K. A. Balasubramania Iyer v. Lakshminarayana Iyer — 1999 DIGILAW 262 (MAD)

Judgment 1. First defendant who lost his case in both the courts below is the appellant. 2. The case of the plaintiffs is as follows: Shri Vardharaja Perumal Temple at Nanjai Kolanalli village was constructed by general public to be maintained by them and daily poojas and festivals are done under their management. Three distinct families were nominated to perform daily poojas and festivals. Thirumalayyan, Sennayyan and Guruvayyan belonged to one such archaka family. Kumarayyan belonged to another archaka family. Vengayyan, Guruvayyan and Krishnayyan represented the third family. Kumarayyan was having half share and the other two branches had each 1/4 share. The Maharaja of Mysore endowed and granted dry agricultural lands situated in punjai Kolanallai village in the name of Shri Varadharaja Perumal temple. In proportion to their share to the office of archakaship, Thirumalayyan was holding and enjoying 16 acres of inam lands which are the suit properties. Kumarayyan was enjoying 32 acres of land. Kumarayyans rights devolved upon his son Subbayyan. After the death of Subbayyan, Subbammal, his wife was performing pooja in the temple through her brothers. On 10.11.1930, Subbammal executed settlement deed over the inam lands in favour of her brothers Rengasamy Iyer and Subramania Iyer and the sons of another brother plaintiffs 1 and 2. The settlement deed was duly executed and acted upon. Plaintiffs 3 to 5 are the sons of Subramania Iyer. Plaintiffs 1 to 5 are performing poojas for 16 days in a month and enjoying the suit properties. In the other branch Guruvayyan and Krishna Iyer died issueless and Vengayyan adopted one Sennayyan. Sennayyan succeeded to the office of archakaship and held the properties of Vengayyans branch. Kuppayer and Venga Iyer are the sons of Sennayyan. After the death of Kuppayyar Vengayyar was holding the office. Vengayyar died issueless. But Vengayyan executed a registered Will dated 1.3.1946 bequeathing his 16 acres of land and 8 days of pooja right in favour of the second defendant. The second defendant died during pendency of this suit and his heirs have been added as defendants 3 to 8. The 6th defendant died and defendants 9 and 10 are his legal representatives. The first defendant is the descendant of Thirumalayyans branch. The first defendant was permanently employed in a different village and he was not in possession and enjoyment of the suit lands. The 6th defendant died and defendants 9 and 10 are his legal representatives. The first defendant is the descendant of Thirumalayyans branch. The first defendant was permanently employed in a different village and he was not in possession and enjoyment of the suit lands. The three families are quite different and distinct and belonged to different gothras. One branch cannot have any claim over the right conferred on the other branch. The plaintiffs are performing poojas and enjoying the properties of Kumarayyans branch in their own right all these years. The first defendant is disputing the rights of the plaintiffs and hence, the plaintiffs have come forward with the suit for declaration that the plaintiffs are entitled to the office of archakaship in the temple to perform daily pooja for 16 days in every Tamil month, holding the suit properties and for a permanent injunction restraining the defendants and their men from interfering with the plaintiffs right to hold the properties. 3. The first defendant filed written statement contending as follows: The temple and the lands are being attended by the eldest son of the family of a particular branch. The plaintiffs are not the legal heirs of Thirumallayan to claim any right in the suit properties or in the temple. After the death of Subbammal, the lands had been in the possession of this defendant and he leased out the same to the third parties. Kuppayyan and his brother Vengayyan did not have issues. Vengayyan executed a will in favour of the second defendant and in the prior proceedings O.S.No.101 of 1956 the Will was held invalid and no rights will flow under the will to the second defendant. This defendant alone has been recognised as the stanika and poojari and has been conducting pooja in this temple. This defendant has been recognised as the sole trustee cum poojari by Hindu Religious and Charitable Endowments Board. This defendant took steps for issue of certificate under Sec.101 of the Hindu Religious and Charitable Endowments Act and the same is pending. The order passed by the Deputy Commissioner recognising this defendant as hereditary trustee debars the plaintiffs from canvassing the same in this suit. 4. The second defendant filed written statement contending as follows:This defendant is entitled to a 1/4 share in the inam properties and entitled to pooja right for 8 days in month. The order passed by the Deputy Commissioner recognising this defendant as hereditary trustee debars the plaintiffs from canvassing the same in this suit. 4. The second