JUDGMENT
1. This first appeal from order is directed against an order dated 27-3-1996, followed by a formal order dated 17-4-1996 recorded by the IInd Addl. Distt. Judge. Bijnaur, in Misc, Case No. 113 of 1990 under Section 92. CPC rejecting the prayer of the appellants for leave to institute a suit of the nature spoken of under Section 92, CPC. The Application in question was filed by the present appellants under Section 92, CPC read with order 1, Rule 8 and Section 151 CPC. It was stated that the property indicated in the plaint stood vested in the Almighty and the temple and other properties of the deity formed a public trust and suit for relief covered by Section 92, CPC could be filed only after obtaining leave of the court.
2. In the application before the court below it was stated that Sahu chhajmal Das was a renowned zamindar of religious bend of mind and for the religious Hindus in general he had set up a temple of Satayanarayan Ji Maharaj more than 1000 years ago. A deity was installed in the temple. The people used to assemble there for worship. The zamindar also sank a well and also set up a dharamshala for the benefit of the followers of Hindu relgion. All the properties were dedicated to the deity in general for observance of Hindu festivities in the temple. During his life time Sahu Chhajmaldas used to run the administration of the temple and the dharamshala and all the internal and external properties with the help of the general Hindu Public of the locality. Pilgrims used to come and stay in the dharamshala and worship in the temple and used to offer bhajans and sand kirtans connected with Hindu relgion. After the death of Sahu Chhajaml Das, the properties came under the management of this son Har Prasad, who also continued the line of management of this father.
He established the image of Hanumanji, extended the dharamshala for proper accommodation of pilgrims and subsequently the property and the temple became famous with the name of Hari Prasad. The applicants asserted that the temple . Dharamshala and other properties vested completely in the Almighty for the general benefit of the followers of the Hindu religion. Har Prasad had three sons, namely. Bhagwati has also died. Respondent Rajendra Prasad was his son. Ram Raksha Pal has also died. Respondent Sunil Kumar is his son, respondent Shakuntala Devi is the widow of Ram Raksha Pal. Jagdish prasad left behind no heir. After the death of Har Prasad his eldest son Bhagwati managed the property in question through he help of the Hindu Public. For proper maintenance of the property, he entrusted management of the western portion of the same to his younger brother, Ram Rakshapal. Bhagwati Prasad and Ram Raksha Pal and son and wife of Ram Raksha Pal condidered the property as that of the deity and they had no authority to make any change in the property. The temple and the dharamshala became so famous that it found mention in the railway time table, municipal records, the district gazetter of Bijnaur etc, as the mandir and dharamshala of Satayarauain Ji Maharaj, It was asserted that the property constitutes a trust of public nature and allegations were made regarding actions by the respondents against the interest of the trust.
3. The impugned order indicates that the respondents contested the application and raised an objection. It was alleged by the respondent before the court below that the plaintiff's had filed the application with a view to make illegal benefit and illegal possession on the land of Jain Samaj. The trust in question was described as a private trust and that related only to the temple. The western land had no concern with the temple which was a school where other social activities were also conducted. The plaintiffs had no oral or documentary evidence to support their case. The will in question was a family affair and in the will also there was a reference of a single storied building on the eastern side. Under the will, the property was bequeathed to Har Prasad. The three brothers, Bhagwati, Ram Raksha Pal and Jagdish had partitioned the property between themselves and this would suggest that the property never vested in the Almighty or in the deity lying in the temple. The trail court considered the averments of the parties and the documents produced on their behalf. It was clearly found by the trail court that the plaintiff had not given any affidavit or oral evidence in support of their averments. On behalf of the respondents, one Jayant Kumar had sworn an affidavit. Certain affidavit of respondent Jayant Kumar. It was asserted before the court below by the plaintiffs that the suit property as detailed in the plaint was a single unit and it was a public trust. the respondents denied that the western and eastern parts were parts of the same property. The trial court was of the view that the plaintiffs failed to prove that the suit property was partioned between the three brothers. Bhagwati, Ram Raksha Pal and Jagdish. He came to the conclusion that the western portion did not belong to the public trust and, accordingly, the application was dismissed.
4. Section 92 of the CPC speaks of suits connected with public charity. In the case of any alleged breath of any express or constructive trust created for public purposes of a charitable or religious nature or where directions of the court is deeded necessary for the administration of any subtrust, two or more persons having an interest in the trust and having obtained the leave of the court may institute a suit whether contentions or not in the principal civil court of the original jurisdiction, within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree for the reliefs as enumerated under this section. The first thing that is necessary for a suit under Section 92 is that there must be a trust, express or constructive, created for public purposes of charitable or religious nature. Thus, it was incumbent upon the plaintiffs to aver and prove that the property in question constituted trust either by express declarations or by any constructive implication and the trust must be for public purposes of a charitable or religious nature.
