A suit for the removal of a trustee and the appointment of new trustees of a private trust is governed by Article 17 (vi) of Schedule II of the Court Fees Act, 1870, and not by Article 18 (b) of Schedule II of the Court Fees Act, 1870.

( 1 ) THIS appeal, filed by the plaintiff, is directed against a judgment of the additional District Judge, Jabalpur Camp Katni dated 15th October, 1973, dismissing the plaintiff's suit for the proper management of a private trust. The suit out of which this appeal arises, was brought by the appellant Gajadhar, as plaintiff, against the respondent-defendants No. 1, Mst Rajrani widow of bhaironprasad. founder of the trust and No 2, Arjunsingh, one of the two trustees appointed by him, seeking the following among other reliefs-- (i) for the appointment of new trustees and for delivery of possession of trust property to them, on removal of the defendant No. 2 Arjunsingh, as a trustee, and (ii) for a mandatory injunction directing the respondent-defendants to restore back the deities Sri Radhakishan and Sri Laxminarayan from village Khera to village badhaiya-Khera, i. e. the place of their original abode.

( 2 ) THE plaintiff's suit was brought on the allegation that his brother bhaironprasad, the creator of the trust, had by trust-deed dated 14-4-1934, Ex. P-1, constituted a private trust, by dedicating 35 acres of bhumiswami land and a house in village Badhaiya-Khera, to his two family deities Sri Radhakishan. and Sri Laxmi-narayan, he making himself the shebiat thereof, and appointing the defendant No. 2 Arjunsingh and one Patel Tilak-singh to be the two trustees. Of the two trustees, Patel Tilaksingh died in 1964 but it was alleged that the defendant No. 2 Arjunsingh, the surviving trustee, had not appointed another trustee, contrary to the wishes of the creator of the trust This failure on his part to appoint another trustee has, it is said, resulted in mismanagement of the trust property. It is further alleged that the trust property was worth Rs. 70,000/- yielding an income of Rs. 2,000/- annually but the defendants had not maintained any accounts thereof, nor they got the same audited.

( 3 ) THE plaintiff alleges that under the terms of the trust-deed, Ex. P-1, the defendants were bound to maintain accounts of the income of the trust property, and had to build a temple at village Badhaiya-Khera out of such income and to consecrate the deities therein, but contrary to the terms of the trust deed had failed to maintain any accounts or get them audited nor they have built any temple as enjoined in the trust deed. On the contrary the defendants had, it is alleged, removed the two deities from village Badhaiya-Khera to village Khera and installed them in a public temple there, contrary to the wishes of the late Bhaironprasad. This action of theirs, it was said, constitutes a breach of the trust and, therefore, the plaintiff seeks his own appointment, being the brother of the founder, as one of the two trustees, for the removal of the defendant No. 2 Arjunsingh, as a trustee, and for a mandatory injunction directing the defendants to restore back the deities Sri radhakishan and Sri Laxminarayan to their original abode in village Badhaiya-Khera.

( 4 ) IN paragraph 5 of the plaint, the plaintiff averred: as the plaintiff is one of the eldest members of the family to which the private trust in question relates, and is the real brother of the creator of the trust, interested in giving effect to the purpose of the trust, he seeks his own appointment as one of the two trustees. In the prayer clause, the reliefs sought, inter alia, were: (a) "mandatory injunction directing the defendants to restore back the deities Sri Radhakrishna and Laxminarayan from Kheri to their original abode in village Badhaiya khera. " (b) "the removal of the defendant No. 2 as a trustee of the 4-1934. " (c) "appointment of two new Trust-tees in place of the two original Trustees mentioned in the Trust-deed dated 14-41934 end delivery of possession of the Trust-property to them. "

( 5 ) THE judgment under appeal is a composite one. The learned trial Judge has non-suited the plaintiff holding that the suit, as framed, is not properly constituted, as