JUDGMENT : KARAMAT HUSAIN, J. Sewa Das and Amer Das, mahants, after obtaining the sanction of the Legal Remembrancer, instituted a suit against Gharib Das under section 92 of the Code of Civil Procedure. Gopal Das was subsequently added as a defendant. The reliefs sought by the plaint were (1) that the defendant, Gharib Das, may be removed from the office of Manager; (2) that some other efficient and suitable person may be appointed as the mahant and manager of the property; (3) that the wakf property be placed in charge of one or more trustees (4) that the present mahant may be required to account for the income and the moveables, and that the moveable property, cash and jewellery, may be taken charge of by the courts; (5) that a scheme may be prepared by the court for the conduct and proper management of the temple and the asthal. In the first paragraph of the plaint it was alleged that the properties in suit were endowed (wakf) property, and that the income thereof was utilised in defraying the expenses of the raj bhog (food supplied) to Sri Thakurji Maharaj whose image was installed in the said temple and in the service and care of faqirs and pilgrims. Both Gharib Das and Gopal Das in their written statements admitted these facts. The court below appointed Seoram Das as mahant and Damodar Das as adhikari, and granted certain other reliefs. Gopal Das comes to this Court in appeal, and one of the pleas taken in this Court is that the property in suit is not a trust for public purposes of a charitable or religious nature, and that therefore the court had no jurisdiction to entertain the suit under section 92 of the Code of Civil Procedure. This plea in my opinion is sound and must prevail. In order to establish that the trust is a trust, for the public purposes of a charitable or religious nature, two documents have been produced in evidence. The first is the wajib-ul-ars of the village of Kashi-pur. In that wajib-ul-arrs I find the following passages :— Subsequently in the year 1192 Fasli, Rai Mansa Ram arrived in this ilaka and peopled. From the year 1192 to 1209 Fasli, this mauza was, by the name of Asthal Bairagian Shahjahanpur, granted as a muafi. In the year 1210 Fasli, the muafi was resumed and jama assessed. In that wajib-ul-arrs I find the following passages :— Subsequently in the year 1192 Fasli, Rai Mansa Ram arrived in this ilaka and peopled. From the year 1192 to 1209 Fasli, this mauza was, by the name of Asthal Bairagian Shahjahanpur, granted as a muafi. In the year 1210 Fasli, the muafi was resumed and jama assessed. It stood in the name of Balak Das and Dayal Das under a qabuliat up to the year 1234 Fasli…………. A settlement was made in their names from the time of the British rule. Now at the time of the settlement a thorough enquiry into the title of land was made as against Dharam Das aforesaid, and a decree for proprietary right was passed in favour of Bharat Das, chela of Dayal Das of asthal Shahjahanpur, with other shares by the Settlement Officer on 16th August, 1866, and a jama of Rs. 461 (Mal, Rs. 450, Sewai, Rs. 11) was assessed. In paragraph 3 of the said document the following passages occur: “Bharat Das, lambardar, is the sole owner of this village. He personally manages all the affairs, such as collection of rent from tenants, allotment of leases, cultivation of waste land, &c., and payment of Government revenue. The amount of village expenses that are incurred are met by him from his own pocket. He does not explain the account of profits and loss to any one. The occupant of the gaddi alone bears the profits and loss.” 2. The other document is tamliknama, dated 10th November, 1881. In that document there is the following passage: “The said Manohar Das shall spend the income and profits of the property, the subject of the tamlik, in meeting the expenses of the asthal, together with Thakurdwara (temple) just as I now do. As the property, the subject of the tamlik, belongs to the asthal Manohar Das shall have no power to sell or mortgage it. Manohar Das shall attend to the service of the faqirs (mendicants) who might come to the asthal in the same way as I do.” From the facts that the property belongs to the asthal and that the income of it is applied to the so-called feeding of the idol and supporting of the faqirs, it is argued that the property is a trust created for public purposes of a charitable or religious nature. 3. 3. In my opinion the mere fact that the income of the property has been spent for a long period in the so-called feeding of the idol and in maintaining and taking care of faqirs and pilgrims is not sufficient to constitute a trust for public purposes of a charitable or religious nature. In my opinion it is essential that evidence should be forthcoming that a trust was created for such purposes. But there is no such evidence forthcoming in the present case. I therefore hold that the property is not a trust created for public purposes of a charitable or religious nature. Such being the case, I would hold that the court below had no jurisdiction to try the suit. I would allow the appeal, and dismiss the plaintiff's suit with costs in both courts. PIGGOTT, J. The position to which I have been brought after a consideration of the able arguments addressed to us in this case and of the pleadings and evidence on the record is a somewhat curious one. I do not find myself able to concur in the conclusion arrived at by my learned colleague that the court below had no jurisdiction to entertain the suit as brought. I am, however, of opinion for other reasons that the decree passed by the learned District Judge cannot be sustained. The decree which I should have been prepared to substitute for it, had I been sitting alone, would have been one appointing the appellant Gopal Das, the mahant of the asthal in question, and putting him as such in possession of the property in suit. In view of the position taken up by the appellant himself on the question of jurisdiction and of the fact that his contention on this point has prevailed with my learned colleague, it becomes practically impossible for any such decree as the above to be passed. I am prepared, therefore, to concur in the order proposed by my learned colleague, leaving it to Gopal Das as well as to the other parties to this suit, or to any other person who may consider that he has a valid claim to possession as mahant over the property in suit, to enforce the same by an ordinary suit for possession or declaration, independently of the provisions of section 92, Code of Civil Procedure. I desire to state briefly my reasons for the conclusion at which I have arrived. As regards the question of jurisdiction, what carries most weight to my mind is the question of pleadings. I quite admit the general principle that jurisdiction cannot be conferred by consent of parties. But jurisdiction may depend upon particular facts; and where those facts are admitted in the pleadings, it does not appear advisable to allow them to be contested in appeal on the basis of oral or documentary evidence which has been produced for other purposes. Gopal Das in his written statement admitted the facts