K.N.WANCHOO - (1.)THIS is an appeal by special leave against the judgment of the Nagpur High Court. The brief facts necessary for present purposes are these : there is an ancient temple of Balaji at Deolgaon Raja in the Buldana District. Before 1866 the management of the temple was in the hands of a family bearing the name of Lad. A suit was filed in 1866 with respect to this temple by Raje Mansingh Rao under the guardianship of his mother for a declaration that the temple was his property. The defendants in that suit were certain pujaris. The suit was decreed by the first court but on appeal it was held that the temple was not the private property of the Raja but was an endowment for the public founded by the ancestors of the Raja and that the Raja was entitled as against the pujaris to the possession and control of the institution. A receiver was appointed during the minority of the Raja but in due course the Raja took over the direct management of the temple. In 1872 it seems that there was some dispute between the Raja and the pujaris whose offices were also hereditary; and an agreement was arrived at between them. By this agreement it was provided that any offerings up to Rs. 5.00 would go to the pujaris who were to defray the expenses of dhoop, deep and neivedya from this amount keeping the balance to themselves. There were also certain provisions in the agreement as to offerings in kind. The agreement also provided for other matters relating to worship and imposed certain duties on the pujaris. Finally, it provided that the parties should carry on all the duties stated in the agreement and other duties besides them as before according to the usual wahiwat and that earnings would be taken as stated in the agreement and proper arrangement of expenses would be kept and the pujaris would take all possible care not to take more than what was fixed in the agreement. THIS agreement seems to have held the filed thereafter till we come to 1904.
(2.)IT seems that there was dissatisfaction with the management of this temple by Raje Anandrao and in consequence a suit was filed after obtaining permission of the Advocate-General in February, 1904, for framing a scheme for the management of the temple. This suit was finally decided on 29/04/1916, by the Additional Judicial Commissioners. They set aside the order of the trial court for the removal of Raje Anandrao from the management by declaring that the right to mange the affairs of the shrine which was an office was hereditary in the family of the Raja; but they further held that a scheme should be framed providing-
"(i) for the management of the trust pending any dispute as to who is the present holder of the office of trustee and manager;

(ii) for the management of the trust during the minority of the appellant if he should be established to be the present Raja;

(iii) for the continuance of control by the Court after the present hereditary incumbent enters upon the office of manager sui juris; and

(iv) for the modification of the scheme from time to time as circumstances may demand."

In consequence the matter went back to the District Judge who framed a scheme on 16/02/1918, for the management of the temple. This scheme was later substituted by another scheme dated 25/11/1926. Finally, on 16/10/1935, another scheme was framed in substitution of that framed in 1926. IT may be mentioned that the pujaris as such were no parties to this suit in which the scheme was framed, though they would be as much bound by it as members of the worshipping public as the parties to it. IT seems that about that time there was another suit pending in the court of the Additional Subordinate Judge, II Class, Buldana, between the appellant and the pujaris. That suit was decided on 30/04/1936, and it was held there in that the agreement of 1872 which was binding on the appellant recognised that the office of pujari was hereditary. IT was also held that the trustee (namely, the Raja) was entitled to control the pujaris in the exercise of their rights and to see that they performed their duties properly. In other words it was held that the pujaris were entitled to retain their office during good behaviour. IT was also held that the hereditary nature of their right has not invested them with any immunity from all control and they were not entitled to act with impunity and yet retain their office. IT was further held that they could not establish a right to enjoy the fruits of their office though absolutely incompetent to do so. Further it was held that the power of dismissal in the event of misbehaviour undoubtedly belonged to the Raja but that it should not be lightly exercised and should be subject to the control of the District Judge. Finally it was made clear that the Raja had no right to dispose of any part of the income of the pujaris nor had he any right to interfere in matters of succession amongst them. The office of pujari was thus held to be hereditable unless there was misconduct or misbehaviour which caused forfeiture. A declaratory decree was therefore passed to the effect that the pujaris who were defendants in that suit were holding hereditary office of the pujaris of Shree Balasaheb Sansthan and that they were in the discharge of their duties subject to the control of the plaintiff (namely, the Raja) and they were bound to respect his authority and rightful order and that they held their office subject to good behaviour.

Next we come to the year 1953. It seems that there was some trouble in the temple and consequently the District Judge visited the place on 30/11/1953. At that time it was agreed that a Commissioner with wide terms of reference be appointed to investigate the working of the temple vis-a-vis the pujari, the trustee and the general public and he should report how far the present scheme was working, what were the defects and shortcomings and what new proposals or alterations in the scheme and in the agreement of 1872 were necessary in the light of the working till then and the changed circumstances. Many of the pujaris- respondents who were present on that date were agreeable to this course. Eventually, the Commissioner reported to the District Judge and objections were called to that report. The matter was then gone into and the District Judge passed an order on 12/04/1954, by which he revised the scheme which had been in force since 1935.

Thereupon the pujaris went in revision to the High Court and their contention was that the District Judge had acted beyond his jurisdiction in revising the scheme in so far as it affected them. The High Court went into the question whether the District Judge had any power to modify the scheme and came to the conclusion that if the matters sought to be introduced by modification of the scheme are covered by S. 92 of the Code of Civil Procedure, an application for modification is not the appropriate remedy. It further held that unless the power reserved to the Court under the scheme is invoked for a purpose analogous to execution of the decree, no modification of the scheme was possible under S. 92. It therefore held that unless the rights of any persons were the subject of lis, the scheme could not be modified so as to affect them except by a suit under S. 92. Finally, it came to the conclusion that as the pujaris were not parties to the suit of 1904 or to the scheme that was framed, it was not possible to modify the scheme so as to affect their rights without recourse to S. 92. The revision was therefore allowed and the scheme framed by the learned District Judge was ordered to be read subject to the order of the High Court.

(3.)THEREAFTER an application was made by the appellant to appeal to this Court, which was later converted into an application for review of the earlier order. This application was rejected. Then the appellant applied to this court for special leave and obtained the same; and that is how the matter has come up before us.
The main question that arises in this appeal is how far it is open to a court to amend a scheme once framed under S. 92 of the Code of Civil Procedure, where a power to amend the scheme is reserved in the scheme itself. It is not seriously disputed in this case that the power to amend the scheme has been reserved in view of the judgment of the Additional Judicial Commissioners already set out above and paragraph 17 of the scheme dated 16/10/1935. The High Court has held that as the pujaris were not parties to the suit under S. 92, the scheme could not be amended so as to affect their rights, for even where a power is reserved in the scheme to modify it, it could only be invoked for a purpose analogous to execution of a decree. It is the correctness of this view which has been challenged before us.