1. This first appeal filed by two of the defendants arises out of a suit under Section 92 of the CPC.

2. Respondents Nos. 1 to 4 brought a suit under Section 92 of the CPC, with the permission of the Advocate General for removal of defendants Nos. 1 to 4 as trustees and appointment of new trustees in their place and also for rendition of accounts of the trust property. It was also prayed that a new scheme be settled for the future management of the trust. Defendants Nos. 5 to 13 were impleaded as creditors of defendants Nos. 1 to 4 and a further relief was claimed that these defendants should have nothing to do with the trust property. The dispute related to the charitable trust of Sri Thakur Sri Satya Narain ji Maharaj of village Kairnar, district Aligarh, and it was alleged that a grove in that village and zamindari property in villages Pakwara and Mangwara constituted public trust property of religious and charitable character and that defendants Nos. 1 to 4, who were the present trustees and belonged to the family or the creator of the trust, having become heavily indebted, had begun to mismanage the property and misappropriate its income. It was further alleged that in an application filed under the provisions of the Encumbered Estates Act defendants Nos. 1 to 4 have shown trust property as their personal property and it has also been ordered that the grove which is a trust property should be taken ire liquidation of their debts.

3. Defendants Nos. 1 to 4 filed a written statement stating that they had no objection to their removal from the office of trustees, but they were not liable to render accounts. Two of the creditors, Janki Prasad and Thakur Das, who are the appellants, were the mam contesting defendants. Their main defence was that the temple is not a public trust of any religious or charitable nature but was a private temple and the property given in the plaint was never dedicated for any religious or charitable purpose. The property in dispute was said to belong to defendants Nos. 1 to 4 and it was further alleged that they had been unnecessarily impleaded in a suit under Sec. 92. It was also their case that it having been held on an objection filed by some persons on behalf of the deity that the property belonged to defendants Nos. 1 to 4 the same matter could not be reagitated in a suit under Sec. 92.

4. The learned District Judge framed as many as 12 issues. On the material issues he came to the conclusion that the temple of Sri Satya Narain ji Maharaj in village Kairnar constituted a public trust of religious and charitable character, that the property given in the plaint was a trust property and that the creditor defendants had not been wrongly impleaded though no specific relief could be granted against them. He further found that the decision of the objection under section 11 of the Encumbered Estates Act did not bar the present suit. He having found that the present trustees were mismanaging the properties removed them from the office and formulated a scheme for future management of the trust property. It is against this order that the present appeal has been filed.

5. Sri S.B.L Gaur, learned counsel for the appellants, has conceded (it was also conceded in the court below) that the village properties of villages Pakawara and Mangwara are trust property and the appellants do not claims any interest in those properties. He limited his arguments to the grove of village Kairnar in which the temple itself is situated. His contentions are three-fold. The first contention is that there is no cogent evidence on record to show that the grove is a dedicated property; on the contrary it is the personal property of defendants Nos. 1 to 4. His second contention is that the order passed on an objection under section 11 of the Encumbered Estates Act operates as res judicata and the question of ownership cannot be reagitated. His last contention is that the creditor defendants Nos. 5 to 13, which included the present appellants, were not necessary parties to the suit and so no declaration could be given against their interest.

6. Sri Rajeshwari Prasad, learned counsel for the respondents, has supported the judgment of the court below and has contended that there may not be any written document dedicating the grove but the mere fact that the temple was situated in the grove and the finding in the Encumbered Estates Act case that the grove was being used for purposes of the temple coupled with the further fact of the use of the grove for religious and charitable purposes is enough to prove dedication. According to his submission it was necessary to implead the creditors because they wanted to appropriate the trust property in liquidation of their debts. His contention is that the decision of the objection under Sec. 11 was no bar to the present suit because the scope of the objection under section 11 of the Encumbered Estates Act is different from the scope of a suit under Sec. 92 because the parties are not the same nor have they been litigating in the same capacity nor is there anything to show that the former objection filed by some persons was in a representative, capacity.

7. I have heard learned counsel for the parties, at some length. The arguments raised on behalf of the parties in this appeal involve both a question of fact as well as of law. The question of fact only relates to the existence of a public trust of religious and charitable nature while the question of law relates to the impleadment of defendants Nos. 5 to 13 and the effect of the order passed on an objection under section 11 of the Encumbered Estates Act.

