Lalit Kishore v. Laxminarayan — 1967 DIGILAW 142 (RAJ)

SHINGHAL, J.—There is an old temple of Shri Jagannathji in Jaipur city, the particulars of which have been given in paragraph 1 of the plaint and site plan Ex. 1. On the right hand side is the "nij mandir" of the main abode of the idol, while towards the left is a well and behind it there are residential quarters. A portion of the residential premises, in the front part of the building, just behind the well, is admittedly in the occupation of Gheesilal who has been examined as a witness on behalf of the plaintiffs. This Gheesilal was once discharging the duties of "pujari" and the portion occupied by him has been shown in green chalk. There is no dispute about it. The plaintiffs instituted their suit for possession of the rest of the premises on the ground that the entire building and the temple were founded by their ancestors and the ancestors of the proforma defendants Nos. 2 to 7 who also appointed "pujari" for the "seva puja" of the temple. In support of this contention, the plaintiffs made a reference to certain documents executed by the "pujaris" in favour of their ancestors and pleaded that Smt. Chandri, widow of Lachhminarayan, was the last "pujarin". She died on Jeth Bad 30, Smt. 2012, and the plaintiffs felt aggrieved because, thereafter, defendant Lalit Kishore started performing "seva puja" and took possession of the building as well as the movable property of the temple without any authority. According to the plaintiffs, Lalit Kishore made certain unauthorised alterations also in the premises, started using the electric current indiscriminately, obtained a water connection and started tethering his cows in the temple which caused obstruction to the worshippers. They also pleaded that the defendant was not performing "seva puja" properly and had established his ownership on the temple in an unauthorised manner. Claiming, further, that they themselves were the descendants of the founders and the "shebaits" of the temple, the plaintiffs prayed for delivery of possession of the temple properties, removal of the alterations and the water connection, and the issue of a perpetual injunction restraning defendant Lalit Kishore from tying his cattle and making any alteration whatsoever in the temple property. 2. Defendant Lalit Kishore denied the claim. He pleaded that the residential portion of the building had been built by his ancestors and that it was quite separate from the temple. 2. Defendant Lalit Kishore denied the claim. He pleaded that the residential portion of the building had been built by his ancestors and that it was quite separate from the temple. The plaintiffs claim regarding the appointment of "pujaris" was also denied and it was pleaded that Smt. Chandri was not merely a "pujarin" but a "shebait" of the temple. Further, the defendant claimed that he was performing "seva puja" from the time of Smt, Chandri, for which the charity department of the former Jaipur state allowanced him at the rate of Rs. 17/- per month with effect from May 2, 1942. The defendant claimed that he was "in possession of the temple for nearly 16 years as its "shebait". He denied that he had acted in an improper manner. Certain other pleas were also taken, but it is not necessary to refer to them for purposes of the present appeal because the case has been argued before me only with reference to the claim of the plaintiffs that they were the descendants of the founders of the religious endowment in question, and the counter-claim that defendant Lalit Kishore was the sole "shebait" of the temple and that the residential premises belonged to him as they had been built by his ancestors. 3. A number of issues were framed in the trial court. The learned Additional Munsiff of Jaipur reached the conclusion that the ancestors of one Gendilal, through whom the defendant claimed the property, could be said to be the joint founders of the endowment along with the ancestors of the plaintiffs, but that the plaintiffs were not the "shebaits" of the temple after the death of Gendilal, and that Smt. Chandri was in possession and management of the temple thereafter. He further held that the plaintiffs had not succeeded in proving that the residential portion of the temple was constructed by their ancestors. He found that defendant Lalit Kishore was in possession of the temple and was performing "seva puja" even during the life time of Smt. Chandri, He went on to hold that the line of Gendilal did not become extinct after his death, and he seems to have taken the view that defendant Lalit Kishore was entitled to succeed to the shebaitship after Smt. Chandris death. The learned Additional Munsiff therefore repelled the contention that defendant Lalit Kishore had taken unlawful possession of the temple. The learned Additional Munsiff therefore repelled the contention that defendant Lalit Kishore had taken unlawful possession of the temple. In this view of the matter, he dismissed the suit on November 30, 1959. The plaintiffs preferred an appeal which was decided by the learned Senior Civil Judge of Jaipur city, on December 23, 1961. He held that the plaintiffs had succeeded in proving their case, and decreed the suit. Defendant Lalit Kishore feels aggrieved against that judgment and has preferred this second appeal. 