- (1.) THIS is an appeal against the judgment and decree dated 27. 10. 85 passed by the Additional District Judge, Udaipur whereby the plaintiff-respondents suit was decreed as under:- "the plaintiff suit is hereby decreed to this extent that it is hereby-declared that the entry made of the registration of the disputed temple to be the public trust by the Assistant Registrar, and the confirmation order of that entry made by the Devasthan. Commissioner in the decision of its appeal dated 20. 9. 67 that the entry of registration of the disputed temple be made as public trust is premature and can not bind the plaintiff unless the enquiry on all sub-clauses (i) to (viii) of Clause (1) of Section 18 is conducted by the Assistant Commissioner and finding on all the points is given by the said Assistant Commissioner under sec. 19 of the Rajasthan Public Trust Act. "
(2.) A few material facts may be noticed. The plaintiffs filed the suit u/sec. 22 of the Rajasthan Public Trust Act 1959 (for short the 'act') for declaration that the entry in respect of the temple in question made u/sec. 21 of the Act as public trust be declared invalid and the same be set-aside and the finding recorded regarding the temple in question to be the public trust be also set-aside. The plaintiffs alleged that the temple of Mahakaleshwar and the houses adjoining to this temple situated in Ward No. 22 in Mohalla Ambamatta were built by the ancestors of the plaintiffs. The property was not dedicated and the plaintiffs are bearing expenditure of the temple and the idol is the family deity. It was alleged that the Assistant Commissioner gave notice to the plaintiff u/sec. 18 (2) of the Act for registration of the trust. The plaintiffs submitted the reply stating that it is a private trust. However the Assistant Commissioner gave the finding on 1. 7. 66 that it is a public trust and directed its registration and for issuance of certificate of registration in the name of Mahant Narayandut Nath a working trustee. The finding was upheld in appeal by the Devasthan Commissioner by his order dated 20. 9. 67 upholding the registration of the temple as public trust. The Commissioner further directed the Assistant Commissioner to hold enquiry on matters mentioned in clauses (iv) to (viii) of sub-sec. 1 of section 18. The plaintiffs challenged the finding of the Devasthan Authorities and further took pleas regarding the invalidity of the action taken by the Devasthan Authorities. The suit was resisted by the Devasthan authorities, various pleas were taken. It was inter-alia pleaded that the temple in question is a public temple, the assets of which are more than 30,000/- and the finding arrived at is a valid one. On the basis of the pleadings of the parties as many as 12 issues were framed. On the request of the parties the learned Judge proceeded to decide issues no. 3, 4, 6, 8, 9, 10, 11 being the legal issues and recording of evidence on issues No. 1 and 2 was dispensed with. Issue no. 5 was already decided on 13. 12. 74 in pursuance of which the Government was made a party and notice was given to the government. So far as the present appeal is concerned two issues are relevant as submissions have been made with respect to these two issues. These issues are no. 10 and 11 which on translation are as under: (10) Whether the plaintiffs suit is barred by time? (11) Whether on the basis of the facts mentioned in sub-para H, I, J of para 7 of the plaint, finding have not been given all the points mentioned in Sec. 18 of the Act and that without recording findings on all the points, this declaration is invalid that the temple falls in the definition of public trust and on this very basis the entry u/sec. 21 is illegal? The learned Judge decided both the issues in favour of the plaintiff, it was found that the suit is within limitation and as regards the finding on issue no. 11 the learned Judge found that the Assistant Commissioner was required to give finding not only regarding clause (i) of Sec. 18 that the disputed temple is a public trust but he should have recorded his finding on all the matters mentioned in sec. 18 and unless that is done, a single finding given by the Assistant Commissioner that the disputed temple is a public trust, is illegal and no entry u/sec. 21 for the registration of the said public trust could have been made unless he has given the finding on the clauses (i) to (viii) of sub-sec. (1) of Sec. 18. It was found that the order of the Assistant Commissioner as well as of the Devasthan Commissioner regarding making of entry of registration of the public trust is premature and illegal at that stage and it was observed that this can only be done by the Assistant Commissioner after completing the formalities of Sec. 18 and 19 of the Rajasthan Public Trust Act. Dissatisfied with the judgment and decree, the present appeal has been filed.
(3.) I have heard Shri L. M. Lodha, learned Additional Government Advocate for the appellant. The plaintiff-respondents have not put in appearance despite service of summons. Mr. L. M. Lodha, learned Additional Government Advocate strenuously urged that the finding, of the temple and its properties being a public trust is not in any way rendered illegal and the learned Additional District Judge was wrong in observing that the finding was premature, hence was an illegal one. He submitted that first a finding has to be arrived on the matter mentioned in clause (i) of sub-sec. (1) of Sec. 18. Having found that the trust is public trust, further enquiry has to be made in respect of the matters enumerated in clauses (ii) to (viii) of sub-sec. (!) Sec. 18. The Devasthan Commissioner was perfectly justified in directing the Assistant Commissioner to hold enquiries on matter enumerated in clauses (iv) to (viii) as enquiry had already been conducted on matters mentioned in clauses (i) to (iii) and findings were recorded on these three points by the Assistant Commissioner. He submitted that further enquiry is provided u/sec. 24 of the Act and if the matter is examined in the light of section 24 of the Act, it would be clear that such a direction as has been given by the Devas-than Commissioner is permissible under the provisions of Sec. 18 and 19 and consequent entries can be made u/sec. 21 in the light of the findings recorded u/sec. 19. His main emphasis is that fresh enquiry is not required to be made on matters falling under clauses (i) to (iii ). Under sec. 19 what is required is that only findings are to be recorded on all the matters and entries are to be made in accordance with the findings recorded u/sec. 19. The observation of the learned trial Judge that single finding is illegal, is wrong. According to Mr. Lodha the finding is not in any way vitiated, although findings are required to be recorded on other matters on which findings have not been recorded by the Assistant Commissioner. As regards making of entries in the register, he faintly submitted that the entries could be made in the register after recording the findings u/sec. 19 on completion of enquiry u/sec. 18. ;