Wort, J.

1. This is an appeal from an order of the officiating Subordinate Judge of Muzaffarpur, directing the plaint in the action to be returned for presentation to the proper Court, the learned Judge having held that the action was one contemplated by Section 92, Civil Procedure Code. The short facts which it is necessary to mention for the purpose of understanding the points argued are these. A certain temple or asthal, with shops appertaining thereto, in Muzaffarpur was at one time owned by one Harihar Babu who, on December 13, 1894, made a gift of the temple and shops to Girnar Gir his chela, and who according to the plaintiff was his son. This deed of gift was Ex. 6 in the case, and it will be necessary to refer to that for the purpose of considering one of the arguments raised by the learned Advocate on behalf of the appellants. In this deed there was a provision that a monthly allowance should be made of Rs. 5 to the grantor Harihar Babu. On January 23, 1918, Girnar Gir gave a lease for five years of the entire asthal property, but in December of 1922, just prior to the end of the term, Girnar Gir executed a deed of trust and sebaitship in favour of Jamuna Prasad. The two clauses in that trust deed which are necessary to construe are Clause 6 and 7, Clause 6 was as follows:

I the trustee am and shall be competent that when I shall like to remove myself from the part of the shebait trustee, I shall select some capable and able person in my stead and relinquish claim after taking the advice and opinion.
2. of certain persons named in the clause. Clause 6 is an ordinary clause entitling a trustee to relinguish the office of trustee and to appoint a person in his stead. For the purpose of this case, however, Clause 7 is of more importance, for it was under that clause that the plaintiff or the predecessor-in-title of the plaintiff purpoted to act and in the events which happened gave rise to this action, Clause 7 provided:

If I, the declarant, and my representatives and successors do not see any improvement and good of the said asthal at the hands of the said trustee shebait then in such circumstances I and they shall appoint another trustee shebait who be thought capable, able and honest for the improvement and good of the asthal, by cancelling and revoking this deed Of trust by a written one month's notice or shall bring the same under my and their khas (direct) management, if so desired.
3. It appears that notice was given under Clause 7 on July 25, 1929, terminating the trusteeship of Jamuna Prasad. In the meantime on April 30, 1927, Girnar died leaving two sons and one disciple. The two sons are plaintiffs Nos. 1 and 2 in the action and are the appellants before us. The notice of July 25, 1929, was given by the sons and disciple of Girnar Gir. I should have stated that on November 25, 1927, there was a mutation proceeding, under which the eldest son of Girnar Gir got his name recorded. As a result of the notice of July 25, 1929, Jamuna Prasad, the trustee, retired, that is to say on August 5, 1929. There was a further notice on December 10, 1922, as it would appear that Jamuna Prasad had changed his mind with regard to the matter, as the plaint alleges in para. 12, and, as I have stated, purported to continue in the position of trustee. There were certain proceedings under Section 114, Criminal Procedure Code by reason of the fact that one of the persons named in the deed of trust, Sat Narain Chaudhury under whose advice and opinion a new trustee was to be appointed if the opinion was exercised under Clause 6, had gone into possession. It was under those circumstances that the action was brought, and it was under those circumstances that the learned Judge in the Court below has dismissed the action and ordered the plaint to be returned to the proper Court by reason of the provisions of Section 92, Civil Procedure Code. Now it is contended by the learned Advocate appearing for the appellants, first, that the property, which is subject-matter of the suit, was private property and not property subject to a public trust, and secondly, that the action was brought against a trespasser and not against a trustee and therefore it was not an action contemplated by Section 92, Civil Procedure Code. The first ground, in my judgment, is clearly untenable. The trust deed to which I have referred was a deed of gift by Harihar Babu, and any contention that the property was not trust property seems to fall to the ground on that deed wording of the alone. Harihar Babu described himself as the disciple of Mahanth Bhawani Gir, deceased, by caste Sanayasi Fakir, asthaldar of Mohalla Islampur.

4. He then vent on to recite the fact that on account of old age:

I cannot properly perform the puja in Sheo temple, etc., and manage the said asthal. Hence I wish that as there is no stability in this transitory life, I should, for the name and fame of the asthal and the puja in Shao temple, etc., make some one who is discreet and honest heir and absolute proprietor in my stead and I should myself go to Kashiji and reside there.
5. Later he says:

Therefore I have of my free will and accord in a sound state of body and mind, by declaring my disciple Girnar Gir, a Sanyasi Fakir, asthaldar of Mohalla Islampur.
6. Then later the deed states:

It is desired that the said disciple Girnar Gir should by becoming the representative in the said asthal and absolute proprietor in possession and occupation thereof in my stead, and by his efficient administration, make puja of Sheo temple.
7. The two passages relied upon by the appellants are those in which reference is made to the absolute proprietorship of the asthaldar. In one it states

make some one who is discreet and honest heir and absolute proprietor in my stead.
8. and the other to which I have referred is,

by becoming the representative in the said asthal and absolute proprietor in possession and occupation thereof in my stead.
9. There was one point raised during the course of the argument on behalf of the appellants, and that was that the deed of gift in no way dedicated the property to idols. But from the plain construction of the deed itself it would clearly appear that the property which was an asthal had already been dedicated to idols, and, in this connection the reference to the absolute proprietorship of the asthaldar, in my judgment, in no way altered the nature of the property which was subject-matter of the deed. It was property subject to a public trust and the mere mention of the words "absolute proprietor" in no way, as I have said, affected its character. Reference was also made in this connection to the patta which was granted by Mahanth Girnar Gir. It was said that although the temple itself might have been property of public trust, the shops adjoining it were not. The reference to the patta, however, disposes of that point as the several houses are there described as appertaining to the asthal. The deed of trust itself needs no comment apart from the one or two references made therein. It starts by reciting "I the declarant have got an asthal," but later it says:

