Das, J.This appeal arises one of a suit instituted by the appellants for the following reliefs:

1. For a declaration that the Pujari of Dariapore Tbakurbari has no right to interfere with the management of the endowed properties and that he is concerned with the Pujapat only of the idols.

2. For a declaration that on account of misconduct, defendant No. 1, Brijnandan Jha is not a fit person to hold the office of Pujari of the Diriapore Thakurbari and that he was dismissed from the said office by the plaintiffs.

3. By an order of permanent injunction defendant No. 1 be restrained for ever from exercising his rights of a Pujari in the Tbakurbari of Dariapore and from interfering with plaintiffs possession and management of Mouza Bjrmi Bishunpur.

4. For a declaration that in respect of Thakurjis share in Mouza Bermi Bishunpore the plaintiffs Nos. 1 and 2 and their lineal heirs alone have got the whole and sole right of actual management and that the heirs of Babu Jadubansi Lal and the heirs of Babu Gurbux Lal have got no concern with it, under the family arrangement. The Courts below have concurrently come to the conclusion that the endowment being a public endowment the suit was not maintainable as the formalities of Section 92 have not been complied with.

2. I am unable to agree with the decision of the Courts below. As the case will have to be tried on the merits, I do not propose to discuss the matter at great length as such discussion may operate to the prejudice of the parties to this litigation. It is well established that where a suit raises a question as between two rival claimants, the suit is not a suit u/s 92 of the Code. The plaintiffs case is that the management of the endowed properties remained with the founder of the endowment and that defendant No. 1 is merely a Pujari and that as such he is not a trustee of the endowment. The defendants case, on the other hand, is that he is a trustee of the endowment and that he is not entitled to be removed from his office by the plaintiffs. The question whether the endowment is a public endowment or a private endowment is a question of some difficulty and in my opinion cannot be determined on a mere perusal of the document. To determine such a question the indicia of a public foundation as enunciated in Thackersye v. Hurbhum (1884) 8 Bom. 432, Chintaman v. Dhondo (1891) 15 Bom. 612, Shri Dhunidiraj v. Ganesh (1894) 18 Bom. 721, Raghubar v. Kesho (1889) 11 All. 18, Pesapati v. Kunduri (1915) 2 L.W. 858, Muthai v. Perianan (1916) 4 M. 228, Subramaniya v. Venkatta (1916) 4 L.W. 444, and Subramaniya v. Lakshmana (1919) 27 M.L.T. 11, must be carefully considered, and the existence or otherwise of obvious tests such as user by the public, worship by the public and offerings by the public must be investigated. But such a question in my opinion, does not arise where the dispute relates to a question of title as between two contending parties each claiming to be the trustee of the endowment. The endowment may be a public endowment and yet the plaintiffs may be the trustees of the endowment. It is wall settled that when worship of an idol has been founded, the shebaitship is vested in the founder and his heirs, unless be has disposed of it otherwise, or there has been some usage or course of dealing which points to a different conclusion. No distinction has been made in the cases between a public endowment and a private endowment in this respect. The endowment may indeed be a public endowment and yet the plaintiffs as representing the family of the founder are entitled to maintain that they are the trustees of the endowment; unless it is proved to the satisfaction of the Court that the founder has disposed of the right to manage the endowed properties otherwise or there has been some usage or course of dealing which points to a different mode of devolution.

3. As the case has not been tried, I would allow the appeal, set aside the judgments and decrees passed by the Courts below and remand the case to the Court below with direction that that Court should remand it to the Court of first instance to try all the issues in the case and to decide the case according to law. The appellants are entitled to the costs incurred by them in this Court and in the Court below. The costs incurred in the Court of first instance will abide the result and will be disposed of by the Court of first instance.

Macpherson, J.

4. I agree.