N. C. SHARMA, J. - (1.) FACTS leading to the filing of this Second Appeal are as follows : -
(2.) ON January 23, 1961, Dev Kishan, Mangi Lal and Poonam Chand instituted Civil Original Suit No,. 14/1961 in the Court of the Civil Judge, Nagaur with the averments that there is a "bagichi" just adjacent to Pratap Sagar at Nagaur well-known as "ramcharan Dasji Ki Bagichi" with a temple of the deity of Shri Sita Ramji in it. This temple is visited by the public of Nagaur for "sewa pooja" and "darashan". About hundred or hundred twenty-five years before there had been a learned saint Shri Ram Charan Dasji and in his life time, his followers had got constructed this "bagichi" for him. ON the death of Shri Ram Charan Dasji, his chela remained pujari of the deity of Shri Sita Ramji. The last chela (disciple) was Saint Premdas who expired in miti Mah Budi 8 Samvat 1999. Mahant Premdas had neither appointed any chela as his successor and nor he had left any will in that respect to enable the public to appoint a chela and pujari or mahant of this "bagichi". On the death of Mahant Premdas, one Bhure Khan made an applica-tion to the authorities in Nagaur regarding this "bagichi" whereupon some escheat proceedings were initiated and the "bagichi" was taken over into possession by the State. The Executive Officer Shri Roshan Lal, on the applica-tion moved by the public, created a trust for the management of this "bagichi" and plaintiffs Nos. 1 and 2, Gopikishan, Nanu Ram Soni, Mohan Lal Rathi, Asha Ram Bhati and Hargovind Chander were appointed as trustees of the "bagichi" and they were entrusted with the duty to look after and manage the movable and immovable properties of the "bagichi" and also of the perfor-mance of "sewa pooja". Since then the "bagichi" remained under the management of these trustees. Mohan Lal Rathi, Gopi Kishan, Nanu Ram Soni and Asha Ram have expired and on the date of the institution of the suit, plaintiffs Nos. 1 and 2 and defendant No. 6 (Har Govird) are the "prabandhaks" of the 'bagichi". For the performance of "sewa pooja" in the temple of Shri Sita Rarnji located inside the "bagichi", the trustees, from time to time, appointed pujari on payment of salary. Following persons remained Pujari during different periods, namely:- (a) Ram Kishan Shrimalee from miti Mah Budi 12 to Phalgun Budi 15 Samvat 1999; (b) Baba Jai Siya Ram of Ratan Sagar from Phalgun Budi 1 to Phalgun Budi 15 Samvat 1999; (c) Modi Sad of Nagaur from Chait Budi 1 to Chait Sudi 15 Samvat 1999; (d) Laldas Sad from Baisakh Budi 1 to Mah Budi 15 Samvat 2000; and (e) Nanak Das Sad (father of defendant No. 1) of village Ral from miti Mah Sudi 1 Samvat 2000 to Phalgun Budi 15 Samvat 2007. On request being made by Laxmi Narain (defendant No. 1) and under an oral agreement, he was appointed as pujari to perform "sewa pooja" of the deity of Shri Sita Ramji with effect, from miti Phalgun Sudi 1 Samvat 2007 corresponding to March 8, 1951 on a monthly salary of Rs. 12/- which was accepted by the defendant No. 1. At the time of appointment of the defendant No. 1 as pujari the ornaments of the deity and utensils kept in the "bagichi" for the purpose of picnics held by public as detailed and described in the Schedule annexed to the plaint were entrusted to the defendant No. 1. . The trustees paid monthly salary of Rs. 12/- and other expenses incurred in perfor-mance of "utsavas" in the "bagichi" and the amounts paid were entered in regularly maintained account books. The defendant No. 1 also gave receipts in this regard. The plaintiffs alleged that the trustees were unhappy with the defen-dant No. 1 for the following causes, namely:- " (a) The defendant No. 1 does not perform "sewa pooja" of the deity of Shri Sita Ramji regularly and properly;' (b) the doors of the temple are not opened for "darashan" in time and "tulcha amrit" and "prashad" is also not distributed. Utsavas are not celeb-rated as before. The defendant No. 1 is a Government employee and also takes tuitions and as such is not able to devote time for 'sewa pooja"; (c) the defendant No. 1 has started a workshop for manufacturing toys and painting them; (d) defendant No. 1 was married and lives with his wife and children in the "bagichi" which affects the sanctity and purity of the temple and in "darshan" of the deity and in the holding of picnics in the "bagichi"; (e) defendant No. 1 quarrels with the tenants of the "bagichi" which results in financial loss; and (f) defendant No. 1 does not properly utilise the utensils entrusted to him to enable the public to hold picnics in the "bagichi". For above reasons, the trustees, on receiving public complaint, removed the defendant So. 1 from