defendant filed written statement contending as follows:This defendant is entitled to a 1/4 share in the inam properties and entitled to pooja right for 8 days in month. This defendant filed a suit for declaration and partition and separate possession of his share against the first defendant and others. That suit O.S.No.10 of 1956 on the file of the District Munsif, Erode and the first appeal were decided against this defendant. When this defendant took steps to prefer a second appeal, there was a compromise between this defendant and the first defendant and the first defendant agreed that he would not interfere with the right of this defendant to perform pooja for 8 days in a month and the right to possession and enjoyment over the properties covered under the Will. So, this defendant did not prefer a second appeal. The first defendant created documents to show as if he is the sole hereditary trustee and archaka of this temple. This defendant has no objection for the suit being decreed. 5. The trial court decreed the suit declaring that the plaintiffs are entitled to perform 16 days pooja and to enjoy the suit properties and injunction was also granted restraining the defendants from interfering with the plaintiffs’ possession and enjoyment. 6. First appeal preferred by the first defendant was dismissed confirming the judgment and decree of the trial court. 7. Aggrieved against that, the first defendant has preferred the present second appeal. 8. The substantial questions of law that were framed at the time of admission of the second appeal are: (i) Whether the settlement executed by one Subbammal through which the plaintiffs claim their right is valid or void ab initio, as contended by the appellant. (ii) Whether the conduct of the plaintiffs in setting up the title in themselves would disentitle them to maintain the suit. (iii) Whether the civil court will have jurisdiction in view of the appellant having been recognised as the hereditary trustee by the Deputy Commissioner, H.R. & C.E. Department and whether the provisions of Act 22 of 1959 would be a bar for the said suit. (iv) Whether the said appointment by the Deputy Commissioner would bind the plaintiffs. (iii) Whether the civil court will have jurisdiction in view of the appellant having been recognised as the hereditary trustee by the Deputy Commissioner, H.R. & C.E. Department and whether the provisions of Act 22 of 1959 would be a bar for the said suit. (iv) Whether the said appointment by the Deputy Commissioner would bind the plaintiffs. (v) Whether the earlier proceedings in O.S.No.10 of 1956 would operate as res judicata. 9. Learned Senior counsel for the appellant submitted that the judgments and decrees passed by the courts below are not sustainable. He submitted that on the death of Kuamaryyan, who represents one of the branches, his rights devolved upon his son Subbayyan and on his death, his wife Subbammal started performing pooja in the temple. But, she executed a settlement deed on 17.11.1930 under Ex.A-4 in favour of her brothers Rengaswamy,Subramania Iyer and the sons of another brother the plaintiffs 1 and 2 giving her rights in respect of the suit properties and Subbammal had no right to execute such a settlement deed giving absolute right over the properties because at the time when she executed the settlement deed in 1930 she had only limited estate and on her death in the year 1935, her right got extinguished and so, by virtue of the settlement deed, the plaintiffs had no right to be in possession of the suit property and so, the right under Ex.A-4 became extinguished on the death of Subbammal and on her death, the plaintiffs cannot lay their claim over the suit property on the strength of Ex.A-4. He further submitted that the plaintiffs cannot maintain this suit by setting up title in themselves and the civil court has also no jurisdiction to try the suit since the first defendant has been recognised as hereditary trustee by the Deputy Commissioner and the earlier proceedings O.S.No.101 of 1956 also operates as res judicata. 10. He further submitted that the plaintiffs cannot maintain this suit by setting up title in themselves and the civil court has also no jurisdiction to try the suit since the first defendant has been recognised as hereditary trustee by the Deputy Commissioner and the earlier proceedings O.S.No.101 of 1956 also operates as res judicata. 10. With regard to the first point regarding the settlement deed, counsel for appellant submitted that the rights being one to perform daily poojas and to hold the suit property, general law of succession has to be preferred and for the right to perform pooja which was performed by Subbammals husband, on her husbands death the plaintiffs cannot be the legal heir as per the general law of succession because she cannot claim to be the successor of her husband with regard to the right and she had no right to execute any settlement in favour of her brothers under Ex.A-4 and Ex.A-4 is not valid because she died prior to 1956 and she had no right to execute it. He further submitted that the trusteeship cannot be transferred and it would have been valid only during her life time and it would not be valid after her lifetime and the plaintiffs are also not the heirs of Subbammal and Ex.A-4 is also void after her life time and the plaintiffs cannot claim any right over the suit property and any right to perform pooja. 