JUDGMENT Lindsay, J.
1. These two cases relate to the same property which, as far as we are able to judge, consisted at one time of a series of three houses or enclosures. It is said that at one time before the present litigation began these premises were used as a thakurdwara and temple. The premises were sold in the month of July 1919, by one Sasju to Aziz Hasan for the sum of Rs. 599-15-0, and the cage which Aziz Hasan has put forward in both the suits out of which this appeal has arisen was that the property was not temple property, but was mere private property which be was entitled to purchase and which his vendor was entitled to sell.
2. F.A. No. 132 of 1922 arises out of a Suit, No. 2 of 1921, brought in the Court of the District Judge of Gorakhpur. This suit purports to be a suit under Section 14 of the Religious Endowments Act, Act 2 of 1863. Under this section of the Act in question any person who is interested in any mosque temple or religious establishment is entitled to bring a suit against a trustee, manager or superintendent of the endowed property and he is entitled to ask the Court for relief by directing the trustee, manager or superintendent to perform any specific act. He is also entitled to ask for a decree for damages against the trustee, manager or superintendent, and the Court may, in the exercise of its powers, direct the removal of the trustee, manager or superintendent.
3. This suit then, was brought by a plaintiff named Mahadeo Sahu on the allegation that the property in dispute was a thakurdwara which had originally been erected by one Girdhari Lal Khattri for the worship and the benefit of the general public of the Hindu community. It was said that no less than four idols were installed in this temple or thakurdwara. In the second paragraph of the plaint it was alleged that the plaintiff and other people of Gorakhpur city used to do worship in this Thakurdwara and reference was also made to worship on special occasions such as the Ram Naumi or other festivals.
4. In the third paragraph of the plaint it was alleged that Girdhari continued to be the manager and mutawalli of the thakurdwara during his lifetime; he was succeeded by his son Mul Narain and Mul Narain was succeeded in turn by his Son Gorakh Prasad alias Babban. It was alleged that Babban had made over the management of this thakurdwara to one Ram Kishen Tewari, the father of the first defendant, Sarju Prasad Tewari. It was this man Sarju Prasad who sold the property to Aziz Hasan on 8th July 1919.
5. It was pleaded in the plaint that this sale was a void transaction inasmuch as the property conveyed was endowed property which Sarju Prasad had no authority to alienate, and it was prayed therefore that the sale-deed of 8th July 1919 might be set aside and that the first defendant, that is to say, Sarju Prasad, might be ordered to restore the idols and other paraphernalia of the temple and directed to perform the worship, and that should he refuse to do so, another mutawalli might be appointed in his place who might be directed to carry on the worship in the temple. There was also a prayer for possession by demolition of the buildings erected by the defendant Aziz Hasan since the time of its purchase.
6. Pausing here we may remark that some of the reliefs which were asked for in this plaint could not be granted in a suit brought under Section 14 of the Religious Endowments Act. The Court could not under that Act have given any relief in the shape or cancellation of the sale; nor again could it have given any decree to the plaintiff for possession of the premises.
7. The question of possession, however, arises in the other case (S.A. No. 20 of 1924) and we shall deal with that presently.
8. We have already mentioned that the case which Aziz Hasan set up to the suit was that the property was not a public endowment of a religious nature. He maintained that it was private property such as his vendor was entitled to dispose of.
9. A number of witnesses were examined in support of the plaintiff's case and certain documentary evidence was also put in. The defendant, Aziz Hasan, did not enter the witness-box nor were any witnesses cited on his behalf.
10. The learned Judge of the Court below came to the conclusion that although there had been a temple on the site of these premises at one time, nevertheless it seemed to him that it had not been a public temple but merely what he called "a private kind of chapel" with a moveable idol or moveable idols. In this view of the case he dismissed the plaintiff's suit and so we have this appeal before us. The question which we have to decide here is whether the evidence establishes that these premises were at one time a public place of worship.
11. In cases of this kind the oral evidence is apt to be unreliable, and, where it is possible, the Courts prefer to found their judgment upon such documentary evidence as is available.
12. We have no document showing when these premises were devoted, in the first instance, to public worship as alleged in the plaint. No document is available, executed by Girdhari Lal Khattri, the man whose name is mentioned in the first paragraph of the plaint. There is, however, some documentary evidence which takes us back as far as the year 1866. At page 17 of the record in F.A. No. 132 of 1922 we find a rubkar of the Sudder Amin of Gorakhpur, dated 22nd January 1866. From this document it is apparent that certain decree-holders had obtained a decree against Mul Narain who by that time had died. Mul Narain apparently was the son of Girdhari Lal Khattri whose name has just been mentioned.
