Ananlanaraycma Ayyar, J.:-

(1) The two plaintiffs, viz. , munipalli venkatachalapathi rao and thota ellamanda, filed o. S. No. 36 of 1956 against 14 defendants in the court of the subordinate judge, bapatla, praying for declaring the plaint schedule property as constituting a charitable trust, for removing the defendants from the trusteeship and management of the property and for settling a scheme for the proper administration of the trust relating to that property and for other allied reliefs. The first defendant filed a written statement contesting the suit. Defendants 8, 12, 13 and 14 adopted the written statement of the first defendant. The other defendants remained ex parte. The learned subordinate judge dismissed the suit with costs of the contesting defendants. Thereupon, the first plaintiff filed this appeal. He impleaded the second plaintiff as the 15th respondent. Respondents 1 to 14 were defendants 1 to 14. Respondents 16 to 18 were brought on record as the legal representatives of the deceased 12th respondent. After the first plaintiff filed this appeal, he died and his legal representatives were added as the second and third appellants, as per the order of this court dated 11th october, 1962 in c. M. P. No. 7609 of 1962.

(2) The contentions in the plaint are as follows : - the suit land consists of acs. 5'53 cents of dry land. In about 1802, the owner, vuligundam agastya rao dedicated that land as dharmadayam for the public benefit. In consideration thereof subsequently the government gave up the right to collect land revenue on the said land. The suit land was developed into a tope containing tamarind and mango trees, which were of immense use to the villagers.

(3) The plaintiffs are permanent residents of the same village, viz. , mamillapalli and are interested in the proper management of the charity. The trusteeship of the charity has been in the family of the founder. The hindu villagers have always been making use of the trees in the tope on festive occasions. The first defendant, who is grandson of the founder, came into management of the tope about 25 years ago and has been acting as trustee from then. He conceived the idea of converting the trust property into his personal property for his own selfish ends. To achieve his object, he neglected the trees and allowed them to be destroyed by selling and gifting the right to cut the trees to whomsoever he liked. Defendants 1, 2 and 7 hopelessly mismanaged the trust and committed several acts which amounted to breach of trust. Defendants 1 and 2 alienated acs. 231/4 cents of the tope and the 7th defendant alienated acs. 0. 311/4 cents of the tope to defendants 12 to 14 under sale deeds of 1953 and 1954. Those alienees, namely, defendants 12, 13 and 14 have not yet taken possession of the land. They are not bona fide purchasers without notice and the sales are collusive transactions. The usufruct of the trees exising on the lands is being exclusively used for the personal benefit of the first defendant. Defendants 2 to 11 are co - trustees (of first defendant) , but have not been evincing any interest in the affairs of the trust. The first defendant, with fraudulent motive and by misrepresentations, moved the revenue authorities for resumption of the grant on the ground that the tope had ceased to exist. In fact, the tope never ceased to exist, but the first defendant managed to see that the trees were removed with a view to urge his contention before the revenue authorities. Even now 130 trees exist on the land. By fraudulent representations and with the active connivance, co - operation and assistance of the village karnam, the first defendant got the inam of the land revenue resumed. The defendants or any other members of the founder cannot repudiate the trust and claim the property as their own under any circumstances. The grant of the land for charity is irrevocable. Assuming, without admitting, that the object of the trust has failed, the suit land being trust property, should be utilised for some other charitable purpose under the doctrine of cypres.

(4) The first defendant filed a written statement contending as follows : - the suit property is not trust property. Section 92, civil procedure code, is not applicable to it. The property has not been granted and dedicated permanently in or about 1802 as dharmadayam for public benefit. Under the grant made by agastya rao, he himself also was the grantee and it would appear that he agreed to maintain a tope and as long as he fulfilled that condition, the government gave up its right to collect land revenue on the land. Subseqently, at the time of enquiry by inam commissioner, a title deed no. 502 was issued in the name of the five sons of vuligundam agastya rao, the original grantee. Under the title deed, he was granted only the assessment as inam. The land has not been dedicated to a public charity and there could be no breach of trust as contended by the plaintiffs. The first defendant and his ancestors no doubt, in the beginning, maintained a tope of tamarind trees intended for charitable purposes. But it was never used by potters and weavers of mamillapalli, as alleged in the plaint. The tope was no doubt used for cattle taking shelter under the shade of the trees. The first defendant and the other defendants have in fact been leasing out the land and appropriating the income therefrom. In course of time, the tope fell into decay. Many trees fell down and the land was encroached on by villagers unauthorisedly. The first defendant was compelled to file suits for removal of the encroachments and for preventing people from unauthorised utilisation of the trees which fell down. The land was often being used as an easing ground (public latrine). The first defendant happened to be a non - resident of the suit village and felt that he could no longer maintain the tope as such, as the object for which the inam had been granted failed.

