JUDGMENT Mungeshwar Sahoo, J. 1. The defendant has filed this First Appeal against the Judgment and Decree dated 30.08.1974 passed by the learned Add. Subordinate Judge II, Patna in Title Suit No.130 of 1964/54 of 1970. 2. The plaintiff respondent filed the aforesaid suit for declaration that the temple in question is a public trust property and is under the control of Bihar Hindu Religious Trust Board and the same is neither a private trust nor the private property of the defendant and after adjudication of the same, the order dated 19.09.1964 passed by the authority under Section 43 of the Bihar Hindu Religious Trust be set aside. 3. The plaintiff claimed the aforesaid relief alleging that in the temple, the deity of Sri Ram Chandra Ji had been installed and the temple is outside the residential house and is accessible to the general public. The Pujari is outsider who looks for the pooja path. There are considerable properties belonging to the temple. It is not a private trust nor the properties of any individual. Since it is public trust, Bihar Hindu Religious Trust Act is applicable. The temple in question since its inception is a public trust property and even if it was not public trust property earlier, if assumed, the character of public trust because the public at large has been worshipping the idol in the temple since a very long time making offerings in the shape of cash and kind etc. The poors and sadhus and other religious preachers assembled in the said temple on the festive occasions and they stay in the premises of temple free of cost. 4. The further case is that there was a Misc. case under Section 43 of the Religious Trust Act being Misc. Case No.35 of 1963. The authority under the Trust Act decided the said case by order dated 19.09.1964 holding that it is a private trust. 5. The defendant appellant appeared and filed contesting written statement. Besides taking various legal and ornamental please, the defendant mainly contended that the temple in question was constructed by Yasoda Kuer, the ancestor of the father of the defendant and after her death, the brothers of the husband of Yasoda Kuer executed a deed of Tamaliknama dated 06.05.1892. 5. The defendant appellant appeared and filed contesting written statement. Besides taking various legal and ornamental please, the defendant mainly contended that the temple in question was constructed by Yasoda Kuer, the ancestor of the father of the defendant and after her death, the brothers of the husband of Yasoda Kuer executed a deed of Tamaliknama dated 06.05.1892. By this Tamaliknama, they endowed 8 annas Milkiyat share of village Sadikpur Sangram Tauji No.274 for the Rajbhog of the deities of the temple in question. The deity was installed by said Yasoda Kuer. A Shivala was also constructed near the said temple. Till her life time, Rajbhog was performed by her and after her death, Sri Narayan Das the father of this defendant and after his death, the Rajbhog was performed by Rajwanti Kuer, the mother of the petitioner and after her death, this defendant is performing the same. All the above persons used to perform Rajbhog from their own fund as well as from the income of properties endowed to the deities. Therefore, the temple in question is private trust as it was created for the family members and the said character is still continuing. All other allegations regarding offerings by public at large in cash and kind was denied. Making contribution by public is also denied. The Pujari of the temple in question is the Pujari of defendant and the defendant is bearing the expenses from his personal fund as well as from the income derived from the properties. All other allegations were specifically denied. 6. On the basis of the aforesaid pleadings, the learned Court below framed the following issues:- (i) Is the suit as framed maintainable? (ii) Has the plaintiff got any valid cause of action for the suit? (iii) Is the suit barred by law of limitation? (iv) Are the temple in suit and the properties attached to it Hindu Religious Public Trust Property or the personal or private property as alleged? (v) Is the order passed by the authority u/s 43 of the Act, illegal, and not binding on the plaintiff and liable to be set aside? (vi) Is the plaintiff entitled to a decree sought for? (vii) To what relief or releifs, if any, is the plaintiff entitled? 7. (v) Is the order passed by the authority u/s 43 of the Act, illegal, and not binding on the plaintiff and liable to be set aside? (vi) Is the plaintiff entitled to a decree sought for? (vii) To what relief or releifs, if any, is the plaintiff entitled? 7. On the basis of the evidences produced by the parties, the learned Court below came to the conclusion that the temple in suit and the properties attached to it are Hindu Religious Trust Properties and not the personal or private property and as such the order passed by the authority under Section 43 of the Act is illegal and not binding on the plaintiff and accordingly decreed the plaintiff's suit. 8. The learned counsel Mr. Alok Kumar Chaudhary, for the appellant submitted that the Court below has wrongly mis-appreciated the evidences on record and wrongly recorded a finding that the temple and property are the public trust merely on the basis of the statements of the witnesses examined by the plaintiff. The learned counsel submitted that while recording the finding regarding the nature of the temple, the Court below has not examined properly the documentary evidences produced by the appellant including the endowment deed. In fact the trust was created for the family members. The public have got no access to the temple nor they have any right in the management and Rajbhog or user of the property. The public at large never made any contribution. The temple was constructed by Yasoda Kuer and after her death, the three brothers of deceased husband, namely, Sheo Prasad Sahu, Ganga Bishun Sahu and Kishun Lal Sahu executed the Tamaliknama dated 06.05.1892 in which there is clear recital that it is private trust. In support of his contention, the learned counsel relied upon decisions of the Hon'ble Supreme Court and Privy Council reported in : (i) AIR 1957 SC 133 (ii) AIR 1971 SC 2057 and (iii) AIR 1940 Privy Council Page 7. On the basis of these decisions, the learned counsel submitted that the impugned Judgment and Decree are liable to be set aside and the plaintiff's suit is to be dismissed. 