JUDGMENT : S. Acharya, J. - Defendant nos. 1 and 2 have preferred this second appeal against the confirming decision of the learned Subordinate Judge, Aska in Title Appeal No. 19 of 66. 2. The plaintiff has filed the suit for a declaration that the properties described in schedules A, and B, of the plaint are not the properties of defendants 1 and 2 but they belong to the Hanuman Math and defendant no. 3 respectively. In this suit it is prayed that the super structures constructed on the lands in schedules A and B of the plaint be removed in order to restore the flow of water which was all along flowing through the Nala adjacent to the north of the Math. The relevant portion of the plaintiff's case, in short, is that he is the de facto Manager of the Hanuman Math established by his father on portion of land in S. no. 2259 in village Hinjli about 35 years prior to the institution of the suit. In the year 1942 the plaintiff's father executed a settlement deed by which he divided the properties belonging to and in his possession into three shares and gave one share each to the plaintiff and defendant no. 2 (his brother) and the third share was dedicated to the deities in the Math. The plaintiff and defendant no. 2 in accordance with the above settlement occupies two houses to the south of the house of the deities within the precincts of the Math. There was a water passage adjacent to the north of the Math land through which water from the Madhakhei hill in the neighbourhood was all along flowing out to the southernmost precincts of the Math. Defendant no. 2, who is living in the southernmost house within the Math precincts, is falsely and fraudulently setting up title to a portion of land to the north of his house within the precincts of the Math, and with the active help and support of the village Karanam he has got a patta for that portion of land and also a portion of the land on which the said Nala was flowing. In 1960 defendant no. 2 sold the aforesaid portion of land to Kasi Mabarana, defendant no. 1. Defendant no. 1 thereafter started constructing a house over that portion of the land sold to him by defendant no. In 1960 defendant no. 2 sold the aforesaid portion of land to Kasi Mabarana, defendant no. 1. Defendant no. 1 thereafter started constructing a house over that portion of the land sold to him by defendant no. 2, which caused obstruction to the flow of water through the aforesaid Nala. As the construction work has been effected, rain water from the adjoining hill is diverted towards the Math and is causing damage to the Math and the houses adjoining the same. It is asserted that defendant no. 2 obtained the aforesaid Patta by fraudulent means and has transferred the aforesaid portion of land in favour of defendant no. 1 in misuse of the confidence reposed on him by the Math, and he has no title to the said land. Mostly on the above basis this suit is filed mainly for the removal of the super structures constructed by defendant no. 1 on the aforesaid portion of land and to restore that portion of the land including the Nala to its original position. 3. Defendant no. 1 in his written statement alleged that the plaint schedule B, property was in the enjoyment of defendant no. 2, who represented to defendant no. 1 that he had good title to that portion of the, land. On that representation defendant no. 2 sold that property to defendant no. 1 on 10-4-1960 for a valuable consideration of Rs. 800/-. It is also averred that defendant no. 1 after purchasing the same from defendant no. 2 has raised a house on that portion of the land with an expenditure of Rs. 700/-. It is alleged that the schedule B, land belongs to the Government and it was never in the possession of the Math, and defendant no. 2 had acquired title to the same by adverse possession. So by the aforesaid purchase defendant no. 1 has acquired good title to the aforesaid portion of land and as such he cannot be evicted therefrom. It is also alleged that there was no water channel on the aforesaid portion of land and he has not constructed his aforesaid house on any water channel. 4. Defendant no. 2 in his written statement has alleged that there was no water channel on the suit lands as alleged by the plaintiff. It is also alleged that there was no water channel on the aforesaid portion of land and he has not constructed his aforesaid house on any water channel. 4. Defendant no. 2 in his written statement has alleged that there was no water channel on the suit lands as alleged by the plaintiff. According to him he has purchased the disputed portion of the land from one Binayak Panda, was in long possession of the same and duly got a Patta for this land from the concerned authorities and thereafter sold a portion of the same measuring 5 cubits in width to defendant no. 1, who has raised a house thereon and is in enjoyment and possession of the same. He admits that his parents installed the Math on Government land, but he contests the plaintiff's right to file this suit. It is stated that no misrepresentation or fraud has been committed by this defendant in obtaining the aforesaid Patta for the lend in question. 5. In the written statement filed by the State of Orissa, defendant no. 3 in this suit, it is stated that the State is not interested in contesting the suit. 6. The trial Court decided all the 7 issues framed in the suit in favour of the plaintiff and decreed the suit in full. 7. The appellate Court affirmed the decision of the trial Court in toto. It, interalia, finds that D.W. 3 has admitted that there is a Nala to the south of the present Chaura inside the Math. D.W. 4, who is defendant no. 1 in this suit, has also admitted that a small water channel is there in between his land and the Math land over which the rain water flows. On a consideration of the oral and documentary evidence on record it finds that it has been conclusively proved that there was a Nala to the north of the Math and water from the hill was flowing out through this Nala. With regard to the claim of defendant no. 2 that he purchased the disputed land from one Binayak Panda. The Court below finds that the said Binayak Panda had no land or house to sell at that place and the fact