1. By this appeal under section 72(4) of the Bombay Public Trusts Act, the appellants challenge the decision of the 2nd Extra Assistant Judge, Nagpur in Miscellaneous Civil Application No. 73 of 1974 dismissing his application under section 72(1) of the Bombay Public Trusts Act, against the decision of the Joint Charity Commissioner.

2. The property in dispute is a temple known as ‘Shri Siddheshwar Ganesh Temple’ situated in house No. 58, Gadikhana, Mahal, Nagpur. The main temple of Shri Siddheshwar Ganesh is surrounded by 4 temples of Shri Laxminarayan, Shri Shivling, Shri Ram and Shri Hanuman in four corners. The central temple is enclosed by walls and has a Sabha Mandap. The temples were constructed in the 18th century by the members of the family of Bhosala rulers. Some years ago some rooms were constructed on the original plinth of Sabha Mandap on the ground floor and ground floor and first floor were let out to tenants. Manilal was in occupation of the temples and the property surrounding it on house No. 58. He died during the pendency of this appeal and the appeal is now being continued by his legal representatives. On 28th August, 1968, 16 persons convened a meeting for getting the property registered as public trust and the respondents Nos. 1 and 2 in pursuance of the resolution passed in that meeting filed an application on 19th February, 1969 before the Deputy Charity Commissioner for registering the property as public trust. That application was opposed by Manilal claiming to be the owner of the property. His contention was that one Sadaramji was his great-grand-father. He had two sons Ramji and Durgaji. Ramji had two sons Laxmiramji who died in 1940 and Umashankar. Laxmiramji had 4 sons one of them being Gopalrao who died in 1963. Manilal and Harishankar are the sons of Gopalrao, and Manilal claimed to be entitled to the entire property as Harishankar was given in adoption. The stand taken by Manilal in written statement Ex. 7 was that Sadaramji came to Nagpur in 1805 or 1806 and started working as Pujari with Gujar family which was closely related to the ruling family of Bhosalas. Gujar's wife was sister of Raghuji IInd. She regarded Sadaram's arrival as a good omen as she got a child in 1806 after his arrival and it enhanced his influence and status leading to his appointment as the Pujari of Bhosalas. After the death of Raghuji the IIIrd, Dharmaji a member of the ruling family made an absolute gift of the temple to Sadaram and since then Sadaram held this as personal property and it continued in possession of his descendants. Laxmiramji constructed the houses surrounding the temple in the year 1927 and they came to be known as ‘Trivedi Wada’ Laxmiramji's name came to be recorded in the Municipal records. Manilal's contention was that some of the tenants in collusion with Shri Jaisinghrao Bhosale made an application to the Deputy Charity Commissioner for getting the property registered as a public trust, though the property was the private property of Sadaramji and his descendants. The Deputy Charity Commissioner by his order dated 14th February, 1971 negatived Manilal's contention and held the temple to be public trust and ordered it to be registered as such. Appeal No. 35 of 1971 preferred under section 70 of the Bombay Public Trusts Act by Manilal, was dismissed by the Joint Charity Commissioner and so was the application preferred to the District Court under section 72(1) of the Bombay Public Trusts Act.

3. When the matter came up before the learned Assistant Judge, he found that the trust was a public trust and that the temple and the house property were the properties of that trust, that Manilal had not acquired title to the temple and house by adverse possession and he dismissed the application.

4. Shri M.B Badiye the learned counsel for the appellant confined his submissions to the finding that the properties were public trust and were not the personal properties of Manilal. No oral evidence was adduced in the Courts below and the matter was argued on the basis of the affidavits filed in Civil Appeal No. 169 of 1969 which was pending between the parties, together with letters, complaints and notices including the letters written by Raje Jaisinghrao Bhosale to the Collector. Shri Badiye urged that the material on record had not been properly considered by the Courts below and the finding recorded by the learned Assistant Judge could not be supported on the basis of the material which was before him. Shri V.C Daga the learned counsel for the respondent No. 2 contended that it is not open to this Court to reappreciate the evidence which had been considered by the authorities below because the powers of this Court while hearing an appeal under section 72(4) of the Bombay Public Trusts Act, would be the same as those exercised in a second appeal and he relied for this purpose on the observations in Govindrao v. Apparao, (1987) 3 Bom CR 493 where the learned Single Judge of this Court took the view that the proceedings before the District Court under section 72(1) are in the nature of an appeal and the District Court exercises appellate jurisdiction while disposing of a matter under section 72(1) and consequently the appeal filed against the order of the District Court though styled as a first appeal arises out of an order passed by the District Court in appeal and the same shall have to be treated as second appeal, and if this was so, the appellant will have to satisfy the requirements of section 100 of the Civil Procedure Code before inviting the High Court to interfere with the order of the District Court, and unless it is shown that the case involves a substantial question of law, it would not be open to the High Court to entertain the said appeal. The learned Judge for this view relied on Ramchandra v. Charity Commissioner of State of Gujarat, (1987) 3 SCC 273 : AIR 1987 SC 1598 where the Supreme Court observed as follows:—

