The court emphasized that the burden of proof regarding the trust's classification and maintainability lies with the plaintiffs, especially under Section 29 of the Rajasthan Public Trust Act, 1959.

Judgment :

REKHA BORANA, J.

1. The present second appeal has been preferred against judgment and decree dated 08.10.1993 passed by the Additional District Judge, Bali in Civil Appeal (Decree) No.42/1986 (36/1982) whereby the regular first appeal as preferred by the appellant against judgment and decree dated 12.07.1982 passed by the Civil Judge, Sirohi in Civil Original No.40/1979 stood dismissed. Vide judgment and decree dated 12.07.1982, the learned Trial Court proceeded on to decree the representative suit for eviction as preferred by the plaintiffs. The Court also proceeded on to pass a decree for mesne profit in favour of the plaintiffs for an amount of Rs.204/- for the period from 01.03.1978 to the date of institution of the suit.

2. Vide order dated 02.12.2003, while admitting the present appeal, following substantial questions of law were framed:

“(i) Whether the Courts below were right in not first determining the valuation of the temple property and proceeding to decide the whole matter without adverting to determine the question of bar under Section 29 of the Act?

(ii) Whether it was incumbent upon the Courts below to try the issue of jurisdiction before proceeding to determine other issues as per the Order 14 Rule 2 C.P.C.?

(iii) Whether the Courts below have rightly held that the suit was properly constituted under Rule 1 of Order 8 CPC?” (Order 1 Rule 8, CPC)

3. Arguing on the first question of law, learned counsel for the appellants submitted that a specific objection regarding the maintainability of the suit in terms of Section 29 of the Rajasthan Public Trust Act, 1959 (hereinafter referred to as, ‘the Act of 1959’) had been raised by the defendants with a submission that the Temple Trust was unregistered. The specific averment of the defendants was that the temple in question was a private property of two persons namely Seth Shri Panaraj and Munnilal. The construction of four disputed rooms was also undertaken by the said two owners of the temple only but the land on which the said rooms were constructed was of the ownership and possession of the defendants. The property of Jain Community/Jain Temple neither constitutes any public trust nor any such trust has been registered. Therefore, the learned Trial Court firstly was under an obligation to decide whether the Trust in question was a ‘Public Trust’ or a ‘Private Trust’. It is only after the said determination been made, it could have been decided whether the Civil Court had the jurisdiction to entertain the suit in question.

4. Further, it is only after the said determination that the issue whether the Trust in question was mandatorily required to be registered, could have been decided.

5. Furthermore, whether the Trust (if it is so held) would be governed by circular dated 28.06.1962 could also be determined only after the above issue been decided. The learned Trial Court having not determined the first and foremost question as to whether the Trust in question was a public or a private Trust, all the subsequent proceedings/findings were non-est as the same goes to the root of the matter.

In support of his above submission learned counsel relied upon a judgment of this Court in the case of Jagannath vs. Satya Narain; 1973 AIR (Raj) 13

6. Learned counsel further submitted that reliance of both the Courts below on circular dated 28.06.1962 was also totally misconceived, as once the objection regarding maintainability of the suit on count of the Trust not being registered was raised by the defendant, the burden to prove that the Trust was not required to be registered in terms of Circular dated 28.06.1962 was on the plaintiffs. The learned Trial Court wrongly placed the burden of the said issue on the defendants and wrongly observed that the defendants did not raise any plea to the effect that the Trust in question was having an annual income of more than Rs.3,000/- or the valuation of the assets of the Trust was more than Rs.30,000/-. Counsel submitted that even