SAVITA AGARWAL Vs. SARADA MATH NYAS

JUDGEMENT

(1.) HEARD learned counsel for the parties. 2. This revision is directed against the finding and order dated 08-06-2004, whereby learned Civil Judge (Senior Division)/f. T. C. Almora has decided issue Nos. 3 and 5 in negative in Civil Suit No. 38 of 2002. 3. Relevant issues framed by the trial court, on which impugned find ings are given, read as under: 3. Whether, the suit is under val ued and court fee paid is insufficient? Whether, the suit is bad for non joinder for necessary party ? 4. Perusal of the copy of Plaint shows that three Plaintiffs namely Sarada Math Nyas, Pravajika Prabha Prana and Pravajika Bhuma Prana have filed the suit for cancellation of sale deed and injunction against the defendant/revisionist and one an other person. In paragraph No. 2 of the Plaint it is pleaded that the Plaintiff No. 1 is a registered society and Prabha Prana is its recognized repre sentative. It is alleged in the Plaint that the defendant No. 1/revisionist has started encroaching upon the, land owned by the Plaintiff society and started constructing a hotel on it. It is further alleged in the suit by the Plaintiffs, that the land purchased for Rs. 1,15,000/- by executing a sale deed by the defendant/revisionist from defendant No. 2, is liable to be cancelled as the land belongs to the Plaintiff society. As per the Plaint, value of the suit has been made at Rs. 1,15,000/- and court fee had been paid at 30 times of the land rev enue payable on the land in question. 5. Under Section 7 (iv-A) of the Court Fees Act, 1870 (as amended by State of U. P. applicable to Uttaranchal), in a suit for cancellation of an instrument (including sale deeds), the property involved is re quired to be valued at the amount mentioned in instrument or value of the property to which such instrument relates. It is further provided in the Explanation to said sub-section (iv-A) that 'value of the property' for the purposes of the sale deed shall be market value which in the case of im movable property shall be deemed to be the value computed in accordance with sub-section (v), (v-A) or (v-B), as the case may be. Section 7 (v) of the Court Fees Act, 1870, provides that where the revenue is settled in re spect of a land the market value of such land shall be assessed at 30 times of such revenue. In view of said provision of law, neither the suit ap pears to be under valued, nor the court fee paid appears to be insuffi cient. Therefore, finding on issue No. 3 given by the trial court needs no in terference. 6. On issue No. 5, it is argued on behalf of the learned counsellor the revisionist that in view of provisions of Section 48 of the Indian Trusts Act, 1882, all the trustees are necessary to be impleaded for maintaining the suit on behalf of the trust. This Court agrees with the submission of learned counsel for the revisionist that the suit should have been filed on behalf of a trust by all the trustees unless the person is duly authorized to act in this behalf. However, mere that argument doesn't help the defendant/revisionist. For throwing a suit on said ground, the defendant should have pleaded which of the trustees of the trust are left out and not made a party to the suit. The defendant/re visionist failed to show or name the trustee, who is not impleaded or has not authorized the Plaintiff to main tain the suit. In the circumstances, this Court is of the view that the trial court has rightly decided issue No. 5 in negative and in favour of the Plaintiff. 7. For the reasons as discussed above, the revision has no force. The same is liable to be dismissed. The revision is dismissed. RAJESH .