JUDGMENT 1. This second appeal has been filed at the instance of the plaintiffs who have lost from the two Courts below. 2. In brief the suit of the plaintiffs is that in village Chhikalda Tehsil Kukshi District Dhar there is a temple namely 'Shri Narsingh Mandir' and agricultural land Survey No. 209 area 2.481 Hectare having land revenue of Rs. 9.70/-. The temple as well as the land is disputed in this suit. According to th plaintiffs the disputed temple and the land has been recorded in the revenue record by the description “Shri Narsingh Mandir Ki Puja Babad Vahibattdar Babulal Pita Gangadhar,Sadashiv Pita Narayan Brahmin Avam Prabandhak Collector, Jila Dhar”. In para 3 of the plaint it has been specifically pleaded by the plaintiffs that the disputed land was owned by Late Shri Amritlal and Bhai Shambhulal sons of Ganpatlal Mahajan, resident of Village Khetiya Tahsil Sendhwa. Earlier these two persons were residing in village Chikhalda and the disputed temple was their private temple. The ancestors of these persons were offering 'Pooja' of the temple and they constructed this temple. The entire expenses of 'Pooja' etc., were being borne by Late Amritlal and Bhai Shambhulal. Similarly the disputed agricultural land was in their Bhoomiswami right. 3. According to the plaintiffs, the family of Amritlalji migrated to Khetiya in the year 1963 and in order to maintain the disputed temple and its 'pooja' etc., these two persons gave the temple to Panchas of Ahir Community. In order to bear the expenses of the temple for 'pooja' etc, the disputed land was gifted to the pujari of the temple by executing a registered gift-deed dated 20.6.1963 with an intention that from the earnings of the agricultural produce the daily expenses of the temple may be carried out. According to the plaintiff the management of the temple was given to Babulal s/o Gangadhar Patel and Narayan Brahmin who was the father of the first plaintiff Sadashiv. The possession of the suit land was also given to these two persons by the gift-deed. Simultaneously, in the gift-deed these two persons were given authority to appoint Panchas of the village Chikhalda to carry out the temple affairs and to appoint Pujari. 4. Later on Babulal Patel died. Eventually, the Panchas of the village appointed second to fifth plaintiffs as Panchas who are carrying on the temple affairs with first plaintiff Sadashiv. 5. Simultaneously, in the gift-deed these two persons were given authority to appoint Panchas of the village Chikhalda to carry out the temple affairs and to appoint Pujari. 4. Later on Babulal Patel died. Eventually, the Panchas of the village appointed second to fifth plaintiffs as Panchas who are carrying on the temple affairs with first plaintiff Sadashiv. 5. In very specific words it has been pleaded by the plaintiffs in Para 6 of the plaint that the disputed temple is neither a Government nor a public temple. It has also been pleaded that no grant has been given by the State Government to this temple nor the disputed land ever remained as Maufi or Inaam land. The State Government is not having right, title and interest in the suit land or in the disputed temple. Even then the defendant No. 1 (State Government) directed to endorse the name of Collector as Manager of the temple in the revenue record without any authority and without giving any notice to the plaintiff, and hence the name of Collector as Manager be deleted and the name of plaintiffs No. 1 to 5 in the capacity of Vaihabattdar and Manager be endorsed. 6. Because second defendant (Tehsildar), Tahsil Kukshi and defendant No. 3 (Patwari) gave threat to the plaintiffs in the month of April 1995 that manager of the suit land is Collector and said land would be auctioned and the entire management shall be taken by the first defendant, the present suit has been filed by the plaintiffs for declaration that the disputed temple is a private temple and the plaintiffs are the manager of the said temple and the name of the Collector, Dhar be deleted from the revenue record. The decree of permanent injunction has also been sought that the defendants be restrained from interfering in the possession of the plaintiffs from the disputed temple and land. 7. The defendants filed a joint written statement and denid the plaint averments. In reply to para 6 of the plaint, it has been pleaded by defendants that vide order of the State Government dated 12.4.1974 (Order No. 745/3693/A/73) the name of the Collector has been endorsed in the revenue record. According to the defendants, the plaintiffs No. 2 to 5 should adopt the procedure prescribed under the law in getting their names endorsed in the revenue record. According to the defendants, the plaintiffs No. 2 to 5 should adopt the procedure prescribed under the law in getting their names endorsed in the revenue record. Hence, it has been prayed that the suit be dismissed. 