The central legal point established is that the Hindu public, as representatives of the deities, can sue for a declaration of property belonging to the idols and the right to use it as a public place of worship.

JUDGMENT

B.K. Mukherjea, J. - This is an appeal by the plaintiffs who instituted a suit on behalf of themselves as well as the Hindu public of Garulia in the Court of the 2nd Munsif at Sealdah for certain declarations as well as consequential reliefs. There were two defendants to the suit, the first being the commissioners of the Garulia Municipality and the second the Shamnagar Jute Factory Ltd. The plaintiffs' case in substance is, that on a small plot of land which constitutes dag No. 12/34, in Khatian No. 85 of Mouza Garulia there exists three Shiva Lingas which are worshipped by the Hindu public of the locality from time immemorial. The said idols have no pucca temples and as birds from overhead electric wires drop bones and other unclean objects on the idols and thereby defile their sanctity the Hindu public decided to build a pucca temple over the deities and having raised money by public subscriptions applied to defendant 1 for sanction. The Municipality refused sanction on the ground that defendant 2, the Shamnagar Jute Factory Ltd., had asserted title to this land and had objected to any building being erected thereon. In spite of the refusal of the sanction, the plaintiffs, it is said, actually laid the foundation stone of the building on a Saraswati puja day, but though no building was actually errected, the Municipality started prosecution u/s 501, Bengal Municipal Act.

2. The plaintiffs assert that defendant 2 have no title to the land which is a dedicated land belonging to the idols and had been used as a place of public worship by the Hindu public from time immemorial. Defendant 1, it is said, had no right to refuse sanction on the ground of the alleged want of title, and its refusal was ultra vires.

3. The prayers in the plaint stand as follows; (a) That the land in dispute may be declared to be the debasthan of the Sivalinga deities and a public place of worship of the Hindu public and that the public had acquired an absolute and indefeasible right to the use of the same as a debasthan by long and uninterrupted user from time immemorial and to build the temples of the deities and for a declaration that the Shamnagar Jute Factory has no right and title thereto or any right to interfere with the building of the temple on the disputed land; (b) for a declaration that the action of the defendant municipality in refusing sanction for the construction of the temple of the deities was illegal and ultra vires; (C) for a declaration that the action of the defendant in prosecuting the plaintiffs u/s 501, Bengal Municipal Act, was illegal; (d) for an injunction restraining the defendant Municipality from proceeding with the prosecution; (e) for an injunction upon the defendants from interfering with the public right of worship and entry on the land; (f) for costs of the suit and (g) for any other relief to which they might be entitled under law. Both the defendants contested the suit and their defences in substance were that the suit was not maintainable in the absence of the Telinipara and Halishar zemindars who are the recorded proprietors of the land in suit. It was said further that Sivalingas were not on the land from time immemorial nor were they public deities; but two of them be-longed to one Basanta Kumar Banerjee and the third which is a broken one belonged to one Swarup Das. Defendant 2 asserted a leasehold right to the land in suit under a purchase from a previous lessee and it was contended that the plaintiffs had no right or title to the land. Defendant 1 put in a further contention that their refusal of sanction was justified and the suit against the Municipality could not proceed without a notice u/s 535, Bengal Municipal Act.

4. The Munsif who tried the suit dismissed the suit against defendant 1 on the ground of want of notice u/s 535, Bengal Municipal Act. As against defendant 2 the suit was decreed. The suit land was declared to be a Debasthan and a public place of worship of the Hindu public and it was