ASHWANI KUMAR MISHRA,J. - (1.) Defendants appellants have filed present appeal under section 96 of the Code of Civil Procedure challenging the judgment and decree passed by the District Judge, Banda, dated 4th October, 1976, in Original Suit No. 12 of 1967. The decree, under challenge, provides as under:- "The suit of the plaintiffs is, therefore, decreed and the following scheme for the management of the temple is drawn up. The plaintiffs are appointed adhoc trustees to act as such and manage the properties of the temple and to look to the worship of the temple till properly selected committee consisting of five members known as President, Secretary, Treasurer and two as members is constituted under the scheme to look after the management of the temple. This committee of five persons will be regarded as the sole trustees appointed under the deed and will have full powers to carry out the worship and Puja of the deity according to the tenants of the donor. The committee will maintain and prepare a list of voters in accordance with the electoral roll for U.P. Assembly. All persons entered in the Electoral Roll for the time being who are shown as Hindus will have a right of vote in the General Meeting. In particular full respect will be given to the wishes of the donor and the faith to which she belonged the committee will be elected by adult franchise of the Hindus residing in the ward of the city of Banda in which the temple in question is situated each adult male and female Hindu will have a right of vote and five persons elected by the general Hindu public will act as given above to realise income of the properties attached to the temple and to look after the worship of the deity. This committee will be elected for one year. Annual meeting to be held in the temple on every Janmashtami day will elect the office bearers for the next year. Any office bearer will have a right to seek re-election and will be liable to be unseated for his acts or omission by a simple majority of total voters on the list and at least ? ... "rd majority of the persons present and voting in the meeting. The ad hoc committee consisting of the plaintiffs will have a right to take possession from the defendants and the defendants 1 to 6 will be liable to render accounts of the temple's properties from the year 1962 as prayed. Costs of the suit will be borne by the parties."
(2.) Plaintiffs respondents instituted Original Suit No. 12 of 1967 under section 92 of the Code of Civil Procedure, with the permission of the Advocate General, contending that there exists a temple situated in Mohalla Sadar Naka, District Banda, wherein is installed an Idol of Shri Thakur Radha Krishna Ji, and is popularly known as 'Sonaron Ka Mandir'. Maker of this temple was one Smt. Sudharia widow of Lachhman Sunar. It was alleged that the temple and property dedicated to it are religious and charitable in nature, and that temple is a public temple in which Hindus of all castes have a right of worship, and that Puja is performed by Hindus of all castes, particularly members of Sunar Community. Smt. Sudharia dedicated property mentioned in item no. 1 of Schedule 'A' to the plaint by way of registered gift deed dated 9.11.1899 to Shri Thakur Radha Krishna Ji. This gift deed is on record as Exhibit-9. As per the deed dated 9.11.1899, property in the shape of a shop with two rooms, situated at Sadar, District Banda belongs to Smt. Sudharia, and that she is its owner in possession. It records that on the first floor of the shop, a temple of Shri Thakur Radha Krishna Ji has been constructed, and that as the donor is an aged lady, and none of her nephews or daughters' son are with her, as such the property is being gifted to Thakur Ji Maharaj. It was provided that so long as donor is alive, she would look after the temple and its property, whereafter one Ram Bharose son of Parmanand, who was the tenant in the dedicated shop will manage the affairs of the temple, and would be assisted by one Durga son of Binda Sunar. Right to receive rent etc., accordingly, was also assigned. It was clarified in the gift deed that Smt. Sudharia would have no right left in the property, nor any of her relatives including daughters' son would have any right over it. Smt. Sudharia died in 1962 Samwat or 1905 A.D., and the property as per the plaint averments was managed by the persons authorized by deed dated 9.11.1899. It was also alleged that after the death of Smt. Sudharia, it was the deity who continued in possession over the dedicated property and matured right by adverse possession. After death of Ram Bharose, the property was managed by his son Rai Saheb Phoolchand Jain. It is also alleged that out of the fund raised from the temple and its property, a house was purchased, which is mentioned