8. The learned trial Court framed necessary issues and after recording the evidence of the parties dismissed the suit. The first appeal which was filed by the plaintiffs was also dismissed by the impugned judgment and decree. 9. In this manner, this second appeal has been filed before this Court which was admitted on the following substantial questions of law : “1. Whether the finding of the Court below that the temple in question is not a private temple but a public temple, is perverse unsupportable by the evidence on record? “2. Whether in absence of giving any notice under section 115 of the M.P.Land Revenue Code, 1959 to the plaintiffs and without following the procedure prescribed under this section, any correction can be made in the revenue record by any of the order of the State Government? If no, what would be the effect of endorsing the name of Collector, Dhar in revenue record as Prabhandhak (Manager) of the temple and Bhoomiswami of the disputed land?” 10. The contention of Shri Gangwal, learned counsel for the appellant is that the disputed temple is not a Government temple nor it is a public temple and in this regard the evidence of Patwari, Hemraj (PW5) who is defendants' own employee has been relied upon who has categorically admitted and stated that the disputed temple is not the public temple and the name of Collector as Manager of the said temple has been endorsed in the revenue record somewhere in the year 1977. 11. Learned counsel by putting emphasis on the document Ex.P-3 which is a registered gift-deed has submitted that the land in question was gifted to the pujari of the 'Shri Narsingh Mandir' so that the temple could be maintained from the income of the dispute land and hence it has been submitted that the learned two Courts below holding the temple to be a public temple is contrary to the evidence and is perverse. 12. 12. By advancing his argument on the substantial question of law No. 2, it has been contended by the learned counsel for the appellant that without adopting the procedure prescribed under section 115 of the M.P. Land Revenue Code, 1959 (in short the Code), by a stroke of pen the name of the Collector as Manager in the revenue record cannot be endorsed and, therefore, the name of Collector as Manager be deleted from the revenue record. 13. On the other hand, Shri Pramod Mitha learned Govt. Advocate argued in support of the impugned judgment had submitted that in the Khasra of the village Ex.P-1 and Khatauni Ex.P-2 of the years 1996-97 the name of Collector Dhar has been shown as Prabandhak of the temple and the Bhoomiswami of the disputed land, therefore, plaintiffs have no case. 14. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. Regarding substantial question of law No. 2. 15. Defendants' own employee Hemraj (PW5) who is the Patwari, on the basis of the revenue record which he brought along with him at the time of his deposition has admitted that the name of Collector as Manager in the revenue record has been endorsed somewhere in the year 1977. Indeed, this is defendants own case in para 6 of the written statement that vide order dated 12.7.1974 of the State Government the name of Collector as Manager has been endorsed in the revenue record. It is not the case of the defendants that after availing the procedure prescribed under section 115 of the Code by giving notice to the plaintiffs the name of Collector as Manager has been endorsed in the revenue record. At this juncture it would be condign to quote section 115 of the Code which reads thus : “115. It is not the case of the defendants that after availing the procedure prescribed under section 115 of the Code by giving notice to the plaintiffs the name of Collector as Manager has been endorsed in the revenue record. At this juncture it would be condign to quote section 115 of the Code which reads thus : “115. Correction of wrong entry in Khasra and any other land records by superior officers – if any Tahsildar finds that a wrong or incorrect entry has been made in the land records prepared under section 114 by an officer subordinate to him, he shall direct necessary changes to be made therein in red ink after making such enquiry from the person concerned as he may deem fit after due written notice.” On bare perusal of the aforesaid provision, it is luminously clear like a noon day that if any Tahsildar finds that a wrong or incorrect entry has been made in the land records prepared under section 114 by an officer subordinate to him, he shall direct necessary changes to be made therein in red ink after making such enquiry from the person concerned as he may deem fit after due written notice. What is important in the section