JUDGMENT :

Heard parties.

2. This miscellaneous appeal has been filed on behalf of defendants-appellants for setting aside the judgment and order dated 25.3.2017 passed by learned 4th Additional District Judge, Aurangabad in Title Appeal No.41 of 2008 / 112 of 2009 whereby and whereunder the learned appellate court has set aside the judgment and decree dated 28.8.2008 / 9.9.2008 passed by learned Munsif, Daudnagar in title suit no.189/2002 105/2008 and remanded the matter back to the trial court.

3. Title suit no.189/2002 was filed on behalf of plaintiffs to declare the Dharmshala of Aurangabad as public Dharmhala., It is stated in the plaint that the name of Dharamshalla is Sumiran Sao Dharamshalla in which every year the idol of Maa Durga is installed for which permission is granted by Sumiran Sao Dharamshalla Committee.

4. Ram Sewak Lal son of late Sumiran Sao was a religious minded person and he established Dharamshalla in memory of his late father Sumiran Sao by a written deed and appointed Anant Prasad, Deep Chand Jain, Suraj Pd. Agarwal and Balram Pathak to manage the affairs of the Dharmshalla and for which in the year 1959, permission was granted by the Municipality for construction of said Dharamshalla in which two shops were constructed to meet the expenses of Dharamshalla and same is looked after by a Managing Committee and its first secretary was Anant Prasad and thereafter Ram Pd. Lal, Surendra Kr. Jain and Kedarnath Gupta (plaintiff no.1) were secretaries of managing committee.

5. In the register of municipality, name of Ram Sevak Lal was recorded and nature of Dharamshalla was public as such, it is free from municipal taxes. In the municipal survey khatian, secretaries of the Dharamshalla are Narendra Kumar Jain and others.

6. Defendants have started claiming Dharamshalla as their private property although they have accepted it as a public Dharamshalla in all meetings which were attended by them which has been recorded in the register. According to the defendants, the Dharamshalla belongs to Sauniar Baniya community. Defendants want to construct a new Dharamshalla after demolishing the present one as such, present suit was filed for a declaration that the Dharamshalla is a public Dharamshalla.

7. Defendants in their written statement have stated that Dharamshalla was house of Sumrian Sao and after his death, his three sons Ram Sevak Sao, Janardan Sao and Shivlala Sao had title and possession over the same. However, subsequently, all the three brothers shifted to Ranchi and they converted their residence in memory of their father as Sumiran Sao Dharamshalla and for which two shops were also constructed for upkeep of the Dharamshalla from its income. They had given the responsibility of upkeep of Dharamshalla to Narendra Kr. Jain and thereafter it was given to Janardan Pd. Sao and their brothers.

8. Ram Sevak Sao died issueless. His brother Janardan Pd. started looking after the Dharamshalla from time to time and he permitted Narendra Kr. Jain to install idol of Durga on the verandah of Dharamshalla during Durga Puja.

9. Dharamshalla has become very old and is in a dilapidated condition as such son of late Janardan Pd. Sao and son of late Shivl lal Sao, namely, Madan Gupta and Baijnath Gupta by a registered power of attorney dated 1.8.1995 executed in favour of Sauniar Baishya Samiti and appointed Ravindra Pd. Gupta as President and Arun Kr. Gupta as its Secretary and Chhote Lal Gupta, Radhamohan Pd., Yugal Pd. Gupta, Naresh Pd. And Shivshankar Pd. as members and since then defendants are looking after the Dharamshalla and its management. They applied to municipality to permit fresh construction of Dharamshalla as it was in a dilapidated condition then plaintiffs got instituted 144 Cr.P.C. proceeding against defendants. Plaintiffs have no right, interest or title in Dharamshalla.

10. On the basis of rival pleadings, the trial court framed ten issues. Issue nos.6 and 7 were the core issues which were whether in vie