JUDGMENT:- This is a defendants appeal directed against judgment and decree of Sri O.P. Gang, learned II Civil Judge Kanpur in Civil Appeal No. 521 of 1968, arising our of original suit. 59 of 1965. Learned Judge dismissed the appeal with costs and affirmed the judgment and decree of Munsif Hawali, Kanpur, by the impugned judgment and decree. 2. Dispute relates to a sale deed executed by defendants 1 and 2 in favour of appellant Ayodhya Prasad on 25-1-65 copy of which Ext.3 is on record relating to Plot 121 situated in village Ban Pargana Derapur, District Kanpur. 3. Relief sought was for declaration that the aforesaid sale deed be adjudged void and inoperative against plaintiff respondent 1. 4. It appears that abadi plot 121 is covered by two temples of Baba Mukund Puri and Lord Shiva and two platforms of Goddess. Certain rooms also existed towards north along with an enclosure in that compound. 5. Plaintiff came to the court with the allegations that he was a Gosain and had been managing the said temples since the days of his ancestors; there was also a priest in the temples. He used to receive the offerings in the said temples which were more than 100 years old and inhabitants of the village used to visit the same and gather there specially on religious festivals. The residents of the village have acquired customary rights of offering prayers and gathering there on religious occasions. It was further averred that the rooms and corridor existing all around the temples had fallen down for want of repairs. Residents of village had also endowed properties and from the usufruct of the said properties expenses of the temples have been met. 6. Tej Puri, father of plaintiff, used to manage the said temples and after his death in 1930, plaintiff was managing the same and appropriated its offerings. He also constructed two rooms with the aid of donations towards north of the land in dispute for the stay of pilgrims. Those rooms were shown by red colour in the site plan paper 35 ka appended to the plaint. 7. It was further averred that the appellant needed a residence as his house had fallen down in rainy season and so he was permitted to occupy these rooms by plaintiff as licensee. Those rooms were shown by red colour in the site plan paper 35 ka appended to the plaint. 7. It was further averred that the appellant needed a residence as his house had fallen down in rainy season and so he was permitted to occupy these rooms by plaintiff as licensee. However, he began to set up his title through a sale deed in collusion with Kunwar Ghan Shyam Singh and Gajendra Singh, erstwhile Zamindars. 8. However, a right for eviction from the rooms was reserved by plaintiff with the permission of the Court obtained under Order 2 Rule 2, Civil P. C. and the only relief sought in the suit was for declaration aforesaid. 9. Defendants 1 and 2 filed a joint written statement and defendant appellant filed a separate written statement raising similar pleas. It was maintained that the property in dispute was the Dera of Zamindars Kunwar Ghanshyam Singh and Gajendra Singh; the temples were the private property of the Zamindars and their family members and ladies used to visit the temples for offering prayers. These were not public temples. The right of villagers to visit the said temples for purpose of worship etc. was denied. It was further alleged that defendant-appellant purchased the said Dera from the Zamindar for a sum of Rs. 1500/- about twelve years ago and since then he was in exclusive possession thereof. He constructed the rooms himself and was occupying the same as owner and not licensee. Plaintiff had no right to maintain an action. 10. Both the Courts below concurrently found that the plaintiff had a right to sue; they further found that the suit was not bad for non joinder of deities; it was further held that defendants 1 and 2 were not the owners of the suit property which vested in the deities; it was further held that the suit was not barred by adverse possession; plaintiff was entitled to the declaration sought. 11. Aggrieved by these concurrent decisions; appellant had preferred this second appeal. 12. I have heard learned counsel for the parties and perused the record. 13. Sri R.N. Bhalla, learned Advocate for the appellant, pointed out that in Ext.A-2 Khasra Abadi relating to plot 121, this plot was mentioned as the Dera of Zamindar. 11. Aggrieved by these concurrent decisions; appellant had preferred this second appeal. 12. I have heard learned counsel for the parties and perused the record. 13. Sri R.N. Bhalla, learned Advocate for the appellant, pointed out that in Ext.A-2 Khasra Abadi relating to plot 121, this plot was mentioned as the Dera of Zamindar. The area of Dera was noted as six biswas and the remaining 4 biswas and 6 biswansis area was shown as vacant. It was not covered by temples nor the temples, it any, were public temples, so this land could be validly transferred by Zamindars to appellant. 14. However, this entry in Ext.A2 is absolutely incorrect as it ignored temples etc., which were admittedly in existence on a large portion of this plot for more than 100 years as is obvious from the oral evidence and map Ext.A-3 and Ext.A-15, admission of Ghanshyam Singh. 