MUNGESHWAR SAHOO, J.:–This first appeal has been filed by the plaintiff appellant against the judgment and decree dated 19.12.1973 passed by Sri Shreedeo Mishra the learned 1st Additional Subordinate Judge, Darbhanga in Title Suit No. 34 of 1965/ 16 of 1968 dismissing the plaintiff appellant?s suit. 2. The plaintiff appellant filed the aforesaid suit for declaration that the Galma Asthal and the properties appertaining to the said Asthal are public trust properties and further for declaration that the order passed by the authority under Section 43 of the Bihar Hindu Religious Trust Act as wrong, erroneous and the same be set aside. 3. The appellant claimed the aforesaid relief on the facts inter alia that Galma Asthal is coming from time immemorial in village Galma and the defendant is the present Mahanth of the said Asthal. It is public institution belonging to Raman and Vaisnab Sampradaya and succession of the Mahanthship of the Asthal has been from Guru to Chela. Pagri and Chaddar are also invariably given by Guru Mahanth, and also the local resident to the succeeding Mahanth. The Mahanths have always been celibate vairagis and have no attachment for worldly affairs. The old temple of Ram Janki, Laxmanji and Saligramji was built long long ago. The people of the locality and public in general have been worshiping the said deities without any hindrance and they used to make offerings to the deities. The grant of the properties was made to the founder as also to the subsequent Mahanth for religious for charitable purpose of public nature. Subsequently, some properties were also acquired out of the savings and income of the trust properties. The founder of the Asthal and the subsequent Mahant have always been holding the properties as trust properties for religious and charitable purpose. They have not used the properties as owner. The deities are the presiding deities of the Asthal. When the defendant refused to submit to the jurisdiction of the plaintiff, the plaintiff filed a petition under Section 43 of Act before the authorities for declaration that the Asthal and the temple with properties were public trust properties. The defendant contested the said proceeding and the authority rejected the application filed by the Board. Hence the suit was filed. 4. The defendant filed contesting written statement. The defendant contested the said proceeding and the authority rejected the application filed by the Board. Hence the suit was filed. 4. The defendant filed contesting written statement. According to the defendant’s case in short is that Galama Asthal was founded by Mahanth Gopal Das, brother of great grand father of this defendant. He was a Grihasth who had inherited ancestral lands. Subsequently, Gopal Das who was a Sadhu of great fame got presents from his followers and he purchased other lands. His Chela Gangaram Das also acquired some lands out of usufruct of the land left by Gopal Das. The lands about 40 - 42 Bigha were recorded in the name of Gangaram Das during last cadastral survey. He also sold 2 or 3 Bigha lands. He nominated Sukhram Das as his Chela. He also acquired some lands and sold some lands. The properties belonging to the Asthal have all along been the personal properties of Mahanth and was being utilized as such. Gopal Das became Birakt Vaisnab and he came out of his ancestral house. He installed idols of Sri Ram Janki and Laxmanji for his personal worship. He also installed idol of Saligram for his personal worship. There was neither temple nor any place for general public. Gopal Das and his followers were worshiping the deities personally. The general public had no access or have Darshan to deities. When mud wall house fell down a brick wall house with tiles over it was constructed and the deities have been kept in a room of the house. 5. The further defence is that the succession to the Gaddi of Mahanth is not guided by any specific method. After the death of Mahanth his chela succeeds and that was the custom. The general public or the villagers have no concerned with this Asthal. The Mahanths have always been celibate but they did not keep themselves completely aloof from worldly affairs. Presents are never offered by outsiders because the deities are inside the Angan like Kuldevata. The order passed by the authority under Section 43 of the Bihar Hindu Religious Trust Act (hereinafter referred to as ‘Trust Act’) is legal and binding on the plaintiff. The Samaroh or Samaiyya held in the Asthal from time to time are personal affairs of the defendant. 6. The order passed by the authority under Section 43 of the Bihar Hindu Religious Trust Act (hereinafter referred to as ‘Trust Act’) is legal and binding on the plaintiff. The Samaroh or Samaiyya held in the Asthal from time to time are personal affairs of the defendant. 6. On the basis of the aforesaid pleadings of the parties the learned court below framed the following issues :– “1. Is the suit as framed maintainable? 2. Has the plaintiff any right or cause of action to file the suit? 3. Is the suit barred by limitation? 4. Is the suit barred by the rules of estoppel, waiver and acquiescence? 5. Is the judgment of Authority dated 5.12.64 in case No. 20 of 1963 so far it declares the temple and property in dispute to be not public property, liable to be set aside? 6. Whether the plaintiff is entitled to any relief? 7. To what relief or reliefs, the plaintiff is entitled?” 