(5) He applied to the government for resumption of the inam. It is not true that there are about 133 trees existing on the land. The trees which existed on the land are of wild spontaneous growth and tender, not planted by anybody. They do not afford shade or shelter to cattle or men, but proved to be a nuisance and danger to safety. The revenue authorities, after a thorough enquiry into the condition of the tope, resumed the inam and granted a seri patta in the name of the defendants, in spite of the protest made by the first plaintiff and other villagers against resumption. The first plaintiff and others carried the matter in revision to the board of revenue and later on t6 the government, but in vain. The order of resumption was passed by the collector on 5th april, 1953. He issued a ryotwari patta on 18th april, 1954. This suit is barred by limitation, as it was filed more than one year after the resumption. After ryotwari patta was issued in favour of first defendant and others, they sold a portion of the land to defendants 12 to 14. The latter are bona fide purchasers for value and the alienations cannot be questioned by anybody. The first defendant understands that the first plaintiff engineered this litigation without the knowledge of the second plaintiff and that the latter's signature was taken on some blank paper and that the second plaintiff subsequently repudiated the transaction.

(6) As already mentioned, defendants 8, 12 to 14, filed a memo adopting the written statement of the first defendant. The learned subordinate judge framed six issues as follows : - 1. Whether the suit property is trust property ? 2. Whether it is the personal property of defendants 1 to 11 ? 3. Whether the resumption by government and grant to first defendant are true, valid and binding ? 4. Whether defendants 12 to 14 are not necessary parties ? 5. Whether the doctrine of cypres can be applied ? 6. To what relief ?

(7) On behalf of the plaintiffs, 12 witnesses are examined of whom p. W. 12 is the first plaintiff himself. On behalf of the contesting defendants, 7 witnesses are examined, of whom d. W. 1 is the first defendant himself. Both sides filed number of documents. The most important issues are issues nos. 1 and 2. The learned subordinate judge found issue no. 1 against the plaintiff and found on issue no. 2 that the suit property was the personal property of defendants 1 to 11. He found issue no. 3 in favour of the contesting defendants. On issue no. 4, he held that defendants 12 to 14 were necessary parties. Issue no. 5 was not pressed before the learned judge and so he did not go into that question. On issue no. 6, he dismissed the suit with costs of the contesting defendants. Sri r. Rajeswara rao, for the appellants, has contended that the findings of the learned subordinate judge on issues nos. 1 and 2 are untenable and that the act of the government in resuming the inam did not have the effect of putting an end to the trust.

(8) Exhibit a - 14 is an entry dated 4th march, 1869 in the inam register of the village of mamillapalli. In column (2) , which bears the heading " general class to which the inam belongs ", the entry is ' dharmadayam '. The extent is given as ac. 5. 53 cents and the then prevailing assessment as rs. 21 - 12 - 0. In column (10) (which bears the heading " hereditary unconditional for life only or for two more lives ") the entry is ' permanent. In column 13, the name of the original grantee is given as vuligundam agasthya rao. In column 11 which bears the heading "by whom granted and in what year", the entry is vuligundam agasthya rao, 60 years old. In column 8 (which bears the heading "description and inam if for service it is to be stated whether the services continued. ") the entry is " for the public benefit". Thus, this document clearly shows that s. No. 402 of an extent ac. 5 - 53 cents and bearing assessment of rs. 21 - 12 - 0 was granted as inam by agasthya rao permanently as dharmadayam (charitable inam) for the public benefit and that he himself was the grantee. It is obvious that agasthya rao, the grantor, was originally the owner of the kudiwaram of the land before making the grant and that immediately after he made the grant, he became the grantee of aland, which was granted for a charity, for the public benefit and as such came to hold the land as a trustee of the public charity. Thus, as a result of the grant for public benefit by agasthya rao, there was change in the capacity in which he held the land and consequently in the right which he had in the land, though he himself continued to hold the land. His continuing to hold the land was because he had made himself the grantee, that is, the trustee of the public charity.