15. It was further pointed out by Bhalla that Deo Narain (PW 3) conceded that Karindes of Zamindar used to visit this village but he further added that they used to stay at the house of any one in the village. On the other hand, there is evidence of D.Ws. Ramadhin, Bhagwan Singh, Mathura Singh, Ayodhya Prasad and Gajendra Singh that this plot was the Dera of Zamindars. Mathura Singh was the Karinda of Zamindars, Gajendra Singh (DW 5) stated about the existence of temples in this plot but alleged that they were constructed by his family members. Learned Courts below pointed out that such plea about the constructions of temples by Zamindars was never put forward in the written statement by defendant-appellant and no amount of evidence shall be looked into to support plea which finds no mention in the written statement, it was further pointed out by Courts below that the entries from account-books proved by Mathura Singh does not justify the inference that these temples were built by Zamindars. It was conceded by Gajendra Singh that they did not reside in this village. They used to appoint priest for worship of the temples but this was inconsistent with the statement of Mania alias Sheo Narain (DW 6). Learned Courts below rightly referred to village map Ext.A-3 which shows that the land of plot 121 was covered by temples. 16. It was conceded by Gajendra Singh that they did not reside in this village. They used to appoint priest for worship of the temples but this was inconsistent with the statement of Mania alias Sheo Narain (DW 6). Learned Courts below rightly referred to village map Ext.A-3 which shows that the land of plot 121 was covered by temples. 16. On the other hand, plaintiff examined himself as P.W. 1 and Pyarey Lal (PW 2) and Deo Narain (PW 3) who are quite old and they testified that the temples were in existence from time immemorial and public, in general, has access to them and worship there without any let or hindrance. They further testified that on various religious occasions, villagers assembled there and performed their religious ceremonies. They further denied that the temples belonged to the Zamindars. The Courts below found that plaintiff was the Shebait and priest of the temples upon the death of his father. These are concurrent findings of fact and I see no good reason to differ from the appreciation of oral evidence by both the Courts below on this point. 17. Sri R.N. Bhalla, learned Advocate for appellant, relied upon State of Madras v. Subramaniaswami, reported in AIR 1962 Mad 48 in support of his contention that fact of dedication was to be established by plaintiff and since such dedication could not be established by oral evidence which should have been clear and cogent, so no inference could be drawn about the intention of Zamindars to dedicate the property to God or Charity. He also relied upon Commr. for Hindu Religious Endowments Board, Madras v. Vinayakar Arudra Tirupani Sabha reported in AIR 1953 Mad 407 which posited (at p. 408): "There cannot be an endowment unless there is a clear divesting of ownership by the owner in favour of a third party as trustee or by a declaration constituting the owner himself as trustee. Where property has always been treated as the property of the Sabha and likewise the income also has been treated to be at the unfettered disposal of the Sabha, because of fact that by a common agreement, they provided as one of its objects for the conduct of the festival in the Vinayakar temple at a cost of not less than Rs. 150/-. The income cannot be called an "endowment" within the meaning of the Act. 150/-. The income cannot be called an "endowment" within the meaning of the Act. The Sabha which is registered under Act 21 of 1960 is entitled to change its objects. There is no divesting of ownership which is essential to constitute an endowment in such a case." Reliance was also placed upon Lalchand Deochand v. Vinayakrao Gopalrao, reported in AIR 1953 Nag 351, which laid down (at p. 352) :- "In the case of creation of charitable endowment, there must be evidence of divesting of ownership. The fact that the property is used by a particular community does not necessarily mean that the owner intended to divest himself of the ownership over the property. Divestiture by a donor of a property is a necessary factor in determining whether there is a charitable endowment." 18. Both the Courts found that according to the report of the commissioner 54/Ka 1 dated 9-10-1965 and subsequent report prepared by Sri K.S. Srivastava, paper 78/Ka/1, the temples were very old and so no evidence could be adduced about the person who actually made these endowments. There is also no document to be construed in this case which might have been executed by the founder, plaintiff alleged that there was an old custom to visit and worship in the temples which may amount to customary right even if, dedication was based on a lost grant. 