pujariship on November 9, 1960 and he was telegraphically informed about it. The defendant No. 1 was required by a notice dated Novem-ber 28, I960 to hand over back the ornaments and utensils specified in the Schedule to the plaint to the trustees. The defendant No. 1 has, however, not handed over charge of the "bagichi" and of ornaments and utensils to the trustees. On November 13, 1960, the defendant No. 1 made a showy performance of wrapping on his body the "chela" of mahant Premdasji and began to assert his proprietry right in relation to the "bagichi". Plaintiff No. 3 and defendants Nos. 2 to 5 are heirs of Gopi Kishan, Nanoo Ram and Asha Ram trustees but except plaintiff No. 3, the other heirs do not take any active interest in the "bagichi" and, therefore, they have been impleaded as proforma defendants. The plaintiffs prayed in the suit that a decree for ejectment of the defendant No. 1 and his family members from the 'bagichi' and the temple may be passed and the management of the "bagichi" and the temple may be entrusted to the plaintiffs as managers. They have further prayed for restoration of the ornaments and utensils specified in the Schedule to them. The defendant No. 1 Laxmi Narain did not dispute the existence of the "bagichi" and the temple of Sri Sita Ramji. He is ignorant as to who had constructed the "bagichi". It was not disputed that the last disciple Prem Das died in Samvat 1999. It was, however, denied that Prem Das had died without nominating any disciple. The defendant No. 1 pleaded that he had been appoint-ed disciple by Prem Das during his life time. At that time the defendant No. 1 was a minor. He was sent by Prem Das to Mathura, Vrindaban and Kashi for further studies. After the death of Prem Das, Nanak Das, father of the defendant No. 1 started managing the "bagichi" which he did upto Samvat 2007. The defendant No. 1 heard of his father's death in Samvat 2007 upon which he came to Nagaur. He took possession and management of "bagichi" in his hands as disciple of mahant Prem Das on November 13, 1960. He was installed Mahant of the "bagichi" by leading mahants of the "sampradaya" and since then he was in possession and management of the "bagichi". It was denied by the defendant No. 1 that he was appointed Pujari by the trustees. As regards the appointment of trustees, his case was that due to the absence of the appellant and owing to his minority, certain persons of the public approached the Hakim and the Hakim appointed some trustees. The appointment of trustees by the Hakim was pleaded to be illegal.
(3.) FOLLOWING issues were framed by the trial Court: - 1. Whether the plaintiffs and the defendant No. 6 and Nanu Ram, Mohan Lal, Gopi Kishan and Asha Ram were appointed the trustees of the suit property? 2. Whether the plaintiffs have the right to file this suit? 3. Whether the plaintiffs alongwith other trustees appointed defendant No. 1 as pujari of the temple on Rs. 12/- per month on 8. 3. 1951? 4. Whether the plaintiffs for reasons mentioned in para No. 4 of the plaint are entitled to remove the defendant No. 1 from the post of the Pujari? 5. Whether the articles mentioned in the Schedule attached to the plaint were entrusted by the plaintiff to the defendant No. 1 at the time of his appointment and the plaintiffs are entitled to receive them back? 6. Whether the plaintiffs should have paid the Court fees on the full value of the suit property? 7. Whether the suit property is of the value of Rs. 15000/- and the suit is beyond the jurisdiction of this Court? 8. Whether the defendant No. 1 was in possession of the suit property as the recognised chela of mahant Prem Das since Samvat 2007? 9. Whether on 13, 11. 1960 the defendant No. 1 was appointed the mahant by the important mahants of his sect as per custom? 10. Whether the Executive Hakim, Nagaur had the right to appoint the plaintiffs and other persons as trustees? 12. Relief? The trial court held that after the death of mahant Prem Das, one Bhure Khan had made an application on January 31, 1943 to the Executive Hakim that Prem Das had died issueless and, therefore, proper arrangement might be made of the suit "bagichi". Har Dayal P. W. 17 was the Executive Hakim, Nagaur during the relevant period and on March 31, 1943, he appointed plaintiff Mangi Lal and some other persons as trustees of the suit property. The trustees were in effective management of the "bagichi". How the trial court held that the Executive Hakim of the erstwhile State of Mewar had no legal authority to appoint trustees to manage the properties of a religious or charitable institutions. The trial court held under issue No. 2 that the plaintiffs be de facto managers