(9) On 11 th january, 1870, the inam commissioner issued the title deed, exhibit b - 4, in favour of vuligundam lakshminarayanappa (who is shown in exhibit a - 14 as one of the sons of agasthya rao and one of the owners). The title deed incites as follows : -

"by order of the governor - in - council of madras. I acknowledge your title to a dharma' dayam or charity inam consisting of the right to the government revenue on land claimed to be 5. 53 acres. Held for the public benefit. This inam is confirmed to you and your successors tax free to be held without interference so long it the conditions of the grant are duly fuifulled."

(10) This title deed, under which defendants 1 to 11 claim title, makes it clear that the right which these defendants had as inam was to the government revenue on the land. The basis of that right is that, the land was charitable inam held for the public benefit. It was made clear that the right to the inam was co - existent with the fulfilment of the conditions of the grant, i. E. , with the charity being duly performed and maintained. Exhibit b - 12 is an agreement dated 25th june, 1889 executed by certain persons in favour of vuligundam lakshminarayanappa (grantee under exhibit b - 4) under which the executants agreed to do various things on the land including raising tamarind trees at the rate of one per every 11 yards and also mango trees. They also undertook to see that the trees flourished. On 24th september, 1901, the sub - collector, krishna, wrote a letter, exhibit b - 5 to vuligundam lakshminarayanappa stating that the tope was the inamdar's and that therefore the addressee had a right to prosecute for criminal trespass or to impound cattle. Subsequently, on 27th july, 1905 the sub - collector passed an order that the inam would be recommended for resumption if the encroachments on it were not removed within 1 months. On appeal against this order, the collector, guntur, passed the following order : -

"as the tope is maintained in good order and as charity is going on no interference is necessary. Mr. Ashe's (sub - collector's) order is therefore cancelled."

It has to be noted that the grounds on which the collector set aside the order of the sub - collector were that the tope was maintained in good order and that the charity was going on. On 30th july, 1920, vuligundam gopala rao granted a lease, exhibit b - 16, of date trees in the tope for tapping. In this there is no reference to the charity or to the fact that gopala rao acted as trustee of the charity. But this does not mean that in fact the tope was not public trust or that gopala rao was not its trustee.

(11) Exhibit b - 6 is a decree of the district munsif's court, tenali, in o. S. No. 43 of 1945 obtained by vuligundam bhima rao, son of lakshminarayanappa (grantee in exhibit b - 4, who was a son of the original grantor, agasthya rao, the grantee under exhibit a - 14) against a cultivator of the village of mamillapalli for possession. The decree shows that the plaintiff filed the suit for possession of the property, alleging that it was a part of dharmavanam (charitable tope). Exhibits b - 18 to b - 21 are similar decrees in which the same plaintiff described the property (which was the tope concerned in the present case) as part of dharmavanam. Sri k. Krishnamurthy, for the first defendant, points out that in these decrees bhima rao described himself as land - holder of guntur. This does not, in any way, affect the fact that he had described the property as ' dharmavanam. Personally, he was a land - holder, but when he held the suit land he held it as ' dharmavanam. He held title deed exhibit b - 4 for the land which described the property as charity inam. He held the land as successor and descendant of the original grantee, agasthya rao, who was the grantee under exhibit a - 14, in his capacity as trustee. Therefore, vuligundam bhima rao, the plaintiff in exhibit b - 6, was only a trustee of the trust relating to dharmavanam. Further, this same bhima rao wrote an application, exhibit a - 25, long afterwards on 2nd september 1952, to the district collector guntur, in which he (bhima rao) described himself as follows in the heading : -

"the humble application of vuligundam bhima rao, managing inamdar, charitable tope at mamillapalli. Residing at kothapet, guntur."

". The neighbouring house - holders have made several encroachments on the tope area. I have filed six suits against eneroachers in the civil courts and obtained decrees and got them evicted ' but immediately thereafter they re - occupied the land. There are now so many encroachers that i am unable to find the means to file suits against them for eviction. On my petition to your honour dated 19th september, 1949, the revenue inspector enquired into the matter in january 1950. The revenue inspector also took statements from 20 or 30 respectable villagers. That nobody was willing to file suits under section 92, civil procedure code, that the encroachers wanted to enjoy the property as their own and that the tope could be measured and that seri patta be granted to inamdars. On 15th january, 1957, the tahsildar, bapatla, issued a notice to me intimating the proposals for resumption of the inam. I accordingly submitted a reply stating that i have no objection for the resumption of this inam. To my above petition dated 31st october, 1951 unfortunately i got an order from your honour's office. Dated 29th march, 1952 stating that the tope in question cannot be resumed and directing me to take steps to evict the encroachers through the civil court and to revive the tope within the period of one year as it is essential to maintain topes. I beg to submit that, for reasons stated above it is impossible to revive and maintain the abovesaid tope. A proclamation was made in the village calling upon the inhabitants to file a scheme suit in the matter of resumption. As no one came forward with such a suit it was so reported and the resumption proceedings started and my objections were called for."