“The power of the District Court in exercising jurisdiction under section 72 is a plenary power. It is true that the Commissioner is not subordinate to the District Court but the District Court has powers to correct, modify, review or set aside the order passed by the Commissioner. All the characteristics of an appeal and all the powers of an appellate Court are available to the District Court while deciding an application under section 72. To decide this case we must be guided not only by the nomenclature used by the section for the proceedings but by the essence and content of the proceedings. That being so, we have no hesitation to hold that the proceedings before the District Court under section 72(1) are in the nature of an appeal and that District Court exercises appellate jurisdiction while disposing of a matter under section 72(1).”

5. Shri Badiye urged that the learned Single Judge lost sight of the width of the powers contained in section 72(4) of the Bombay Public Trusts Act which does not use any words of restriction and provides that an appeal shall lie to the High Court against the decision of the Court under sub-section (2) as if such decision was a decree from which an appeal ordinarily lies. There is considerable force in this submission and the amplitude of the powers which this Court would have under sub-section (4) of section 72 will have to be determined upon the interpretation of the words used in sub-section (4) because the provisions of section 100 of the Civil Procedure Code would not apply to the appeals filed under sub-section (4) of section 72 of the Bombay Public Trusts Act, and the appeal cannot be confined only to a substantial question of law to be formulated for decision. Under section 73 of the Bombay Public Trusts Act, in holding inquiries under this Act, the officer holding the same shall have the powers as are vested in courts in respect of certain matters under the Code of Civil Procedure, 1908, in trying the suit, but otherwise the provisions of the Code of Civil Procedure cannot be availed of for determining the scope of the appeal filed under sub-section (4) of section 72. The view I am taking is supported by the observations in Miya Mohamed Abdul Karim v. Collector of Sural, 18 G.L.R 488 where A.M Ahmadi, J. (as he then was) observed that the limitations provided in section 100 of the Civil Procedure Code on the jurisdiction of the Court cannot be read in sub-section (4) of section 72 of the Bombay Public Trusts Act.

6. Apart from this, the learned counsel agreed that the matter should be disposed of on the basis of the evidence and they would have no objection to the evidence being considered for the purpose of deciding this appeal and I think that this would be the better course to follow in order to obviate the need for making a reference to a larger Bench which would entail a further delay in the decision of this apppeal which has been pending here already for 12 years.

7. Since there is no oral evidence and the Courts below have decided the matter on the basis of the affidavits and documents, it would be necessary to look into those documents. The photographs at Exts. 99 and 114 show the nature of the construction. The temple has a large dome (Kalash) and the main temple of Shri Siddheshwar Ganesh which is in the centre, is surrounded on 4 corners by 4 temples of other deities. The size of the temple and the expanse of Sabha Mandap negative the possibility of the temple being a private temple. As observed in Narayan v. Gopal, AIR 1960 SC 100, once a long course of user by the public for the purpose of worship is established, and the fact of a separate endowment in trust for the deity is also proved, it is fair to infer that the institution must have been dedicated for user by the public (unless the contrary is established) — particularly when the character of the temple, its construction, the arrangement of various parts of the temple and the nature of the deities installed there are similar to what obtains in admittedly public temples. Similarly, when user by the public generally to the extent to which there is a worshipping public in the locality is established, it is not unreasonable to presume that the user by the public was as of right, unless there are circumstances clearly suggesting that the user must have been permissive or that the authorities in charge of the temple have exercised such arbitrary power of exclusion that it can only be ascribed to the private character of the institution.