13. The proceedings in the Court of the Sudder Amin show that the decree-holders had attached and were seeking to bring to sale certain house property and that Babban, the son of the deceased judgment-debtor, was opposing the application for execution and maintaining that the property which had been attached in execution was waqf property. In the petition of objections it is stated that the property consisted of a shivalaya and thakurdwara. It is stated that this property is waqf property and that the thakurdwara and shivalaya had been constructed by the objector's grandfather. The Court, after an inspection of the premises, gave effect to the objection. The Sudder Amin remarked in his order that the premises which had been attached consisted of a house divided up into three parts. In one of these parts was kept a thakurdwara. In the other two parts there were a well and other things connected with worship. The result of these proceedings was that the property was released from attachment and declared not to be liable for sale.
14. Then again in the year 1902 we find that there were some other proceedings in execution in the Court of the Subordinate Judge of Gorakhpur. The Collector, the manager of the Bettiah State, had got a decree against Sarju Prasad for a sum of Rs. 1,352 odd. Attachment of property had taken place and Sarju Prasad put in a petition saying that the property was waqf property and had been made a waqf for purposes of defraying his expenses of the thakurdwara. He pleaded, therefore, that the property could not be attached and demanded that it should be released. This petition of his is to be found at p, 18 of the record in the first appeal. On 23rd May 1903 the Subordinate Judge of Gorakhpur accepted the objection made by Sarju Prasad. He stated in his order at p. 19 of the record that the oral evidence produced by the objector and an old judgment, dated 22nd January 1866, proved that the house was a temple and not liable to be sold.
15. Although therefore there is no direct evidence of dedication and no documentary evidence directly showing that this property was dedicated to public religious use nevertheless these documents are of considerable value special regard being had to the fact that in the year 1866 an assertion, that these premises were used as a place of public worship, was given effect to in the course of judicial proceedings. The learned District Judge, who has tried this case, was impressed with this evidence and held that the documents certainly constituted prima facie proof that the property in suit was religious endowment in which case, he said, the defendant Sarju Prasad would have had no right to sell to Aziz Hassan, but as we have already mentioned, the learned Judge went on to find that the property was not a public property but a sort of private trust. We do not think that deduction can be drawn from the documents upon which the learned Judge has placed reliance for it seems to us that the plea which was being put forward in the year 1866 and again by Sarju himself in the year 1902 was that the property was property devoted to public religious worship and not property which might be described as private property of any kind.
16. As regards the oral evidence produced in the case we do not wish to lay undue stress upon it but the fact remains that a number of witnesses deposed that people used to resort to these premises for purposes of worship more specially on festival occasions. It is quite true that these witnesses do admit that for a number of years before the suit was brought the premises had fallen into decay and had not been used as a place of worship, The preponderance of the evidence is to the effect that for some 8 or 10 years before the suit was brought no worship had been carried on there because the property had fallen into disrepair.
17. But on the whole we can sea no reason to reject the evidence of these witnesses which if accepted goes to show that members of the Hindu public used to resort to these premises on occasions and perform worship there. In this connexion we notice in particular that there is some evidence to show that one of the divisions of the house to which we have referred above was used as a sort of dharamshala or musafirkhana, that is for the accommodation of persons who came to worship there. The fact is strong evidence that there was a dedication of the property to public use. We might cite in this connexion a recent judgment of their Lordships of the Privy Council, Lakshmana Goundan v. Subramania Ayyar AIR 1924 PC 44.
18. We are satisfied therefore that there was good evidence before the Court below which the plaintiff can claim to have established his case that these premises had been dedicated to purposes of public worship.
19. We have decided therefore on this review of the evidence, to reverse the judgment of the Court below and to allow this appeal. The only relief which we can award to the plaintiff-appellant is that Defendant 1, Sarju Prasad, be directed to restore the idols to these premises within the period of six months from the date of this Court's decree and that he be further directed to carry on the duties of mutawalli. In case he fails to do so within the time so limited, we direct that he be removed from the office of mutawalli. The appeal is therefore allowed and a decree in this sense will be prepared in the office. We have the parties in the first appeal to pay their own costs in this Court.
20. The other appeal, S.A. No. 20 of 1924, is really concluded by the findings of fact arrived at by the learned District Judge. More evidence was produced in this case than in the case we have just disposed of, but it is sufficient for us to say that on the evidence which was led in the suit which has given rise to this second appeal, it was competent for the Judge to find that the premises in question were used for public worship. There is no merit at all in this second appeal and the defendant-appellant cannot possibly succeed. We therefore dismiss Second Appeal No. 20 of 1924 with costs, We allow the appellant three months from the date of this Court's decree to remove his material and to clear the site; if he fails to carry out this order, he will forfeit all rights to the materials.