in Item No. 2 of Schedule 'A' at the foot of the plaint. This property was also given on rent and its income was that of Shri Thakur Radha Krishna Ji. After some time Phoolchand is stated to have grown indifferent towards the management of the temple and a meeting of the members of Hindu community was held on 9.12.1935 at the instance of President of Hindu Devasthan Prabandh Karini Sabha, Banda, to chalk out a scheme for the management of the aforesaid temple and the affairs of Shri Thakur Radha Krishna Ji and its property. The committee was accordingly formed consisting of Durga Prasad as President, Ganesh Prasad plaintiff no. 1 as Vice President, Hari Charan as Secretary and Sitaram and Bachcha Lal as Joint Secretary and Treasurer respectively to manage the property of the temple. The trustees were also authorized in the meeting to demand accounts of the property of Shri Thakur Radha Krishna Ji and the temple from Phoolchand. A notice was accordingly given by Ganesh Prasad and Durga Prasad to Phoolchand on 5.12.1935 to render accounts and deliver management of the temple and of the property of Shri Thakur Radha Krishna Ji. Ultimately, on 1.2.1938 Phoolchand executed an 'Intqal Nama' of the property of the trust of Shri Thakur Radha Krishna Ji in favour of the Hindu Devasthan Prabandha Karini Sabha Banda (registered institution) through its Secretary Mahadeo Prasad, Pleader. Since then the management of the properties of the temple was conducted by the said Sabha till 24th November, 1961. This Sabha recognized the interest of the Sunar community in the said temple and its property. The management was actually transferred to Sunars and for last sometime Sitaram was managing the temple and its property as representative of the Sunar community. He also used to maintain accounts which the plaintiffs have filed in this case. The plaintiffs claimed that they were representatives of the Sunar community and Sitaram left the management of the temple after Aghan Badi 2 Sambat 2018. The defendant Nos. 1 to 4 who used to pay the rent of the accommodation let out to them on behalf of Shri Thakur Radha Krishna Ji by the Sabha stopped paying rent to Sitaram or to the Sabha in collusion with defendant Nos. 5 and 6 namely Balbhadra Prasad and Badri Prasad. Plaintiffs alleged that the representatives of Sunar community they have right to worship in the temple and by virtue of authority drived from Hindu Devasthan Praband karini Sabha have acquired a cause of action to file suit. Various amount towards rent was alleged to be due till filing of the suit. Prayer was accordingly made for the plaintiffs to be appointed as trustees of the temple and the property of Sri Thakur Radha Krishna Ji mentioned in Schedule 'A' 'B' and 'C' with right to realize the profit of assets of the temple and to dispense the same in the management of the temple and to appoint Pujari. Prayer was further made to prepare a scheme of management of the trust and its property and that defendant Nos. 1 to 4, 5 and 6 be ordered to render accounts of the profits of the property of temple to the plaintiffs w.e.f. 25.11.1961. A prayer was also made for delivery of the property mentioned in Schedule 'B' or its value to the trustees. The plaintiffs after obtaining permission from the Advocate General dated 6.2.1964 (Ex.-1) filed the suit originally in the court of Munsif, Banda but when the plaint was returned to them, they filed it in the court of District Judge on 26.7.1967.
(3.) A joint written statement on behalf of respondent nos. 1 to 6 was filed. While denying the plaint allegations it was asserted that Seth Phoolchand gave up management of the temple and possession of the property sometime in the year 1928 in favour of defendant no. 5, father of defendant no. 6 and Sri Gangoley in accordance with the agreement entered into between them. It was claimed that out of wedlock of Lachhman and Smt. Sudharia, three daughters were borne namely Smt. Jasodia, Smt. Janki and Smt. Lachhmania. Smt. Lachhmania was the youngest of three daughters, who died last in 1926. The three daughters have left behind sons namely Ram Charan and Sadali from the first daughter, Nilkanth and Vishunath from the second daughter and Gulab from the third daughter. It was contended that Smt. Sudharia had limited interest in the property as she had inherited the property from her husband Lachhman, and after her death, the property opened to the next male reversioners of Lachhman in 1926. It was claimed that the endowment deed created on 9.11.1899 was revoked by the reversioners of Sri Lachhman in the year 1926, vide series of deeds dated 14.4.1928, 9.8.1928 and 16.9.1928, specifically cancelling the gift deed. These reversioners are stated to have donated the shop and temple to defendant no. 5, Sri