9. On the other hand, the learned senior counsel, Mr. On the basis of these decisions, the learned counsel submitted that the impugned Judgment and Decree are liable to be set aside and the plaintiff's suit is to be dismissed. 9. On the other hand, the learned senior counsel, Mr. Ganapati Trivedi, for the respondent submitted that the witnesses examined on behalf of the plaintiff respondent have clearly proved that the public at large have got access to the temple in question and since long they are offering puja to the idol without there being any hindrances put forth by the defendant. The deed of Tamaliknama, ext. 'A', itself shows that there was full dedication to the deity, therefore, it is a public trust and the Court below rightly interpreted the same and rightly recorded finding that the temple in question is a public trust. On these grounds, the learned counsel submitted that the First Appeal be dismissed with cost. 10. In view of the above submissions of the parties, the point arises for consideration in this First Appeal is whether the temple in question with the properties endowed to it is public trust or is a private trust and whether the impugned Judgment and Decree are sustainable in the eye of law. 11. The plaintiff pleaded that the temple in question is situated outside the residential house. It is accessible to the public at large and the Pujari is outsider. The Sadhus and poor persons assembled generally and particularly on the festive occasion, they stay there free of cost with foodign and lodging. On the other hand according to the defendant, Yasoda Kuer was the ancestor of the defendant who constructed the temple and installed idol therein. She performed Rajbhog during her life time. On her death, the three brothers of her husband executed a Tamaliknama, i.e., endowment deed on 6.5.1992 ext. 'A'. After her death, the father of the petitioner was performing Rajbhog and on his death, the mother of the defendant was performing Rajbhog and on her death, the defendant is performing Rajbhog and all of them were performing and defendant is performing Rajbhog out of their own fund and income from the properties endowed by ext. 'A'. 12. In support of their respective cases, the parties have adduced evidences oral as well as documentary. 'A'. 12. In support of their respective cases, the parties have adduced evidences oral as well as documentary. The plaintiff has examined D.W.1 to 4, 6 and 8 stated that public at large offers prayer in the temple without any interference. The public offered cash and kind in Thakurbadi. The mela is held on Ashtami, Naumi and Dashmi in the temple and the outsiders also stayed in the temple. These witnesses examined by the plaintiff are in support of the pleadings. From perusal of the evidences, it appears that the statements are in general. 13. The plaintiff has also produced documentary evidences which are exhibit 1' series are the signatures, ext. 2' series are the signatures and exhibit 3' series are endorsement of the officers on the note-sheet. Ext. 3' is the assessment calculated provisionally. Exhibit 4' series are letters addressed to S.D.O., Patna city requesting S.D.O. to get an enquiry made regarding the property. Ext. 6' series are notices whereby notice was given to Pujari. All these documentary evidences produced by the plaintiff respondents are only the correspondences made by the plaintiff and/or the note-sheets and initials, signatures thereon. These documents have got nothing to do in deciding the nature of the Trust. The oral evidences discussed above shows only that the temple is outside the residential house and public offers pooja and cash and kind. There is no denial on behalf of the plaintiff regarding the endowment deed ext.'A'. The plaintiff also did not deny that the defendant's ancestor was Yasoda Kuer who constructed the temple and installed the deity. The defendants in support of the case has examined D.W.1 to D.W.4 and D.W.6 who have supported the case of the defendant to the effect that the temple is private Thakurbadi of D.W.7, the defendant. D.W.5 D.W.2, 7 and 8 have clearly stated that outsider do not visit the Thakurbadi inside without permission. Therefore, these are the oral evidences, i.e. oath v. oath. On the basis of these evidences, i.e., oral particularly when the actual document is available, no definite finding can be recorded that the temple in question is a public trust. 14. It appears that ext 'A' which is of the year 1992 is in Urdu language. It was translated in English and filed before the trial Court which is available on record. From perusal of this endowment deed ext. 14. It appears that ext 'A' which is of the year 1992 is in Urdu language. It was translated in English and filed before the trial Court which is available on record. From perusal of this endowment deed ext. 