4. It has not been disputed in this Court that the portion of the building containing the main temple situated towards the south (right side), is an old religious endowment in which the idol of Shri Jagannathji has been installed and that it vests in and belongs to the deity. It has also not been disputed that the building of the temple was constructed by the ancestors of the plaintiffs and the proforma defendants almost a hundred years ago. What has been urged is that the plaintiffs ancestors ware not the sole founders of the endowment, and that the ancestors of defendant Lalit Kishore were also co-founders because they contributed to it by "bringing" the idol of Shri Jagannathji for installation. The first important question for consideration is whether the claim of the defendant that he was the successor of the co-founders of the endowment is correct. The other question is whether the plaintiffs were the only "shebaits" of the temple. In order to appreciate the controversy, it is necessary to mention the genealogy of those who had admittedly functioned as "pujaris" of the temple over a long period of time. Fortunately, there is no dispute regarding the genealogy now and it is as follow— Sawainath Shankar Raghunath Chhotelal Lachhminarayan (came in adoption) Smt. Chandri Chhaganlal alias Champalal Gendilal (went in adoption to Chhaganlal) Gendilal (adopted) Lachhminarayan was not the natural son of Raghunath. He was the son of Chajjuram, as will appear from the following table which is also admitted as correct— Chajjuram Lachhminarayan (went in adoption to Raghunath) Jagannath Bhonrilal Lalit Kishore (defendant) Lachhminarayans father was not in the line of Sawainath or Shanker, so that it is beyond dispute now that by birth defendant Lalit Kishore did not belong to the family of Sawainath or Shanker. I may also mention here that it is further admitted that Lachhminarayan died in Smt. 1966 and his son Gendilal, who had gone in adoption to Chhaganlal, died in 1969. Smt. Chandri, widow of Lachminaryan, survived all the male descendants of Sawainath and Shanker. She died in Smt. 2012. As I shall show presently, these facts are of considerable importance in deciding the points in controversy in this appeal. 5. The plaintiffs have relied mainly on documents Exs.1 to 6. It has been argued by the learned counsel for the defendant-appellant that the learned Judge of the lower appellate court committed an error of law and fact in holding that the evidence on the record was sufficient to prove that documents Exs. 1, 2 and 4 had been proved to be genuine. According to the learned counsel, no presumption about the genuineness of these documents could be raised under sec. 90 of the Evidence Act because the plaintiffs led evidence and failed to establish their execution. It has further been argued that document Ex. 1 was inadmissible in evidence as it did not concern the defendant and that it was not read correctly by the court below. It has therefore been urged that this Court should re-assess the evidence on the record. 6. Who founded the temple and made the endowment in question is the first point for decision in this case? The plaintiffs have relied on documentary evidence which is of considerable importance and I shall examine it in its proper chronological order with due regard to the criticism of the learned counsel for the appellant. 7. The first in point of time is document Ex. 2 which is dated Bhadwa Sudi 11, Smt. 1932. It has been written on stamped paper and purports to be executed by Chhotelal, Chhaganlal, Raghunath and Lachhminarayan, descendants of Sawainath and Shanker, in favour of the ancestors of the plaintiffs. In the document, the four executants admitted that the temple of Shri Jagannathji had been built by the ancestor of the plaintiffs and that it had been given to the ancestors of the executants for carrying on the "puja" of the temple and that they had performed the "seva puja" properly. They further stated that they had become old and so Chhotelal had adopted Chhaganlal while Raghunath had adopted Lachhminarayan who would carry on the "seva puja" according to their turns or "osras". They further stated that they had become old and so Chhotelal had adopted Chhaganlal while Raghunath had adopted Lachhminarayan who would carry on the "seva puja" according to their turns or "osras". Then it was stated that the offerings of the temple belonged to the deity, and so also the property mentioned in the document. The executants gave an assurance that they would continue to do "seva puja" properly/but that if anything was done improperly, it would be open to the ancestors of the plaintiffs to bring round the delinquents, failing which the ancestors of the plaintiffs were free to do what they liked as they were the "maliks" or owners. This document is therefore of considerable importance for it goes to prove that the ancestors of the plaintiffs were the only founders of the temple and that the executants were mere "pujaris" who were liable to dismissal if they acted improperly and did not mend themselves. 8. It has been strenuously urged by Mr. Tewari that this document Ex. 2 should not be read in evidence because its execution has not been proved, and also because it was not signed by Raghunath and Lachhminarayan but by some one else. Besides, it has been argued that a presumption regarding the genuineness of the document could not have been raised under sec. 90 of the Evidence Act because the plaintiffs did not make any such request in the trial court and, on the other hand, led evidence to prove its execution. The learned counsel has placed reliance on Deputy Commissioner Lucknow vs. Chandra Kishore Tewari(l) Surendra Nath Rath vs. Shambhu Nath Dobey(2), and Ramchandra vs. Usmangani(3) to support his argument. 