that defendant no. 2, purchased the aforesaid land from him is a myth. With regard to the claim of defendant no. 2 that he purchased the disputed land from one Binayak Panda. The Court below finds that the said Binayak Panda had no land or house to sell at that place and the fact that defendant no. 2, purchased the aforesaid land from him is a myth. It is mentioned in the impugned judgment that the Patta allegedly granted in favour of defendant no. 2, as spoken to by the defendants, has not been filed in this case even though it was called for. The appellate Court finds that if at all dependent no. 2 has got any patta, settling the disputed land with him, it was obtained fraudulently. It finds that, in fact the Math was in possession of this property and the Math only was entitled to get the same settled in its favour. On due consideration of the evidence on record both the Courts also find that defendant no. 2 had not acquired title to the disputed land by adverse possession. This question was not even contested in the appellate Court. In effect therefore it has been found that defendant no. 2 did not have any right or title to the land in question and he was legally not entitled to transfer the same to defendant No. 1, and consequently he (defendant no. 1) has not acquired any right, title or interest on the same. 8. Mr. Mohanty, the learned counsel for the appellants, mainly contends that in view of the finding in Second appeal no. 63 of 1967 of this Court, the plaintiff's suit has to be dismissed in limine. By the judgment in the said second appeal, the plaintiff in this suit has been permanently restrained from entering upon the suit land and interfering with the possession of the deities, as seen from the first and last paragraph of the certified copy of the judgment filed in this Court in course of the hearing of this appeal. Mr. Mohanty contends that the suit has to be dismissed as the plaintiff, in, accordance with the aforesaid decision of this Court, has no legal status to institute any suit in respect of the Math properties and also in view of the fact that the de focto and/or de jure trustees, who are in existence, have not been impleaded in this suit. In support of his contention Mr. In support of his contention Mr. Mohanty depends on the decision in Sankarnaryanan Iyer's case AIR 1949 Mad. 721. This decision does rot squarely apply to the facts on which the present case is to be decided. In that suit the plaintiff claimed that he, being the de facto trustee of the temple, was entitled to get back possession of certain property which had been alienated by another to defendant no. 1 allegedly without any legal right or title. At the very outset it has been stated in paragraph 2 of the decision that the scope of the reference to the full Bench was very restricted and the Full Bench was not asked to define who can be described as a de facto trustee. In the same paragraph it has been observed: "It will be seen from an examination of some of the decided cases that the right of a person other than a de jure trustee to maintain a suit for possession of trust properties cannot be decided in the abstract and depends upon the facts of each case." Moreover, the case related to a public religious endowment and all considerations governing the same do not apply to an institution of a private nature as in the present case. Apart from all these, considerations as regards maintainability of suits by the de facto trustees, as laid down in this Madras decision, are no longer relevant or applicable to the present case in view of the decision in Second appeal No. 63 of 1967. 9. It is undisputed fact that the plaintiff and defendant no. 2 are uterine brothers being sons of the founder of the Math. He undisputedly stays very close to the Math. Defendant no. 2 himself in this suit has admitted that the plaintiff was managing the affairs of the deity and the Math for a fortnight every month. In view of the decision in Second appeal No. 63 of 1967 the plaintiff no doubt cannot at present exercise any such right, but the admission of defendant no. 2 to the above effect indicates that the plaintiff, at the time he instituted the suit, was some how managing the affairs of the deities for some time. All the above indicate that the plaintiff was interested in and actively associated with the affairs of the deity and the Math at the time of the institution of the suit. 2 to the above effect indicates that the plaintiff, at the time he instituted the suit, was some how managing the affairs of the deities for some time. All the above indicate that the plaintiff was interested in and actively associated with the affairs of the deity and the Math at the time of the institution of the suit. Even though he has now been restrained from taking any active part in managing the affairs of the deity, it cannot be said that he is just a third person without having any interest in the Math and/or its well being. 10. The plaintiff's suit is mainly for a declaration that defendant no. 2 was legally not competent to transfer the above-mentioned portion of the Math land to defendant no. 1, and defendant no. 1 did not acquire any right, title or interest over the said land and had no right to obstruct the flow of water through the adjoining Nala to the north of the Math by putting up a construction on the land illegally alienated to him. It is stated in the plaint that due to the aforesaid construction on the suit land damage is being caused to the Math and to the adjoining houses. It is not disputed that the plaintiff has his house near about the suit land. Both the Courts have found that the claim of defendant no. 2 that he purchased the disputed land from one Binayak Panda is absolutely without any substance and/or truth. Moreover, the case of defendant no. 2, that a portion of the disputed land has been settled with him by the Government and a Patta has been granted to him, has not been believed by the Court below. The Courts also find that even if the Patta was ever granted to defendant no. 2, he must have got the same fraudulently and the said patta does not confer any right or title on him to the suit land. Defendant no. 2 had not acquired any title to