8. So far as the question of fact goes I do not at all agree with the learned counsel for the appellants that the grove in suit is not a trust property or that the temple of Sri Saiya Narain ji Maharaj does not constitute a public trust of religious and charitable character. It is true that there is no written document of trust and the entry in the village papers stands in the name of defendants Nos. 1 to 4 or their ancestors. The mere absence of a written document or mere absence of the entries is not a conclusive proof of the non-existence of a trust. A valid trust may be created not only by means of a written document but also orally but what is required in the case of oral trust is that the property must have been treated to be an endowed property and it must have been used towards charitable and religious purposes for which the trust was created. This is sufficiently proved in this case both by oral evidence as well as indirect documentary evidence. So far as the oral evidence goes the defendants creditors produced no evidence whatsoever in the case to rebut the statements of the three witnesses produced on behalf of the plaintiff, that is Devi Ram, Kuber Singh and Gir Prasad. All the three witnesses have deposed that the grove in suit in village Kaimar is dedicated to the temple which is a public trust. It further appears from the evidence that the very name of the grove is Thakur Satya Narain Ji Ka Bagh. The learned counsel for we appellants has contended that the trust was not created in presence of any of these witnesses. That may be so, but it is a case in which the evidence only relates to the dedication of the property by user and consequently what is material in such a case is whether the property was deemed to be a trust property and was used as such and its income was applied towards charitable purposes. This is sufficiently proved, particularly from the statement of Gir Prasad who is one of the trustees. His statement goes to show that the income of the grove was always spent far the maintenance of the temple and that the temple is public and not private. The grove and the land belong to the deity and are public trust property. It was elicited in his cross-examination that the grove is muafi and the income is Rs. 25/- or Rs. 26/- a year. The statement of this witness relied upon by the lower court is very much convincing and goes to show that the temple is a public trust and the grove and all the land belong to the deity.

9. Another circumstance which is material in the case is that the temple itself stands in a portion of the grove. The learned judge who heard the appeal in the Encumbered Estates Act case came to the conclusion that the construction of the temple and the well had been dedicated along with the land on which these constructions stand. He further found that the land between the well and the temple — about 8 ft. of land all round the temple and the well — must be treated to be dedicated property. This view of the learned judge that a portion of the groveland is dedicated appears to be arbitrary. If the groveland is dedicated, the dedication must relate to the whole of the groveland and not to a part. The learned judge appears to have been faced with the difficulty as to what view he should take about the land, occupied by the temple and the well and the land all round, and as he could not treat this land as private property he arbitrarily held that a part of the groveland was dedicated while the other part was not so dedicated. The same judge further found that melas and dangals are held in the grove on the Janmashthami and Ram Naumi days every year. He has not taken into consideration as to how people will approach the temple and the well unless they trespass upon other land of the grove. Having regard to the own findings of the learned judge who decided the objections under the Encumbered Estates Act case, it is evident that the whole of the grove in which the temple and the well stand and in which the public exercise their right by holding melas and dangals is a public trust.

10. The learned counsel for the appellants relied open the Full Bench case of Sri Thakurji v. Sukhdeo Singh, 18 All LJ 390 : (AIR 1920 All 63) (FB). But there the circumstances of the case showed that the donor did not really intend to create a religious endowment and there was no real dedication to the idol. The facts of the present case are different and the dedication is more than amply proved.

11. In the case of Gopal Jew Thakur v. Radha Binode Mondal, AIR 1925 Cal 996 a view was expressed that where deities have been consecrated in a temple, the temple must be held to have been dedicated to the deities.

12. Since dedication is a question of fact and to same has been proved in this case, I do not agree with the learned counsel for the appellants that the temple is not a public trust. This disposes of the question of fact.

13. As regards the question of law relating to the impleadment of the creditors, whatever dispute there was between the various High Courts was settled by the observations of their Lordships of the Privy Council in the case of Abdur Rahim v. Abu Mahomed Barkat Ali Shah, 26 All LJ 464 : (AIR 1928 PC 16) Their Lordships were of the view that relief under clause (h) of Section 92 of the CPC, should not be granted against third parties; but they did not take the view that third parties could not be impleaded. In fact, no view about the joinder or non-Joinder of parties was expressed by the Privy Council and this question itself was considered in the case of Ratan Sen v. Suraj Bhan, AIR 1944 All 1. It was held in that case that in a suit under section 92 third party transferees of the alleged trust property who claim the property in their own rights or deny the validity of the trust can be impleaded and a declaration that the property is trust property tan be granted against them. It was further observed that, sec. 92 imposes no bar to the joinder of parties or causes of action and that section does not create any exception to the general rules on the subject, in view or this ruling, it is not necessary to make a reference to the earlier cases of Ramrup Goshain v. Ramdhari Bhagat, 23 All LJ 601 : (AIR 1925 All 683) and Lachman Prasad v. Munia, AIR 1925 All 759 in which the same view was expressed and it was held that the court has jurisdiction to decide in presence of the persons interested in denying the trust the existence of the trust or its validity.

14. The only question which remains to be considered relates to the question whether the present suit is barren by the principle of res Judicata on account of the earlier decision in the Encumbered Estates Act case. For the application of section 11 it is essential that

(i) the matter directly and substantially in issue in the subsequent suit must be the same which was directly and substantially in issue in the former suit;

(ii) the former suit must have been between the same parties or between parties under whom they or any of them claim;

(iii) the parties must have litigated under the same title in the former suit;

(iv) the court which decided the former suit must have been a court competent to try the subsequent suit; and

(v) the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court, which decided the former case.