9. It is admitted however that even though the plaintiffs did not initially make an application requesting the trial court to raise a presumption u/sec. 90 of the Evidence Act regarding the genuineness of document Ex. 2, they made such a request towards the close of the trial, and it cannot be said that the court was debarred from raising the presumption simply because the plaintiffs did not make their application earlier, or led evidence to prove the execution of the document. 90 of the Evidence Act regarding the genuineness of document Ex. 2, they made such a request towards the close of the trial, and it cannot be said that the court was debarred from raising the presumption simply because the plaintiffs did not make their application earlier, or led evidence to prove the execution of the document. The correct view appears to be that in such a case if there is nothing to cast a doubt about the genuineness of the document, and if it can not be said that the belated request for raising the presumption has caused any prejudice to the defendant,, there is nothing to prevent the court from presuming the genuineness of the document under sec. 90 of the Evidence Act. I may in this connection make a reference to Munshi Ram and others vs. Thakar Dass and others(4) which supports this view. The facts of Deputy Commissioner Lucknow vs. Chandra Kishore Tewari and others(l), Surendra Nath and others vs. Sambhu Nath Dobey and others(2) and Ramchandra vs. Usmangani(3) were different because in those cases the party producing the document did not at all rely on the presumption of its genuineness under sec. 90 of the Evidence Act and adduced evidence to prove its execution which was disbelieved by the court. So when, on a consideration the evidence the court took the view that the document was not genuine and was open to grave suspicion, it was only natural that it should have reached the conclusion that it could not raise a presumption about the genuineness of such a document simply because it was more than 30 years old. In the present case, however, there is no reason to think that Ex. 2 is not a genuine document and that a presumption should not be raised in its favour under sec. 90. The document has been produced from proper custody inasmuch as it has been tendered in evidence by the plaintiffs, and it is undoubtedly more than 30 years old having been written in S. 1932. What is all the more important is that the document has been quoted in extenso in "robkar" Ex. 6 dated August 31, 1908 the genuineness of which has not been doubted before me. The "robkar" is of the Municipal Committee of Jaipur relating to the claim of Chhaganlal son of Chhotelal, for the grant of an allowance of Rs. What is all the more important is that the document has been quoted in extenso in "robkar" Ex. 6 dated August 31, 1908 the genuineness of which has not been doubted before me. The "robkar" is of the Municipal Committee of Jaipur relating to the claim of Chhaganlal son of Chhotelal, for the grant of an allowance of Rs. 17/- from the State for the "seva puja" of the temple. The iqrarnama" (Ex.2) was taken in evidence in those proceedings in the presence of Lachhminarayan, and it the instance of no less a person than Chhaganlal alias Champalal through whom defendant Lalit Kishore now claims to be the co-founder and the "shebait" of the temple. The reproduction of document Ex. 2 in the "robkar" is therefore a relevant fact under sec. 35 of the Evidence Act, for it is an entry in a public record stating a fact in issue or a relevant fact and the entry has been made by the public servants in the discharge of their official duty. It will be sufficient to refer, in this connection, to Bishambhar Singh and others vs. State of Orissa and another (5) where it was held that the recital of the "ekrarnama" and its terms in an ancient public document like the "rubakari" whose authenticity had not been doubted furnished strong evidence of the existence and genuineness of the "ekrar-nama" and its terms. I have therefore no hesitation in holding that Ex. 2 is a genuine document and that its contents are correct. 10. The argument that the document (Ex. 2) has not been executed by Raghunath and Lachminarayan because it has been signed by one Chajjuram at their request and on their behalf is also quite futile. It is true that it was normally the duty of the plaintiffs to prove the authority of Chajjuram in this respect, but, as I have stated, the fact that the document was made use of by Lachminarayan and Chhaganlal alias Champalal for the purpose of claiming the allowance from the State of Jaipur shows that it was admitted to be a genuine document by them and as defendant Lalit Kishore claims the suit properties through them, there is no reason why he should be heard to say that Ex. 2 is not a genuine document. As it is, Ex. 2 is not a genuine document. As it is, Ex. 2 is a very important document which completely negatives the defence that the temple was founded by the descendants of Sawainath and Shanker. On the other hand, it satisfactorily proves that it was exclusively founded by the ancestors of the plaintiffs and that the descendants of Sawainath and Shanker were no more than mere "pujaris". 