( 1. ) THIS first appeal has been filed under Section 96 of the Code of Civil

procedure by the appellants-plaintiffs against the judgment and decree dated 15-10-2004, passed by the First Additional District Judge, Gwalior in Civil Suit no. 03-A/2001.

( 2. ) THE plaintiffs filed a suit in representative capacity under Order 1 rule 8 of Civil Procedure Code for declaration and permanent injunction. They pleaded that the temple of Hanumanji, Shivji, Parvatiji, Ganeshji, Nadiyaji and bharonji, is situated at Indore Balon Ka Bada, Dal Bazar, Lashkar, Gwalior. The temple is hundred years old. An open space is also available around the temple. Number of persons used to come to worship at the temple. However, the defendant is trying to raise a construction over the place of temple. He is also trying to destroy the temple and convert the place of temple in a private property. The defendant No. 1, has an intention to construct a godown in place of temple. Initially, Rambabu Agarwal was added as defendant No. 1 and, subsequently, two other persons, namely, Mr. Balkishan and Ayodhya Mandir trust has been added as defendants. During pendency of suit, Rameshwar dayal, who is original plaintiff, was died and his legal representatives have been brought on record. Two persons, namely, plaintiff No. 2 and plaintiff No. 3 have also been deleted as plaintiffs. The Trial Court permitted the plaintiffs to pursue the suit under Order 1 Rule 8 of Civil Procedure Code.

( 3. ) THE defendant No. 1 Rambabu Agarwal in written statement denied the pleadings of the plaintiffs. He also filed a counter claim. He pleaded that the bada was of the ownership of Ayodhya Mandir Trust, Sant Niwas Trust indore. The aforesaid trust sold the property to Mr. Ghanshyam Das and balkishan and thereafter the defendant purchased the property from Balkishan. Balkishan also sold some portion of property to Mr. Rameshwar Dayal. He further pleaded that the suit property is the exclusive ownership of the defendant and he has been performing puja and archana in the temple. It has specifically denied by the defendant that the Hanumanji temple is a public temple. He admitted the fact that there is a temple and he is the owner of the temple. The defendant further filed a counter claim mentioning the fact that there is a 10 ft. wide lane and on the aforesaid lane, plaintiff Rameshwar Dayal has made certain encroachment. The lane is 10 ft. x 30 ft. By way of counter claim, the defendant sought permanent injunction against the plaintiff rameshwar Dayal that he be restrained from creating any obstruction and nuisance over 10 ft. wide lane.

( 4. ) THE Trial Court after appreciation of evidence dismissed the suit after holding that the plaintiffs failed to prove that the temple mentioned in the plaint is a public temple. The Trial Court further held that the defendant purchased the suit property by a registered sale deed from a public trust. It has also held by the Trial Court that the suit filed by the plaintiffs is maintainable in representative character and the Court has jurisdiction to try the suit.

( 5. ) SHRI K. N. Gupta, learned Senior Counsel for the appellants plaintiffs has submitted that the findings recorded by the Trial Court that the temple mentioned in the plaint is not a public temple are perverse. The temple is in existence for the last 100 years. It was a property of public trust created for religious purpose, hence, the trust or any other person has no right to sell the temple. He further submitted that the defendant No. 1 has been trying to destroy the temple, which is against the law. In support of his contentions, learned senior Counsel relied on the following judgments:- (i) Kundan Lal Rallaram Vs. Custodian, Evacuee Property, bombay, AIR 1961 SC 1316; (ii) Pannu Vs. Devi Prashad, 1963 JLJ 113 (CN 26); (iii) Premchand Vs. Laxmichand, 1970 JLJ 763; (iv) Sodhi Transport Co. and others Vs. State of U. P. and others; (1986) 2 SCC 486; and (v) Anil Rishi Vs. Gurbaksh