8. In the present case the most significant circumstance is that the temple had not been originally constructed by any of the ancestors of Manilal, but was the property of Dharmaji Bhosale who resided in a part of the palace. According to Manilal, the temple was gifted along with the adjoining constructions to Sadaramji. That would clearly show that when the temple was constructed the main shrine was not of the family deity of Manilal's ancestors. There was no document to evidence the endowment. The Joint Charity Commissioner as well as the learned Assistant Judge have rightly pointed out that if the gift of the property were to have been made to the ancestor of Manilal, there would have been some document to evidence the grant. They both referred to the material at pages 192-193 in Vidarbhatil Aitihasik Lekhsangraha, Vol. I, by Yeshwant Khushal Deshpande and Devidas Govind Landge, that Raghuji IIIrd used to decide cases and used to sign and seal his judgment, and found that it was unlikely that he would give the temple by way of gift to Sadaramji without executing any royal order, Inam, Sanad or other document. In Sanshodhananjali by Devidas Govind Landge published by Vidarbha Sanshodhan Mandal in 1960, it has been mentioned at page 21 that Shrimant L.S Deshmukh's Wada belongs to Chandanbai and adjoining on its east was the property belonging to Dharmaji Bhosale and there were certain temples behind Karmavir book-depot. Dharmaji was the descendant of IInd Raghuji and was in-charge of the treasury and it was a mystery how whole of Dharmaji's property came into possession of a Gujarathi. If the temple were to have been built by the Bhosalas, considering the sizes of the shrine and the adjoining temples, it was unlikely that the temple may have been constructed as a private temple. From these factors, the inference is irresistible that the shrine and the adjoining temples were intended to be thrown open to the public. The transfer or gift of a temple is repugnant to Hindu notions. It was observed as far back in Pramath Nath v. Pradhyumna Kumar, AIR 1925 PC 139 that there may be, in the nature of things, difficulties in adjusting the legal status of the idol to the circumstances and requirements of its protection and location and there may no doubt also be a variety of other contacts of such a persona with mundane ideas, but an argument which would reduce a family idol to the position of a mere movable chattel is one to which the Board can give no support. There is no ground for the proposition that Hindu family idols are property in the crude sense maintained, or that their destruction, degradation or injury are within the power of their custodian for the time being. Such ideas appear to be in violation of the sanctity attached to the idol, whose legal entity and rights as such the law of India has long recognised. In Kali Kinkor Ganguly v. Panna Banerjee, (1974) 2 SCC 563 : AIR 1974 SC 1932 it was observed that the appellant cannot invoke the doctrine of transfer of shebaiti right for the benefit of the deity because the transfer was illegal for the principal reason that neither the temple nor the deities nor the shebaiti right can be transferred by sale for pecuniary consideration. The transfer by sale is void in itsinception. These observations would show that there could not have been any gift of the temple and the surrounding property which were only the adjuncts of the main temple and to that extent the version of the appellants would be unacceptable.

9. In support of the circumstances in which gift by Dharmaji came to be made in favour of Sadaramji, the details which have been given in para 7 of the affidavit, could not have been within the personal knowledge of the deponent and even the verification clause to the affidavit dated 16th November, 1979 would show that he had made the statement on the basis of the information which he had received and believed to be true. The source of information had not been given and no weight can be attached to the averments made in para 7 of the affidavit regarding the manner in which Manilal's ancestors came to be in possession of the property.

10. Though it was mentioned in that affidavit that the public generally had no right of worship or access and had never participated in the celebrations, there was no positive averment that the public had been prevented from participating in any of the activities. Not a single instance had been cited where the access to the temple by others and their participation in the celebrations had been prevented.

