Mukherjea, J.- This appeal is on behalf of the defendant and it arises out of a suit, under section 92 of the Civil Procedure Code, commenced by the plaintiffs who were originally nine in number in the Court of the District Judge of Kaira at Nadiad. Out of the nine plaintiffs, only one is surviving, and he is now the sole respondent in this appeal, all the rest having died pending this protracted litigation, which began as early as the year 1928.

The case of the plaintiffs, in substance, was that one Kuberdas, who was a religious teacher and a holy man founded a cult known as Kaivalya or Karunasagar Panth, the principal tenet of which is, that the realisation of the Infinite is possible only through the medium of a Guru or spiritual preceptor. Kuberdas received money and lands from his followers and disciples and with this fund he built a temple at Sarsa. Kuberdas by will appointed his principal disciple Narayandas to succeed him on the Gudi and Narayandas built another and bigger temple wherein he installed an image of Kuberdas, with the images of two staff bearers on two sides. The Mahants after Narayandas were Baldevdas, Bhagwandas and Prasadji, who is the defendant in the suit and each one of them was appointed by a will executed by his predecessor. The defendant, it is alleged, had been acting in a manner contrary to the usages of the institution and was guilty of incontinence, mismanagement and improper alienation of trust properties. On these allegations the plaintiffs prayed that:

(1) the properties described in the schedule to the plaint as well as other properties under the management of the defendant be declared to be religious and charitable trust properties of the Kaivalya or Karunasagar Panth;

(2) the defendant be removed from the Gudi and possession of the properties and a suitable successor appointed in his place;

(3) the defendant be called upon to rentier accounts for the period of his management; and

(4) a Scheme might be framed for proper management of the institution.

The defendant in his written statement traversed all the material allegations in the plaint and contended inter alia that the suit was not maintainable inasmuch as no public trust of a religious and charitable character existed in respect to the suit properties which were the private properties of the defendant himself.

On these pleadings, a number of issues were framed by the District Judge, of which the two following were tried as preliminary issues, viz.,:

(1) Whether the temple and the properties in suit are public charitable properties?

and (2) if not whether this Court has jurisdiction to try the suit?

By his judgment dated the 18th of July, 1935, the District Judge decided both these issues against the plaintiffs and dismissed the suit. Against this decision the plaintiffs took an appeal to the High Court of Bombay. The learned Judges of the High Court, who heard the appeal, took the view that the ownership of the suit properties-was so restricted by the obligation to maintain the institution for purposes which only could be described as public charitable purposes, that the suit must be regarded as one coming within section 92, Civil Procedure Code. The result was that the judgment of the trial Court was reversed and the case was remanded to that Court in order that it might be heard and disposed of on its merits. The judgment of the High Court is dated 24th of January, 1938.

Being aggrieved by this order, the defendant prayed for leave to appeal to the Judicial Committee, but this application was refused. He thereupon filed a petition before the Privy Council, praying for special leave. The Privy Council also refused to grant leave on the ground that the matter was still then in an interlocutory stage. They, however, said specifically that the order of refusal was without prejudice to the presentation of a fresh petition after all the issues were determined. The case then went back to the trial Court and on the evidence adduced by the parties, t

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