JUDGMENT

1. This miscellaneous appeal was referred by a Single Judge of this Court to a bench of two Judges. The referring order is:

Under Section 6 of the new Court-fees Act the appeal on a question of court-foe would go to the same Court as an appeal from the decree would go. This suit under Section 92, Civil P.C., is valued at Rs. 4000. The appeal therefore against the order of the Additional Civil Judge should have been fixed before a bench. Moreover, the appeal relates to the important question of the proper court fee payable in a case under Section 92 where possession as trustees is sought by the plaintiffs. I therefore refer this case to a bench of two Judges.

2. The facts of the case are that the plaintiffs, having obtained permission from the Legal Remembrancer on behalf of the Advocate-General, brought a suit under Section 92, Civil P.C., for the removal of the "mutwalli" of a public Shia trust created by Sheikh Nasir-ud-din in Fyzabad City. They also prayed for a declaration that plaintiff 1 as heir of the donor is entitled to be "mutwalli" and is also entitled to be in possession of the properties mentioned in lists A and B which vest in him as "mutwalli", but if this relief is not granted, then a scheme for management may be framed and some other suitable Shia may be appointed as "mutwalli". Upon the plaint, they paid a court-fee of rupees 15 under Article 17, Clause (vi), Court-fees Act. This was found to be insufficient by the learned Additional Civil Judge to whom the suit was transferred. The annual income of the two properties mentioned in lists A and B is Rs. 350, and learned Judge decided that since there was a prayer for possession a court-fee on 15 times this amount must be paid under Section 7(v)(1)(d), Court-fees Act. There was further a claim to Rs. 9000 in respect of accounts relating to the property, and the learned lower Court decided that ad valorem court-fee is payable on this sum too. It therefore ordered the plaintiffs to pay court-fees on Rs. 14,250 and decided that the court-fee of Rs. 15 already paid was insufficient. The appeal now before us is against this decision, and it is argued that court-fee of Rs. 15 only is payable. Two main grounds have been argued before us, first that the plaintiffs do not claim possession for themselves but only as trustees for the benefit of the public. The section, it is urged, is intended to enable a public spirited person to interfere for the benefit of the beneficiaries when trustees are mismanaging public trust properties. Secondly, it is argued that from the point of view of equity and public policy it is very undesirable to make such public spirited persons pay enormous court-fees. The result would be that trustees of trusts owning property of very high valuation would be enabled to mismanage and misappropriate the property with impunity. It is further argued that in fact a prayer for possession is not necessary in such a ease. If the Court decides that plaintiff 1 is a proper person to be appointed "mutwalli" it will, after the appointment, put him in possession of its decree without any prayer for possession. On behalf of the respondent a preliminary objection has been raised that the appeal should have been filed before the District Judge. Section 106, Civil P.C., provides that

where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.

3. Under Section 39, Oudh Courts Act, an appeal lies to the District Judge from a decree or order of a Subordinate (Civil) Judge where the valuation of the suit in which the decree or order is made does not exceed Rs. 5000. In the plaint this suit has been valued at Rs. 4000 only. Pital Singh v. Bishnu Narain has been cited by the respondent's learned Counsel. In this case a bench of this Court hel