5. The appellant contended that the nature of the trust, whether it was for public purposes or not, would be determined from the fact as to who would be the beneficiaries of the trust. It was contended that materials were there before the court below to infer that the Hindu public in general were allowed to stay in the dharamshala and to offer puja in the temple and to take part in bhajan and kirtans in the temple and, as such, the public in general to offer puja or to stay in a dharamshala may not convert the same into a trust for public purposes when the owner Das and, thereafter, with his sons and these sons had partitioned the property amongst themselves. Had it been the trust, it was argued, no question could have arisen for partition of the property between certain private individuals. In this connection, reference was made to the papers filed with the counter affidavit which were not denied. It was only stated regarding these papers that the properties were not partitioned, only the management thereof was partitioned.
6. Case-laws were also cited by the parties in this connection. The Supreme Court made a distinction between a private and public trust. In the case of Devaki Nandan v. Murlidhar, as reported in AIR 1957 SC 133: (1957 All LJ 416). It was observed herein that the distinction between a private and a public trust was that whereas in the former the beneficiaries are specific individuals. in the latter they are the general public or a class thereof. While in the former the beneficiaries are the persons who are ascertained for are capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. A religious endowment must be held, therefore, to be a private or a public according to the beneficiaries if they are specific person or general public or a section thereof. It was further observed that under the Hindu law an idol is a juristic person capable of holding property and the properties endowed for the institution vest in it. But it does not follow from these that it is to be recorded as the beneficial owner of the endowment. It is only in ideal sense that the idol is the owner of the endowed properties and it cannot have any beneficial interest in the endowment. When once in was not disputed that the true beneficiaries of religious endowment are not the idols but the worshippers and that the purpose of the endowment is the maintenance of that worship for the benefit of worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specific persons are to have the right of worship of the shrine or the general public or any specific portion thereof.
7. In the instant case, however, although an idol was installed a temple raised, a dharamshala was constructed, there is nothing on record to indicate that it was dedicated either to any deity or for any particular segment of the society. The temple, the dharamshala and the property in question always belonged to Sahu Chhajmal Das and subsequently to his heirs by dint of a will and subsequent partition between them.
8. Reference was made to another case decided by the Supreme Court, as reported in AIR 1990 SC 444 (R. Vengopala Naidu v. Venkatraydu Naidu Charities). The question before the Supreme Court was regarding a representative suit under S. 92 of the CPC and not one which has been raised in the instant case. The Madras High Court ruled in the case reported in AIR 1951 MAD 406 that the allegations in the plaint would determine whether the suit would be governed by S. 92 CPC. In the case at our hand, however, the parties had been heard by the court below and both the parties had the chance of adducing evidence. The direction of the Madras High Court in my humble view may not be applicable when the matter was heard in full in presence of the parties an the court had discussed the matter from all possible angles and had come to a conclusion. to say that even after full hearing the court would be bound by the plaint allegations only would result in total negation of the defence which perhaps may not be the intention of law and may not be the interpretation given by the Madras High Court. Materials are undisputedly there to show that Sahu Chhajmal Das was a man of religious bend of mind. He had established the temple and the dharamshala and that was followed by his sons and subsequently the grand-sons also continued it. The people at large do come to the temple to offer prayer, to sing bhajans. The people do come to stay in the dharamshala, but there was no material placed before the court below or even before this court to show that there had been ever a creation of an endowment either religious or charitable. The temple, dharamshala and the connected properties belonged always to Sahu Chhajmal Das and subsequently to his sons and, later on, to his grand-sons and the property was bequeathed by Sahu Chhajmal Das to Har Prasad and from Har Prasad the same came to Bhagwati and others who had partitioned amongst themselves. It may not, therefore, be held that it was a trust at all. It always remained a private property although the owners thereof were magnanimous enough to give access to the public at large to such property for certain purposes.
9. The judgement of the trial court clearly indicated that the plaintiffs had not sworn any affidavit in support of the plaint averments and had not adduced any oral evidence. The materials placed before this court as already held, indicated that the property never ceased to be a private property and had never become a trust property by any act of endowment. Section 92 CPC, therefore, had no application to the present set of facts and that application of the plaintiffs was rightly rejected.
10. In view of the above, the present appeal fails and is dismissed.
11. Appeal dismissed.