11. Both the courts below have found that the plaintiffs are entitled to the suit property and they are entitled to perform poojas. About 64 acres of land were granted by Maharaja of Mysore to the suit temple and they were minor inams. These minor inam lands were abolished under Act 30 of 1963 and an enquiry was conducted by the Settlement, Tahsildar in this respect copy of which is Ex.A-10. Ex.A-10 shows that patta for 62 acres were issued in favour of Shri Vardharaja Perumal temple represented by its trustee. Thirumallayyan, the then trustee of the temple had given a statement under the original of Ex.A-1 at the time of inam enquiry in which it is stated that pangalaigal are doing pooja in the temple and enjoying the properties. Ex.A-2 also proves that the lands belong to Varadaraja Perumal temple and the then trustees were Subbaiyan, the eldest son of Sennayyan, family manager Kuppayyan and S.Subbammal. Ex.A-2 also proves that the lands belong to Varadaraja Perumal temple and the then trustees were Subbaiyan, the eldest son of Sennayyan, family manager Kuppayyan and S.Subbammal. Ex.A-3 is the certified copy of the re-settlement register in which it is mentioned that T.Subbayyar and two others were the then trustees. So, these documents reveal that three branches were doing pooja in the temple. The name of Subbammal is also mentioned in Ex.A-2. So, it is well evident that Subbammal was in possession and enjoyment of her husbands share representing one branch. The said Subbammal executed Ex.A-4, the settlement deed dated 17.11.1930, settling the pooja rights in the temple as well as the properties in favour of her two brothers and the sons of another brother. By virtue of this settlement deed Ex.A-4, the plaintiffs are claiming right over the suit property. It was contended by the learned counsel for the appellant that at the time when Subbammal executed the settlement deed on 17.11.1930, she was holding only a limited estate and as she died in 1935, as per the law prevailing then, her limited right got extinguished on her death. Subbammal had the right with regard to performance of pooja and she was holding the right obtained from her husband Subbayyar and she executed a settlement deed only in respect of that right. Subbammals personal right to the property was not transferred under the settlement deed. As per the then existing law, if any property is given in lieu of maintenance of a women, only in respect of those properties, life estate is created and the right with regard to those properties cannot extend beyond her lifetime and only in such circumstances, her right would get extinguished on her death and she would not have got any right to execute any settlement deed. In the instant case, the property was not given to her for her maintenance. Subbammal was under the obligation to perform pooja in the temple and she was holding that right and only in lieu of performing pooja in that temple, the suit property was given to her and that property is not her personal property got from her husband. So, her right over the suit property cannot be stated to have been extinguished on her death. So, her right over the suit property cannot be stated to have been extinguished on her death. So, the arguments of the counsel for the appellant that Subbammals right got extinguished on her death and she cannot execute any settlement in respect of the suit property does not hold good. 12. There is no dispute with regard to the fact that there were three branches and the second defendants and the first defendants branches had 1/4 share each, and right to perform poojas 8 days a month and the remaining half share and the right to do pooja for 16 days was with the Subbammals husbands branch. Only that branchs right is claimed by the plaintiffs by virtue of Ex.A-4. The important factors to be mentioned is that Subbammal was dealing with that property by executing usufructuary mortgage over some inam properties. Even in the year 1922, her name is also found in the records relating to the inam lands in Ex.A-2. Plaintiffs 1 and 2 and their paternal uncle filed O.S.No.618 of 1950 on the file of the District Munsif, Erode for redeeming the usufructuary mortgage executed by Subbammal on 30.5.1922. But, that suit was withdrawn by the plaintiffs after obtaining permission from the court to file a fresh suit as evidenced by Ex.B-3. The first defendant filed C.S.No.149 of 1951 on the file of the District Munsif, Erode questioning the settlement deed Ex.A-4 and for recovery of possession of the properties after redeeming the mortgage as evidenced by Ex.A-4. The suit was also withdrawn with the liberty to file fresh suit as evidenced by the copy of the suit extract register Ex.A-35. But, the first defendant did not file any suit thereafter questioning the settlement deed executed by Subbammal. These documents reveal that Subbammal was dealing with the property and the first defendant also filed a suit questioning the validity of the settlement deed and then he withdrew that suit with liberty to file fresh suit, but he did not file any fresh suit. So, the first defendant allowed the settlees under Ex.A-4 to be in possession and enjoyment of the suit properties. 