JUDGMENT-This appeal involves a question whether the Maroti Deosthan of village Saori in Sakoli tahsil, district Bhandara is or is not a public trust. The question arises in the following circumstances. The plaintiff Daulat Pandurang claims the Maroti Deosthan to be his private property. It appears that the people of the village filed an application before the Registrar under the old M. P. Public Trusts Act, 1951, claiming that the Deosthan is a public trust. This application was opposed by the plaintiff Daulat before the Registrar. At first enquiries were made by the Sub-Divisional Officer Sakoli and he held that the Maroti Deosthan was not a public trust. That decision of the Sub-Divisional Officer was set aside by the Registrar of the Public Trusts, Bhandara, who held that the Maroti Deosthan was a public trust. The plaintiff being aggrieved by this order passed by the Registrar of Public Trusts on 8-3-1960, filed a suit in the Court of the Civil Judge (Senior Division), Bhandara, against the Registrar of Public Trusts Bhandara, as well as the defendants 2 to 7, who were appointed as trustees by the Registrar. He claimed a declaration that the finding of the Registrar that the Maroti Deosthan is not a private trust ,",as not proper. He wanted a declaration that this Deosthan was a private institution belonging to the plaintiffs family. The defendants, according to the plaintiff, had, therefore, no right as trustees appointed by the Registrar to interfere with his management. 2. The defendants opposed the contention of the plaintiff and claimed the property as a public trust. 3. The learned Civil Judge had framed a number of issues. The first is me was whether the Deosthan was a family deity or whether it was a public trust. He had also framed another issue because of the plea taken by the plaintiff. He had pleaded that because the defendants 2 to 6 along with the other three persons had destroyed the boundaries of S. No. 15 and caused damages, the plaintiff had to file a suit in the Court of the Civil Judge (Junior Division), Sakoli for damages and for injunction. According to the plaintiff, an issue was framed there and it was whether the plaintiff proves his ownership to the suit land and that issue was decided in his favour. According to the plaintiff, an issue was framed there and it was whether the plaintiff proves his ownership to the suit land and that issue was decided in his favour. He, therefore, pleaded that the decision in that civil suit No. 11-A of 1959, decided on 16-2-1960, operated as res judicata in this suit. The learned Civil Judge, therefore, framed also an issue as to whether the decision in Civil Suit No. II-A of 1959 operated as res judicata. He finally held that the Deosthan was a public trust. The decision in Civil Suit No. II-A of 1959, according to him, also did not operate as res judicata because the present suit filed by the plaintiff was under section 8 of the M. P. Public Trusts Act, and therefore, that was a special remedy given to the plaintiff. According to him, the decision given by the Registrar that the Deosthan was a public trust was final and conclusive subject to the result of any suit filed by the plaintiff. According to him, therefore, the previous decision agains in Civil Suit No. II-A /1959 did not operate as res judicata. Accordingly, therefore, he dismissed the plaintiffs suit. This decree, therefore, was challenged by the plaintiff. 4. The learned Assistant Judge, Bhandara, heard the appeal and held that the Deosthan was a private property. He also held that the decision in Civil Suit No. 11-A /1959 operated as res judicata because, according to him, section 8 of the M. P. Public Trusts Act had no relevance in so far as the principle of res judicata was concerned. He found that an issue on the fact whether the Maroti Deosthan was private or public trust was framed by the trial Judge in the previous suit, that that issue was decided in plaintiffs favour; that because that matter about the nature of Deosthan was directly in issue in that suit, the decision in that suit operationed as res judicata He thus allowed the appeal. Therefore, this decree is challenged here by the original defendants 2 to 6. It is contended on behalf of the appellants that the learned Judge of the First Appellate Court has erred because he did not consider the implications of section II of the Code of Civil Procedure properly. Therefore, this decree is challenged here by the original defendants 2 to 6. It is contended on behalf of the appellants that the learned Judge of the First Appellate Court has erred because he did not consider the implications of section II of the Code of Civil Procedure properly. It is also contended that several circumstances found on findings of fact by the two Courts show that the Maroti Deosthan was not a private temple but a public trust. It is, therefore, argued that the legal inference from the findings of fact and from the circumstances found was not proper. On the other hand it is contended for the respondents that the decision in Civil Suit No. Il-A of 1959 did operate as res judicata in the present suit, and according to him, there are enough circumstances to show that the Maroti Deost -,an was a private property and not a public trust. We will, therefore, have to examine these rival contentions. 