Judgment K.Ahmad, J. 1. This appeal is by the plaintiff Kamal Das. Admittedly, his ancestor Guru was one Gosain Jankidasji. Gosain Jankidasji was a celibate and a renowned ascetic. He had his disciples and chelas who mostly lived with him as the members of his ascetic family. Originally he was not the resident of village Sursand, but had settled down there. That was the time when the proprietor of the Sursand Estate was one Choudhary Kewal Kishore. Choudhary Kewal Kishore, it is said, was also one of his devotees and a great admirer. May it be for the reason of his influence or on his own this Choudhary Kewal Kishore made a grant of about 150 bighas of land in villages Gopalpur and Sirkhandi Bhitha. Subsequently there was also a building constructed there in one room of which the idols of Sree Ram Lakhan and Sitaji were installed. The case of the plff. is that the aforesaid grant made by Choudhary Kewal Kishore was a personal gift made to Gosain Jankidasji and that it was he who thereafter constructed the aforesaid building for his residence and installed the two deities for his personal worship and the worship of his ascetic family. Thus according to him, the grant made by Choudhary Kewal Kishore was a personal gift to him and not a dedication made to the deities nor the deities were installed for public worship. Accordingly, it is said, when Gosain Jankidasji died, the aforesaid grant made by Choudhary Kewal Kishore was, in accordance with the ascetic rule of succession from Guru to Chela, inherited by his senior chela Sri Ram Dasji and subsequently it was partitioned between him and his Guru Bhai Sri Baisnav Dasji. In the course of that partition, it is said, 100 bighas fell to the share of the former while about 50 bighas to the latter. But by the time of the survey operation, which followed thereafter, a major portion of what came to the share of Sri Ram Dasji was either sold or settled and only about 17 bighas were left with him. Therefore, in the survey all that was recorded in his name was 17 out of 100 bighas. Then on the death of Sri Ramdasji, that 17 bighas were inherited by his chela Sri Ramdasji(?). Therefore, in the survey all that was recorded in his name was 17 out of 100 bighas. Then on the death of Sri Ramdasji, that 17 bighas were inherited by his chela Sri Ramdasji(?). He during his time on the whole augmented the property and increased it to about 24 bighas and odd as detailed in Schedule I of the plaint. The plaintill of the suit is the chela of this Ramdasji and as such it is claimed by him that on the death of the latter all his properties including the aforesaid lands were inherited by him as his heir and successor. Therefore he asserts that this 24 bighas and odd land is his personal property and not subject to any trust. 2. It, however, appears that the defendant treating it as a trust property, as defined in the Bihar Hindu Religious Trusts Act, 1950 (Bihar Act I of 1951), hereafter to be referred to as "the Act", called upon the plaintiff to submit the necessary returns in respect of the aforesaid 24 bighas and odd land as provided thereunder. In the meantime, the plaintiff also under the apprehension that it might be treated as such had already given notice to the defendant under Section 78 of the Act. And thereafter on complying with the terms of that section he came straight to the civil court without taking any proceeding for it before the authority as provided in Sec. 43 of the Act and instituted the suit on 3-3-1058 giving rise to this appeal for declaration that: "The properties in suit detailed in Schedule 1 of the plaint measuring in all about 24 bighas, 2 cutta 1 dhur situated in village Gopalpur and Sursand are the personal properties of the plaintiff and do not come under the operation of Bihar Act I of 1951" 3. This claim has been vehemently opposed by the defendant, which has been impleaded in the case through the Chairman. His case is that the aforesaid building at Sursand is a public temple and was constructed by Choudhary Kewal Kishore and that the deities therein were installed by him for the worship of the public and the grant made by him was not a personal gift to Gosain Jankidasji but a dedication made to the deities. His case is that the aforesaid building at Sursand is a public temple and was constructed by Choudhary Kewal Kishore and that the deities therein were installed by him for the worship of the public and the grant made by him was not a personal gift to Gosain Jankidasji but a dedication made to the deities. As such, according to the defendant, the building is not the private residence of any individual nor the deities installed therein are the family deities of the plaintiff. According to the defendant Gosain Jankidasji was only the manager of the endowment and on his death he has been followed by his chelas as such. Therefore, it is pleaded that the plaintiff is not the owner but only a trustee for the upkeep of the rag, bhog and samaiya of the deities. In substance, therefore, the entire institution, according to the defendant, is a religious trust as defined in the Act and as such subject to the provision of law as provided therein Lastly, there is also the plea raised that the suit as constituted is barred by Section 43 of the Act. 4. On these pleadings, two main questions which arose for consideration in the two courts below and which alone have been canvassed before me in the second appeal and the cross-objection were (1) "whether the properties which are the subject-matter of the suit are the personal properties ot the plaintiff or properties to which the provisions of the Bihar Hindu Religious Trust Act do not apply"; and (2) "whether the suit is barred by the provisions of Sec. 43 of the Bihar Hindu Religions Trusts Act, 1950." 