(12) In this application, the first defendant himself has described the suit property as charitable tope, described himself as inamdar, and stated that he had filed several suits and evicted encroachers from the land and all the same numerous persons persistently encroached on the land and that it was not practicable to remove them all, that the first defendant represented this fact to the government and that the revenue department made efforts to find out whether anybody was willing to file suits under section 92, civil procedure code, and then found that there was nobody willing to file such suits and that was the reason why the government started resumption proceedings. The first defendant also stated in the same application as follows : -

"there are no endowments granted for the maintenance of the said tope. I cannot meet the expenses of maintenance of the tope out of my pocket. In 1945 i spent nearly rs. 200 from my pocket for replantation of the tope."

(13) In this, he has clearly disclosed that the maintenance of the tope would not be conducive to his personal advantage on account of the fact that his expenditure on maintenance of the tope caused him personal loss by way of spending his money. His saying that there were no endowments for the maintenance of the tope amounts to a clear admission that the maintenance of the tope was not meant for his personal benefit, but was for public benefit. The statement of the first defendant in exhibit a - 25 clearly indicates that when the revenue inspector was making enquiry, if the first plaintiff or anyone else had expressed willingness to file suits under section 92, civil procedure code, the revenue department would not have taken up proceedings for resumption of the inam. Exhibit a - 1, dated 25th january, 1953, is a certified copy of the statement given by the 14th defendant himself. This 14th defendant later purchased a portion of the suit tope from the first defendant under the sale deed, exhibit b - 23, dated 15th may, 1953. In this statement (exhibit a - 1) the 14th defendant has stated as follows : -

"d. No. 137 is a dharmavanam inam land. As the temporary manager and inamdar of the said land, sri velugundam bhima rao (1st defendant) was not managing properly the said land is being used by the villagers. I am agreeable for the said resumption. I will not file any scheme suit."

Exhibit a - 3 is a similar statement by the 12th defendant. This 12th defendant later on purchased a portion of the suit tope on 15th may, 1953 from the first defendant under exhibit b - 24. Defendants 12 and 14 made the purchases after the district collector, guntur, passed the order, exhibit b - 11 ordering resumption of inam. Exhibits a - 2, a - 4 and a - 5 are statements similar to exhibit a - l which were made on 25th january, 1953 by villagers who are not parties to the suit. Exhibit a - 12 is a mahazar dated 6th march, 1953 purporting to be sent by the signatories (first plaintiff and large number of others) in which they have alleged as follows : the dharma tope d. No. 137 of extent ac. 4. 71 cents was common property belonging to all the villagers and the first defendant was obstructing the villagers including the signatories from enjoying the tope as usual. The first defendant gradully made the land barren by cutting down the trees and leasing the land for his personal benefit. Three years earlier he had tried to convert the land into seri, but the petitioners put in petitions with the result that the collector passed the order in 1952 (which is the order referred to by d - 1 in exhibit a - 15) "that no change could be made regarding the land and directing the trustees to grow trees within one year, but the first defendant was trying to convert the land into seri with a view to benefit himself personally. To achieve the object, he was putting forward a false plea that he had attempted to grow trees and had failed. The mahazardars were willing to grow trees on the land, which was really fertile, within a short time and prove to the collector that the plea of the first defendant (that trees would not grow on the land) is not correct - (by signatories we mean to include persons affixing thumb - impressions also). Exhibit a - 20 is a report sent by t. Neeladri rao, special officer for hindu religious and charitable trusts, masulipatam, made after an enquiry regarding the tope. In it, he has given the history of the tope and various important facts relating to the tope. The following portions are important and relevant for this appeal :