11. Although document Ex. 1 is the next important document in point of time, I shall now consider the evidentiary value of document Ex. 4 because it makes a reference to document Ex. 2 and has also been extensively quoted in "robkar" Ex.6 referred to above. Ex. 4 is a document which purports to have been executed by Lachminarayan son of Raghunath, on Posh sud 4, S. 1957 (December 25, 1900)) in favour of the ancestors of the plaintiffs. It has been stated in the document that the temple had been built by the ancestors of the plaintiffs and that the ancestors of executant Lachhminarayan had only been kept for purposes of "seva puja", which they were performing according to their turns or "osras", on behalf of the founders. An assurance was then given by Lachhminarayan that the income of the temple would be utilised for repairs of the temple and the well and that no part of it would be spent without the permission of the founders. It was reiterated in the document that some irregularities had been committed for which the executant asked for pardon. He also gave the assurance that such irregularities would not be committed again. Further, it was made quite clear that if any irregularity was committed it would be quite open to the founders to make any other arrangement that they liked and that Lachhminarayan would have no objection to it. 12. Thus this document is also of considerable importance—the more so because it reiterates the existence and correctness of document Ex. 2 of Bhadwa sud 11, S. 1932. It therefore leaves no room for doubt that the ancestors of the plaintiffs were the only founders of the endowment and that the descendants of Sawainath and Shanker merely carried on "seva puja" and were liable to removal. 13. It has been argued that I should leave document Ex. 2 of Bhadwa sud 11, S. 1932. It therefore leaves no room for doubt that the ancestors of the plaintiffs were the only founders of the endowment and that the descendants of Sawainath and Shanker merely carried on "seva puja" and were liable to removal. 13. It has been argued that I should leave document Ex. 4 also out of consideration for the reasons that the plaintiffs did not initially apply for the raising of a presumption under S. 90 of the Evidence Act and failed to prove the execution of the document although they examined two witnesses in that respect. Apart from the fact that there is no good reason for disbelieving the statements of the witnesses who have been examined for proving the genuineness of document Ex. 4, I am inclined to believe it for the same important reasons for which I have placed reliance on document Ex. 2 as both of these documents have been reproduced in "robkar" Ex. 6 of August 31, 1908 to which reference has been made above, and were relied upon as genuine by those through whom defendant Lalit Kishore claims the property. 14. It has therefore been satisfactorily proved that the religious endowment in question was founded by the ancestors of the plaintiffs and that the descendants of Sawainath were mere "pujaris". 15. There is however other evidence on the point and I shall refer to it briefly. Ex. 1 is a document dated Bhadwa Bad 12, Smt. 1933. It purports to have been executed by Chhotelal son-in-law of Chhotelal son of Shanker and grand-son of Sawainath referred to in the genealogy given above. The document shows that this Chhotelal (son-in-law of "pujari" Chhotelal) was anxious to reside in a portion of the residential part of the building of the temple and his father-in-law Chhotelal "pujari" son of Shanker was prepared to allow him to live in it. That however required the consent of the founders, and therefore Chhotelal son-in-law of Chhote Lal "pujari" executed document Ex. 1 in favour of the ancestors of the plaintiffs. He stated in it that the temple had been built by the ancestors of the plaintiffs and that out of the house adjoining the well, his father-in-law Chhotelal had given him some portion for residence. 1 in favour of the ancestors of the plaintiffs. He stated in it that the temple had been built by the ancestors of the plaintiffs and that out of the house adjoining the well, his father-in-law Chhotelal had given him some portion for residence. The premises so allotted to the executant were then described in the document and it was further stated that the portion given to the executant would be held by him for the purpose of residence, that he will not be entitled to sell or mortgage it and that, in return he shall carry on "seva puja" of the temple after the death of his father-in-law Chhotelal. Thus Ex. 1 not only shows that the temple was built and founded by the ancestors of the plaintiffs, but also that the residential part of it formed part of that religious endowment and that no body had a right of residence in it without the permission of the founders, what to say of having a proprietory title over it. The document therefore indicates that the entire property was one religious endowment, as has been alleged by the plaintiffs, and was founded by their ancestors. 