Gayadin, father of defendant no. 6 and Sri Gangoley. The deed of endowment was alleged to have became void upon the death of Smt. Sudharia. The defendants also resisted the claim setup in the plaint that property was a public trust, and the temple was claimed to be a private temple, and consequently, provisions of section 92 CPC would apply. It is also claimed that Seth Phoolchand was declared insolvent sometime in 1935, as such in order to extract money from the donees i.e. Defendants, and to bring pressure on them, a gift deed was executed in favour of defendant no. 7 in collusion with the office bearers, with whom he was on family terms. Ultimately, as per the defendants, a compromise was worked out wherein Phoolchand was paid Rs. 526/10/6. It was disputed that defendant no. 7 was ever a trustee of the alleged endowment nor the rights of Sunar Community was recognized over it. It was alleged that defendant nos.1 to 4 took shop in suit on rent from the donees and their heirs and have been throughout paying rent. The defendants, accordingly, claimed to be exclusively entitled to manage private temple being the donees from the heirs of Lachhman and Smt. Sudharia. Claim put forth in the plaint was accordingly resisted. A replication was also filed disputing the averments set out in the written statement. The claim of defendants of possession as donees pursuant to deeds dated 14.4.1928, 9.8.1928 and 16.9.1928 was disputed and it was denied that they ever came in possession of the property of the temple or the temple etc. Plea of adverse possession of deity was also set up. The property was claimed to be that of Smt. Sudharia. An additional written statement was also filed. On the basis of respective pleas put forth by the parties, the court below proceeded to frame following 19 issues for consideration:- "1. Did the property detailed at item no. 1 of Schedule 'A' given below the relief para of the plaint belong to Ram Gopal father of Smt. Sudharia as alleged by the plaintiffs or it belonged to Laxmi, husband of Smt. Sudharia as alleged by the defendants? 2. Did Smt. Sudharia construct the temple known as Sonaron Ka Mandir, situated in Mohalla Mardan Naka in the city of Banda as alleged by the plaintiffs? 3. Did Smt. Sudharia dedicate property at item no. 1 of Schedule 'A' given below the relief para of the plaint to Sri Thakur Radha Krishna Ji Birajman Sonaron Ka Mandir as alleged by the plaintiffs? It so, its effect? 4. Did Sri Thakur Radha Krishna Ji remain in possession of the dedicated property after the death of Smt. Sudharia and mature title with respect to the said property by adverse possession as alleged in para 8(a) of the plaint ? If so, its effect? 5. Is the house, detailed at item no. 2 of Schedule 'A' given below the relief para of the plaint, property dedicated to Shri Thakur Radha Krishna Ji Birajman Sonaron Ka Mandir, as alleged by the plaintiffs? It so, its effect? 6. Did Sri Phool Chand execute Intqalnama dated 1.2.1938 in favour of defendant no. 7 as alleged by the plaintiffs? If so, its effect? 7. Did inheritance with respect to the disputed property open in the year 1926 upon the death of Smt. Laxmania wife of Kanhaiya as alleged by the defendants? If so, its effect? 8. Did the four daughter's sons of Sri Laxman execute deeds dated 14.4.1928, 9.2.1928 and 16.9.1928 cancelling the endowment deed dated 9.1.1899 and donate the disputed shops and the temple to defendant no. 5, Gayadin, and Gangoley as alleged by the defendants in para 13 of the written statement ? If so, its effect? 9. Was the property at item no. 2 of Schedule 'A' given below the relief para of the plaint purchased by the de facto trustees from the usufruct of the trust property in the year 1922 as alleged in para 31 of the written statement? If so, its effect? 10. Did Phoolchand hand over possession of the disputed property together with the temple in question to the three donees mentioned in para 30 of the W.S. As alleged in para 32 of the W.S.? If so, its effect? 11. Is the trust in question a public trust? If so, its effect? 12. Are defendant nos.1 to 6 liable to render accounts to the plaintiffs? If so, how do the accounts stands amongst the parties? 13. Should any scheme of management be chalked out by the court and the plaintiffs be appointed trustees as alleged by the plaintiffs? If so, what could be the details of that scheme? 14. Have defendant nos.5 and 6 become owners of the property in dispute by adverse possession as alleged by them? 15. Is plaintiffs' claim within time? 16. Is the court fee paid sufficient? 17. Are defendant nos.1 to 4 necessary and proper parties as alleged? 18. Are plaintiffs fit persons to be appointed trustees? 19. To what relief, if any, and against which of the defendants or the plaintiffs entitled?";