Iqbal Ahmad, J.
1. The suit giving rise to the present appeal was brought by the plaintiffs-respondents, in a representative capacity, on behalf of the Hindu community, under Order 1, Rule 8 of the Civil P.C. The dispute between the parties centres round a courtyard and a well which are situate to the east of a temple in which the plaintiffs as members of the Hindu community, are entitled to worship, and to the north of the house of defendant-appellant. Both parties claimed exclusive ownership of the sahan and the well in dispute.
2. The trial Court held that the sahan and the well are the common properties of the temple, Brij Basi Lal plaintiff, and the defendant-appellant The lower appellate Court has held that the sahan and the well exclusively belong to the temple, and, on that finding, has passed a decree in the plaintiff's favour, ordering the defendants to close a drain made by them, and not to use a latrine which is to the north of the outer gate of the temple, and for the removal of certain constructions made by the defendants over the well. There were other reliefs prayed for by the plaintiffs-respondents, but I am not concerned, in the present appeal, with those reliefs, as the same have not been granted to the plaintiffs by the decree of the lower appellate Court and the plaintiffs have submitted to that decree.
3. It is argued by the learned Counsel for the defendant that the property appertaining to the temple is vested in the idol installed in the temple, and as on the plaintiffs' own showing there is a managing committee of the temple, that committee, and that committee alone, has the right to maintain a suit with respect to the property vested in the deity, and that the present suit by the plaintiffs was not maintainable. It is maintained that the only right of the plaintiffs or of the Hindu public is to worship in the temple, and as it was not the plaintiffs' case that right had in any way been interfered with, the plaintiffs had no, cause of action to bring the present suit. It is pointed out that if there was a breach of trust committed by the members of the managing committee, who for the time being are the trustees of the temple, the proper remedy of the plaintiffs, or for the matter of that of members of the Hindu community, was to have brought a suit for the removal of those trustees under Section 92 of the Code of Civil Procedure, and to have the trust property vested in new trustees appointed by the Court, and that to allow the institution of suits like the present by persons other than the trustees would in effect be to allow persons who have no interest in a particular property to maintain actions concerning the same, which cannot be done. In Support of the argument noticed above reliance has been placed by the learned Counsel on the case of Pramatha Nath Mullick v. Pradyumna Kumar Mullick .
4. I am unable to agree with the contention of the learned Counsel. The suit was occasioned by certain alleged unauthorized encroachments made on the property alleged to be trust property appertaining to the temple by none else but the secretary of the managing committee himself, who is the defendant-appellant, and the president of that committee was also arrayed as a defendant to the suit. The plaintiffs as members of the Hindu community are undoubtedly entitled to worship in the temple and I am not prepared to hold that the acts of Defendant No. 3 to which exception was taken by the plaintiffs in the present suit, were not calculated to inconvenience them and the other members of the Hindu community in the free exercise of their right of worship. The plaintiffs by obtaining the leave of the Court to sue under Order 1, Rule 8, Civil Procedure Code, represent the whole body of the worshippers of the temple. It is true that the legal ownership of the properties appertaining to the temple is in the managing committee, and ordinarily it is that committee that can sue with respect to encroachments on trust properties, and if that committee does not discharge its duties properly, the ordinary right of worshippers is to apply for its removal and for the appointment of a new committee, But in cases in which the trustees themselves are charged with an abuse of trust and with malfeasance, and the wrong sought to be remedied has been committed by the trustees themselves, the beneficiaries under the trust have undoubtedly a right to bring an action for the preservation of the trust property.