5. On the first question, the two courts below have differed. In the opinion of the trial court--"....It is incorrect to say that the properties are the private properties of the plaintiff and they do not come under the operation of the Bihar Act I of 1951", while the lower appellate court has held-- "that the properties in suit are the personal properties of the plaintiff and are not trust properties to which the provisions of the Hindu Religious Trusts Act, 1950, apply". This finding, therefore, is the subject matter of the cross-objection filed by the defendant. This finding, therefore, is the subject matter of the cross-objection filed by the defendant. But on the other question there is a concurrent finding given by both the courts below namely that-- "Section 43 of the Act is a bar to the present suit which has been instituted directly in the Civil Court without the matter being inquired into by the authority." Therefore, despite the favourable finding on the first question, the appeal too has been dismissed. Accordingly, this concurrent finding on the second question is the subject-matter of the second appeal by the plaintiff. 6. Sec. 43 which alone constitutes Chapter VII of the Act with the heading "Declaring immoveable properties of Religions Trusts as trust property", inter alia, provides: "(1) All disputes as to whether any immovable property is or is not a trust properly shall be inquired into, either on its own motion or on application, by the authority appointed in this behalf by the State Government, by notification, in the official Gazette. * * * * * *" (3) Such authority shall, after taking into consideration the claims, if any, filed under Sub-section (2) and after hearing the parties and taking such evidence as may be adduced before him, declare whether the property is a trust property and, if it is so, the trust to which it belongs and shall make an order accordingly. * * * * * * (5) The Board or any other person, aggrieved by the order of such authority, may, within ninety days of such order, institute a suit in a Court of competent jurisdiction to have the order set aside or modified. (6) Subject to the final result of any suit instituted under Sub-section (5), the order of such authority shall be final and conclusive; and the court trying the suit shall have no power to slay the enforcement of the order pending the disposal of the suit. * * * * * *" 7. (6) Subject to the final result of any suit instituted under Sub-section (5), the order of such authority shall be final and conclusive; and the court trying the suit shall have no power to slay the enforcement of the order pending the disposal of the suit. * * * * * *" 7. In my opinion, this section is nothing but an enabling section giving certain power to the authority named therein with regard to the decision of disputes as to whether any immovable property is a trust property, and does not either expressly or by necessary implication take away the jurisdiction of the Civil Court in that matter or any way creates a bar to the dispute being taken straight to the civil court without its first being placed before the authority. It at best only provides an alternative summary remedy for the decision of disputes as to whether any immoveable property is a trust property, the idea underlying this scheme being that if the parties thereto were to accept the adjudication as given by the authority the controversy in that case would be very much shortened and disposed of without any much waste of time and money which as a rule is always likely to happen once the case is taken to the civil court. In that way the administration of the trust property is expected to be very much released from the element of uncertainty. Hence from the practical point of view that is a step in aid of the cause underlying the Act. That, however, cannot be in any sense taken to mean that it altogether ousts the jurisdiction of the civil court though in cases where disputes are taken first to the authority it does put that jurisdiction to certain qualifications and limitations as is evident from the terms of Sub-section 43(5) which provides that the Board or any other person aggrieved by the order of such authority, may within ninety days of such order institute a suit in a court of competent jurisdiction to have the order set aside or modified and that as laid down in Sub-section 43(6), "subject to the final result of any suit instituted under Sub-section (5), the order of such authority shall be final and conclusive; and the Court trying the suit shall have no power to stay the enforcement of the order pending, the disposal of the suit. In that way it attempts to put a break on the onrush of such disputes straight to the Civil Court as is the scheme provided in the Civil Procedure Code for the disposal of objections raised against attachment in execution eases or similar other schemes in other Acts. But in all such cases the summary procedure provided for the speedy disposal of a dispute is us a rule always an additional remedy over and above the one given under the general law for its adjudication in civil court. In the present Act, therefore, Sub-section (5) instead of lending any support to the view taken by the court below not only negatives it but firmly establishes that the jurisdiction of the civil court is never meant thereunder to be barred. Further, I think, in a matter like this the general rule of construction also takes us to the same conclusion. The Privy Council in Secy. Of State