BIRENDRA PRASAD SINHA, J.

1. This is an appeal by the plaintiff. The plaintiff filed a suit for declaration that the Radha Krishnaji temple along with the properties attached to it, situate in Am Bagan, in the town of Jamshedpur, is a public temple, and for setting aside the order dated the 12.12.1963, passed under Sec. 43 of the Bihar Hindu Religious Trusts Act, by the competent authority.

2. The plaintiffs case, inter alia, was that defendant Madan Lal Joshi is a Shebait of the public Thakurbari known as the Am Bagan Thakurbari. The land upon which this temple stands was donated by the pradhan of Sakchi by a Hukumnama, dated the 8th of Baisakh, 1319 Fs., for the construction of the temple. The general public liberally contributed for the construction and establishment of the Thakurbari. Since its very inception members of the public have access to the temple where they perform puja without any let or hindrance. The general public of the locality have always treated this Thakurbari as a public Thakurbari.

3. The defendant contested the suit and pleaded that the Thakurbari was known as Marwari Thakurbari and it was not a public Thakurbari. There was a Shivalaya which was not part of the Thakurbari and the temple of Shivaji does not own any immovable property except a piece of land over which it stands. The Survey entry in regard to the suit property was wrong. The pradhan granted the land to the defendant and Hiralal Joshi, on the request of the latter, for their use and for the construction of a temple for their family deity Radha Krishnaji. The pradhan did not claim any interest in the temple as its founder nor his heirs claim any interest in it. According to the defendant, the general public did not make any contribution for the construction of the Thakurbari. The defendant and Hiralal begged and borrowed money from some merchants who made contributions only with the object of helping the defendant and Hiralal. The defendant further pleaded that there was a Title Suit No. 8 of 1936 in which it was held that the temple of Radha Krishnaji was the exclusive property of the defendant and Hiralal and the public had no freedom of worship. The defendant and the heirs of Hiralal sometimes allowed their Jajmans to go into the Thakurbari for puja and they go there with the consent and permission of the defendant and the heirs of Hiralal. The Thakurbari is surrounded by Kholies and the residential house of the defendant and Hiralal and they have been appropriating the income from the Kholies.

4. The trial Court found that in its opinion this Thakurbari has been in the exclusive possession and control of Madan Lal and Hiralal and their heirs and they had practically treated this property as their own. It has held that the Thakurbari was not a public Thakurbari and within the purview of the Bihar Hindu Religious Trusts Act. The suit was, therefore, dismissed. Hence this appeal.

5. Before I take up the issues that arise for consideration in this case, it is relevant to state that the plaintiff had filed a petition in the court of the Authority under Sec. 43 of the Act for a declaration that the Thakurbari along with the Shivalaya was a public Thakurbari. The petition was allowed in part. The Shivalaya together with the land on which it stands and the passage land from the public road to the Shivalaya was declared to be a public trust. The Radha Krishnaji Thakurbari together with all the lands appertaining to it, save and except the land of the Shivalaya, was held to be private endowment of the defendant.

6. Shri Tribeni Prasad Sinha appearing on behalf of the appellant submitted that the Thakurbari is a public trust and not a private one. According to him, apart from the documents, there is sufficient evidence of long user of this temple by the public as a matter of right. He also submitted that the manner in which the affairs of the temple are managed and the nature and extent of liberal grants and donations received for the con