5. Let us first see whether the decision in Civil Suit No. II-A /1959 operates or does not orerate as res judicata in the present suit. Now, under section II of the Civil Procedure Cede, it is not every matter decided in a former suit that can be pleaded as res judicata in a subsequent suit. To constitute res judicata, certain conditions have to be fulfilled. The matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue either actually or constructively in the former suit. The former suit must have been a suit between the same parties or between the parties under whom they or any of them claimed. The parties also must have litigated under the same title in the former suit. The Court which decided the former suit must have been a Court competent to try the subsequent suit. The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit. Have all these conditions been looked into by the learned Assistant Jt:dge? What is the issue here in this suit? The relevant issue here is V\hethcr the Maroti Deosthan is a private trust or a public trust. Was this issue directly and substantially involved in the previous suit? Were the parties the same? Have all these conditions been looked into by the learned Assistant Jt:dge? What is the issue here in this suit? The relevant issue here is V\hethcr the Maroti Deosthan is a private trust or a public trust. Was this issue directly and substantially involved in the previous suit? Were the parties the same? Did the parties litigate under the same title? Was the previous Court competent to try the suit before us which was tried by the Senior Division Judge? Was this issue heard and finally decided by the previous Court? Now, for the purpose of deciding the plea taken up by the plaintiff, he has merely filed the judgment of the Civil Judge (J. D.) Sakoli in that suit. He has neither filed the written statement nor the plaint in that suit. In the ordinary course if the plaintiff wanted the Court to decide his plea of res judicata, he should have brought to the notice of the Court not only the plaint but also the written statement to find out what the allegations of one party were and whether the other party denied those allegations and whether as a result of a dispute on certain facts the issues were framed and whether those issues were necessary for the decision of that suit. It appears to me, therefore, that the absence of the pleadings of both the parties would be fatal to the plea of the plaintiff here. Let us, however, see what the judgment says. 6. The plaintiff filed suit Civil Suit No. Il-A of 1959 as wahiwatdar of the Maroti Deosthan for damages and injunction. The issues framed by the learned Civil Judge was whether the plaintiff had no right to file the suit and whether the plaintiff proves his ownership to the suit land. The land was 5urvey number 95. The learned Civil Judge decreed the plaintiffs suit and ordered that the defendants were permanently restrained from interfering in any way what-so-ever with the plaintiffs field Khasra No. 95. It is true that in that suit, the defendants, according to the judgment, appear to have pleaded that the Deosthan was a public Deosthan and that it was established in the year 1925 by the people of the village by collecting funds. That the Panch committee was in-charge of the lands and the Deosthan. That, therefore, the plaintiffs suit was liable to be dismissed. That the Panch committee was in-charge of the lands and the Deosthan. That, therefore, the plaintiffs suit was liable to be dismissed. The issue in this suit is whether the Deosthan is a public trust or a private property. Was this issue directly and substantially an issue in the previous suit? It appears to me that this issue with which we are concerned cannot be said to be a direct and substantial issue involved in the previous suit. It may be for the purpose of finding out whether the plaintiff has a right or no right to file the suit, the learned Civil Judge had to incidentally consider the fact whether the plaintiff was the wahiwatdar or was not the wahiwatdar of the Sans than. But surely, no relief was claimed by the plaintiff in the previous suit on the basis that the Deosthan was a private property. No relief also appears to have been given on that basis. If in that judgment the matter was incidental involved it cannot certainly be said that that matter was directly and substantially in issue in the previous suit I am, therefore, unable to agree with the learned Assistant Judge. 7. Moreover, the previous suit was before a Civil Judge (Junior Division). The present suit, as we know, is on account of the order passed by the Registrar Public Trusts, Bbaudara that the Deosthan was a public trust. Under the provisions of the Public Trusts Act, the plaintiff had no other alternative but to file the suit. The cause of action, therefore, was the order passed by the Registrar. This suit had, therefore, to be filed before the Civil Judge (Senior Division). Now, therefore, can it be said, in these circumstances, the Court which decided the former suit, could also be a Court competent to try the present suit? In order that the decision of a former suit operates as res judicata in a subsequent suit, it is necessary that the Court which tried the former suit must have been a Court competent to try the subsequent suit. Surely, the previous Court cannot be, aid to be competent to try the present suit. In this view of the matter also, therefore, any incidental decision by the previous Court cannot be said to operate as res judicata for the purposes of this suit. Surely, the previous Court cannot be, aid to be competent to try the present suit. In this view of the matter also, therefore, any incidental decision by the previous Court cannot be said to operate as res judicata for the purposes of this suit. In this view of the matter, therefore, it would be difficult for me to agree with the finding of the learned Assistant Judge. 