13. Both the courts below have found that for more than 40 years, the plaintiffs have been in possession and enjoyment of the suit property by exercising their right to do pooja for their share of 16 days. So, the first defendant allowed the settlees under Ex.A-4 to be in possession and enjoyment of the suit properties. 13. Both the courts below have found that for more than 40 years, the plaintiffs have been in possession and enjoyment of the suit property by exercising their right to do pooja for their share of 16 days. The plaintiffs were allowed to be in possession and enjoyment of the properties for such a long period of about 40 years. The Plaintiffs have produced documents to show that they have been doing poojas in this temple for many years. Exs.A-7, A-26, A-39 and B-73 are the note books maintained by the temple, which evidence the handing over of articles by one poojari to the succeeding poojari as per the turn, and they prove that the plaintiffs have been doing poojas in the temple as per the turn. In these documents, the first plaintiff, first defendant and second defendant have signed in many places. So, it is evident from those documents that the first defendant never objected the possession and enjoyment of the properties by the plaintiffs and also for doing poojas. 14. The first appellate court found that the first defendant has not questioned the right of the plaintiffs to do pooja in this temple for 16 days out of 32 days and in fact the advocate appearing for the first defendant argued that the plaintiffs as per Ex.A-4 settlement deed, can perform pooja in this temple, but they have no right to be the trustees of this temple and since the plaintiffs have been doing pooja in the temple for more than 40 years, the first defendant cannot question the right of the plaintiffs for doing poojas for 16 days out of 32 days. So, the finding of the courts below is that the plaintiffs are doing poojas for more than 40 years and they are entitled to the right to do poojas and also to hold the properties and the first defendant cannot question the right of the plaintiffs. 15. Counsel for the respondents submitted that the plaintiffs have been holding continuous possession of the properties for over 40 years and also obtained adverse possession. Counsel for the appellant submitted that the plaintiffs have not made any plea in this regard in their plaint and under such circumstances, they cannot base their claim on adverse possession. 16. 15. Counsel for the respondents submitted that the plaintiffs have been holding continuous possession of the properties for over 40 years and also obtained adverse possession. Counsel for the appellant submitted that the plaintiffs have not made any plea in this regard in their plaint and under such circumstances, they cannot base their claim on adverse possession. 16. It is settled law that without raising a plea, the matter can not be agitated. The documents filed establish that the plaintiffs have been in possession and enjoyment of the suit properties for more than 40 years. For the festivals conducted in the temple, accounts were maintained for the collection and expenses and the documents in this regard are Exs.A-11 to A-15 and A-41 to A-46. Ex.A-40 book maintained by the temple has been signed by the first plaintiff and defendants 1 and 2. In Ex.A-40 the properties available in the temple including the idols are mentioned. The first plaintiff and the defendants 1 and 2 have signed in that document. So, the documents filed amply establish that the plaintiffs are in possession of the suit lands and according to the turn of the three branches, poojas have been conducted and according to their share, they have enjoyed the suit properties. The first defendant who filed a suit questioning the right of the plaintiffs has withdrawn that suit and even though he obtained permission to file a fresh suit, he did not file any such and thus allowed the plaintiffs to be in possession and enjoyment of the lands and also to do poojas as per their turn and that was not questioned by the first defendant and now after so many years, the first defendant disputes the right of the plaintiffs. Having allowed the plaintiffs to do pooja and to be in possession and enjoyment of the properties for more than 40 years, the first defendant has virtually admitted the right of the plaintiffs and so, the appellant is now not entitled to contend that the plaintiffs have no manner of