16. It may here be mentioned that the words ^^NksVsyky Nxuyky iqtkjh dh** appear to have been interpolated in document Ex, 1 after the racial that the temple had been built by the ancestors of the son and grand-son of Jagannath and that there was a building or a house near its well. This interpolation is obvious to the naked eye because the ink and the hand-writing are quite different. Moreover, if the interpolated words had really been written in the document at the time of its execution, that would have shown that the residential premises referred to in it were the property of chhotelal and Chhaganlal "pujaris"and in that case it would not at all have been necessary for the executant of the document to give any undertaking to the son and grand-son of Modi Jagannath for, in that event, they would have no concern with the building. I have therefore left out the interpolation altogether and read the document as stands without it. 17. An argument has been advanced that I should leave Ex. 1 out of consideration far the reasons that it is also an old document about which the plaintiffs did not apply for the raising of a presumption under sec. I have therefore left out the interpolation altogether and read the document as stands without it. 17. An argument has been advanced that I should leave Ex. 1 out of consideration far the reasons that it is also an old document about which the plaintiffs did not apply for the raising of a presumption under sec. 90 of the Evidence Act, and because it cannot be said to have been executed by the predecessors-in-title of defendant Lalit Kishore so as to bind him. These arguments are, however, of no avail. I find from the record that the document has been proved by the statement of Gheesilal, for it was his father who executed it. There is no reason to disbelieve Gheesilal on this point. Then there is the statement of Sunderlal P. W. 2 also about the execution of this document. The document is more than 30 years old and it is not disputed that it has come from proper custody. As in the case of document Exs. 2 and 4, I am of the view that a presumption about its genuineness should be raised under sec. 90 of the Evidence Act also. Even the learned Munsiff reached the conclusion that the execution of this document had been satisfactorily proved, and there is no reason to take a contrary view. The question is how the document could be said to be admissible in evidence? The answer is that the document is admissible under sec. 11(2) of the Evidence Act for it makes the existence of the fact in issue, namely, that the premises belonged to the temple and formed a part of the endowment founded by the ancestors of the plaintiffs, highly probable. The document is also admissible u/s. 13 of the Evidence Act because it was a transaction or a particular instance in which the right of the plaintiffs ancestors to the property was recognised as far back as Smt. 1933. So even though Ex. 1 is not conclusive evidence, it is admissible like any other fact and, when it is weighed along with other evidence referred to above, it leaves no room for doubt that the conclusion that the entire building was constructed by the ancestors of the plaintiffs and formed part of the religious endowment is correct and irresistible. 18. I may now refer to document Ex. 18. I may now refer to document Ex. 3 which is a judgment of the court of Munsiff, Jaipur, dated 20-7-1912. It was given in a suit filed by the ancestors of the present plaintiffs against Gendilal, natural s/o Lachhminarayan and heir of chhagan Lal alias Champalal. It appears that Gendilal repaired the roof of the kitchen of the temple by putting some slab on it. The plaintiffs in that suit, who, it is not disputed, were the ancestors of the present plaintiffs, objected to the construction on the ground that it had been undertaken without their permission. It was clearly admitted by Gendilal in that suit that the temple belonged to the plaintiffs and he gave the undertaking that he would not make any repairs without their permission, in future. The Munsiff held that the temple belonged to the plaintiffs and that Gendilal was only a "pujari". A consent decree was given that Gendilal shall take the permission of the plaintiffs before undertaking any repairs. This document also therefore goes to prove that the temple was founded by the ancestors of the plaintiffs and it re-inforces the conclusion to which I have arrived on the strength of the other documents. 19. An objection has been raised however that the Munsiffs judgment (Ex. 3) cannot operate as res judicata because no such plea was taken during the court of the trial and it would prejudice the defence if any such value is attached to it now. There is not much force in this submission because a reading of the judgment shows that it can very well be taken to operate as res judicata on the view taken in Ram Kinkar Rai vs. Tufani Ahir(6) and Shib Singh vs. Mt. Gaura(7). I do not however think that it is at all necessary to go to that length. The judgment is, all the same, admissible under sec. 11(b) and sec. 13 read with sec. 43 of the Evidence Act because the right claimed by the plaintiffs having been admitted before the Munsiff in 1912, it makes its existence highly probable on the date of the present suit., and also because it goes to show that on the earlier occasion there was a particular instance in which the right was claimed and was recognised in court of law and formed the basis of its judgment in favour of the plaintiffs ancestors. 20. 