in the first paragraph of the plaint to be true, with the exception of a few concluding words which have no bearing on the point now in issue. Taking his written statement as a whole, I do not understand it to express or imply any pleading to the effect that the court had no jurisdiction to entertain the suit by reason of there being no endowment, or by reason of the endowment in question not being for public purposes. He contested the right of the plaintiffs to bring this suit on the ground that they were not persons having an interest in the trust, and this he was perfectly entitled to do; but it does not seem to me that his pleadings go further than this. It must be remembered also that Gopal Das has, by a statement made by him before the court on February 8th, 1910, by which he withdrew his objection to the frame of the suit, abandoned his personal claim to possession on the ground that he was already a duly nominated mahant of the asthal and virtually confined his pleadings to the claim that he was the right person to be put in possession as mahant by a decree of the court. With regard to the general question of jurisdiction of our civil courts over properties of this nature, I would refer to the ruling in Prasotamgir v. Datgiri,[1903] I.L.R., 25 All., p. 296, and the numerous cases therein cited. With regard to the general question of jurisdiction of our civil courts over properties of this nature, I would refer to the ruling in Prasotamgir v. Datgiri,[1903] I.L.R., 25 All., p. 296, and the numerous cases therein cited. Applying the principles there laid down to the facts set forth in the first paragraph of this plaint, it seems to me scarcely open to question that the properties in dispute in this case should on those facts be held, in the words of their Lordships of the Madras High Court, quoted at page 309 of the judgment above referred to, “in a certain sense trust property.” I further incline to the opinion that the words “any express or constructive trust” in section 92, Civil Procedure Code, should be construed liberally and in a sense as favourable as possible to the assumption of jurisdiction by a court under the said section, wherever there is fair ground for affirming the existence of a trust. The question then remains whether the facts justify a finding that the said trust was created for public purposes of a charitable or religious nature. In the present case the inference I would draw from the facts stated in the first paragraph of the plaint is that the income of the property in suit was to be devoted to the maintenance of a temple in the town of Shahjahanpur to the due performance in the said temple of acts of worship of a public nature, to the maintenance of a monastery or asthal connected with and dependent upon the said temple and occupied by devotees whose principal duty it would be to look after the temple rites, and finally to the dispensing of charity, presumably in the shape of food, to any religious mendicants or pilgrims, who in the present case themselves live at the temple or asthal and claim entertainment as such. While admitting that the question is not free from difficulty, I incline to the opinion that such purposes as the above might reasonably be held to be public purposes of a charitable or religious nature within the meaning of section 92, Code of Civil Procedure. 4. The reasons for my inability to concur in the decree passed by the lower court may be briefly stated. 4. The reasons for my inability to concur in the decree passed by the lower court may be briefly stated. The best piece of evidence which we have on this record, and indeed the only evidence of any value, regarding the rules of succession to the mahantship of the asthal in question, is the wajib-ul-arz of the village Kashipur which formed the original endowment of the said monastery. According to those rules the succession must go to a chela or personal disciple of the last mahant, ordinarily such mahant is expected to make a selection by formal appointment or by will, so that no question should arise on his death as to which of his chelas has the right to succeed. In the event of his failing to do so, the right of selection from amongst the chelas concerned is given to the mahants of the neighbouring asthals. So far as the evidence on the present record goes, there is no question that Bharat Das, who was the lambardat of mauza Kashipur, when the settlement wajib-til-arz on the record was prepared, was the lawful mahant of the asthal in question, and that he was succeeded by a disciple of his own, named Manohar Das. The evidence on this record further warrants the finding that Manohar Das had only two disciples or chelas, namely, Gharib Das and Gopal Das, both of whom were defendants in the present suit. The failure of Manohar Das to make a nomination, or at any rate to make any nomination which was accepted without dispute by the persons concerned, led to difficulties on the death of the said Manohar Das. Those difficulties were finally settled by a number of arbitrators, as to whom it is sufficient to say that there appears to be no sort of evidence that they were entitled to determine the question of mahantship, or that their decision could have been binding upon any one except the two persons, Mathura Das and Gharib Das, who submitted their dispute to their decision. The result of this award was a temporary accession of Mathura Das to the position of mahant, a position however which was shortly afterwards repudiated by him. The result of this award was a temporary accession of Mathura Das to the position of mahant, a position however which was shortly afterwards repudiated by him. Following on this repudiation of resignation, whatever may be its correct legal effect, Mathura Das appears to have left Shahjahanpur, and so far as the evidence on the record shows, he has not since been heard of. The deed of relinquishment executed by him before his departure is emphatic as to the rights of Gopal Das to assume possession as the lawful mahant. I trust I have made it clear that the opinions I have expressed on these matters are based upon the evidence as it stands on this record, and should not be taken to prejudice any decision which any court may hereafter see fit to come to upon different evidence. If, however, I were to give effect in this suit to my opinion that the learned District Judge had jurisdiction to deal with the whole matter of the suit as framed, I should hold that Gopal Das had made out a clear case in favour of his right to succeed to the mahant ship as the disciple of Manohar Das, the last mahant whose title was beyond question. No difficulty arises as to the right of election by mahants of neighbouring asthals, because Gharib Das, the only other chela of Manohar Das, has been proved by the evidence on this record to be an utterly unfit person for the office of mahant and has moreover expressly withdrawn in the course of the present suit any claim to be appointed mahant. For these reasons, therefore, I concur in the order proposed by my learned colleague. 5. Order of the Court is that the suit will stand dismissed with costs in both courts.