1. The plaintiff claiming to be the wahiwatdar of Shri Sapt-Koteshwar Deo filed civil suit No. 464 of 1949 in the Court of the Civil Judge, Junior Division, at Shahapur, against the defendants for a decree for possession of two rooms in a house belonging to the deity, and for an injunction restraining the defendants from obstructing the plaintiff in his wahiwat, and for recovery of costs of the suit.

It was the plaintiffs case that the property in suit is a part of their property C. S. No. 1229, that the property originally belonged to one Vyankaji Mahadev Kittur who by his will dated 19-5-1898 dedicated the property together with other properties to Shri Saptkoteshwar Deo of Goa. Under the will one Nagesh Pandurang and others were appointed executors and trustees for management.

In 1913 there were disputes between Nagesh Pandurang and other executors and Nagesh Pandurang filed suit No. 13 of 1913 in the Court of the District Judge, Belgaum, for removal of the defendants Rayappa Dasharath and Krishnaji Hari from the office of trustees of Shri Sapt-Koteshwar Deo.

On 2-10-1914 the parties arrived at a compromise and Nagesh Pandurang was declared to be the sole vahiwatdar and trustee of the Shri Sapt-Koteshwar Deo. On 27-3-1915 Nagesh Pandurang made and published a will whereby he devised the right of management of properties of Shri Sapt-Koteshwar Deo to one Vasudeo. After the death of Nagesh Vasudeo entered upon the management of the properties purpoting to make vahiwat accordingly.

On 16-2-1928 Vasudeo in his turn made a will whereby he devised the right of management in favour of the plaintiff, and constituted the plaintiff as the sole trustee of Shri Sapt-Koteshwar Deo.

The plaintiff then filed suit No. 464 of 1949 out of which this second appeal arises against the defendants for a declaration that S. No. 1229 of which S. No. 1229/29 is a part belongs to Shri Sapt-Koteshwar Deo and for an injunction restraining the defendants from obstructing the plaintiff in making vahiwat of the house (the two rooms) and for future mesne profits.

2. The suit was resisted by the defendants. They denied the will dated 16-2-1928 made by Vasudeo, and they contended that in any event the, will was not valid. They also denied that the property in suit was trust property.

The defendants further contended that the trust was illegal and invalid, and that the plaintiff was not a legal trustee of the property. They further contended that the defendants had acquired a right to reside in the suit house. The defendants also challenged the plaintiffs right to file a suit in the form in which it was filed.

3. The learned trial Judge held that the suit house was a trust property and that the trust was legal and valid but the plaintiff was not a lawful trustee of the property and that the plaintiff failed to prove the wilt dated 16-2-1928. The learned trial Judge accordingly dismissed the plaintiffs suit. In appeal to the District Court at Belgaum, the decree passed by the trial Court was confirmed.

The learned District Judge held that the suit property was dedicated to Shri Sapt-Koteshwar Deo as alleged in the plaint. He further held that Nagesh Pandurang was not competent to appoint his son a trustee by will and the plaintiff could not be appointed a trustee by the will made by Vasudeo on 16-2-1923.

The learned Judge held that the will dated 16-2-1928 was duly proved, but the plaintiff acquired no right or title thereunder. He also held that the defendants were occupying the suit property by leave and license of the plaintiff. It is evident that the learned District Judge non-suited the plaintiff on the view taken by him, that the plaintiff was not a lawful trustee of the properties which, were dedicated to Shri Sapt-Koteshwar Deo. Against the decree passed by the District Court the plaintiff has come to this Court in second appeal.

4. It may be mentioned that the plaintiff originally filed the suit seeking to obtain possession of the properties in disputes