20. There is thus overwhelming evidence to prove that the temple in question was founded solely by the ancestors of the plaintiffs and that the descendants of Sawainath and Shanker were mere "pujaris". 21. A perusal of the site plan shows that the residential portion of the building of the temple is really one-half portion of that building the other half being the "nij mandir" or the main abode of the deity. There is a long common "surang" or passage which leads not only to the "nij mandir" but also to the residential portion of the building. This is so not only in regard to the buildings on the ground floor but also on the first floor. Another important fact is that the well, which admittedly fromed part of the temple, is situated just in front of, and adjacent to the residential half portion of the building. This shows that the entire land belonged to the ancestors of the plaintiffs who founded the temple and so there is force in the contention that the two halves of the building form one composite whole, as has been alleged by the plaintiffs. The entire building is really one integrated building, one-half of which is used as the main abode of the deity and the other half for the residence of its "pujaris". The statement of Gheesilal, who functioned as a "pujari" for a long time during the life time of Smt. Chandri, leads to the same conclusion and there is no reason to disbelieve it. 22. The defendant has led some evidence in rebuttal but, as I shall presently show, it is quite useless. His learned counsel Mr. Tewari has placed reliance on documents Exs. A. 3, A. 5, A. 9, A. 10, A. 7, A. 8 and A. 11, and it is not necessary to refer to the other documentary evidence or parol evidence. Ex. A. 3 is a copy of the "khasra pemayash" of Jaipur city of Smt. 1925 in which the "haveli" mentioned at serial number 103 has been shown to be of Chhotelal. But it is difficult to conclude from this cryptic entry that the Chhotelal mentioned in the entry was Chhotelal son of Shanker. Ex. A. 3 is a copy of the "khasra pemayash" of Jaipur city of Smt. 1925 in which the "haveli" mentioned at serial number 103 has been shown to be of Chhotelal. But it is difficult to conclude from this cryptic entry that the Chhotelal mentioned in the entry was Chhotelal son of Shanker. Even otherwise, such an entry does not have much evidentiary value and, as would appear from Champalal vs. State (8), even the High Court of the Jaipur State did not attach much importance to such entries and considered them unreliable. Ex. A. 5 is a notice which purports to have been given by the municipality to Lalit Kishore regarding a water spout or drain and I do not see how it can be of any consequence. Ex. A. 9 is an application dated April 11, 1942 of Smt. Chandri for continuance of the allowance of Rs.17/- to her "grandson" Lalit Kishore on account of her old age. This document has been produced for the purpose of showing that Lalit Kishore was the "real" grand-son of Smt. Chandri and therefore belonged to the family of Raghunath and Shanker. This is however quite incorrect because it has been admitted that Lalit Kishore was the son of Bhonrilal and the grand son of Jagannath and he was not the grandson of Lachhmi Narayan husband of Smt. Chandra. Then comes Ex. A.10 dated May 2, 1942, which is the order which was passed on Smt. Chandris application Ex. A. 9 allowing the grant to Lalit Kishore. This document also cannot serve the purpose of proving that Lalit Kishore was transferred to the family of Sawainath and Shanker by adoption when it is admitted that he belonged to the family of Chajjuram. Exs.A. 7 and A. 8 are rent notes in favour of Lalit Kishore They are of January 1956 and are of little importance because when the plaintiffs found that Lalit Kishore had gone to the extent of letting out the premises on rent, they raised the present suit soon after on May 17, 1956. Ex. A. 11 is the "Naksba Khasra" of the survey of the locality dated August 12, 1949 and it is claimed that it shows that house No. 3294 belonged to Lalit Kishore. For reasons mentioned in respect of document Ex. A. 3, I attach no importance to this document. Ex. A. 11 is the "Naksba Khasra" of the survey of the locality dated August 12, 1949 and it is claimed that it shows that house No. 3294 belonged to Lalit Kishore. For reasons mentioned in respect of document Ex. A. 3, I attach no importance to this document. Thus the evidence of the defendant is quite unsatisfactory and cannot serve the purpose of rebutting the evidence of the plaintiffs. 23. The only reasonable conclusion, on a consideration of the entire evidence of the parties, is that there is enough justification for the claim of the plaintiffs that their ancestors alone made a "Samerpan" of the entire property and founded the religious endowment in question and that no part of it belonged to the "pujaris" through whom Lalit Kishore claims the property for himself. And once there was "Samarpan" of the property for the religious endowment, it became irrevocable, so that the founders were divested of all beneficial interest in the endowed property which thereupon vested in the deity. 