7. After trial the learned court below came to the conclusion that judgment passed by the authority under Section 43 of the Act in Case No. 20 of 1963 is correct and dismissed the plaintiff’s suit. 8. The learned counsel Mr. Ganpati Trivedi appearing on behalf of the appellant submitted that the learned court below has not properly appreciated the evidence available on record and wrongly held that it is not trust property. There are overwhelming evidence that the public in general were performing Pooja etc. without hindrance and further the properties is inherited by Mahanth from Guru to Chela and, therefore, it is a public trust but the learned court below has wrongly dismissed the plaintiff’s suit. 9. It may be mentioned here that nobody appeared on behalf of the respondent when this first appeal was called out for hearing. 10. In view of the above contention of the appellant the only point arises for consideration is, as to whether Galma Asthal and the properties appertaining to it is public trust or not and whether the impugned judgment and decree are sustainable in the eye of law or not? 11. According to the pleadings of the plaintiff itself the property is not dedicated to the deities. The properties devolved from one Mahanth to his Chela who is nominated by Guru i.e. devolution is from Guru to Chela and the Asthal is of Vaisnab Sampradaya. 11. According to the pleadings of the plaintiff itself the property is not dedicated to the deities. The properties devolved from one Mahanth to his Chela who is nominated by Guru i.e. devolution is from Guru to Chela and the Asthal is of Vaisnab Sampradaya. The succession of Mahanthship is from Guru to Chela. The plaintiff also admitted that the properties were given to the founder and also to the subsequent Mahanths and subsequently Mahanths have been acquiring the properties out of the income from the original grant. 12. It is admitted fact that there is no document of dedication or Samarpannama in favour of the deities and likewise there is no document to prove that the properties were ever dedicated. Therefore, the fact becomes admitted that the deities are not the owner of the properties. Therefore, the burden is on the part of plaintiff to prove that the properties appertaining to the Galma Asthal is public trust properties. In support of their cases the plaintiff has only filed one document i.e. Ext.-1 which is certified copy of the sale deed executed by Mahanth Sukhram Das in favour of Nand Lal Missir in the year 1913 wherein Mahanth Sukhram Das has described himself as Vairagi and profession as Fakiri. The learned counsel Mr. Trivedi on the basis of this description submitted that a Vairagi cannot be said to have got any attachment of the property and, therefore, he was holding the property on behalf of the public in general. In other words, according to the learned counsel the properties were held by the Mahanth for charitable purposes and for religious purposes. 13. The plaintiff appellant’s case is that the public used to perform Pooja in the temple of Asthal and there was no restriction for performance of Pooja by general public and examined witnesses. PW 1 to 8 and 10 to 20 have stated that general public used to perform Pooja without there being any restriction. PW 5, 6, 8, 12, 15, 16, 18 and 20 have again stated that Sadhus and Abhyagat used to come to Asthal who have been entertained by Mahanth. This fact is admitted by DW 6 and DW 11 and DW 12 also. The other witnesses of the defendants i.e. DW 1, 2, 3, 6, 9, 11 and 12 have stated that general public have no liberty to perform Pooja in Asthal. This fact is admitted by DW 6 and DW 11 and DW 12 also. The other witnesses of the defendants i.e. DW 1, 2, 3, 6, 9, 11 and 12 have stated that general public have no liberty to perform Pooja in Asthal. DW 1, 10 to 12 have stated that the temple of the Asathal is inside the Angan and, therefore, Darshan by every person is not possible. Some documentary evidences have also been produced by the defendants. The sale deeds have been marked as Ext.-C series and rent receipt Ext. A series whereas Khatiyan as Ext. B series. These documents have been filed by the defendants to prove that the properties have been recorded in the name of Mahanth and the Mahanths were dealing the properties exclusively. These are the evidences adduced on behalf of the parties. 14. In view of the above discussion of the evidences and materials available on record the following facts are clear. A. That the original founder of the Galma Asthal was Mahanth Gopal Das who installed the deities in his house. B. He was succeeded to the Mahanthship by his Chela and, thereafter it is admitted by the parties i.e. even by the plaintiff that Mahanthship had been from Guru to Chela. C. That the appointment of successor of Mahanthship is always throughout from Guru to Chela by the reigning Mahanth nominating his successor from amongst his chelas. The public have had at no time any voice in the selection or nomination of Chela. D. The properties have always been recorded in the name of the Mahanths as proprietors thereof and not in the name of the deities either in register II or in Khatiyan. E. The Mahanths have in possession and management of the Asthal and the properties throughout. F. Mahanths have been acquiring properties from time to time in their own name as proprietors and never in the names of the deities or the Asthal without any objection at any time from anyone. G. The mahanths were dealing with the properties acquired by them through registered sale deeds according to their requirement. H. The properties of the Asthal were and are in possession of the Mahanth ever since the time of Mahanth Gopal Das Ji. 15. G. The mahanths were dealing with the properties acquired by them through registered sale deeds according