MUNGESHWAR SAHOO, J.:–The Bihar State Board of Religious Trust has filed this First Appeal against the judgment and decree dated 14.08.1974 passed by the learned 2nd Additional Subordinate Judge, Begusarai in title suit No.25 of 1966/54 of 1973 whereby the learned court below dismissed the plaintiff-appellant’s suit.

2. The plaintiff-appellant filed the aforesaid suit for declaration that Rampur Asthal is a public religious charitable trust and its properties are public trust properties. The defendant-respondent is a trustee.

3. The plaintiff claimed the aforesaid reliefs on the facts inter alia that the Asthal was founded by local people by support and donation and in the Asthal, deity of Sri Thakur Sitaram Chandraji Maharaj was installed by Sri Bankhandi Das with the help of general public. Lands were donated in favour of Asthal for the purpose of maintenance and Ragbhog. Public in general worships without any hindrance. Many more properties were acquired by the Mahanths in their own name which are Devottar properties. The office of Mahanth is not hereditary and the Mahanth is elected from among the capable bairagi chela of the late Mahanth. After election, kurta and chadar is offered by the general public. However, although, the trust is a public trust, the present Mahanth is not submitting account and budget to the plaintiff, therefore, the notice was served under Section 43 of the Act No.4 of 1951. The defendant falsely took the defence that it is a private trust. By order dated 24.02.1966, the authority constituted under the Religious Trust Act, 1950, illegally rejected the case of the plaintiff, therefore, the suit was filed.

4. The defendant-respondent filed contesting written statement denying the fact that it is a public trust. The main defence is that in fact, the trust is a private trust and by endowment dated 24.05.1921, a private trust was created by Mahanth Chintaman Das. The Chela always succeeds the Guru and, therefore, the trust always devolves from Guru to Chela.

5. The learned court below on the aforesaid pleading of the parties framed the following issues:–

I. Is the suit as framed maintainable?

II. Has the plaintiff any cause of action or right to sue?

III. Is the suit barred by limitation and the rules of waiver, acquiescence and estoppel?

IV. Whether Rampur Habiv Asthal is a religious trust and the properties appertaining thereto are religious trust property within the meaning of Section 2(I) and 2(P) of the Bihar Hindu Religious Trustees Act, 1950?

V. Whether order dated 24.02.1966 of the Authority constituted under the Bihar Hindu Religious Trust Act, 1950 is liable to be set aside?

VI. To what relief or reliefs, if any, is the plaintiff entitled?

6. After the trial, on the basis of materials, the learned court below recorded the finding that the trust in question is a private trust and accordingly, dismissed the plaintiff’s suit.

7. The learned counsel, Mr. Shekhar Singh appearing for the appellant submitted that the appellant has produced many reliable evidences oral as well as documentary in support of the fact that the trust is a public trust but the learned court below wrongly held that it is a private trust. According to the learned counsel, the judgment and decree passed in the earlier suit in the year 1943 is not binding on the Board-plaintiff because in that suit, the Board is not a party and moreover, the present plaintiff has been constituted by the Act of 1950. In such circumstances, the learned court below has wrongly held that the earlier decision will be binding on the present appellant.

8. On the other hand, the learned counsel appearing on behalf of the respondent submitted that this very endowment deed dated 24.05.1921 was considered in earlier title suit No.3 of 1937. The said suit was filed for declaration that the trust is a public trust. The suit was dismissed and on appeal, the Division Bench of the Patna High Court considering the materials and evidences and interpreting the endowment deed

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