or trustees, had the right to file the suit for the recovery of the math properties from the possession of the defendant No. 1 in case the defendant No. 1 had no right, title or interest in the suit property. The trial court further found the defendant No. 1 was appointed a pujari of the temple on March 8, 1951 on a monthly pay of Rs. 12/- only by the trustees. On issue No. 4, the trial court held that a master has inherent right to dismiss his servant. The defendant No. 1 had started setting up an adverse title to the trust property as against the trustees and that was a good ground for the trustees to remove him from pujariship. On issue No. 5, it was held that there was no evidence from the side of the plaintiffs that the articles mentioned in Schedule attached to the plaint were entrusted by the plaintiffs to the defendant No. 1 and this issue was, therefore, decided against the plaintiffs. While deciding issue No. 9, the trial court held that in the circumstances of the case, the adoption of defendant No. 1 as a chela by Mahant Ram Das was extremely improbable. It held that the defendant No. 1 was never adopted as a chela by Mahant Prem Das. Dealing with the custom regarding succession to this math, the trial court held that the custom as to succession in "bagichi" of Ramcharan Dasji was that a chela succeeded to his guru. The trial court held that there was no doubt (that it was amply proved that the defendant No. 1 was installed as a mahant on miti Mangsar Budi 10 Samvat 2017. The trial court, however, observed that the custom in the math in suit was that only unmarried person could be made a mahant. It concluded:- "since I have decided that defendant No. 1 was never adopted as a chela to Mahant Prem Das, he could not succeed to him. Otherwise also because he was a 'grahasti' he could not succeed to Mahant Prem Das. " It also held that the defendant No. 1 had failed to prove that he was de jure trustee and, therefore, the plaintiffs as de facto trustees could sue the former. The suit of the plaintiffs for ejectment of the defendant No. 1 from the "bagichi" was decreed. However, the suit relating to restoration of ornaments and utensil mentioned in the schedule to the plaint was dismissed. Laxmi Narain (defendant No. 1) filed Civil First Appeal No. 108 of 1968 before the District Judge, Merta. The District Judge, by his judgment and decree dated August 23, 1974, allowed the appeal of the defendant No. 1 and dismissed the suit of the plaintiffs. The District Judge, in disagreement with the trial court, held that the defendant No. 1, had been in fact nominated chela of Mahant Premdas. The District Judge, however, agreed with the trial court that the defendant No. 1 was appointed pujari of the temple and as such, he was managing the "bagichi" under the general impression of the trustees. The fact that he was chela of Mahant Premdas did not confer any right upon him in the year 1951 because, even according to the defendant No. 1, he was appointed mahant in the year 1961 and not in March, 1951. The District Judge was of the opinion that the facts that the defendant No. 1 was chela of mahant Premdas and was appointed as a Pujari by trustees were computable with each other and were not mutually destructive. It was further held by the District Judge that the defendant No. 1 was installed as mahant by the leading rnahants of the religious fraternity. He observed that once it was held that the defendant No. 1 was installed as mahant, it was difficult to see how defacto managers like plaintiffs, whose appointment was invalid, could eject the defendant No. 1, with regard to the finding of the trial court that a married person could not be installed as mahant, the District Judge stated that this point was not at issue between the parties and there were no pleadings to that effect. He was of the view that the trial court should have refrained from considering the stray and casual admission of the defendant No, 1 and his witnesses. It was held that the trial court was not right in holding that a married person could not be installed as mahant. On the basis of these findings, the District Judge reversed the decree passed by the Civil Judge, Nagaur and dismissed the plaintiffs' suit holding that the plaintiffs, though de facto managers of 'bagichi' were not entitled to eject the defendant No. ! who was initially their servant, but by change of circumstances had been validly installed as 'mahant' of the "bagichi". The legal representatives of the plaintiffs Nos. 1 to 3, defendants Nos. 2, 4, 5 and 6 have come up in second appeal to this court against the appellate decree of the District Judge, Merta dated August 23, 1974. ;