"that evidently, the said tope might now be worth about rs. 80,000 in view of its admitted, utility for house sites while it might fetch an annual income of about rs. 750 even if it were to be leased out for purposes of cultivation. That evidently, the said tope originally contained about 300 palmyrah trees, 200 tamarind trees, 80 neredu trees and 10 mango trees and g. P. W. 1 (1st defendant) was realising annual income of rs. 200 therefrom. That c. P. W. 1 was actuated with the evil motive of getting at the tope for himself by obtaining a seri patta. That he (1st defendant) had evidently in pursuance of his original mala fide intentions to obtain the tope for himself, got it resumed on his second application in 1953 and the seri patta for the same granted in the name of himself and his family members. That immediately thereafter c. P. W. 1 (1st defendant) had wrongfully benefitted himself by alienating his share of ac. 2 - 52 cents of tope in 1953 itself to messrs. Mowa venkatakrishnayya (12th defendant) chinnamsetti sundararamayya (13th defendant) and sri pallapothu rayulu (14th defendent). However, this is a very clear case of gross mismanagement and consequent defunction of a public charitable endowment. Government may, therefore, issue suitable instructions to the andhra board of revenue to cancel resumption of this dharmadayam tope and to take necessary action in the matter under section 92, civil procedure code."

(14) This report was sent by the special officer to the government, after holding enquiry on a petition by vuligundam venkatachalapathi rao, vuligundam agasthya rao (same name as d - 5) and 12th defendant and two others. The order of resumption, exhibit b - 11, passed by the collector, guntur, runs as follows : -

"1. S. No. 137 measuring ac. 4 - 71 cents of mamillapalli village, bapatla taluk, being unenfranchised dharmadayam tope inam covered by t. D. No. 502 is hereby resumed and fully assessed ; 2. The net assessment is ordered to be credited to the general revenue as there is no need for the maintenance of charity ; 3. The title deed not being available is hereby declared to have been cancelled ; 4. A ryotwari patta should be issued to the persons possessing occupancy right in the land."

(15) From our above discussion of the documentary evidence, it is clear that the evidence is practically all one way indicating unmistakbly and proving clearly that the tope including the land on which the trees stood was dedicated permanently by agasthya rao to the public as charity, i. E. , dharmadayam, in about 1809 and from then onwards he (who till then had been owner of the land as a ryotwari pattadar) held it as trustee of the public charity for the benefit of the public and ceased to have any right in it except as trustee and that his successors including the 1st defendant have been holding the property as trustees, conducting themselves as trustees of the public trust for the benefit of the public, that in view of the fact that the land belonged to a public charity, the government granted inam assessment in full and the title deed exhibit b - 9 in favour of the then holder vulugundam gopala rao who was the grandson of the original grantee agasthya rao and issued the title deed exhibit b - 4 in which government made it clear that gopala rao and his successors were to enjoy the inam tax free, so long as the conditions of the grant were duly fulfilled, describing the inam as dharmadayam or charity inam. It is also clear that the holders of the inam were maintaining the tope and followed the directions of the revenue authorities regarding the maintenance and that the , first defendant himself was filing suits to evict encroachers. In his application, exhibit a - 25, dated 2nd september, 1952, the first defendant has admitted various facts which show that the tope was a public charity tope. He asserted in it that there was no one in the village who was willing to file a scheme suit for framing a scheme of amendment and asked for resumption of proceedings. It is also in evidence that the first defendant and the other inamdars allowed the tope to fall into decay.

(16) Defendants 14 and 12, who, after the land was resumed, purchased a portion of the suit properties from the first defendant, have themselves given statements (exhibits a - 1 and a - 2 respectively) , that the suit land was dharmadayam inam land and that the first defendant was temporary manager and inamdar and that in that capacity the first defendant was not managing the property properly. They also requested that, on that ground, the government might resume the land that they were willing for the resumption and would not file any scheme suits. In spite of this, the learned subordinate judge arrived at an obviously wrong and wholly untenable conclusion and gave finding that the suit property was not trust property and that it was the personal property of defendants 1 to 11. This was due to his wrong appreciation of the evidence. The learned subordinate judge has observed as follows : -

"the suit property originally belonged to vuligundam agasthya rao, which had a tope con. Taining a number of shade - giving trees. The said agasthya rao granted in his favour the suit property and permitted to use the tope for the benefit of the villagers. The suit land was not defined anywhere as the trust property. The official records too do not show that the suit land was endowed to mamillapalli villagers but was in the names of the grantor as the grantee who was exercising proprietary rights over it permitting to use his tope by the villagers so long as it could be maintained in the suit land."

