1. In the suit out of which this appeal has arisen the plaintiff's sought to remove, defendant No. 1 from the office of shebait of the family deity Ananta Deb Thakur on the ground, first of all, that he had in a previous suit contended that the trust deed was not a valid document and the property was not debutter and further that he was unfit to be a shebait as he ate forbidden food and committed nuisance in the temple.
2. The first Court found that the denial by defendant No. 1 of the debutter nature of the property and the validity of the deed Of dedication in the former suit did not of itself form a ground for removing defendant No. 1 from the office of shebait. The first Court further held that it had not been established that defendant No. 1 had been guilty of misconduct by reason of his having eaten forbidden food or committing nuisance in the temple. On these findings the first Court dismissed the suit.
3. On appeal by the plaintiffs the second Court upheld the finding of the first Court so far as regards the decision of that Court that defendant No. 1 had not eaten forbidden food or had not been guilty of committing nuisance on the temple. He further agreed with the Court of first instance that the denial by the defendant No. 1 of the debutter nature of the property and of the validity of the deed of dedication in the former suit would not form a ground for removing defendant No. 1 from the office of shebait. But he found that the defendant had in the course of the present suit again both in the written statement and by his Counsel's statement in the suit denied the debutter nature of the property and the validity of the deed of gift. He held that this denial formed sufficient ground for removing the defendant from the office of shebait and he decreed the suit and granted a perpetual injunction restraining him from exercising the office of such shebait or interfering with the debutter property.
4. In appeal Mr. Roy who appears for defendant No. 1 has argued that as the cause of action in the present suit has been negatived by both the lower Courts the lower Appellate Court should have dismissed the suit and not have decreed the plaintiffs suit on a cause of action which arose after the filing of the suit being based on defendant No. 1's statement in Court and on his statement in the written statement in the present suit.
5. This contention, I think, must succeed. It has not been alleged that subsequent to the decision in the first suit there was any allegation or assertion by the defendant of any hostile title until he asserted a hostile title in the course of the present suit. In other words the learned Judge has decreed the suit on a cause of action which arose subsequent to the filing of the suit which he is clearly not entitled to do. The plaintiffs' suit must, therefore fail.
6. The appeal accordingly succeeds and the plaintiffs' suit is dismissed with costs in all the Courts.
7. The cross-objection preferred on behalf of the plaintiff's respondents in view of this finding has not been pressed and is dismissed without costs.
8. I agree.