Judgment

SHAH, Actg. C. J.: Suit No. 41 of 1947 was filed in the Court of the Civil Judge, Mathura by the deity Thakur Janki Ballabhji Maharaj, acting through its manager-L. Tulsiram, authorised agent of the Bharatpur State, for a decree for possession of the temple of the deity at Brindaban in U. P.; and of the temple properties and for an order calling upon the defendant, Ramchand, to account for the realisations of the estate of the deity.

2. The case of the plaintiffs was that the Ruler of the State of Bharatpur built the temple at Brindaban and installed the idol of Thakur Janki Ballabhji Maharaj and dedicated the temple to the deity; that the Shebait of the deity who was a paid employee of the State was appointed by the Ruler of the State of Bharatpur; that one Chhotelal was appointed a priest to perform the worship in the temple under a written agreement dated April 8, 1936; that after the death of Chhotelal on May 13, 1942 Ramchand was appointed the priest of the temple on condition that he shall execute the usual agreement in favour of the State; that Ramchand entered upon the duties as pujari but failed to execute the agreement, and in course of time raised various constructions of his own on the premises in dispute and converted them into private residential buildings, and illegally used the temple as a lodging house for pilgrims "to the utter detriment, loss and desecration of the deity" and thereby acquired "illegal benefit to himself out of the temple properties"; and that Ramchand was not performing the seva puja of the deity.

3. The suit was resisted by Ramchand. He denied that the temple was built at the expense of the Ruler of the State of Bharatpur or that he-Ramchand-was appointed to be a priest of the temple by the Ruler of Bharatpur. He contended that one Ram Narain Kedar Nath had taken a piece of land at Brindaban on rent from the temple of Govindji and after constructing a temple thereon and installing the Thakurji had given it as an offering to Sitaram, ancestor of Ramchand, and had appointed Sitaram as the Manager of the temple: that the temple had since then remained in the management of the descendants of Sitaram, and that he (Ramchand) was in possession of the temple and its properties as "Manager and proprietor".

4. The trial Court dismissed the suit holding that the Ruler of Bharatpur was never the owner of the temple or of the articles mentioned in Schs. A and B of the plaint, that the Ruler was also not the founder of the temple nor its shebait; and that the Ruler had never appointed any pujari of this temple and was not authorised to appoint or dismiss such a pujari.

5. In appeal against the decree passed by the Court of First instance it was urged before the High Court of Allahabad that the trial Court erred in dismissing the suit merely on the finding that the Ruler of the State of Bharatpur "had no concern with the construction of the temple or with the installation of the idol in the temple", and that in the suit filed by the deity, having regard to the acts of mismanagement and misappropriation committed by the defendant Ramchand, a decree should have been made in favour of the deity. Counsel for Ramchand contended that the suit being of the nature of a suit under Section 92 of the Code of Civil Procedure could not be instituted without obtaining the sanction in writing of the Advocate-General and that in any event the second plaintiff, the State of Bharatpur, could not file the suit, since it was not a shebait or the settler of the temple.

6. It was common ground before the High Court that the property of the temple was not property of a public trust of a religious or charitable nature. From the averments made in the plaint it is clear that the suit was filed by the deity against the person in management and it was not a suit filed by the relators. Section 92 of the Code of Civil Procedure had no application to the suit and the sanction of the Advocate-General was not a condition of the initia