24. Even though the deity is a juristic person capable of owning and holding property, by the very nature of things the possession and the management of the endowment has to be entrusted to some person who functions as manager or "shebait". As was observed by Lord Hobhouse in Gossami Sri Gridhariji vs. Romanlalji Gossami (9) the office of a "shebait" vests in the founder and his heirs, in default of evidence that he has disposed of it otherwise, provided that there has not been some usage, course of dealing, or circumstance showing a different mode of devolution. Reference in this connection may also be made to Pramatha Nath Mullick vs. Pradhyamna Kumar Mullick (10) in which the decision in Gossamee Sri Gridhariji vs. Romanlalji Gossami (9) was followed by their Lordships of the Privy Council. 25. It is an important duty of the founder or "shebait" to arrange for the daily worship of the idol and it is open to him to engage a "pujari" to conduct the worship. The "pujari" is however a mere servant of the "shebait" and simply because the "pujaris" appointed by the founder have carried out worship over some generations, that cannot confer any independent right upon them to continue in that office. It is well recognised that even a hereditary priest can be removed if he is guilty of misconduct. The "pujari" is however a mere servant of the "shebait" and simply because the "pujaris" appointed by the founder have carried out worship over some generations, that cannot confer any independent right upon them to continue in that office. It is well recognised that even a hereditary priest can be removed if he is guilty of misconduct. It also does not matter if a "pujari" is allowed to live in a part of the endowed property or to keep a share of the offerings and collections for himself for such an arrangement is quite common as it helps to maintain the "pujari". There is thus a great difference between the status of a founder, a "shebait", and a "pujari". 26. It now remains to consider whether the plaintiffs could justifiably claim to be the "shebaits" of the temple on the ground that they were the heirs of the founders of the endowment, or whether the founders had disposed of the "shebaits" in some other manner or there had been some usage, course of dealing or some circumstance to show a different mode of devolution. 27. On this aspect of the matter also, documents Exs. 2, 4, 6, 1 and 3 are of considerable importance for they prove that the ancestors of the plaintiffs not only founded the temple, but also managed its affairs and supervised the "seva puja" As has been stated, document Ex. 2 is of Smt. 1932 and Ex. 4 of S. 1957. Ex. 6 is of the year 1908. Ex. 1 is a document of S. 1933 and Ex. 3 dates back to the years 1912 A. D. We therefore know definitely about the course of the conduct of the founders from S. 1932 (1875 A.D.) to the year 1912 A.D. There is no room for doubt that during all this period of time, the founders and their successors insisted on a recognition of their exclusive right to manage the endowment and they also took care to relegate the "pujaris" to their status as such for carrying on the "seva puja" or "archna" of the deity. There is nothing on the record to show that the founders disposed of the "shebaiti" otherwise, or that there was some usage, course of dealing or circumstance to show that the interest devolved on any one other than the founders of the endowment and their heirs. There is nothing on the record to show that the founders disposed of the "shebaiti" otherwise, or that there was some usage, course of dealing or circumstance to show that the interest devolved on any one other than the founders of the endowment and their heirs. It would therefore be an irresistible conclusion to hold that the plaintiffs have succeeded in proving that they were the only "shebaits" and that those who carried on the "seva puja" were mere "pujaris". 28. Mr. Tewari tried to raise an argument on the basis of a recital in document Ex. 6 that Balabux, one of the ancestors of the plaintiffs, had admitted in the proceedings which gave rise to "robkar" Ex. 6 that while the temple and the well had been built by the ancestors of Balabux, the idol had been brought by the ancestors of the "pujaris", that those who built the temple and those who brought the idol should be held to be co-founders of the endowment. He has based his submission on the decision in Ananda Chandra Chakrabarti vs. Brojalal Singh(ll) In that case, one person had contributed the site, another the temple and the idol, and the third gave some properties for the maintenance of the endowment. All three were held to be co-shebaits. This argument cannot be allowed to prevail in the present case for two reasons. Firstly, it was not pleaded at all that the "pujari" (through whom Lalit Kishore claims the property) were co-shebaits because they had given the idol for installation in the temple, and the plaintiffs therefore had no opportunity to rebut that claim or to show that the contribution was quite insignificant. Secondly, even if it is assumed, for the sake of argument, that the "pujaris" brought the idol for installation, it appears from Balabuxs statement referred to in Ex. 6 that the "pratishtha" of the idol was made by the ancestors of Balabux and not by the "pujaris" and that it were they who provided for the maintenance of the "pujaris" who were no more than mere servants of the temple. These other parts of the statement of Balabux cannot be left out of consideration for if his statement is to be read as an admission against the plaintiffs, it should be read as a whole. These other parts of the statement of Balabux cannot be left out of consideration for if his statement is to be read as an admission against the plaintiffs, it should be read as a whole. The mention in the statement that the idol had been brought by the ancestors of the "pujaris" does not therefore lead to the conclusion, in the facts and circumstances of this case, that the "pujaris" were the co-founders or "shebaits" of the temple. 