P L D 1966 Dacca 505 (PLP)

Being of that view, the learned Judge sent the case back to the District Judge for being disposed of, in accordance with law after entering the finding as to the nature of the religious endow ment. After remand, a Pleader Commissioner was appointed to hold a local inspection and submit a report on three points, namely, (1) Are there ruins of 100 years old Bidya Ballav's temple, Harimandir, and his tomb still in existence on the Tilla known as Billa Kanan of the disputed Akhera? (2) Are there old tombs of the deceased Baishnabas in existence on the lands of the disputed Akhera ? (3) Do there live any Baishnabas now in the disputed Akhera? If so, how many. The idea was, if the answers to all these three points were in the affirmative it would point to a public endowment but the Pleader Commissioner was not entrusted to come to a specific finding himself whether the endowment was a public one or to take evidence regarding the public nature of the endow ment. Be that as it may, the Pleader Commissioner reported that the ruins which exist on the Tilla, known as Billa Kanan within the disputed Akhera, were more than 100 years old. He also reported that there were about nine (9) Samadhis which are also old in existence on the land of the disputed Akhera. There was evidence of worship in some of, those tomb. He further found that there were fourteen Baishnabas and Baishna bis living in the Akhera at the time of his inspection. The Pleader Commissioner was also examined as a witness and he gave evidence that these Baishnabas had told him that they were there for a very long time. The petitioner also examined as a witness one Chitta Ranjan Dewan who had given evidence to the follow ing effect: "I am a member of Union Council, Sadanpur. The Akhera is a public one and even now Muslims also pay subscription during Dol Pujahs. The Pujahs; etc. were always performed by collection of contributions and subscriptions from members of the public." The learned District Judge, however, could not accept the evi dence on behalf of the petitioners as amounting to a proof of the public nature of the endowment. In spite of the evidence already quoted, he held: "We find that there is also no evidence at the trial showing the public character of the properties." Section 18 of the Religious Endowments Act reads as follows: "

18. No suit shall be entertained under this Act without a preliminary application being first made to the Court for leave to institute such suit. The Court, on the perusal of the application, shall determine whether there are sufficient prima facie grounds for the institu tion of a suit, and if in the judgment of the Court there are such grounds, leave shall be given for its institution." Now, the question arises as to what is to be the extent of the inquiry under section 18 of the Religious Endowments Act. Obviously the Legislature laid down that a preliminary inquiry be held for establishing prima facie the case of the petitioner. The provision is of the nature of sanction for prosecution. The Court has to be satisfied only as to the matters apparent prima facie. There is no finality in a decision under section

18. Therefore, it cannot be gainsaid that the nature of inquiry under section 18 being of such a nature, it will not be final not only as to the complaint against the opposite‑party but also as to the nature of the endowment itself. Without going into the question whether section 14 of the Religious Endowments Act which provides for institutions of suits against persons in charge of religious or other charitable institutions only applied to endowments of a public nature or not although I find a difference in the wordings of this section with that of the wordings under section 92 of the Code of Civil Procedure and accepting that the Act as a whole, applies to public endowments only, I cannot but hold that for the purposes of an inquiry under section 18, the petitioner is required to establish only prima facie that the endowment is of a public nature. As I have quoted above, the order sending the case back on remand also required a prima facie finding in regard to the nature and character of the endowment in dispute. The result of the investi gation by the Pleader Commissioner, if read as a whole, clearly establishes the public nature of the endowment. The learned District Judge has said much about the absence of the words `public endowment' in the application of the petitioner, but that precisely amounts to begging the question; that the petitioners have made the application as members of the public in order to preserve an endowment which is for the benefit of the public would by itself lead to an inference that prima facie the endowment was of a public nature. Apart from the inference made from such an application itself and also from the report on the three points found by the Pleader Commissioner, there is clear evidence of P. W. 2, Chitta Ranjan Dewan, which I have quoted above. These, in my opinion, clearly establish, prima facie, that the endowment is a public one. The opposite‑party will be at liberty to contest the point in the suit which he seems to be avoiding. In view of my above finding, I hold that the learned District Judge failed to exercise his jurisdiction vested in him by law in dis missing the application for leave to institute a suit under section 14 of the Religious Endowments Act, when he has himself held that on materials on record the petitioners' application should have been allowed. I, therefore, set aside the order of the learned District Judge and direct that leave be granted to the petitioners under section 18 of the Religious Endowments Act to file a suit under section 14 of the said Act against the opposite‑parties. The Rule is, therefore, made absolute without any order as to costs. S. Q. Rule made absolute.