8. The next point for consideration would be to see whether the Maroti Deosthan is a private trust or as ordered by the Registrar, a Public trusts. Now, it is well settled that we have to see several circumstances to find out whether a particular property is a private property or a public trust. If the circumstances cumulatively show that the property could not be a public trust, then we have to consider those circumstances. If those circumstances point to a public trust, then we have to decide that way. The distinction between a private property and a public trust is that whereas in the public trust the beneficiaries are specific individuals, in this, public trust they are general public or a class thereof. While in the private trust, the beneficiaries are persons who are ascertained or capable of being ascertained, in public trusts they constitute a body which is incapable of ascertaining. We have also of course, to see other circumstances to come to a right conclusion. What are the circumstances that are found by the Courts below? Reading the judgment of the Assistant Judge, it is quite difficult to say what findings of fact the learned Assistant Judge arrived at. After giving out the evidence of the plaintiffs witnesses as well as the defendants witnesses, he has merely observed that the plaintiffs evidence is better than the defence evidence. He does not say precisely what are the findings of fact arrived at by him. But on one occasion in the course of his judgment, he says that because there is some evidence to show that 5, 6 villages hold Saptah and contribute funds for defraying the expenses of such Saptohs, that fact alone could not establish that the Deosthan was a public trust. Let us, however, see what the facts are. Now, it is a common ground frem the record of evidence that one Bhagwatibai bequeathed S. No. 95 to Deosthan on 29-4-1928. Let us, however, see what the facts are. Now, it is a common ground frem the record of evidence that one Bhagwatibai bequeathed S. No. 95 to Deosthan on 29-4-1928. She was not only of a caste different to those of the plaintiffs but also a perfect stranger. She had bequeathed this property to the Deosthan. The other circumstance is that this Maroti Deosthan is about half a furlong away from the plaintiffs house. It is in the abadi area. There are many houses in between the plaintiffs house and the Maroti temple. Yet another circumstance is that the land on which this temple was built did not belong to either the plaintiff or to the plaintiffs ancestors. It belonged to one Malgujar. There is also evidence to establish that this Maroti temple is the only temple in that village. There is no evidence to show that the God Maroti is the family deity of the plaintiffs family. It is said that one Haribuwa, a mendicant, had constructed this temple. The plaintiff, did not establish that Haribuwa was his ancestor. Sapt1 hs are celebrated every year, The money spent for this celebration is out of the income of the S. No. 15. The money does not come from the family fund of the plaintiff. About 1,000 villagers from the neighbouring villages and also village Saori collect there. There is nothing on record to show that the income, if any, of the Deosthan Saptam goes to the private fund of the plaintiff. 9. But, according to the plaintiff, his father Pandurang and his uncle Tikaram looked after the temple after the death of Haribuwa. Admittedly, Bhagwatibai had bequeathed the property at the time when Tikaram is said to have been looking after the temple. Saptahs were held during the time of Tikaram, but except for one occasion, there is nothing on record to show that Tikaram had spent the money from his own pocket. Tikarams son Lava, who was examined by the defendants, does not say that he claims a right in this temple. Such evidence, therefore, cannot be said to be adequate to establish that the Deosthan was a private property of the plaintiff. 10. It appears to me, therefore, that the circumstances related by me above clearly point to the fact that the Desosthan is a public trust and not the private property. Such evidence, therefore, cannot be said to be adequate to establish that the Deosthan was a private property of the plaintiff. 10. It appears to me, therefore, that the circumstances related by me above clearly point to the fact that the Desosthan is a public trust and not the private property. The circumstance that the temple is neither on the property of the plaintiff nor within the premises of the plaintiffs house and the circumstance that Haribuwa, who is said to have established the Deosthan is not an ancestor of the plaintiff, point to the same conclusion. Haribuwa was a mendicant. The plaintiff himself admits that he had constructed the Deosthan by begging alms from different villages and members of the public. Evidently, therefore, even if Haribuwa is an ancestor of the plaintiff he did not spend the money from his own funds for the purpose of creating a private trust. There is nothing on record to show that the only beneficiaries are the plaintiffs and the members of his family. There is nothing also to show that there was dedication by Haribuwa in favour only of his family. The expenses of the Saptahs are not made from the family chest. There is also evidence on record to show that one Bhaiy alai managed the Deosthan from the year 1942 to 1951. It is only in the year 1951 that the plaintiff started claiming the Deosthan as his own private trust. It appears to me that these circumstances point only to one conclusion and that conclusion is that the trust is not a private trust but a public trust. I, cannot therefore, agree with the order passed by the learned Assistant Judge. 11. I, therefore, set aside the decree passed by the learned Assistant Judge, Bhandara, and restore the decree passed by the trial Court. In view of the circumstances of the case, the parties to bear their own costs throughout. Appeal allowed.