V/s. Mask and Co., AIR 1940 PC 105 dealing with this question has observed that it is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, and such exclusion must either be explicitly expressed or clearly implied and that view has been uniformly followed by all the courts in India: vide Jodhi Singh V/s. Vedabarat Sharma, AIR 1956 Pat 205 ; Brijnandan Singh V/s. Jamuna Pd. Sahu, AIR 1958 Pat 589 ; Viratteswarar Devas-thanam V/s. Ramathan Chettiar, 1958-l Mad LJ 682 and Abdul Majid V/s. P.R. Nayak, AIR 1951 Bom 440 . And under the Act the necessary implication, if any, is that the jurisdiction of the court is not barred, rather it is expressly left open though made subject to certain conditions and qualifications in cases covered by Sub-section (1) of Section 43, otherwise not. Mow in order that a case may be hit by those qualifications as laid down in Sec. 43 (5) and 43(6), it is necessary that there must be an order passed under Sec. 43 (1). If there is no such order, the matter is left open to be taken straight to the Civil Court without any compliance of the qualifications that may be found to have been placed in that regard in Sub-sections 43(5) and 43(6). If there is no such order, the matter is left open to be taken straight to the Civil Court without any compliance of the qualifications that may be found to have been placed in that regard in Sub-sections 43(5) and 43(6). But in order that a dispute may be enquired into under Sec. 43(1) by the authority named therein, it is essential that there should be either an application made to it for that enquiry or that the authority takes it upon its own motion. In other words, if there is no application made to the authority for the enquiry of such a dispute and the authority also does not move into it on its own then there is no occasion made for the authority to exercise any power under Sub-section (1) of Sec. 43 or to make any declaration in exercise of that power as contemplated under Section 43(3). To such a case, therefore, the qualifications and conditions of Sections 43(5) and 43(6) do not apply and as such the dispute can be taken straight to the Civil Court independent of those qualifications and conditions, 8. In the present case it is not denied that there was no application made before the authority under Sec. 43(1) of the Act for any enquiry of the dispute as has now been raised in the present suit nor the authority on its own ever made any enquiry therein. Therefore, so far as the present dispute is concerned, there was never any occasion ever made for its decision under Section 43(1) of the Act by the authority as contemplated thereunder. In that view of the matter, I think the finding given by the court below that Sec. 43 of the Act is a bar to the present suit which has been instituted directly in the civil court without the matter being enquired into by the authority is wholly erroneous and cannot he sustained in law. In that view of the matter, I think the finding given by the court below that Sec. 43 of the Act is a bar to the present suit which has been instituted directly in the civil court without the matter being enquired into by the authority is wholly erroneous and cannot he sustained in law. In my opinion, what Sec. 43 of the Act is to jurisdiction provides, as already stated is only an alternative summary remedy open to be invoked either at the discretion of the authority named therein or the discretion of the person making an application therefor and is not meant to be any mandatory direction for all such disputes to be necessarily taken first to the summary jurisdiction and only thereafter if at all to the civil court as provided therein. Accordingly if there is no application made for its enquiry before the authority or where the authority also does not on its own commence any enquiry into it, it is always open for the dispute to be taken straight to the civil court. Therefore, the suit in the present case as constituted, could be validly brought straight to the civil court. In that view of the matter, the court below was not right to dismiss the suit on the ground of any want of jurisdiction in the civil court. 9. Then there is the cross-objection filed on behalf of the: respondent. Therefore, the suit in the present case as constituted, could be validly brought straight to the civil court. In that view of the matter, the court below was not right to dismiss the suit on the ground of any want of jurisdiction in the civil court. 9. Then there is the cross-objection filed on behalf of the: respondent. That is directed against that part of the judgment under appeal which holds (sic) "......the properties in suit are the personal properties of the plaintiff and are not trust properties to which the provisions of the Hindu Religious Trusts Act, 1950, apply." "Trust property", as defined in Sec.2(p) of the Act means "the property appertaining to a religious trust", and "Religious Trust" as defined in its Sec.2(1) means-- Any express OT constructive trust created or existing for any purpose recognised by Hindu Law to be religious, pious or charitable, but shall not include a trust created according to the Sikh religion or purely for the benefit of the Sikh community and a private endowment created for the worship of a family idol in which the public are not interested." In view of those definitions, therefore, the Act is applicable only to the Hindu Religious Trust of a public character and not to one of a private character: vide Ram Saroop Dasji V/s. S.P. Sahi, AIR 1959 SC 951 In that view of the matter what has to be found on the facts of the present case is whether the property in dispute