no right or title to the land. Defendant 1 put in a further contention that their refusal of sanction was justified and the suit against the Municipality could not proceed without a notice under Section 535, Bengal Municipal Act.
4. The Munsif who tried the suit dismissed the suit against defendant 1 on the ground of want of notice under Section 535, Bengal Municipal Act. As against defendant 2 the suit was decreed. The suit land was declared to be a Debasthan and a public place of worship of the Hindu public and it was held that the public had absolute right to use the same as a Debasthan and to build temples of the deities. It was further declared that the defendant 2 had no right or title to the land in suit and an injunction was given restraining them from interfering with the public right of worship and entry on the suit land or building on the same. Against this decision an appeal was preferred by defendant 2 which was numbered Title Appeal No. 77 of 1937. The plaintiffs also preferred another appeal which was Appeal No. 85 of 1937 against the part of the judgment which dismissed the suit against the Municipality. Both these appeals were heard together by the Additional District Judge of 24-parganas and were disposed by one and the same judgment. The appeal preferred by defendant 1 was allowed, and that filed by the plaintiffs was dismissed. The lower Appellate Court dismissed the whole suit on the ground that it was not maintainable in law. It was held by the learned Additional District Judge that the plaintiffs who are neither the she baits nor representatives of the deities could not maintain the suit for establishment of the idol's title to any property and it was necessary to make the deities parties to the suit. It was held also that no declaration could be given unless the Telinipara and the Halisahar Zamindars who were recorded as proprietors of the land in suit in the settlement records were made parties to the suit. As the suit was not maintainable in the form it was presented it was not necessary for the learned Judge to decide the other question as to whether the suit could proceed against defendant 1 without any notice under Section 535, Bengal Municipal Act. It is against this decree of dismissal that the present second appeal has been preferred.
5. On hearing the learned Advocate on both sides it appears to me that the plaint was undoubtedly defective but at the same time the defects were not of such a character as would justify a dismissal of the entire suit. From the plaint as it is framed it is quite obvious that the suit was not instituted by or on behalf of the deities. It would have been quite in order if the deities themselves had brought the suit through the plaintiffs as their representatives. They might have' prayed for a declaration of their title to the property in suit and for an injunction restraining the defendants from interfering with their possession and user of the same. As the plaint stands however the plaintiffs-who claim to represent the Hindu public of Garulia, come in not as she baits or as representatives of the idols but as worshippers and some amount of confusion has been introduced in the plaint by mixing up the rights of the deities and those of the worshipping public. From para. 9 of the plaint as well as from prayer (a) it will appear that the plaintiffs want in the first place that the land in suit might be declared to be a Debasthan of the idols and in the second place they want to be declared that it is a public place of worship and that the Hindu public has, by prescription, acquired an indefeasible right to use the same and to build temples upon it. The right to build temples is therefore claimed by the plaintiffs as members of the public as a part of their rights as worshippers. It is not claimed by or on behalf of the deities as a necessary adjunct of the proprietary right which the deities might have had in the land in suit. I cannot accept the proposition of law put forward by Mr. Mukherjee that as the deities are said to be public deities the Hindu public of the locality constitute shebaits de jure. In case of a public deity the public undoubtedly have a right of worship but from that it does not necessarily follow that they are the shebaits of the deity in the sense that they are the only people to manage the temporal affairs: of the deity and look after its worship. As a matter of fact no such case was attempted to be made in the plaint, which proceeds on the footing that it is a public place of worship and the rights of user which the public have got carry with them the right to build temples upon the land. Accepting therefore the position that the plaintiffs have instituted the suit in the capacity of persons interested in the worship of these deities and not as shebaits or as representatives of the idols, I think it was quite competent for them to sue for a declaration that the property in suit belonged to the idols. This is clear from the decision of the Judicial Committee in Abdur Rahim v. Abu Mahomed Barkat Ali (1928) 15 A.I.R. P.C. 16. The deity is not a necessary party to such a suit though it may be desirable to make it a party so that the decision might be made conclusive and binding for all time to come. Similarly, the plaintiffs are entitled to have a declaration in this suit that the land in suit is a public place of worship and that they have a right to use it as such. The deity would also not be a necessary 'party to a suit for a declaration of this character.
6. The learned Additional District Judge was also not right in dismissing the suit on the ground that the Telinipara and Halishahar Zamindars were not made parties to the suit. It is true that the decision would not bind them but the suit could not be thrown out on that ground. It was incumbent upon him to decide the rights of the parties actually before him. The provisions of Order 1, Rule 9 are quite imperative on this point. Difficulties however arise with regard to the other declaration which the plaintiffs prayed for, namely that they have a right to build temples on the land in suit. If the claim was made on behalf of the deities no question would have arisen but the claim is made on behalf of the worshippers and as it involves an alteration of the present state of affairs which is said to be continuing from time immemorial, I think that the declaration can be given only in the presence of the deity. We therefore intimated to the learned advocate for the appellants that we would be prepared to send the case back to the trial Court if he was willing to amend the plaint and make the deity a party to the suit, but he did not choose to accept our suggestion. On the other hand he insisted on a decision by the Appellate Court on the part of his case which might proceed without the deity being made a party. He agreed therefore to delete all his prayers in the plaint which relate to the erection of the temple over the land in suit and confined his prayers to a declaration that the land in suit belong, ed to the deity and that it was a public place of worship which could be used by the public. In these circumstances the Municipality becomes an unnecessary party and the suit will stand dismissed against them on this ground, keeping open all the other questions relating to the legality of their decision as regards the sanction for the proposed building.
7. The result is that the judgment and the decree in Appeal No. 77 of 1937 will be set aside and the case will be sent back for a rehearing of the appeal by the Court below on the points mentioned above, namely whether the land in suit is the Debasthan and belongs to the three Sivalingas and whether it is a public place of worship and the plaintiffs and the other members of the Hindu public have a right of worship. The question whether the plaintiffs have a right to erect a temple on the land in suit will remain open. Defendant 2 will have no costs in any of the Courts. Further costs will abide the result. Defendant 1, however, will get their costs from the plaintiffs in all the Courts, the hearing fee in this Court being assessed at one gold mohur.
8. I agree.