GANESH RAMA HEGDE Vs. TIMMANNA MAHABAL HEGDE

JUDGEMENT

(1.) THESE appeals are directed against the common order passed by the district Judge in petitions filed by the appellants under Section 72 of the Bombay Public Trust Act, 1950 (hereinafter referred to as 'the Act' ).

(2.) THE brief facts leading to these appeals are as follows.-The father of the appellants Sri Rama Ganesh Hegde has filed an application on 2-7-1954 under Section 18 (1) of the Act, which was registered as Enquiry No. 97 of 1954 before the Assistant Charity commissioner. This application, seeking to register 'shri Shambu Linga deva Temple' as a public temple, was allowed by an order dated 10-1-1955. However, the father of the appellants, the applicants therein had challenged the same before the Charity Commissioner, by way of a revision petition and the said revision petition was allowed and by an order dated 25-1-1994, the Charity Commissioner had remanded the matter to the Assistant Charity Commissioner for* a fresh enquiry. It is at this juncture, that the respondents herein had filed an application under Section 18 of the Act to declare the very temple as public temple and that application was numbered as Enquiry No. 420 of 1985. The assistant Charity Commissioner, after an enquiry on the two applications passed a common order dated 31-10-1996, declaring the temple as a public temple. The same was challenged by the appellants in revision before the Charity Commissioner, who had upheld the order of the Assistant Charity Commissioner, by an order dated 8-1-1998. This in turn, was carried in revision before the Court of the District Judge in miscellaneous Case Nos. 11 and 12 of 1998 and the said Court having dismissed the petitions by an order dated 12-11-1998, the present appeals are filed.

(3.) SRI R. V. Jayaprakash, Counsel appearing for the appellants seeks to contend as follows.-That on facts, it cannot be disputed that from time immemorial the ancestors of the appellants have been in the management of the temple and though there is a stray entry indicating a stranger as being in management for a short period of one year, through out it is the ancestors of these appellants who have been in the management of the temple. The further circumstance that Survey No. 80 measuring four acres twenty-eight guntas and Survey No. 81/2 measuring two acres five guntas were endowed by the father of the appellants in favour of the temple and the circumstance that a portion of Survey No. 80, which was acquired belonged to the father of the appellants and the compensation amount out of such acquisition was utilised in the purchase of Survey No. 81/2 in the name of the temple and the anterior fact that the temple in fact, was constructed by the appellants' ancestors, apart from planting of trees in the above said lands, which were endowed in favour of the temple, apart from appellants and their ancestors, none could claim as of right to worship at the temple. The further fact that the features of the temple would clearly indicate that it is not a public temple, but a private one meant for the exclusive use of the appellants, has been clearly overlooked by the authorities below and at no point of time dedication of the temple was in favour of the public, which is a primary requirement as laid down by series of decisions of the Apex Court, would render the temple a private temple and therefore, the authorities have clearly erred in appreciating the facts and in applying the law.