1 D. B. CIVIL SPECIAL APPEAL (W) NO.650/2008. TAN DAS. V. DEVESTHAN COMMISSIONER & OTHERS. DATE : 04-08-2008 HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. C. M. TOTLA, J. Mr. J.L.Purohit, for Appellant. Heard learned counsel for the appellant. For the property in dispute, an application was submitted for registering it as a public trust property of Thakur Ji Shri Hanuman Ji,Gopalpura, Sunjangarh which was allowed by the Assistant Commissioner, Devasthan vide order dated 7th November, 1985, after holding that the property in question is property of public trust, after rejecting the contention of the petitioner that the property in question a temple originally was the personal property of Poker Das. The said order of the Assistant Commissioner, Devasthan dated 7th November, 1985 was challenged by Mahant Tara Das and one Hanwant Singh by preferring separate appeals before the Commissioner, Devasthan, Udaipur which was dismissed by the learned Commissioner, Devasthan, Udaipur vide order dated 25th June, 1996 after upholding the finding about the nature of the property in question to be public trust property. The petitioner preferred writ petition before this Court to challenge the orders passed by the Assistant Commissioner, Devasthan dated 7.11.1985 and the order passed by the Commissioner, Devasthan dated 25.6.1996. The writ petition of 2 the petitioner was dismissed by the learned Single Judge vide impugned order dated 3rd January, 2008. Learned counsel for the appellant submitted that the Hon'ble Apex Court laid guidelines for determining the nature of the trust when dispute is about the nature of the trust whether it is private trust or the public trust. Learned counsel for the appellant relied upon the case of Radhakanta Dev v. The Commissioner of Hindu Religious Endowments, Orissa, reported in AIR 1981 SC 798 and Haribhanu Maharaj of Baroda v. Charity Commissioner, Ahmedabad, reported in AIR 1986 SC 2139. The guidelines as given in Radhakanta's case are very much relevant for the purpose of deciding the nature of trust which are :- “The following tests may provide sufficient guidelines to determine on the facts of each case whether an endowment is of a private or of a public nature : (1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right; (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; (3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated 3 for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature; (4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.” It is clear from the above guidelines that firstly, it is a pure question of fact whether the property is a private trust or public trust. Secondly, the foundational title deed of the document is relevant consideration for the purpose of finding out the nature and character of the property as given originally. When there is a claim that the property originally given was given for personal purpose, was dedicated for public purpose, then burden lies upon the person who is claiming that the property became public trust subsequently. A perusal of the document which has been relied upon by none else than the petitioner is Annex.1 which is of Samvat Year, 1934. The document shows that Pokar Das was given only management of the temple situated on the hillock and that was constructed by the then Ruler. From the document it is not established that property of temple was given to individual as his personal property. Apart from the above document, it appears that the Authorities constituted under the Rajasthan Public Trust after giving opportunities to the parties decided the question of fact against the petitioner and held the property in question to be a public trust and this finding of fact, we do not find suffers from any illegality. 4 In view of the above reasons, we do not find any merit in this appeal. The Special appeal is, therefore, dismissed. (C. M. TOTLA), J. (PRAKASH TATIA), J. scd