is that the Tahsildar would change a wrong or incorrect entry only after giving due written notice to the party concerned and after holding an enquiry. According to me, the words embodied “such enquiry” is having important bearing in the section. Unless and until there is an enquiry made by the Tahsildar, the entry which is existing in the revenue record cannot be changed. It is not the case of defendants that on account of incorrect or wrong entry in the revenue record any enquiry was made and the plaintiffs were ever noticed. Thus, I am of the view that merely because the State Government is having domain on the entire revenue record, it cannot take the law in their own hands and may change the entry which is existing in the revenue record according to their whims without giving any notice to the party concerned and without holding any enquiry in this regard. In this context I may profitably rely upon the Division Bench decision of this Court in the case of Shiv Narain v. Tahsildar, Gwalior [ 1960 JLJ 1016 ]. In this context I may profitably rely upon the Division Bench decision of this Court in the case of Shiv Narain v. Tahsildar, Gwalior [ 1960 JLJ 1016 ]. This Court while interpreting section 50 of the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 has categorically held that if any entry is changed in the revenue record deviating from the procedure under section 50 of the said Act, the said order is illegal. For ready reference I would like to mention here that section 50 of the Madhya Bharat Land Revenue and Tenancy Act is similar to section 115 of the Code. This decision has been later on followed by this Court in another decisions also. 16. Hence, I am of the view that without giving any notice to the plaintiff temple and other plaintiffs the revenue record cannot be changed and, therefore, the entry of Collector as Manager of the temple and Bhoomiswami of the disputed land is to be deleted from the revenue record. 17. Accordingly, the substantial question of law No. 2 is thus answered that without following the procedure prescribed under section 115 of the Code the entry of the Collector as Manager of the temple as well as Bhoomiswami of the suit land is to be deleted from the revenue record. Regarding substantial question of law No. 1. 18. In order to decide this substantial question of law again I would like to go through the evidence of Patwari Hemraj (PW5). This Second Appeal No. 412 of 1998 witness at the time of deposition brought the entire record showing that which temples are public temple. In very specific words he has admitted that in village Chikhalda there are only two public temples they are Nilkantheshwar Mahadev Mandir and Laxminarayan Mandir. This witness has admitted that he is well acquainted with the disputed land and the temple and has further admitted that in the revenue record there is no entry of this temple as public temple, although in the current revenue record the name of this temple is entered as public temple. On this point, I have already decided the substantial question of law No. 2 that by deviating the procedure and dehors to the mandatory provision of section 115 of the Code, the entry of the Collector as Manager in the temple is illegal. On this point, I have already decided the substantial question of law No. 2 that by deviating the procedure and dehors to the mandatory provision of section 115 of the Code, the entry of the Collector as Manager in the temple is illegal. Since this witness, although has been examined by plaintiffs but he is the employee of the State Government and has given the evidence on the basis of the revenue record which he brought with him, therefore, his testimony is having great credential value. The learned two Courts below by misconstruing the admission and evidence of this witness, contrary to the law and in complete derogation to section 115 of the Code has held that the temple is a public temple and the disputed land is a Government land. 19. On bare perusal of the gift-deed Ex.P-3 dated 20.4.1963, it is clear that in order to maintain the temple the disputed land was gifted to the pujari of the temple and in the gift-deed the arrangement has been made that how the pujari should be appointed and in that regard the Panchas of the village were authorised to appoint the pujari. 20. The learned trial Court while deciding issue number one in Para 6 has rightly arrived at a conclusion on the basis of evidence placed on record, that the disputed temple and land was owned and was the private temple of Amritlal. This issue was decided in affirmative in favour of plaintiffs, but by misconstruing the registered gift-deed Ex.P-3 gave finding that the temple in question was gifted while deciding issue number 2. I have gone through the entire document of the gift-deed Ex.P-3 and I find that only the disputed land was gifted to the pujari of the temple so that the expenses of the temple may be carried out from the earnings of the agricultural land which is being gifted. On going through the description of the property which is gifted the description of the temple did not find place on the contrary the description of the agricultural land which was gifted has been mentioned. 