5. Suits by beneficiaries to set aside alienations of trust properties have been allowed by Courts of law, vide the cases of Dasondhy v. Muhammad Abu Nasar  33 All. 660 and Ram Chandar v. Ali Muhammad  35 All. 197. If such suits are maintainable, I find it difficult to follow why a suit by the beneficiaries against the trustees concerning encroachments made by the trustees over the trust property should not be maintainable. It may be that the primary right of the beneficiaries under such circumstances is to seek removal of the trustees by a suit under Section 92 of the Civil Procedure Code, but there is no reason why they should not be allowed to waive that larger right, and while not seeking the removal of the trustees, claim for the preservation and due administration of the trust properties by those very trustees. The view that I take is in consonance with the view taken in the case of Chidambaranatha Thambiran v. Nallasiva Mudaliar  41 Mad. 124. For these reasons I hold that the present suit was maintainable.
6. But I am unable to accept the finding of the lower appellate Court that the sahan and the well in dispute belong to the temple. It appears that in 1875 a trustee of the temple brought a suit against the predecessor-in-interest of the defendant-appellant for the closing of a door, a drain and the demolition of a chhappar made on the sahan in dispute, and that suit was decreed by the trial Court as well as by the appellate Court. The plaintiffs contended that the decision in that suit operated as res judicata in the present. This contention of the plaintiffs was overruled by the trial Court, but has been given effect to by the lower appellate Court. Indeed, the finding of the lower appellate Court that the courtyard and the well in dispute belong to the temple is based solely on the ground that the decision in the suit of 1875 operates as res judicata. I have been through the judgment of the trial Court in the suit of 1875 and I find, that though the question of the ownership of the sahan and the well was a questions (sic)at required determination, no issue was framed and no decision was arrived at on that point, and I agree with the learned Munsif that the suit of 1875 was decided by the trial Court on the assumption that the acts complained of were of the nature of a nuisance.
7. But the question as to whether the temple or the predecessor-in-interest of the defendant-appellant was the owner of this sahan and the well was not decided. The judgment of the appellate Court of the suit of 1875 is not on the record. It may be that the Courts below had before them the record of the suit of 1875 and a copy of the judgment of the appellate Court was not put upon the record of the present suit. There being no specific issue as to the ownership of the sahan and the well, and there being no decision on that point in the suit of 1875, I must hold that issue was 'not heard and finally decided' in 1875, and as such that judgment does not operate as res judicata. This being so, before I can dispose of this appeal, I must have a finding from the Court below on the question, as to whether the temple or the defendant-appellant is the owner of the sahan and the well in dispute, or the same are jointly owned by the temple and the defendant-appellant.
8. The decision of the lower appellate Court directing the removal of the drain is challenged by the defendant-appellant on the ground that the claim with respect to the same is barred by Section 47 of the Civil Procedure Code. It is argued that the very drain that is now in dispute was in dispute in the suit of 1875, and a decree was passed in that suit directing the removal of the same, and that decree not having been executed, the claim of the plaintiffs as regards the drain is barred by Section 47 of the Civil Procedure Code. This contention must, in view of the finding of the lower appellate Court that there is 'no clear proof on the record that it is the same drain' that was in dispute in 1875, be overruled.
9. If the courtyard and the well are joint properties of the temple and the defendant-appellant, even then the plaintiff-respondents will be entitled to a decree directing the removal of the constructions over the well, if the same are calculated to make the well which belongs jointly to the temple and the defendant-appellant 'more exclusively of defendant-appellant' vide the Case of Shibba Mal v. Naurang Mal  15 A.L.J. 293. On the other hand, if the constructions over the well are on property belonging to the defendant-appellant and do not make the well 'exclusively his' the plaintiffs' claim to the removal of those constructions will have to be dismissed.
10. The lower appellate Court must submit its findings on the following issues within two months from to-day's date.
(1) To whom do the courtyard and the well in dispute belong?
(2) If the courtyard and the well are joint property, does the construction over the well make the well more exclusively of the defendant?
11. No further evidence will be allowed. In deciding the issue as to the ownership of the courtyard and the well the Court will not take into consideration the judgments in the suit of 1875.
12. On receipt of the findings the usual ten days will be allowed for filing objections.