the said portion of the land by adverse possession also. As stated above, both the Courts have found that defendant no. 2 had no right or title to the land in question and he was legally not competent to transfer the same to defendant no. Defendant no. 2 had not acquired any title to the said portion of the land by adverse possession also. As stated above, both the Courts have found that defendant no. 2 had no right or title to the land in question and he was legally not competent to transfer the same to defendant no. 1 and so he (D-1) has not acquired any right, title or interest on the plot of land illegally transferred to him. The Courts below have also arrived at the finding of fact that on the evidence on record it is conclusively proved that there was a Nala to the north of the Math through which water from the hill was flowing out, but due to the construction of the foundation of the house by defendant no. 1 on the land in question the natural course of the flow of water through the Nala is obstructed, as a result of which considerable damage is caused to the Math property lying adjacent to it. The person now in charge of the management of the affairs of the Math has not taken any steps or action to challenge the aforesaid illegal alienation of the Math property by defendant no. 2 to defendant no. 1. From all the above facts and findings it appears that the Manager, Shebayat or the trustee, whosoever is in charge of the Math, has not taken interest to look after the affairs and well being of the Math. He has also not taken any action to safeguard the property and other interests of the Math and has allowed things to drift in the manner aforesaid. 11. In the context of the averments in the plaint, the findings of the Court below and the facts and circumstances of this case I do not see any reason why the plaintiff, who admittedly is a son of the founder of the Math and at one time was managing the affairs of the Math and the deities for some time every month, should not be allowed to maintain this suit to protect the property and safeguard the interests of this Math and the interest of those for whose benefit it exists. This action, in the interest and express benefit of the Math, should not be thwarted and/or thrown out merely on the technical grounds that the plaintiff is not the de facto or the de jure trustee or the Manager of the suit property and there is an injunction against him to the above effect. 12. In Ramaraghava Reddy's case AIR 1967 S.C. 436 , cited by Mr. Roy it has been held in paragraph 10 as follows:- "The legal position is also well-established that the worshipper of a Hindu temple is entitled, in certain circumstances, to bring a suit for declaration that the alienation of the temple properties by the de jure Shebait is invalid and not binding upon the temple. If a Shebait has improperly alienated trust properly a suit can be brought by any person interested for a declaration that such alienation is not binding upon the deity......." If such a suit can be brought by even an ordinary worshipper, the plaintiff's suit for identical reliefs cannot be thrown out on the above-mentioned technical grounds. Moreover, it is the duty of the Court to protect trust property from misappropriation and diversion from the objects to which it was decided. When the trust property is being wasted and/or damaged owing to the unwillingness, negligence, apathy or indifference of the legal trustee to act, it would he unreasonable, improper and inappropriate by any standard or consideration not to allow the plaintiff to institute the suit for the protection and well-being of the Math property end its interests. In view of the decision in Second Appeal No. 63 of 1967 the plaintiff in this suit however cannot claim any right, title or interest to the suit property nor can he ask for any personal benefit in the reliefs to be granted in this suit. But on the facts and circumstances of this case and the above-mentioned considerations the prayer for declaration to the effect that defendant no. 2 had no right, title and interest to the land in question and he was not legally competent to alienate the said property in favour of defendant no. 1, and defendant no. 1, by the said alienation, has not acquired any right, title or interest to the said property and that defendant no. 2 had no right, title and interest to the land in question and he was not legally competent to alienate the said property in favour of defendant no. 1, and defendant no. 1, by the said alienation, has not acquired any right, title or interest to the said property and that defendant no. 1 was not legally competent to put up the complained construction on the land in question and the said construction, obstructing the flow of water on the above-mentioned Nala, is liable to be removed, can be granted, and the suit is maintainable to that extent. 13. A declaration to the above effect can effectively be made even though the plaintiff, in the present context of things, is not able to ask for any consequential relief to himself. Their Lordships of the Supreme Court have dealt with this aspect of the matter in paragraph 4 to 11 of their decision in Ramaraghava Reddy's case AIR 1967 S.C. 436 . The view taken by their Lordships in that case squarely applies to the present case. On the basis of the principles enunciated and the law laid down in that decision I am of the opinion that the aforesaid declarations made in this suit are good in law and so they are hereby maintained. 14. For reasons stated above, the second part of the relief granted in this suit, which entitles the plaintiff to take steps for delivery of possession of the plaint A schedule properties on behalf of the Math and also for the removal of the superstructure over the plaint B schedule land cannot be given effect to and the same is hereby set aside. Any other person legally entitled to ask for the said reliefs on behalf of the Math may take necessary steps or initiate proper action according to law for the above reliefs. 15. In the result, therefore, the second appeal succeeds in part as mentioned above. In the circumstances there will be no order as to costs of this appeal. Final Result : Allowed