19. It is significant to note that distinction between a private temple and a public temple was pointed in Goswami Shri Mahalaxmi Vahuji v. Shah Ranchhoddas Kalidas reported in AIR 1970 SC 2025 at p. 2031 in the following terms. "Though most of the present day Hindu public temples have been founded as public temples, there are instances of private temples becoming public temples in course of time. Some of the private temples have acquired great deal of religious reputation either because of the eminence of its founder or because of other circumstances. They have attracted large number of devotees. Gradually in course of time they have become public temples. Public temples are generally built or raised by the public and the deity installed to enable the members of the public or a section thereof to offer worship. In such a case the temple would clearly be a public temple. They have attracted large number of devotees. Gradually in course of time they have become public temples. Public temples are generally built or raised by the public and the deity installed to enable the members of the public or a section thereof to offer worship. In such a case the temple would clearly be a public temple. It a temple is proved to have originated as a public temple, nothing more is necessary to be proved to show that it is a public temple but if a temple is proved to have originated as a private temple or its origin is unknown or lost in antiquity then there must be proof to show that it is being used as a public temple. In such cases the true character of the particular temple is decided on the basis of various circumstances. In those cases the Courts have to address themselves to various questions such as :- (1) Is the temple built in such imposing manner that it may prima facie appear to be a public temple? (2) Are the members of the public entitled to worship in that temple as of right? (3) Are the temples expenses met from, the contributions made by the public? (4) Whether the sevas and Utsavas conducted in the temple are those usually conducted in public temples? (5) Have the management as well as the devotees been treating that temple as a public temple? On applying the aforesaid test to the fact of the instant case. I find that the Zamindars, who are defendants 2 and 3, never claimed to have built these temples. The evidence about carrying out repairs of the temples by examining the Karinda was not accepted by the Courts below to show that the Zamindars were the founders of the temples. Their testimony on this point was discrepant. The statement of DW 5 Gajendra Singh on this point was inconsistent. He specifically stated that he did not reside in the village and his ancestors have constructed these temples for worship. So the aforesaid rulings relied upon by the learned counsel for the appellant do not come into play and on the evidence on record it must be held that the aforesaid temples are public temples now irrespective of their origin as private or public as held by the Courts below. So the aforesaid rulings relied upon by the learned counsel for the appellant do not come into play and on the evidence on record it must be held that the aforesaid temples are public temples now irrespective of their origin as private or public as held by the Courts below. Even the learned Commissioner vide his report paper 78/ka-1 found that the plaintiff was in occupation of one of the rooms of the temple. Thus the plaintiff as Shebait and priest was well entitled to maintain an action. 20. In Bishwanath v. Sri Thakur Radha Ballabhji reported in AIR 1967 SC 1044 at p. 1046. It was observed: "The second question turns upon the right of a worshiper or to represent an idol when the Shebait or manager of the temple is acting adversely to its interest. Ganapathi Iyer in his valuable treatise on "Hindu and Mahomedan Endowments." 2nd Edn. at P. 226 "had this to say in regard to the legal status of an idol in Hindu law." "The ascription of a legal personality to the deity supposed to be residing in the image meets with all practical purposes. The deity can be said to possess property only in an ideal sense and the theory is, therefore, not complete unless that legal personality is linked to a natural person. It would be futile to discuss at this stage the various decisions which considered the relationship between the idol and its Shebait or Manager qua the management of its property, as the Privy Council in Jagadinadra Nath v. Hemanta Kumari Debi, (1904) 31 Ind App 203 at pp 209, 210 (PC), has settled the legal position and stated thus: "There is no doubt that an idol may be regarded as a juridical person capable as such of holding property, though it is only in an ideal sense that property is so held. Dealing with the position of the Shebait of such an idol, the Privy Council proceeded to state : "........It still remains that the possession and management of the dedicated property belong to the Shebait, Add this carries with it the right to bring whatever suits are necessary for the protection of the property. Every such right of suit is vested in the Shebait, not in the idol." 21. Every such right of suit is vested in the Shebait, not in the idol." 21. The commissioners further found that plaintiff met them there and appeared to be the priest of these temples who also managed the property as Shebait as was testified by P.W. 1 himself. Under such circumstances, he had every light to maintain an action as was held in Behari Lal v. Thakur Radha