Judgment

WANCHOO, J. : This is an appeal by special leave against the judgment of the Nagpur High Court. The brief facts necessary for present purposes are these : there is an ancient temple of Balaji at Deolgaon Raja in the Buldana District. Before 1866 the management of the temple was in the hands of a family bearing the name of Lad. A suit was filed in 1866 with respect to this temple by Raje Mansingh Rao under the guardianship of his mother for a declaration that the temple was his property. The defendants in that suit were certain pujaris. The suit was decreed by the first court but on appeal it was held that the temple was not the private property of the Raja but was an endowment for the public founded by the ancestors of the Raja and that the Raja was entitled as against the pujaris to the possession and control of the institution. A receiver was appointed during the minority of the Raja but in due course the Raja took over the direct management of the temple. In 1872 it seems that there was some dispute between the Raja and the pujaris whose offices were also hereditary; and an agreement was arrived at between them. By this agreement it was provided that any offerings up to Rs. 5/- would go to the pujaris who were to defray the expenses of dhoop, deep and neivedya from this amount keeping the balance to themselves. There were also certain provisions in the agreement as to offerings in kind. The agreement also provided for other matters relating to worship and imposed certain duties on the pujaris. Finally, it provided that the parties should carry on all the duties stated in the agreement and other duties besides them as before according to the usual wahiwat and that earnings would be taken as stated in the agreement and proper arrangement of expenses would be kept and the pujaris would take all possible care not to take more than what was fixed in the agreement. This agreement seems to have held the filed thereafter till we come to 1904.

2. It seems that there was dissatisfaction with the management of this temple by Raje Anandrao and in consequence a suit was filed after obtaining permission of the Advocate-General in February, 1904, for framing a scheme for the management of the temple. This suit was finally decided on April 29, 1916, by the Additional Judicial Commissioners. They set aside the order of the trial court for the removal of Raje Anandrao from the management by declaring that the right to mange the affairs of the shrine which was an office was hereditary in the family of the Raja; but they further held that a scheme should be framed providing-

"(i) for the management of the trust pending any dispute as to who is the present holder of the office of trustee and manager;

(ii) for the management of the trust during the minority of the appellant if he should be established to be the present Raja;

(iii) for the continuance of control by the Court after the present hereditary incumbent enters upon the office of manager sui juris; and

(iv) for the modification of the scheme from time to time as circumstances may demand."

In consequence the matter went back to the District Judge who framed a scheme on February 16, 1918, for the management of the temple. This scheme was later substituted by another scheme dated November 25, 1926. Finally, on October 16, 1935, another scheme was framed in substitution of that framed in 1926. It may be mentioned that the pujaris as such were no parties to this suit in which the scheme was framed, though they would be as much bound by it as members of the worshipping public as the parties to it. It seems that about that time there was another suit pending in the court of the Additional Subordinate Judge, II Class, Buldana, between the appellant and the pujaris. That suit was decided on April 30, 1936, and it was held there in that the agreement of 1872 which was binding on the appellant recognised that the office of pujari was hereditary. It was also held that the trustee (namely, the Raja