11. On the other hand the respondents had filed the affidavits of six persons, Mahadeo Khante aged 70 years (Ex. 82), Marotrao Rindhey aged 50 years (Ex. 82-A), Shankarrao Purandhare aged 61 years (Ex. 83), Bhayalal Bharadwaj aged 72 years (Ex. 84), Tulsiramji Lodhi aged 70 years (Ex. 85) and Tarachand Kapoor aged 60 years (Ex. 86) who all stated that they had personally participated in the celebrations in the temple, that there was free access to the public generally and that they were never prevented in worshipping or participating in the celebrations and that they had learnt that the temple was being managed by Manilal and his ancestors and that the shrine was thrown open to the public by Bhosalas. Shankarrao in his affidavit Ex. 83 stated that he used to be invited for reading scriptures and that the temple was always open to the public. These deponents spoke about the user for about 60 years and their version has been accepted by the Courts below. No affidavit was filed by Manilal and it is difficult to see what could have prevented him in filing the affidavits of neighbours or other persons in support of his version that it was a private temple to which the public had no access. The only other material which was produced by Manilal was the copy of the application for sanction from the Municipal Committee, Nagpur (Ex. 109) dated 12th December, 1927 filed by his grand-father Laxmiram for making some minor repairs and another application dated 22nd May 1916 (Ex. 110) for permission to make certain minor alterations. These acts of securing permission of the Municipal Committee, would not be incompatible with his character as the manager of the temple and would not necessarily show that they were acts of ownership alone. The entry of the names of Manilal and his ancestors in the Jamabandi from the year 1910 would also not be conclusive of the temple being the private property of Manilal and his ancestors. Receipts Exts. 48 to 50 for payment of Municipal taxes to the Municipal Committee and later to the Nagpur Municipal Corporation, or the entries in the Assessment List Ex. 62 would also not be probative of the stand taken by the appellant. Evidently the house was mutated in the name of the Pujaris and they paid the taxes. The learned Assistant Judge has observed that the temple was thrown open to the public long long ago, the Bhosalas did not bother about it and as the temple was treated as public property which was not included as the private property of Bhosalas when the latter went under the administration of the Court of Wards, the Bhosalas may not have been aware as to in whose name the house was mutated for the purpose of payment of taxes and the entries in the record would not constitute conclusive evidence of title of the person in whose name it was recorded. The Assessment Lists are prepared by the Municipal Corporation for fiscal purposes and they cannot create any title. These circumstances, therefore, would not be incompatible with Manilal and his ancestors being the Wahiwatdars of the property, and holding it in trust for the deity.

12. The circumstances which emerge, therefore, are that the five imposing temples in which idols have been permanently installed on pedestals within the temple precincts, with a majestic inscribed Sabha Mandap, has a historical origin and setting and manifest the intention of the Bhosalas to throw open the temples for public use almost from its inception. The Bhosalas excluded this property from their private property which went under the Court of Wards. The temple had been thrown open for the benefit of the public and there was evidence to that effect at least for the last 60 years, sufficient to raise the inference of immemorial usage and grant. There is no evidence about Manilal and his ancestors preventing or excluding the public generally from the temple. The taxes were assessed only on the residential protion of the property and not on the temple. There was also no evidence that the offerings received were retained by Bhosalas except for being utilised for the upkeep of the temple, or Manual's earlier ancestors appropriating the income for their personal benefit to the exclusion of the deity.

13. Shri Badiye relied on Hari Bhanu Maharaj Of Baroda v. Charity Commissioner, Ahmedabad, (1986) 4 SCC 162 : AIR 1986 SC 2139, but there the Math had been constructed from the family funds and formed a small area of the family property and was also located within its residential area and the public visited the Math only on specific occasions. Such is not the case here and that case is clearly distinguishable on facts. It was, however, observed that one of the crucial tests for determining whether a temple is intended for private worship or public worship is to find out whether the temple has been constructed within the precincts of residential quarters or in the separate building. Another relevant feature which must enter the field of perception when judging whether a Math or Mandir is a public or private one is the size of the construction and its proportion to the entire extent of the property. Applying the tests the factors above enumerated are more indicative of the public character of the temple. Considering the material on record, no exception can be taken to the finding recorded by the Courts below that the temple was a public temple and not the private property of the appellants.

14. The authorities below referred to the correspondence that passed between Raje Jaisinghrao Bhosale beginning with the letter dated 4th November, 1968 (Ex. 43) in which he had stated that the whole temple belonging to Bhosalas was dedicated for public worship followed by the complaint dated 20th November, 1968 to the Collector (Ex. 69) to the effect that Manilal had kept tenants in the temple to establish his title and had started rent control proceedings against them. It is not necessary to refer to all this correspondence because the correspondence followed the meeting dated 28th August, 1968 in which 19 persons had assembled and had raised a dispute about the public character of the temple. Under section 32(4) of the Evidence Act, to be admissible as opinion as to public right or custom or matters of general interest, the opinion or statement should have been made before any controversy as to such right, custom or matter had arisen. The Courts below have overlooked this requirement and wrongly relied on the correspondence which followed the origin of the dispute on 28th August, 1968. Even if the whole correspondence is ignored, the finding recorded by the Courts below that the temple was public temple, remains unaffected.

15. There is no merit in the appeal. It is dismissed. In the circumstances, there will be no order as to costs.

Appeal dismissed.