MAULAVI SAYEED Vs. SHAH TAFAZUL HUSSAIN

JUDGEMENT

(1.) This is an appeal from the appellate decision of the Subordinate Judge of the second Court of Arrah returning to the plaintiffs their plaint on the ground that it did not bear a proper court-fee, together with an order that when the proper court-fee is paid it should be filed in a Court of competent jurisdiction. The dispute is really between the plaintiffs and defendant 2, rival claimants to the mutwalliship of a certain wakf in favour of a mosque. The wakf property consists, amongst other things, of a number of katra shops. The plaintiffs brought a suit in the Court of the Judge of Small Causes claiming Rs. 151 against defendant 1, who was tenant of one of the shops, and the plaintiffs claimed as being the trustees under the wakf.

(2.) The defendant defended on the ground that he was already sued by defendant 2 for similar arrears of rent, and the Small Cause Court Judge seeing that the dispute was between the rival claimants to the mutwalliship directed that the case must go before a Court capable of dealing with the issue of title. Accordingly, the plaintiffs amended their plaint and filed it in the Court of the Munsif, and they made defendant 2, a party to the suit. They claimed as against defendant 1 the amount of rent as they had done in the Small Cause Court, and they claimed against defendant 2 a declaration that he (defendant 2) had no claim to be considered as the mutwalli and had no right to collect any rents. They paid a court-fee upon the sum of Rs. 151 as being the valuation of the remedy which they sought.

(3.) The Munsif on the objection of the defendant held that the benefit, which would accrue to the plaintiffs by the suit if they be successful, was limited to Rs. 151 which they sought to recover from defendant 1, and dismissed the defendant's objection. The matter then went on appeal to the Subordinate Judge, who rejected the plaint on the ground that the proper court-fee had not been paid and considered that the proper System of Valuation was to take the capital value of the shop the rent of which was in suit as against defendant 1 and to demand payment upon that sum of an ad valorem court-fee. From that decision the plaintiffs appeal to us. It seems to me, notwithstanding the length of time that this case has taken to argue, that the point is really a simple one. Both sides agree in two primary matters. They agree that the house or shop property, the rent of which is in dispute, is the property of the mosque for the support of which the wakf was created; it is the property of the cestui que trust and is not in dispute at all.