(17) In this passage, the learned subordinate judge himself has realised the fact that under the grant agasthya rao was the grantor and he himself was the grantee. In another portion of the judgment, the learned subordinate judge has also observed as follows : -

"i agree with the learned advocate for the plaintiff that the word 'dharmadayam' used in exhibit a - 14 may indicate that the suit land was intended for the purpose of charity or service. I have already discussed above that the suit property was not granted in the name of the mamillapalli villagers. The only conclusion which could be drawn from exhibit a - 14 is, the grantor agasthya rao allowed the tope which contained shade - giving trees for the benefit of the public. The property which is defined as the ' dharmadayam' is neither endowed to the villagers of mamillapalli nor was intended for any service. In these circumstances, the word, 'dharmadayam' used in exhibit a - 14 will not help the plaintiff in treating this suit property as the inam or trust property."

The learned subordinate judge failed to properly appreciate the fact that in exhibit a - 14 it was mentioned that the inam was for the public benefit and was to be permanent and that agasthya rao was the orginal grantee of such an inam. The government would not have granted the full assessment as inam permanently on the land but for the fact that the tope charity was a permanent charity and for the public benefit. The entries in exhibit a - 14 are sufficient to prove clearly beyond doubt that the tope was public charity, which had been endowed for the benefit of the public permanently. It is true that, it is not mentioned in exhibit a - 14 that the endowment was to the villagers of mamillapalli, but there was no need for any such entry. The words " for the public benefit " and " permanent" are sufficient to show that it was meant for the use of the public which included the villagers of mamillapalli and in contrast to the descendants of agasthya rao who were not identical with the entire public and whose benefit was not identical with public benefit. The learned subordinate judge has observed that agasthya rao granted the tope which he owned in favour of himself (agasthya rao) and permitted to use the tope for the benefit of the villagers (vide the second sentence in the first portion extracted above) he has not given the correct view of what agasthya rao did. If agasthya rao wanted to be the owner of the tope with proprietary rights and to allow the villagers to use the tope as a matter of grace, while retaining his proprietary rights with right to exclude the people from it and to discontinue the benefit to the villagers, there was no need for him to grant it in his own favour as a grantee and call the grant as one for the public benefit and permanent and he would have just permitted whenever he liked. He would not have made a grant as mentioned in exhibit a - 14 if he intended to retain his proprietary rights and just to give a temporary or revocable permission for villagers to use it for their benefit. The main grounds on which the learned subordinate judge has come to his conclusions are : - - 1. The suit land was not denned anywhere as trust property ; 2. The suit land was not endowed to mamillapalli villagers but was in the name of the grantor as the grantee, who was exercising proprietary rights over it permitting to use this tope by the villagers ; 3. When trees in the tope fell down in the cyclone, most of the trees were sold by the first defendant and the sale proceeds were appropriated by him ; 4. It was not necessary for the first defendant to maintain the tope and there was no direction by the grantor that the first defendant or any other person should maintain the tope ; there was no obligation on agasthya rao or on his children to maintain the tope perpetually ; 5. The proprietary rights and title vested in the descendants of agasthya rao under exhibit b - 4 were admitted by the government in exhibit b - 5 under which the sub - collector directed the inamdar to prosecute encroachers for criminal trespass and, on the strength of the title vested in them, the inamdars filed suits and obtained decrees under exhibits b - 6 and b - 18 to b - 21. 6. The remission of cist alone is not sufficient to treat the suit property as trust property. Ground no. 1 is untenable. As pointed out by us above, the description in exhibit a - 14 and exhibit b - 4 makes it clear that the land was dharmadayam, namely public charity inam. Ground no. 2 is not tenable. We have already pointed out, that the effect of the grant is that, agasthya rao, who was the original private owner of the land, with full powers, made a grant of the right and title in the land along with the trees, i. E. , his tope, to a public charity, and, as a result, began to hold the land as a trustee of the charity which was to be permanent, he being mortal with a limited span of life and the charity being permanent. Ground no. 3 is not tenable. The first defendant selling the trees could have been in his capacity as inamdar and as trustee of the charity tope. As such, he was bound to treat the income as the property of the trust. In fact, he was incurring expenses on behalf of the trust in taking steps to evict encroachers of the tope. If he used any portion of the proceeds of the trees for his own personal benefit, it was not lawful appropriation, but misappropriation of trust funds and such utilisation cannot be taken as proving that the tope was not a charity tope or that it was private property of the first defendant or his people. Ground no. 4 is not correct, for, a proper reading and interpretation of exhibits a - 14, b - 4 and a - 15 and other documents shows that the intention and implied direction by the grantor was that the tope should be maintained permanently by all trustees including himself and his successors. Ground no. 5. - exhibit b - 4 does not recognise any proprietary rights of vuligudam lakshminarayanappa (son of agasthya rao) as having full right to the property in his personal capacity as distinct from the trustee, nor does exhibit b - 5, as the right of the inamdar to prosecute for criminal trespass can be in his own right but as a person lawfully in possession in his capacity as trustee. Ground no. 6. - it is true that remission of the cist by itself would not be sufficient to convert the property into trust property, if it were not otherwise trust property. But, in fact, the remission of cist was granted by the government, because the latter found that it was trust property, namely, charitable inam, which was being held by vuligundam lakshminarayanappa as a trustee.