right over the suit properties. Having allowed the plaintiffs to do pooja and to be in possession and enjoyment of the properties for more than 40 years, the first defendant has virtually admitted the right of the plaintiffs and so, the appellant is now not entitled to contend that the plaintiffs have no manner of right over the suit properties. The fact that the plaintiffs along with defendants 1 and 2 have signed in the account books of the temple whenever they took charge proves that there was no objection on the side of the defendants for the due performance of poojas by the plaintiffs and the defendants have accepted the right of the plaintiffs and to hold the office of archakaship and to hold the properties granted thereon. Under such circumstances, it can be safely concluded that the plaintiffs have established their right over the archakaship i.e., to do poojas in the temple and for the right over the suit properties. So, having established the right with regard to their claim, non-raising of the plea in the plaint with regard to the adverse possession will not operate as a ground to disentitle the plaintiffs to claim the suit properties on the mere ground of technicality. In the decision reported in Bhavangar Municipality v. Union of India , A.I.R. 1990 S.C. 717 the Supreme Court has observed that in that case not only there is evidence to show that physical possession was with the defendants, but also there could not be any legal possession with the plaintiff as the title to the land is not vested in them since the suit itself/is based on title and the plaintiff has not proved title, it is not necessary for the defendant to plead or prove adverse possession. In the instant case, there is ample documentary evidence to establish that the plaintiffs are in possession and enjoyment of the suit property and are performing poojas for the past 40 years. Following the decision of the Supreme Curt cited supra, I find that even though no plea with regard to adverse possession is raised by the plaintiffs, in view of the overwhelming evidence to prove the plaintiffs’ possession, the non-pleading of adverse possession in the plaint will not vitiate the plaintiffs’ case. D.W.1 has also admitted in his evidence that he has never objected the plaintiffs’ performing pooja. D.W.1 has also admitted in his evidence that he has never objected the plaintiffs’ performing pooja. His categorical evidence is that himself and the second defendant are doing poojas for 8 days each and the first plaintiff is doing poojas for 16 days out of 32 days. He has also admitted his signature and the signatures of the second defendant and P.W.1 in Ex.A-40. He admitted the performance of poojas by the brothers of Subbammal as per the turn. He also admits that the plaintiffs are entitled to half of the total extent of the lands. He further admits that there is no document to show that the property was in his possession after the death of Subbammal. In view of the admission of the first defendant in his evidence and also basing on the documentary evidence available to prove the performance of poojas by the plaintiffs for several years, it can be safely concluded that the plaintiffs are in possession and enjoyment of the suit property and also they are doing pooja as per their turn without any interruption and thus they have got right and title to the suit property. There is concurrent finding of both the courts below that the plaintiffs are doing poojas exercising their right over to suit properties for more than 40 years. The plaintiffs’ right over the archakaship to perform pooja and to hold the suit properties has been amply established in this case. So, the argument of the counsel for the appellant that there is no plea of adverse possession in the plaint and the plaintiffs cannot claim their right on adverse possession does not hold good. 17. Counsel for the appellant further submitted that trustees cannot transfer their duties, functions and powers unless it is permitted by the trust deed and so, Subbammal had no right to transfer her functions to others. 18. The plaintiffs have claimed the right to the office of archakaship and to perform daily poojas and for holding the properties granted to them. It has been held in number of decisions that in small temples, archakas are the trustees of the temple and both archaka and trustee can be one and the same person. 