Ballabhji reported in AIR 1961 All 73 at page 74 which posited. - "Once the right of a de facto manager to bring a suit is accepted then it is only one step further and involves no real breach of the principle to allow one who has a beneficial interest in the temple property to take steps to see that the temple property is preserved to the idol and to file a suit for that purpose as the next friend of the deity bringing the suit in the name of the deity himself. No doubt where the shebait is in existence and functions normally the deitys right to sue lies dormant but as soon as the shebait is unable to act or his own act is questioned certainly a person who has a beneficial interest should be allowed to take steps to prevent the idols interest being jeopardised. Where even a de facto shebait is absent a person having beneficial interest, such as a worshipper, should be permitted to come in." 22. A mere look at Sec.31, Specific Relief Act, 1963 shall go to disclose that every person apprehending serious injury against him may sue to maintain an action for cancellation or adjudge void any document. Under these circumstances, plaintiff was well entitled to maintain an action for cancellation of the said document. 23. The next contention put forward on behalf of the appellant was that the relief for declaration simpliciter without seeking the relief of possession was not awardable. 24. In this connection, it has already been shown above that plaintiff reserved his right under Order II Rule 2, Civil P.C. to maintain an action against the appellant for eviction. That right was allowed to him and under such circumstances, the relief for mere declaration was perfectly maintainable. 25. Learned counsel for the appellant further maintained that the evidence of Ayodhya Prasad, defendant-appellant, about adverse possession was reliable. That right was allowed to him and under such circumstances, the relief for mere declaration was perfectly maintainable. 25. Learned counsel for the appellant further maintained that the evidence of Ayodhya Prasad, defendant-appellant, about adverse possession was reliable. In this connection, it is significant to note that original sale deed has not been filed. Sri Ghanshyam Singh, who is alive, and who was the executant of the two documents has not been examined. Ext.A-15 shows that Sri Ghanshyam Singh, erstwhile intermediary accepted a sum of Rs. 1000/- from the appellant as a part of sale consideration and allowed him to occupy the property. The total sale consideration was agreed at Rupees 1,500/-. The balance of Rs. 500/- was to be paid at the time of registration of sale deed. It is further significant to note that this registered sale deed was executed on 25-1-1965 after efflux of 13 years. No satisfactory explanation was offered as to why the sale deed was executed after such a long time when the land had already been sold through Ext.A-15. There was no point in executing another sale deed. It was pointed out that this document had been manufactured and no mention of the existence of temples was made in this copy of the sale deed which is on record. Some lines in the original sale deed had been scored out and that was the reason as to why it has not been filed. One Sri Ghanshyam Singh, who is alleged to be the owner of the temples and Dera and the main executant had no courage to enter the witness box and his non-production is a circumstance which goes against the appellant vide Section 114 Illustration (g), Evidence Act. It is further significant to note that when Exts.A-15 and 3 are read over, the recitals of the same are discrepant. These documents came into existence after abolition of Zamindari. When the land vested in deity and did not belong to the Zamindars, they could not have validly transferred the same in favour of appellant. Both the Courts below concurrently found that the defendant 3 had not perfected his title by adverse possession. These documents came into existence after abolition of Zamindari. When the land vested in deity and did not belong to the Zamindars, they could not have validly transferred the same in favour of appellant. Both the Courts below concurrently found that the defendant 3 had not perfected his title by adverse possession. This is again a finding of fact which could not be disturbed by me as was held in V. Ramachandra Ayyar v. Ramalingam Chettiar reported in AIR 1963 SC 302 , it was observed (at p. 306).- "The error or defect in the procedure to which cl.(c) of S.100 (1) refers is, as the clause clearly and unambiguously indicates, an error or defect connected with, or relating to the procedure; it is not an error or defect in the appreciation of evidence adduced by the parties on the merits that is why, even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure. On the other hand, if in dealing with a question of fact, the lower appellate Court has placed the onus on a wrong party and its finding of fact is the result, substantially, of this wrong approach, that may be regarded as a defect in procedure.........". 26. No other point was argued before me. 27. In the result, the appeal fails and is dismissed with costs. The impugned judgment and decree are affirmed. Appeal dismissed.