(18) In dikshitulu v. Venkatappayya, a question arose for decision as to whether survey no. 333 of vetticherukkuru village had been dedicated for raising dharmavanam or tope for public benefit. The facts of the case as stated in the decision were as follows : - the land now measures acs. 8 - 28 cents and originally belonged to one nori lakshmipathi somayajulu, who was an ancestor of the appellants. In 1788, he had dedicated the property to charity and the exact nature of this endowment is now in dispute. There is no written document showing how the property had been gifted. But, exhibit b - 1, an extract from the inam register of 1868, describes the land as dharmadayam. The eighth column mentions it as for the public benefit. The eleventh column shows one nori lakshmipathi to be the person who had made the grant and the thirteenth column states the same person as the grantee. Finally, the twentyfirst column says :

"as this is charitable tope, this is to be confirmed without quit rent. " the inam commissioner confirmed it on permanent tenure which was followed by a title deed in favour of three persons, exhibit b - 2 being the aforesaid deed. Therein, the inam commissioner acknowledges the grantees' title to a dharmadayam inam consisting of the right to the government revenue on land claimed to be acs. 8 - 42 cents dry and held for the public benefit. Finally, on april 24, 1951, acs. 5 - 72 cents were removed, as they were unfit for raising and maintaining a tope and ryotwari patla was issued to the persons possessing occupancy rights in the land. "

(19) It will be observed that the facts of that case are substantially similar to the facts of the present case. Several contentions were raised in that case on behalf of the appellants which are apparent from the following passage in the judgment : -

"the defence in this suit. Is that the defendant's ancestor had never parted with the ownership of the land, that the inam grant was not of the land but only of the melwaram and that the government, after an elaborate inquiry has come to the conclusion that the tope cannot be revived on an extent of acs. 5 - 72 cents and had granted patta for the same."

The learned judges after careful discussion, held that the entire land itself had been dedicated for raising dharmavanam or tope for the public benefit and not merely some partial interest in it. In that case, there was a report of the commissioner (exhibit b - l7) showing that plantation of tamarind trees in the area was impossible, unless the entire area be raised and there was other evidence to the effect that renovation of the tope was impossible and that the land was only fit for wet cultivation, as it was surrounded on all sides by wet fields. The learned judges observed as follows (at page 360) :

"it follows that even assuming the evidence in the case as establishing the land as unfit for tamarind trees, the appellants (the descendants of the original grantor, who was also the original grantee as trustee) would not be entitled to it if there be paramount intention to give the property to charity in which case other trees would be allowed to grow for purposes of giving shade, etc."

(20) In the present case, it is not proved and the learned subordinate judge did not find that the" land was unfit for being under or kept or developed as a tope for the benefit of the public. In exhibit a - 25 dated 2nd september, 1952 the first defendant stated that under the circumstances mentioned by him it was impossible for him or anybody to maintain the plantation in the tope. Those circumstances are only that there were numerous encroachments by neighbouring house - owners and that eviction through civil court did not prove to be an effective remedy. The first defendant has not stated that trees would not grow on the land, if planted.

