JUDGMENT

Muhammad Rafiq and Lindsay, JJ. - This appeal arises out of a suit brought in the court of the District Judge of Pilibhit, by three plaintiffs, Nitya Nand, Lal Bahadur and Tika Ram.

2. The suit purported to be a suit u/s 92 of the Code of Civil Procedure, i.e., a suit relating to a trust created for a public purpose of a charitable or religious nature.

3. There were six defendants to the suit, the principal of whom were Ram Bilas, defendant No. 1, Bankey Behari Lal, defendant No. 2, and Bhagwan Das, defendant No. 6. Defendants Nos. 3, 4 and 5 were really pro forma defendants.

4. The parties all belong to the same family and the allegations in the plaint were to the following effect. It was stated that about 16 years before the institution of the suit one Nath Mal, who was the paternal uncle of the plaintiffs, had constructed a Thakurdwara at a village called Belsanda and had installed an idol therein.

5. It was next alleged that under a deed of waqf executed in August, 1865 the plaintiffs' father and his cousin Tula Ram had dedicated the entire 20 biswa share of mauza Badhepura Marauri for the support of the temple. It was further alleged that a trustee had been appointed under this deed, that the trust had been acted upon, and that the person who had been originally appointed trustee had died some seven years before the present suit was brought. It was then said that after the death of the original pujari his place was filled by another person and that thereafter the first defendant, namely Ram Bilas, who was a son of Tula Ram, one of the creators of the trust, had taken possession of the property and had posed as a trustee. The material allegation on this latter part of the case is to be found in paragraph 5 of the plaint.

6. It was stated that after the death of Tula Ram the name of Ram Bilas, defendant No. 1, was wrongly recorded in the revenue papers against the endowed property; in other words it was alleged that whereas the property belonged to the idol, Ram Bilas had got his name recorded in the papers as if he was the proprietor. A further allegation in the same paragraph of the plaint is that Ram Bilas was appointed lambardar and by his own improper action had held himself out as trustee of the endowed property.

7. In the 8th paragraph of the plaint it was stated that Ram Bilas as lambardar was misappropriating the income of the entire trust property and was not devoting that income to the uses declared by the trust.

8. Paragraph 14 sets out the reliefs claimed by the plaintiffs and the first relief claimed was that the first defendant, Ram Bilas, might be removed from the trust. The second relief claimed was that other trustees might be appointed to manage the trust property. The other reliefs need not be mentioned at this stage.

9. In his written statement Ram Bilas denied that he was trustee of the property in suit. In paragraph 9 of his written statement he raised the plea that the suit was not maintainable u/s 92 of the CPC because he (Ram Bilas) was in proprietary possession of the ten biswa share and was not a trustee but a zamindar and a lambardar. He claimed that the plaintiffs had no right to bring a suit for the purpose of having him removed from his office of lambardar and he disclaimed any liability to render any account in respect of the collections of the property in question.

10. It is plain, therefore, that on these pleadings an issue arose as to whether the suit was maintainable u/s 92 of the CPC and accordingly issue No. 2(sic) was directed to the trial of that question. The only finding at which the learned District Judge has arrived is as follows: He says:

Coming to the second issue I find that the trust was a valid one and is enforceable in law. Ram Bilas is the lambardar. There is no proof that he was appointed mutawalli, but it is immaterial if he was.

11. We do not agree with this dictum of the learned District Judge: on the contrary, for the purpose of deciding the second issue in the case it w