to their requirement. H. The properties of the Asthal were and are in possession of the Mahanth ever since the time of Mahanth Gopal Das Ji. 15. In view of the above clear position the onus to prove that the respondent Mahanth held the properties of trust for charitable character was clearly on the appellant Board who alleged that it was public trust. Here admittedly there is no document showing Samarpannama or dedication. The Board has tried to establish the nature of the trust as public trust on the basis of oral evidences. We have seen above that some of the witnesses have stated that the public used to worship without there being any hindrances. However, it appears that none of the witnesses have stated that the original founder Mahanth Gopal Das Ji or any of the succeeding Mahanth at any time dedicated the properties to the deities. 16. In the case of The Bihar State Board of Religious Trust, (Patna) Vs. Mahanth Sri Biseshwar Das, AIR 1971 SC 2057 the Apex Court in similarly situated case has held at paragraph 18 and 21 as follows :– “18. The existence of a private mutt, where the property was given to the head of the mutt for his personal benefit only, has in the past been recognized. (see Matam Nadipudiv. Board of Commissioners for Hindu Religious Endowments, Madras, AIR1938 Mad 810 and Missir Vs. Das, (1949) ILR 28 Pat 890. In such cases there is no intention on the part of the grantor to fetter the grantee with any obligation in dealing with the property granted. In each case the court has to come to its conclusion either from the grant itself or from the circumstances of the case whether the grant was for the benefit of the public or a section of it, i.e., an unascertained class, or for the benefit of the grantee himself or for a class of ascertained individuals. An inference can also be drawn from the usage and custom of the institution or from the mode in which its properties have been dealt with as also other established circumstances.” 21. An inference can also be drawn from the usage and custom of the institution or from the mode in which its properties have been dealt with as also other established circumstances.” 21. Lastly, reference was made to some of the deeds of gifts made by the reigning mahants in favour of their nominees as successors where the properties were described as appertaining to the asthal. Assuming that the scribes of these documents used the expression ‘appertaining to the asthal’ in the sense in which such expression is sometimes used in the deeds of conveyance, the expression means things which are appurtenant to and forming part of the principal property which is the subject matter of the instrument. (see Stroud’s Judicial Dictionary, (3rd Ed.), Vol. I, 177). The expression ‘appertaining to the asthal’ in these deeds, therefore, would at best mean that the properties formed part of the asthal and are not the properties of the mahant as distinct from those of the asthal. (see Sri Thakurji Ramji Vs. Mathura Prasad, AIR 1941 Pat 354 at p. 358. But unless the asthal itself is a public trust for religious or charitable purposes, the properties appertaining thereto would not be properties of a public trust for religious or charitable purposes. The use of the expression ‘appertaining to the asthal’, therefore, cannot lead to the conclusion that the properties in question were stamped with a trust for public purposes.” 17. It appears that the fact of the case before the Apex Court in the above decision is similar to that of the present case. There also the properties were never recorded or dedicated to the deities. The circumstances mentioned above in the present case is similar in that case also which would be evident from paragraph 9. The trial court in that case decreed the suit. On appeal the High Court reversed the trial court?s judgment and held that it is not a public trust. Similar type of argument was made before the Apex court which is being argued before this Court. The Apex Court dismissed the appeal holding that the appellant board failed to establish that the properties in suit fell within the ambit of the Act and the respondent Mahanth was subject to its provision. The High Court accordingly was right in reversing the trial court’s judgment and decreeing the respondent’s suit. The Apex Court dismissed the appeal holding that the appellant board failed to establish that the properties in suit fell within the ambit of the Act and the respondent Mahanth was subject to its provision. The High Court accordingly was right in reversing the trial court’s judgment and decreeing the respondent’s suit. In my opinion, considering the facts of the case before Apex court and the present case at our hand, this case is entirely covered by the decision of the Apex Court. The only evidence produced by the Board is to the effect that the public in general were offering Pooja. On the contrary, the defendants have also adduced evidences who have stated that only some invitees were allowed to participate. Performance of a Pooja in special occasion is part of Hindu religious and at that time if the public in general took part that will not mean that the Asthal or the properties appertaining to it is a public trust. 18. In view of my above consideration, I find that the appellant has failed to prove that the Galma Asthal and the properties appertaining to it is a public trust and the provision of the Trust Act is applicable. Therefore, the finding of the trial court is hereby confirmed. 19. In the result, this first appeal is dismissed. However, in the facts and circumstances of the case no orders as to costs.