(21) The fourteenth defendant in exhibit a - 1 and the twealth defendant in exhibit a - 2 have stated that the land abounds with bushes, shrubs etc. , and that the first defendant was not managing properly. In the mahazar, exhibit a - 12, the first plaintiff and the other numerous mahazardars have assured the district collector that they would grow many trees within a short time. In the plaint, the plaintiffs have asserted that there were 130 trees existing on the suit land at the time of drawing up the plaint. Beyond doubt, there were once a large number of trees in the suit property and, therefore, it was possible for trees to grow and stand on that land. The decision in dikshitulu v. Venkatappayya , (1959) 1 an. W. R. 357 applies to this case and we find that the entire suit property including the land itself was dedicated as charitable trust and not any partial interest or the land revenue alone. Such being the case, we have to see what is the effect of the resumption proceedings under which the collector issued the order (exhibit b - 11). Para 4 of exhibit b - 11 says that ryotwari patta should be issued to the persons possessing occupancy right in the land. A patta was accordingly issued to the first defendant and other defendants as seen from the written statement of the first defendant. It has to be seen as to what is the effect of those proceedings and the issue of patta. In dikshitulu v. Venkatappayya , (1959) 1 an. W. R. 357. This question came up for consideration on substantially similar facts. The learned judges observed therein as follows:

"it has been lastly argued before us that the appellants having got fresh title to the property by virtue of the patta being granted to them, the new title cannot be made subject to the trust. It was held therein (muhammad esuf sahib v. Moulvi abdul sathur sahib , ( 1918) 36 m. L. J. 262: i. L. R. 43 mad. 161 that the resumption of the inam by levy of full assessment on the lands and issue of ryotwari patta to the trustee did not free the land from the trust and make them the private property of the trustee. It was further held that, even if the lands were resumed and re - granted to the trustees in their individual capacity on full assessment, they were bound to hold the land so granted for the benefit of the trust under the provisions contained in section 88 of the indian trust act it is equally clear that but for their being trustees they would never have got the poseession of the land and having so obtained it, any rights arising therefrom would be held for the trust alone. It follows that the patta which they got because of their possession must also be for the trust and the fresh title cannot be a ground for allowing the appeal."

(22) We respectfully follow the above decision and hold that the resumption proceedings and the issue of the patta to the first defendant and others did not affect the fact that the property belongs to the trust and did not have the effect of converting the trust property into private property of the first defendant and others in whose favour patta was granted. The patta issued in their favour must be deemed to be held by them on behalf of and for the benefit of the trust. The alienations by the first defendant and others of trust property, which were made on the basis that the property was the private property of the alienors cannot bind the trust and does not affect the right, title and interest of the trust as regards the property so alienated.

(23) In the result we disagree with the finding of the learned subordinate judge en issue nos. 1 and 2. We find on those issues as follows : - issue no. 1. - the suit property is trust property. Issue no. 2. - the suit property is not the personal property of defendants 1 to11. Issue no. 3. - we hold that the resumption by the government and grant to the first defendant are true and valid but it is not binding on the trust in such a way as to affect its title to the property. The grant of patta to the first defendant etc. , must be deemed to be grant to them as representing the trust and for the benefit of the trust, i. E. , dharmadayam charity. Issue no. 4. - the finding of the lower court has not been challenged before us. Issue no. 5. - - this issue was not pressed in the lower court and was not argued in this court. There is no need to go into that issue. Issue no. 6. - we allow the appeal, set aside the judgment and decree of the lower court and direct that a decree shall issue as follows : (a) declaring that the plaint schedule property is the property constituting a charitable trust ; (b) declaring that the sales in favour of defendants 12 to 14 are not binding on the trust and plaintiffs ; (c) for settling a scheme for proper administration of the suit trust. We direct the lower court to start further proceedings to settle a scheme on the above lines. We also award costs to the plaintiffs in the trial court and to the sole appellant in this court against the contesting defendants (one set). In the plaint, the following reliefs have also been asked for : - (ii) removing the defendants from the trusteeship and management of the suit property vesting the same in trustees to be appointed by the court (v) for directing enquiries against d - 1 regarding mis - management of the trust property.

(24) As regards relief (ii) we are directing in our decree the settling of a scheme for the proper administration of the trust. The defendants shall stand removed from the trusteeship with effect from the date on which the scheme comes into actual and effective operation. As regards relief (v) , the evidence shows that there was. No separate endowment for the maintenance of the tope and that the trustees have, from the income of the tope, not only been maintaining the tope to the extent to which they maintained but also incurred costs in connection with taking steps for removing encroachers. Therefore, we do not consider this a fit case for awarding this relief. So, we do not award it. Ordered accordingly. Appeal allowed; scheme to be framed.