29. Then there is the further fact that even if the "pujaris" laid claim at the time of the foundation that they were the co-founders because of the fact that they had brought the idol for installation in the temple, it is quite evident from the evidence on the record that the subsequent course of dealings has been such as to prove that they gave up that claim and agreed to play the role of mere "pujaris". This is fully proved by documents Exs. 2 4, 6, 1 and 3.The claim that the "pujaris" were the "shebaits" of the temple cannot therefore be upheld. 30. There is one more aspect of the matter. As has been held in Bhabata-rini Devi vs. Ashlata Debi (12), "shebaiti" is property which is heritable. It has therefore been argued by Mr. Tewari that the property devolved on defendant Lalit Kishore after Smt. Chandris death because she was virtually functioning as the "shebait" of the endowment. But even if it is taken for granted, for the sake of argument, that! Smt. Chandri was the "shebait" during her life time, her widows interest in the "schebaiti" came to an end after her death as the line she represented admittedly became extinct when she died on Jeth Bad 30, S. 2012. As the two genealogical tables mentioned above go to prove, Lalit Kishore did not belong to the family of Sawainath or Shanker. He is the son of Bhonrilal and belongs to the family of Chhajuram. There is no evidence at all of his adoption to the family of Sawainath or Shanker. On the other hand Gheesilal has stated that Smt. Chandri did not take Lalit Kishore in adoption, and to the same effect is the statement of Laxminarayn P.W. 1. He is the son of Bhonrilal and belongs to the family of Chhajuram. There is no evidence at all of his adoption to the family of Sawainath or Shanker. On the other hand Gheesilal has stated that Smt. Chandri did not take Lalit Kishore in adoption, and to the same effect is the statement of Laxminarayn P.W. 1. I may say, in fairness to the learned counsel for the appellant that he has not made the submission that defendant Lalit Kishore was taken in adoption to the family of Sawainath and Shanker. He has merely based his claim on Smt. Chandris application Ex. A.9 dated April 11, 1942 in which she described Lalit Kishore as her Khas grand-son. That cannot however serve the purpose of proving Lalit Kishores adoption to that family. When this is so, and Lalit Kishore did not belong to the family of the "pujaris" who were in the line of Sawainath and Shanker, it is only fair and reasonable to conclude that that line became extinct on the death of Smt. Chandri in S. 2012. On such extinction, the "shebaiti" reverted to the heirs of the founder. I may in this connection refer to the following observation at page 209 of the "The Hindu Law of Religious and Charitable Trust" (Tagore Law Lectures 1936) by Bijan Kumar Mukherjee, second edition,— "When the line of Shebaits laid down by the founder is extinct, or when he Shebait to whom a power of nomination is given, does not exercise the power, the managership reverts to the founder who endowed the property or his heirs." So when there is an ultimate reversion to the founder or his heirs, it would follow that even if Smt. Chandri is taken to be a "shebait" during her life time, the "shebaiti" reverted to the heirs of the founder, namely, the plaintiffs, on her death, and defendant Lalit Kishore can lay not claim to it whatever. This is in fact quite sufficient to fore-close any argument on behalf on the defendant appellant. 31. It has however been further argued that Lalit Kishore had been in possession of the property as owner over a period of more than 12 years commencing from 1942 when Smt. Chandri was alive and that he has, at any rate, acquired a right to hold the property by adverse possession. 31. It has however been further argued that Lalit Kishore had been in possession of the property as owner over a period of more than 12 years commencing from 1942 when Smt. Chandri was alive and that he has, at any rate, acquired a right to hold the property by adverse possession. The argument does not deserve any serious consideration because a perusal of the written statement shows that the defendant himself took the plea that he was the "shebait" of the temple. This shows that his claim to possession was as a "shebait". Then I find from the statement of Lalit Kishore that he has negatived this plea in the written statement by saying that it was Smt. Chandri who was the "shebait" as long as she lived, Smt. Chandri, it is admitted, died in Smt. 2012 (1955 A. D.) and as the suit was institued on may 17, 1956, any claim of Lalit Kishore to adverse possession has only to be stated in order to be rejected. 32. It follows from the above that the plaintiffs have succeeded in proving that they are the heirs of the founders and the shebaits of the religious endowment in question and that defendant Lalit Kishore has no right whatsoever to the property of that endowment. There is therefore nothing wrong with the judgment and decree of the lower appellate court and the appeal is dismissed with costs.