'A' dated 6.5.1892, it appears that the endowment was made by three executants and it is stated that after the death of the executants, son of one executant, i.e., Narayan Das, Son of Ganga Bishun shall perform the Rajbhog and on his death, his heirs or any of the heirs of the executant shall perform the same. Now, therefore, by this endowment deed, the right has been conferred on the executant and after them the heirs. The management is not given to the outsiders or any of the public. Ganga Bishun Sahu is one of the executant. Plaintiff is grand son of Ganga Bishun Sahu. He is performing the pooja path. Therefore, from the endowment deed itself, it become clear that the temple was constructed by Yasoda Kuer and the properties were endowed by the three brothers of husband of Yasoda Kuer with clear recital that the Rajbhog will be performed by the executants and their heirs and so on and forth. Now, therefore, merely because some private person offered pooja, can it be said that the nature of the property becomes public trust property? Admittedly, the management is made by the family members of the defendants. The public at large have no role to play. Nothing has been brought on record to show that either the temple was constructed by donation or subscription made by the public at large. 15. The Privy Council in AIR 1940 Privy Council Page 7 Babu Bhagwan Din v. Girher Saru has held that 'where the grant of a temple is made to an individual and his heirs in perpetuating descendents after descendents and generation after generation, this fact is not reconcilable with a view that the grantor was in effect making a Wakf for a Hindu Religion purpose. Where a grant of a temple is made to an individual or family and the family has treated the temple as family property, dividing the various forms of profits whether offerings and rents, it is not enough to deprive the family of their private property to show that Hindu willing to worship have never been turned away or even that the deity has been acquired considerable property among Hindus of the locality.' 16. The Hon'ble Supreme Court in the case of Devki Nandan v. Murlidhar AIR 1957 SC 133 has held that 'the question as to the scope of the dedication is a mixed question of law and fact, the decision of which must depend on the application of legal concern of a public and a private endowment to the facts found. Under the Hindu Law, an idol is capable of holding property and the properties endowed for the institution vest in it. But it does not follow from this that it is to be regarded as the beneficial owner of the endowment. It is only in an ideal sense that the idol is the owner of the endowed properties and it cannot have any beneficial interest in the endowment. The true purpose of a gift of properties to the idol is not to confer any benefit on word but to acquire spiritual benefit. At paragraph 7, it is clearly held by the Supreme Court that where property is dedicated for the worship of a family idol, it is a private and not a public endowment as then persons who are entitled to worship at the shrine of the deity can only be the members of the family.' 17. In the present case, it is not denied by the plaintiff that temple was constructed by Yasoda Kuer. The plaintiff also did not deny installation of idol by Yasoda Kuer and offering Pooja Path by her during her life time and then it was inherited by the family members after her death and they endowed some property to the deity for the purpose of worshipping the family idol and the same is coming from generation after generation. 18. The plaintiff also did not deny installation of idol by Yasoda Kuer and offering Pooja Path by her during her life time and then it was inherited by the family members after her death and they endowed some property to the deity for the purpose of worshipping the family idol and the same is coming from generation after generation. 18. The Hon'ble Supreme Court in the case of The Bihar State Board of Religious Trust Patna v. Mahant Sri Bisheshwar Das AIR 1971 SC 2057 [: 1972 PLJR (SC) 16] has held that 'fooding of Sadhu and giving hospitability to wayfarers is not by itself indicative of temple being public temple or its properties being subject to a public trust. Dedication to public cannot be readily inferred from the mere fact that members of public are freely admitted to the temple for worship and/or for attending festival celebrated by Mahant.' 19. From the discussion made above, it becomes clear that the decisions referred to above and in the facts of this case applies in favour of the appellant. The learned trial Court without considering the principles laid down by the Privy Council and the Supreme Court discussed above merely on the basis of oral evidences held that it is a public trust. The Court below also did not consider the fact that since 1892, the idol is worshipped by the family members generation after generation and in the endowment, ext. 'A' itself, it is clearly mentioned that the right to worship will devolve on the heirs from generation to generation. 20. In view of my above discussion, I find that the plaintiff failed to prove that the temple and its properties endowed are the public trust. On the other hand the defendant appellant has been able to prove that the temple in question is private temple and deity installed is private deity of appellants family from the very inception and it is still the family idol and the properties attached thereto are of the properties of the idol of the appellant. The finding of the trial Court on this point is, therefore, reversed. The authority has therefore, passed the order according to law under Section 43 of the Religious Trust Act. Ultimately, I find that the temple in question is not a public trust rather it is private trust of the appellant. 21. The finding of the trial Court on this point is, therefore, reversed. The authority has therefore, passed the order according to law under Section 43 of the Religious Trust Act. Ultimately, I find that the temple in question is not a public trust rather it is private trust of the appellant. 21. In the result, this First Appeal is allowed. The impugned Judgment and Decree are hereby set aside and the plaintiff respondent's suit is dismissed.