18. The plaintiffs have claimed the right to the office of archakaship and to perform daily poojas and for holding the properties granted to them. It has been held in number of decisions that in small temples, archakas are the trustees of the temple and both archaka and trustee can be one and the same person. D.W.1 himself has admitted that himself, the second defendant and the first plaintiff are doing pooja in the temple and they have been doing poojas as per the turn for a long time and the first defendant and the second defendant are doing poojas for 8 days each and the plaintiffs have been doing poojas for 16 days and he has also admitted that Subbammal was doing the poojas through her brothers during her turn. The first appellate court also found that D.W.1 claimed that after the death of Subbammal, he was in possession of the properties, but, there are no documents to prove the same. The plaintiffs who are doing poojas in the temple and being in possession of the properties for all these years are entitled to the archakaship to do poojas in the temple and also to hold the lands. The first defendant is also doing poojas and acting as hereditary trustee. So, it cannot be stated that the plaintiffs have no right to be the trustees of the temple. It is clear from the documents that the predecessors in title of the plaintiffs were recognised as trustees of the temple and Subbammal also acted as trustee. The plaintiffs are in possession and enjoyment of the suit properties and in the temple and they are performing poojas for the last some decades. So, the plaintiffs are also hereditary trustees of this temple being archakas of the temple which is in a small village. Since the trusteeship is governed by the ordinary rules of inheritance under the Hindu Law, the plaintiffs are holding rights to perform pooja and to hold the lands belonging to the branch of Kumarayyan for over 40 years and thus, the plaintiffs have established their right to do poojas for their turn of 16 days and also to hold the property of their share. The courts below have correctly found that the plaintiffs are in possession of the suit property and doing poojas for over 40 years. 19. The courts below have correctly found that the plaintiffs are in possession of the suit property and doing poojas for over 40 years. 19. Counsel for the defendants further submitted that the Deputy Commissioner has passed the order under Ex.A-54 holding that the first defendant alone is the hereditary trustee of the suit temple and now the plaintiffs cannot claim to be the trustees. 20. With regard to the rival claims regarding the trusteeship, only the civil court has got jurisdiction to decide that dispute. Ex.A-54 order came into existence when an Executive Officer was appointed by the Board for the suit temple in 1967 on a petition filed by the first defendant claiming to be the hereditary trustee under Sec.63B of the Act. The first defendant, later, filed M.P.No.1 of 1978 under Sec.101 of the Act against the present plaintiffs claiming for certificate to enable him to take possession of the properties from the plaintiffs and that petition was dismissed on 8.10.1982 as evidenced by Ex.A-30. Sec.63-B of the Act empowers the Joint Commissioner or Deputy Commissioner to decide the dispute whether a trustee holds or held the office as hereditary trustee. When there are rival claims to the trusteeship, only civil court has got jurisdiction to intervene and decide with regard to the claim of trusteeship. In Krishnaswami Raja v. Krishna Raja, (1968)1 MLJ. 119 this Court has held that “The jurisdiction of the Deputy Commissioner under Sec.57(b) is confined to a decision whether a trustee holds or held office as a hereditary trustee. In other words, the Deputy Commissioner can only decide as to the status of the office of the trusteeship, namely, whether it is hereditary. He is not competent to go into the further question as to which of the competing claimants is a hereditary trustee or whether both are joint hereditary trustees. That is a matter not covered by Sec.57 of the Act and has to be decided only by a separate suit.” The Deputy Commissioner has only to decide the office of the trusteeship whether it is hereditary and nothing more can be decided by him. The dispute between the rival claimants to succeed to the office of the hereditary trustee is not within the scope of Sec.63B and such dispute has to be decided only by a civil court. The dispute between the rival claimants to succeed to the office of the hereditary trustee is not within the scope of Sec.63B and such dispute has to be decided only by a civil court. So, the civil court has got jurisdiction to try the suit and the order passed by the Deputy Commissioner recognising the first defendant as hereditary trustee of the suit temple is not a bar for this suit. 21. Counsel for appellant further submitted that the earlier proceedings O.S.No.101 of 1956 operates as res judicata. The second defendant filed that suit claiming his relief and it was dismissed and the first appeal preferred by him was also dismissed as per Ex.B-2. He contends that when he was to prefer the second appeal before the High Court, Madras, himself and the first defendant entered into a compromise and the first defendant allowed him to enjoy the properties and to do poojas in the temple and so, the second defendant was doing pooja during his turn even after the disposal of the appeal. The earlier suit was between defendants 1 and 2 and the plaintiffs are not concerned with those proceedings. Since the plaintiffs are not parties to those proceedings, the decision in that suit will not operate as res