SUKHDEO MAHARAJ Vs. GOPAL LAL

JUDGEMENT

(1.) IN the suit out of which this appeal arises the plaintiff claimed that Raghubar Sao was the founder of the temple of the deities Sri Ram Janki and that he had appointed Gopal Acharya as the pujari and shebait of the temple, and the plaintiff being a member of the family of the founder was entitled to continue as the shebait of the temple. The plaintiff alleged that defendant No. 2 was appointed in 1948 as the pujari of the temple and defendant No. 1 was inducted as a tenant in a portion of the premises of the temple. The suit was contested by defendant No. 2 on the ground that the plaintiff was neither the heir of the' founder nor the shebait of the temple and that Gopal Maharaj and not Raghubar Sao was the founder of the temple. The trial Court came to the conclusion that the plaintiff was not a member of the family of the founder and he had no sight to the shebaitship of the temple and, therefore, it dismissed the suit. On appeal by the plaintiff the lower appellate court has held that the plaintiff has established that Raghubar Sao was the founder of the temple and that the plaintiff was in the line of succession of Raghubar Sao and that he became in law the shebait and manager of the temple. The lower appellate court also found that the plaintiff was in possession and was paying tax for the temple premises as manager. The lower appellate court has also found that defendant No. 2 was not the shebait but he was only a pujari of the temple. The lower appellate court disbelieved that the case of the defendant that Gopal Maharaj was the founder of the temple or that defendant No. 2 was working as the shebait at any time. On these findings the lower appellate Court has given a decree to the plaintiff, declaring his right as the shebait of the temple. The plaintiff was also granted a decree for rent amounting to Rs. 81 against defendant No. 1. It has also given a decree for recovery of possession of the portion of the premises occupied by defendant 2 and 3.

(2.) ON behalf of defendant No. 2, who has presented this appeal, the argument advanced by learned Counsel was that the temple in question is not a private temple but a public temple and, therefore, the plaintiff cannot get a decree unless he establishes the particular mode of succession applicable to the temple or the usage prevalent therein with regard to succession. We do not accept this argument as right. If there was a finding that the temple is a public temple, there might be some force in the argument addressed on behalf of the appellant. In the present caste no issue was raised either in the trial Court or in the written statement that the temple in question was a public temple. There is no pleading by either of the parties on this question and no issue was framed by the trial Court on the question as to whether the temple was a public or a private one. Both the parties apparently fought the case on the assumption that the temple was a private temple, and the only dispute between the parties was as to whether the founder of the temple was Raghubar Sao or whether he was Gopal Maharaj. The question whether the temple is a private or public temple is a mixed question of law and fact and we cannot permit this question to be raised for the first time in the second appeal in the absence of any pleading or in the absence of any issue on the point. We must, therefore, decide the case on the footing that the temple is a private temple, and the findings of the lower appellate court are that Raghubar Sao was the founder of the temple and the plaintiff being in the line of succession of the founder became the shebait. The lower appellate court has also found that the plaintiff failed to prove that the successive shebaits were appointed by the consent and approval of the members of the founder's family. The law applicable in these circumstances has been clearly stated by the Privy Council in Bhabatarini Debi v. Ashalata Debi, 70 Jnd App 57: (AIR 1943 PC 89). It was pointed out by the Privy Council in that case that where the founder of a Hindu private religious endowment has made a grant of the office of shebait without effectively directing that the heirs of the grantee or of a successive grantee are to take, the course of devolution prescribed by the ordinary law should give way only so far as is necessary to let in persons nominated by the founder. Where, therefore, the only legally effective nomination to the office of Shebait to take effect after the death of the founder was limited to his only son and heir, but not so that he took absolutely, the shebaitship on the son's death devolved upon the son's heirs and not upon the nearest surviving heirs of the founder. The principle laid down in this case fully applies to the facts and circumstances of the present case and the lower appellate court has rightly held that the plaintiff being in the line of succession of the founder has established his right to be the shebait and manager of the temple in question.For these reasons we hold that there is no merit in this second appeal which is dismissed with costs.