21. It appears that the Courts below have confused in interpreting the gift-deed. On going through the description of the property which is gifted the description of the temple did not find place on the contrary the description of the agricultural land which was gifted has been mentioned. 21. It appears that the Courts below have confused in interpreting the gift-deed. If the gift-deed is read in its true spirit the only intention of the donor one can find that indeed the disputed land was gifted to the pujari of the temple and the Panchas of village were directed to look after the temple affairs and to appoint pujari etc. It is also mentioned in this document that the management of the temple is also entrusted to Babulal s/o Gangadhar Patel and Sadashiv Narsingh Rao and, therefore, if it is said that the temple in question was gifted it would be contrary to the gift-deed Ex.P-3. 22. True the finding of the two Courts below is that the people used to come and have Darshan in the temple but merely on this basis it cannot be said that it is a public temple and further for no stretch of imagination it can be said to be a Government temple because not even a single document has been filed by the defendants in order to demonstrate that the disputed temple is a Government temple. 23. At this juncture, I would like to remind that one should not forget that the State is having entire revenue record in their power and possession and if in the revenue record the said temple would have recorded as Government temple certainly that record should have been filed by them and they cannot take advantage of the abstract doctrine of onus of proof that it was not the duty of the defendants to produce them unless they were called upon to do so. In this context I may profitably place reliance of the judgment of the Supreme Court Hiralal and others v. Badkulal and other [ AIR 1953 SC 225 ], and Gopal Krishnaj Ketkar v. Mohd. Haji Latif and others AIR1968 SC 1413 and also the Decision of Privy Council T.S.Murugesam Pillai v. M.D.Gnana Sambandha Pandara Sannadhi and others AIR 1917 Privy Council 6 which has been relied in Gopal Krishnaj Ketkar (supra). 24. Haji Latif and others AIR1968 SC 1413 and also the Decision of Privy Council T.S.Murugesam Pillai v. M.D.Gnana Sambandha Pandara Sannadhi and others AIR 1917 Privy Council 6 which has been relied in Gopal Krishnaj Ketkar (supra). 24. The learned first appellate Court while dismissing the appeal of the plaintiff has placed reliance on the decision of the Supreme Court State of Bihar and others v. Sm. Charusila Dasi AIR 1959 SC 1002 , Ramkishorelal and another v. Kamalnarayan [ AIR 1963 SC 890 ]. In the decision of State of Bihar it has been held that in order to determine whether an endowment is public or private the cardinal point to be decided is whether it was the intention of the founder that specific individuals are have the right of worship at the shrine, or the general public or any specified portion thereof. In the gift-deed Ex.P-3 merely it is mentioned that the Panchas can appoint a Pujari in consultation with the inhabitants of the village it cannot be said as a public temple. It appears that learned first appellate Court was confused because the right of the heir of the donor were extinguished, therefore, it would be deemed to be a public temple. According to me such an inference cannot be drawn because if the gift deed is executed, certainly the right of heir are always extinguished. The decision of Ramkishorelal (supra), speaks about the construction of intention of the party to the document. According to me the land in dispute was only gifted and how a pujari can be appointed the procedure has been mentioned and, therefore, it cannot be said that the intention of the donor in this document is that the temple is a public temple. If there would have been any such intention, certainly the donor would have created a public trust through this gift-deed. 25. The substantial question of law No. 1 is thus answered that the finding of the two Courts below holding that the temple is a public temple and not the private temple is perverse and unsupportable by the evidence on record. 26. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment and decree passed by the learned two Courts below is hereby set aside and the suit of the plaintiffs is hereby decreed. No costs.