judicata for the present suit. Further the first defendant filed O.S.No.149 of 1951 questioning the settlement deed Ex.A-4 and for recovery of possession of the properties after redeeming the mortgage, but he has withdrawn that suit with liberty to file a fresh suit. But he did not file any suit thereafter questioning the settlement deed Ex.A-4. No decision has been rendered in that suit and it was withdrawn at the instance of the first defendant. So, the previous proceedings between the parties do not operate as res judicata for the present suit. 22. Counsel for the appellant submitted that the plaintiffs are acting against the interest of the trust and they have entered into a partition deed in respect of the properties as if the properties are their own properties and so they are not entitled to succeed in this suit. 22. Counsel for the appellant submitted that the plaintiffs are acting against the interest of the trust and they have entered into a partition deed in respect of the properties as if the properties are their own properties and so they are not entitled to succeed in this suit. In Hindu Law of Religious Charitable Trustees by Mukherjee, it is stated that, “To set up ones title against the temple would prima facie amount to a breach of trust on the part of a temple trustee and may justify removal, but the position would be different if there are doubts regarding the construction of the deed of gift and the trustee bona fide believed that the property was his own. The mere assertion by a trustee in the suit under Sec.92 itself that the trust properties are his private properties is not sufficient ground for removal; but if he is found to have committed any breach of trust prior to the suit, his conduct in course of the suit would be an important element to be taken into consideration in deciding whether the breach should be condoned and he should be allowed to retain the office.” Counsel for the appellant drew my attention to Ex.A-21 partition deed dated 17.7.1978 among the plaintiffs and pointed out that the plaintiffs have partitioned the properties belonging to the trust, as if it is their own property and they are acting against the interest of the trust and so, they are not entitled to the right of archakaship and to hold the lands. It is stated in Ex.A-21 that the plaintiffs are the owners of the suit property in common and they are in possession and enjoyment of the same and they have effected partition and plaintiffs 1 and 2 have to take A Schedule properties and plaintiffs 3 to 5 have to take B Schedule properties and they have taken separate possession of their share. It is also stated therein that the suit property is their ancestral property. Mere execution of a partition deed among the plaintiffs does not prove that they are acting detriment to the interest of the trust. It is not the case of the defendant that the plaintiffs are not performing pooja as per the directions contained in Ex.A-4. It is also stated therein that the suit property is their ancestral property. Mere execution of a partition deed among the plaintiffs does not prove that they are acting detriment to the interest of the trust. It is not the case of the defendant that the plaintiffs are not performing pooja as per the directions contained in Ex.A-4. Until and unless it is established on facts that they are acting detriment to the interest of the trust, mere execution of a document will not establish that the parties are acting determinant to the interest of the trust. No such evidence has been let in with regard to this point that the plaintiffs are acting detriment to the interest of the trust. The defendants have not raised this plea in both the trial court and the first appellate court and only for the first time in the second appeal, this point has been raised. There is the concurrent finding of fact by both the courts below that the plaintiffs are in possession and enjoyment of the land and also doing poojas and that finding is unquestionable as per the principle laid down by the Supreme Court in the decisions reported in Ramaswami Kalayarayar v. Mathayan Padayachi , A.I.R. 1992 S.C. 115 and Patham Murtazakhan Dadamkhan v. Patham Pirkhan Amdiwjair , A.I.R. 1993 S.C.1750. In those cases. the Apex Court has laid down that in case of a plea which needs investigation into facts cannot be raised for the first time in second appeal. This pleading of the defendants that the plaintiffs are acting detriment to the interest of the trust which requires letting in of evidence cannot be raised for the first time in second appeal. So, the argument of the counsel for the appellant on this aspect has to fail. The courts below also found that the plaintiffs are regularly doing pooja during their turn and they have not lost their right over the suit property. 23. In view of my discussions above, the appellant is not entitled to succeed. The finding of both the courts below does not suffer from any infirmity. In the result, the second appeal fails and is dismissed. No costs.