- (1.) THIS is a defendants appeal. In the suit which gave rise to this appeal the plaintiff alleged that the temple in which the deity of Bhuteshwar Mahadeoji Maharaj is installed is situate in old plot No. 47 which corresponds to the new plot No. 76. According to the plaintiff this tem ple was constructed by his ancestors. There after a common ancestor Sri Man Nath be came the sole owner of the temple and re ceived the total offerings. He had three sons, Bal Nath, Gulab Nath and Nand Nath. The plaintiff claimed to be entitled to half share in the offerings made in the said tem ple. This suit was contested by the appel lants, who denied the various allegations made by the plaintiff and disputed the right of the plaintiff to receive the offerings made in the said temple. It was alleged by the defendants that out of the old plot No. 47 of 1872 twelve plots were carved out in the year 1901 which included the plot No. 76. The temple of Bhuteshwar Mahadeoji Maha raj was constructed in plot No. 76 which ac cording to the defendants corresponds to the plot No. 1649.
(2.) THE trial Court decreed the suit Against that decision the defendants pre ferred an appeal which was also dismissed. The defendants have now come to this Court in second appeal. By an order dated 23rd September 1972 this Court remitted three additional issues to the appellate Court below for fresh findings thereon. The appellate Court below has returned its findings on those issues. The defendants appel lants have filed objections to those findings. It was urged on behalf of the ap pellants that as the plaintiffs had failed to prove the case set up by them they were not entitled to the reliefs claimed in the suit It was also urged that the plaintiffs could not prove then: title to the property involved in the suit nor to the land on which the temple stands. This contention has, however, no force. It was admitted by the defendant Kailash Chandra that Bal Nath and the pre decessors of the plaintiff were co-sharers in plot No. 76 and also in the temple situate in that plot. The courts below have recorded concurrent findings of fact to the effect that the plaintiff was the son of Sanjai Nath, that the temple in question was an old one in which the plaintiff was also a co-sharet to the extent of 5/12th and that it was not established that there were two temples in plot No. 47 of 1872 or 76 of 1901. The court below found that the temple in question is an old one coming down from the time of Man Nath, ancestor of the plaintiff and was not built by Mohan Nath and Budh Nath, as alleged by the defendants first set The appellants in para. 5 of their written statement admitted that the temple in dispute is in fact situate in plot No. 76 of the settlement of 1901 which corresponded to plot No. 1649. The settlement extract of the khasra of the settlement of 1901 indi cates that the old plot No. 47 was sub-divid ed in 10 sub-plots and plot No. 76 was carv ed out of the old plot No. 47/4 'Minjumla'. The settlement Khasra further discloses that the temple was situate in this plot There is thus no manner of doubt that the temple in question is situate on a land in which the plaintiffs have had right title and interest
(3.) IT was next urged that the plain tiffs have no right to receive offerings. It was argued that the offerings were made to the deity and as such they became the pro perty of the deity installed in the temple and as such they became the property of the said deity. In support of this proposition the learned counsel referred me to certain ob servations made on page 194 of a book captioned as "The Hindu Law of Religious and Charitable Trusts" by B. K. Mukherjea, third edition. The relevant paragraph on which reliance has been placed reads as fol lows: "Like the trustee in English law, a She-bait has to act gratuitously and he cannot charge the Debutter estate for any remune ration on account of the time and labour he spends over his affairs. The position would certainly be different if there is a provision in the deed of dedication to that effect, or in the absence of any deed of endowment there is a usage sanctioning such remunera tion to the shebait. The law is well esta blished that in the absence of any provision in the deed of dedication or any usage to that effect, a shebait has no right to take any portion of the income of the Debutter estate nor even the surplus that remains after meet ing the expenses of the deity. In this income would be included not merely the rent and profits of the Debutter property but the of ferings which are made to the deity by its devotees. As a matter of fact however, such provisions usually occur in the deed of dedi cation and where no document exists in al most every case he is given the right to a part pf the usufruct, the mode of enjoyment and the amount of usufruct depending upon usage or custom. In fact, it is entirely con sistent with Hindu ideas to give the Shebait gome sort of personal interest in the endow ment whatever its exact nature might be." ;