is impressed with any trust of a public character or not. It is, however, not denied that this property is admittedly at present in possession of the plaintiff. As such, the onus to prove that the property in dispute is a trust property within the meaning of the aforesaid Sec.2(p) of the Act is on the defendant as held in Ramsaran Das V/s. Jai Ram Das, AIR 1943 Pat 135 at p. 138, But that onus, as found by the court below, has not been discharged by the defendant. Therefore, on that ground alone the finding as given by the lower appellate court on the character of the property has to be accepted. Therefore, on that ground alone the finding as given by the lower appellate court on the character of the property has to be accepted. The judgment under appeal shows that the defendant in order to prove the case that the property to dispute is a trust property did not give any documentary evidence and laid reliance only on the oral testimony of defendants witnesses Nos. 1 to 9. Of these, D. Ws. 1 to 6 and 8 have not been believed by any of the two courts below. The remaining D. Ws. 7 and 9 were relied upon by the trial court but the lower appellate court has condemned their evidence too. Of these two D. Ws., D. W. 9 is the law agent of the defendant and his evidence, as found by the court below, is hearsay. Further, being art employee of the defendant, he cannot he considered after all a disinterested witness. The other remaining witness is D. W. 7. The finding of the court below as to him is that-- "His evidence regarding offerings made by the public is obviously unreliable because he admitted that he himself has never offered any charhora nor has anybody else offered charhora in his presence. He was further unable to name any of Sadhu or saint who had come in the mandir". Thus, there is no evidence left on the side of the defendant which can be relied upon in support of his case; and before me as well this part of the case on behalf of the respondent has not been rested on any evidence of the defendants witnesses. Mr. Brajeshwar Mallick appearing for the respondent has, however, contended that even then there-are statements on the record made by some plaintiffs witnesses themselves like P. Ws. 1, 5, 6, 8, 9 and 10 which go a long way to establish that the property in dispute is a trust property. And the Court below is said to have erred in law in coming to a contrary conclusion without giving any consideration to those statements and as such the finding given by it is challenged as perverse in law. It is true, as it appears from the discussion made in the judgment of the trial court that some of the P. Ws. It is true, as it appears from the discussion made in the judgment of the trial court that some of the P. Ws. did depose that there was a pujari that rag bhog was regularly done, that samaiya was also performed and that occasionally sadhus and visitors were entertained, and it is also true that these statements made by the P. Ws. did weigh with the trial court in coining to the conclusion that the property in dispute was a trust property. But it is wrong to say that the court below in coming to a contrary conclusion has not taken those statements of the P. Ws. into consideration in coming to a conclusion different from that of the trial court. Paragraph 10 of the judgment under appeal elaborately deals with the evidence of all these P. Ws. and finally concludes: "That there is Pujari, that Rag Bhog is regularly done, that Samaiya also is performed or occasionally sadhus or visitors are entertained will not go to show a dedication of the properties to the deity." Therefore, the submission made by the teamed counsel that there is no consideration made of the evidence of the P. Ws. or any of their important statements Is not correct. Further, in law it is well established that a religious trust is constituted only when a property or fund is dedicated or set apart for any particular object of religion or charity and not simply because its income or usufruct has been spent by its owner over items like maintaining a pujari, doing regular rag bhog. performing samaiya or entertaining sadhus or visitors These expenses can very well be made even by private individuals either in the course of worship of the family deity or otherwise. Therefore, such items of expenditure alone can be no conclusive criterion or evidence of any dedication of that property for the object of religion or charity. Mr. Mukherjea in The Hindu Law of Religious and Charitable Trust while dealing with this subject has explained that: "The enumeration of Istha and purtta works as given in the Smritis would give us an idea of the religious and charitable gifts that were recognised and encouraged by the Hindu Sages. Mr. Mukherjea in The Hindu Law of Religious and Charitable Trust while dealing with this subject has explained that: "The enumeration of Istha and purtta works as given in the Smritis would give us an idea of the religious and charitable gifts that were recognised and encouraged by the Hindu Sages. The fact however that a man performs sacrifices or makes gifts to a pious Brahmin either on the altar of the sacrifice or on some other auspicious occasion would not create a religious or charitable trust. Such a trust could arise only when a property or fund is dedicated or set apart for any particular object of religion or charity. Many of the Istha works mentioned above are synonymous with moral virtues and others are exhausted as soon as the sacrifice is completed or the gift made. There is no obligation imposed on any person to do or continue to do something for the accomplishment of a particular