So far as public rights go, there is the further provision in Explanation VI stating that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating”. For bringing a suit within the ambit of Explanation VI it is necessary that

(i) there must be a right claimed by one or more persons in common for themselves and others;

(ii) the parties not expressly named in the suit must be interested in such right; and

(iii) the litigation must have been conducted bona fide on behalf of all the persons interested.

15. It will appear that none of the ingredients given in section 11 or Explanation VI seem to apply in this case. It may be stated in the very beginning that no copy of the objection filed under section 11 was filed in the case; nor does it appear from the record that in the former suit any proceedings under O. 1, R. 8 of the CPC were taken; nor does it appear that Kunwarpal, Netrapal, Champaram and Pyarelal who filed the objection under section 11 of the Encumbered Estates Act, claiming the property belonging to the deity did so in a representative capacity. Further, the scope of a suit under section 92 of the CPC is quite different from that of an objection under section 11 of the Encumbered Estates Act. The two do not cover parallel fields. Moreover, a decision of a suit under Section 92 of the CPC amounts to a judgment in rem which is not so in the case of an order passed on an objection under section 11, encumbered Estates Act.

16. It is to be seen whether on the facts stated above it can at all be said that the order on the Encumbered Estates Act proceedings operates as res judicata.

17. In the Full Bench case of Sunni Central Board of Waqf, U.P v. Sirajul Haq Khan, 1953 All LJ 587 : (AIR 1954 All 88), it was laid down that a suit under section 92 of the CPC can be maintained only in respect of a public trust of a permanent character and the judgment in such a suit would be a judgment in rem and not a judgment in personam. In the case of Mohan Kishan v. Ram Prasad, AIR 1949 All 761, a Division Bench of this Court held that the rejection of an objection under section 11 of the U.P Encumbered Estates Act, filed by certain persons in their individual capacity, that certain properly alleged by the applicant-landlords to be belonging to them, is a public temple and as such not belonging to the applicants, does not bar on the ground of res judicata a subsequent similar objection by the trustees of the property, who were not parties to the previous objection. In the present case four persons filed an objection in the Encumbered Estates Act proceedings claiming the property to be trust property but they were neither trustees nor does it appear that the objection was filed in a representative capacity. In view of the above decision of the Division Bench the order passed on the objection under section 11 of the U.P Encumbered Estates Act, cannot operate as res judicata.

18. In the Privy Council case of Radha Binode Mandal v. Gopal Jiu Thakur, AIR 1927 PC 128, it was held that the prior suit instituted by G and RL was not res judicata in the subsequent suit filed on behalf of the temple because the suit was not between the same parties.

19. The Supreme Court, in the case of Pragdasji v. Lshwarlalbhai, AIR 1952 SC 143, discussed the scope off section 92 of the CPC and held that its scope only went so far as to grant a relief enumerated in that section, that a suit under section 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character and that if the existence of a trust is denied, a declaration to that effect may be given as ancillary to main relief claimed under the section. Having regard to the different scope of a suit under section 92 and an objection under section 11 of the Encumbered Estates Act, and also the fact that the parties are not the same and they did not litigate under the same title, the present suit was not barred by section 11 of the CPC.

20. The learned counsel for the appellants relied upon Explanation VI to section 11 and contended that the suit under section 92 must be deemed to be barred. He has for this purpose relied upon the case of Venkata Sesnayya v. Kotiswara Rao, AIR 1937 PC 1 at p. 4, and the case of Narayanan Nair Govindan Nair v. Narayanan Nair Narayanan Nair, AIR 1956 Trav-Co 266. None of these authorities renders any help to the appellants, to these cases former suit had been instituted in a representative capacity. The first suit in the Privy Council case also related to a public right. This is not so in the instant case. As stated earlier, there is nothing to show that the objection filed under section 11 of the Encumbered Estates Act was filed in a representative capacity Moreover, no public right was claimed and what was claimed in the objection under section 11 was that the property belonged to the temple. There was no question of public trust in respect of the temple itself. These authorities therefore have no application to the present case.

21. Thus, having regard to the ingredients of Explanation VI to section 11 and the phraseology of section 11 it-self and also having regard to the nature and scope of the objection filed under section 11, Encumbered Estates Act, and the present suit under section 92, it cannot be said that the parties in the two suits were the same or that they were litigating in the two suits under the same title or that the application under section 11 of the Encumbered Estates Act was filed in a representative capacity or that application involved the decision of any question relating to public right.

22. The decision of the objection under section 11 therefore does not operate as a bar either under section 11 or Explanation VI to that section.

23. This appeal therefore has no force and is hereby, dismissed with costs.

LF/K.S.B

24. Appeal dismissed.