JUDGMENT

1. This appeal arises out of a suit purporting to have been brought by the plaintiffs u/s 92 of the Code of Civil Procedure. The facts are that in the year 1886 Beni Ram and Tulsi Ram made a gift of certain property in Bareilly for charitable and religious purposes. The manager (sarbarakar) was directed to lay out a grove, construct a temple and a well on the land with the income of the gifted property, or with his own funds, for public benefit and worship. It seems that the sarbarakar did not carry out his trust, on the contrary the temple was not built the grove was not planted and the land (the subject-matter of the gift) was mortgaged and alienated. The result was that one Chote Lal and others obtained the sanction of the Legal Remembrancer and brought a suit u/s 539 of the CPC of 1832, asking that the Manager, Bate Krishen, should be dismissed and praying for the appointment of a trustee in his place. A number of persons were made defendants to this suit as persons who had taken mortgages or become transferees of parts of the trust property. Amongst other defendants was Raja Lilta Prasad. This suit ended in a compromise decree which will be found at page 24 of the respondents' book. Bate Krishen was removed from the trusteeship, Khunni Lal was appointed trustee in his place, certain of the alienations and transfers that had been made were declared to be invalid, and the Raja was allowed to retain portions of the property in his possession on which he had built; the compromise went on to provide that Khunni Lal should obtain possession and commence constructing a dharamsala on the land decreed. It appears that Khunni Lal's father had made a Will leaving a sum of RS, 40,000 to be disposed of for charitable purposes. It was intended that the dharamsala should be built and endowed out of part of this money. This settlement was undoubtedly a bona fide settlement, the public were represented by the plaintiffs in the suit. The new trustee was well provided with funds from his father's Will and the building of the dharamsala, (assuming that the sanction of the Municipal Board to its erection could be obtained,) would be of public benefit. The Court accepted the compromise and made a decree. It would rather appear that the new trustee's difficulties and troubles then began in real earnest. Opposition of various kinds was given to his efforts to obtain the permission to construct the dharamsala. At length, however, all there difficulties were overcome and the foundations of the dharamsala laid. Then the present suit was instituted and the complaint is that he did not build a temple, and that he is building the dharamsala on part of the land.

2. We have no doubt that it is his intention to build the temple. Photographs are in Court which show the temple in the course of construction, and the building of the dharamsala is one of the acts complained of. We are perfectly satisfied that the defendant Khunni Lal has not committed any breach of his duties as trustee, as laid down in the order of the Court in 1909 passed on the compromise. The present suit is in reality based upon the contention that inasmuch as in the original gift by Beni Ram and Tulsi Ram it was provided that the land should be used for the purpose of a temple, a grove and well, the building of the dharamsala is a departure. It may be conceded here that if the question bona fide arose as to whether or not there should be a departure from the original terms of the gift of Beni Ram and Tulsi Ram, the Court on being asked to settle a scheme would not depart from the original intentions of the donors. But the case does not come before us in that way. Section 92 provides that any two or more persons having an interest in the trust and having obtained in writing the consent of the Legal Remembrancer, may institute a suit for any of the purposes mentioned in the Section. These purposes are the removing of a trustee, appointing a new trustee, vesting any property in a tr