N.G. Chandavarkar, J.
1. This is a suit brought by the Collector of Poona under Section 539 of the old Code of Civil Procedure (Act XIV of 1882), alleging a breach of trust on the part of the trustee of the property in dispute, which is claimed to be a public trust for religious purposes. Defendant No. 2 is the trustee against whom the breach is alleged ; defendant No. 1 represents the person to whom the property is alleged to have been alienated by the trustee. At the trial in the Court of the Assistant Judge at Poona a preliminary question was raised whether defendant No. 1 was a proper and necessary party to such a suit brought under Section 539. That Court answered the question in the negative on the authority of the decisions of this Court in Lukshmandas Parashram v. Ganpatrav Krishna ILR (1884) 8 Bom. 365 Vishvanath Govind ILR (1890) 15 Bom 148 Deshmane v. Rambhat Kazi Hassan v. Sagun Balkrishna ILR (1899) 24 Bom. 170 that a suit to eject a trespasser from trust property is outside the scope of and reliefs claimable under that section. Accordingly the suit was dismissed as against defendant No. 1. On appeal the District Court has taken the same view.
2. It does not follow from the decisions, on which the Courts below have relied, that to a suit of this character, where a breach of trust is complained of and where the alienee denies that the property is a public trust for religious purposes, he is not a proper and necessary party, because relief cannot be given as against him by way of a decree in ejectment. Though such a decree does not fall within the reliefs which the Court can grant under Section 539, it has jurisdiction to determine, for the purposes of the reliefs which can be granted, whether the property is a public trust for a religious purpose, if that question is in controversy. That was the question covered by the first and second issues raised at the trial and the alienee (defendant No. 1) is interested in it. The question cannot be properly tried unless he is before the Court. He is, therefore, a necessary party, though possession cannot be recovered from him in this suit, if the issues in question are found against him.
3. There is a further ground why he is a necessary party. The plaint alleges that he has taken the property from the trustee with full knowledge of its character as a public trust for religious purposes and that he has for some years paid part of the income to and for the trust. And in his written statement he asks the Court to direct him to make an annual payment out of the income of the property to the trusts, if the Court find that it is a public trust for a religious purpose. These pleadings may fairly raise the question whether the defendant No. 1 has become a constructive trustee in virtue of the alienation on which he relies and by reason of his conduct. In that view of the case he would be a necessary party: Jugalkishore v. Lakshmandas Raghunathdas. It is impossible to say at this stage whether such a case will be established. That depends upon the evidence. But judging from the pleadings, we must hold that defendant No. 1 is a proper and necessary party and that the suit as against him has been wrongly dismissed without trial.
4. The decree is reversed and the case remanded for disposal according to law. Costs including those of this appeal to be costs in the cause.