Hence it has become necessary for me the declarant to appoint one honest and capable shebait by way of trustee. Therefore I have of my free will and accord, in a sound state of body and mind without the pressure and undue influence of others appointed as shebait and trustee Babu Jamuna Prosad.
10. The main contention regarding the clause under which the plaintiffs purported to act was the clause which had to do with the determination of the trusteeship. It is said therefore that in the exercise of the option under Clause 7, Jamuna Prosad or anybody else who purported to act as trustee ceased to be a trustee, and therefore the action was one which was not contemplated by Section 92, Civil Procedure Code. In my judgment that argument is unfounded. The question of whether the right to exercise the option under Clause 7 was a matter for consideration in an action properly framed, and the question whether it was an action under Section 92, Civil Procedure Code, depended upon one question and that was whether the property, the subject-matter of the suit, was property subject to public trust. From any point of view it seems to me that that question must be answered in the affirmative. The second point, and it seems to me the only point which might have had any substance, was the question of whether having regard to the action brought against the defendants it was an action contemplated by Section 92. But this of course would clearly depend upon the relief which was claimed and the position of the parties who were defendants to the action.

11. As regards defendant No. 1, Jamuna Prosad, there can be no doubt. He was admittedly the person who was appointed a trustee under the trust deed, and an action to remove him was an action clearly under Section 92, Civil Procedure Code. Rather more difficulty arises in the case of defendant No. 2(sic) who is defendant 5th party in the action. It is said that he was a mere outsider, a person who had nothing to do with the trust property and one who simply walked into possession, and against whom the plaintiffs sought to recover the property. As I have stated he was one of the persons who under Clause 6 of the trust deed was to give advice to the then trustee. It would appear that under an order dated January 27, 1930, there was an amendment of the plaint by the addition of defendant No. 5 Sat Narain Choudhry, but the cause of action stated in the plaint itself does not appear to have been amended. The relief therefore which the plaintiffs claimed remained as in the plaint which we have before us and which is contained in Clause (2) of the relief portion of the plaint. It was for a declaration of the adjudication of the plaintiff's title and for a decree declaring that the trust deed was not binding on the plaintiff and that the alleged shebaitship or trusteeship of the defendant was illegal and also for khas possession. It depended as I have stated upon the contention of the plaintiffs that the property was not trust property, and in the alternative, if it was trust property, the nature of the property was altered by the exercise by the plaintiffs of their option under Clause 7 of the trust deed. That contention as I have already held is untenable.

12. On the plaint as framed and the reliefs claimed thereunder, it is clear that what the plaintiffs sought to claim at the hands of the Court was in the alternative, at any rate, a declaration that the defendants ceased to be trustees under the trust deed. That clearly was an action for the removal of the trustee and the fact that defendant No. 5 was not a trustee appointed under the deed of trust in my judgment, makes no difference. The plaintiffs in their petition claiming to amend the plaint described defendant No. 5 as a person who was acting or claiming to be a trustee. That is the most or the highest which the plaintiffs can state their case before this Court. If he was a person who was not a trustee and purported to act as trustee, he was a trustee de son tort, and the removal of that person was as much the removal of a trustee within the meaning of Section 92, Civil Procedure Code, as was the removal of Jamuna Prosad, had he been alive; it was therefore case coming under that section.

13. In my judgment the appeal fails for the reasons which I have given and it mast be dismissed with costs.

Sankara Balaji Dhavle, J.

14. I agree. The property seems to have been, referred to from the beginning as asthal property and therefore could not have been the private property either of Haribar Baba or of Mahant Girnar Gir. The mere fact that they spoke of their absolute proprietorship and possession of it and of appointing other people to manage the property under them or in succession to them would not convert it into private property, having regard to the way in which they treated it, nor was a case of prescription formulated in the plaint. The reliefs originally sought fell substantially within Section 92, Civil Procedure Code, (for there could be no recovery of possession without removing so-called trustee) and were never amended. The learned Advocate points out that defendants Nos. 1 and 2 are now dead and that the suit was contested only by Sat Narain Chaudhuri, defendant 5th party, and urges that Sat Narian Chaudhuri was a trespasser and that therefore Section 92, Civil Procedure Code, had no application at all. But the allegations on which Sat Narain Chaudhuri was added as a defendant in the suit were that he claimed to be in possession as a trustee. Section 92 provides for the removal of a trustee, and it is well settled that that does not mean a trustee de jure only but applies to trustees de son tort, as well, nor was it the appellant's case at any time that Sat Narain Chaudhuri claimed to be in possession of the property adversely to the trust. It was also obviously incompetent to the appellants under Clause 7 of the so-called deed of trust of 1922 to alter the character of the property as a public religious or charitable trust, and if the clause gave them power to remove the trustee at a month's notice, the trustee would, if he continued in possession after the expiry of the month, still be a trustee (de son tort), as distinguished from a mere trespasser, for the purposes of Section 92. As in Diljan Ali v. Akhtari Begam 83 Ind. Cas. 1035 : A I R 1925 Pat. 514 : 4 Pat. 711 : (1925) Pat, 194 : 7 P L T 74. the suit is in essence a suit for the removal of one trustee or another and is therefore governed by Section 92.