purpose. Similarly as regards purtta works only when an institution is founded for the benefit of the poor or the distressed or a temple or monastery is dedicated to pious purposes or when somebody is entrusted with the duty of performing any pious act, then a trust properly speaking can come into being." Therefore, even looked at from the legal point of view, what has been stated by the P. Ws. cannot by themselves impress the property in dispute with any trust as rightly held by the court below That being so, there is no evidence left on the record to enable the defendant to discharge the onus which, as already stated, initially lies on it to prove that the property in dispute is a trust property 10. As against that, as found by the court below, there is reliable evidence, both oral and documentary, brought on the record by the plaintiff to prove that the original grant made by Choudhary Kewal Kishore of the aforesaid 150 bighas, which admittedly included the property in dispute was a gift made personally to Gosain Jankidas Ji and that since then the same has been all along dealt with and acted upon as the private property of the original donee not only by Gosain Jankidas Ji so long as he was alive but also after him one after another by his heirs and successor as already named. 11. 11. Of the various documents, which have been relied upon by the plaintiff in support of his case, the most Important is the Sanad (Ext. 1) dated 21st Baisakh 1205 F. S. It is, according to the plaintiff, the original document executed by Kewal Kishore in favour of Gosain Jankidas Ji in proof of the gift made in respect of the aforesaid 150 bighas. The trial court did not accept it as a genuine document and, therefore, no reliance was placed on it by that court. The lower appellate court has reversed that finding and on an elaborate discussion of all the points noted by the trial court has come to the conclusion that-- "Ext. 1 was executed by Kewal Krishna Choudhary. Ext 1 clearly establishes that the properties which Gosain Janki Das Jee obtained from Kewal Krishna Choudhary were given to him in his personal capacity and were never impressed with a trust in favour of the deity." The grievance made by Mr. Mallick is that the court below has not in this connection met many of the reasons as given by the trial court in paragraph 13 of its judgment. In my opinion, there is no substance in it. A bare reading of the judgment under appeal is conclusive to disprove this contention. In paragraph 8 of the judgment the learned Additional District Judge has dealt with all the points which the trial court relied upon in support of its conclusion; and at least in one respect the trial court was obviously wrong, as pointed out by the Court below, and that in not giving a presumption of genuineness in favour of this document as provided in Section 90 of the Evidence Act, the document being more than 30 years old. Then there are other documents on the record like entries in khatian, revenue challans and the judgment of Rent Suit No 1045 of 1945 which go a long way to give support to the case of the plaintiff that the property has been all along dealt with as a private property and not a trust property. Then there are other documents on the record like entries in khatian, revenue challans and the judgment of Rent Suit No 1045 of 1945 which go a long way to give support to the case of the plaintiff that the property has been all along dealt with as a private property and not a trust property. In Thakardwara Naushehra V/s. Om Prakash, AIR 1948 EP 41 Teja Singh, J. in dealing with a similar case pointed out that "When the property is divided between two Chelas and each of them succeeds to half the share, the inference is that the property did not belong to the institution" This authority also therefore in the light of the facts of the present case gives Full support to the claim of the plaintiff. Further, in this connection a reference may also be made to the rule of law which applies to the properties acquired by people belonging to the ascetic order. In Parma Nand V/s. Nihal Chand, AIR 1938 PC 195 their Lordships of the Privy Council pointed out that-- "The fact that properties have descended from guru (religious preceptor) to chela (religious disciple) does not necessarily lead to the conclusion that a property, when acquired by a mahant, loses its secular character and partakes of religious character. When a person enters the Udasi order he severs his connection with the members of his natural family. It follows that neither he nor his natural relative can succeed to the property held by the other There is however no reason for holding that an Udasi cannot acquire private property with his own money or by his own exertions It he does acquire private property it cannot be inherited by his natural relatives, but passes on his death to his spiritual heir including his chela who is recognised as his spiritual son. The descent of the property from a guru to his chela does not warrant the presumption that it is religious property." Looked at, therefore, from any point of view there is no point made out before me to justify any difference with the view taken by the court below in regard to the character of the property involved in this case. Therefore, the submission advanced on behalf of the defendant in support of the cross objection has to be rejected. Therefore, the submission advanced on behalf of the defendant in support of the cross objection has to be rejected. 12 For these reasons the cross objection is dismissed and the appeal is allowed. The suit, therefore, shall stand decreed with costs throughout.