A.P. Sen, J.
1. This appeal, filed by the plaintiff, is directed against a judgment of the Additional District Judge, Jabalpur Camp Katni dated 15th October, 1973, dismissing the plaintiff's suit for the proper management of a private trust.
The suit out of which this appeal arises, was brought by the appellant Gajadhar, as plaintiff, against the respondent-defendants No. 1, Mst Rajrani widow of Bhaironprasad. founder of the trust and No 2, Arjunsingh, one of the two trustees appointed by him, seeking the following among other reliefs-- (i) for the appointment of new trustees and for delivery of possession of trust property to them, on removal of the defendant No. 2 Arjunsingh, as a trustee, and (ii) for a mandatory injunction directing the respondent-defendants to restore back the deities Sri Radhakishan and Sri Laxminarayan from village Khera to village Badhaiya-Khera, i. e. the place of their original abode.
2. The plaintiff's suit was brought on the allegation that his brother Bhaironprasad, the creator of the trust, had by trust-deed dated 14-4-1934, Ex. P-1, constituted a private trust, by dedicating 35 acres of bhumiswami land and a house in village Badhaiya-Khera, to his two family deities Sri Radhakishan. and Sri Laxmi-narayan, he making himself the shebiat thereof, and appointing the defendant No. 2 Arjunsingh and one Patel Tilak-singh to be the two trustees. Of the two trustees, Patel Tilaksingh died in 1964 but it was alleged that the defendant No. 2 Arjunsingh, the surviving trustee, had not appointed another trustee, contrary to the wishes of the creator of the trust This failure on his part to appoint another trustee has, it is said, resulted in mismanagement of the trust property. It is further alleged that the trust property was worth Rs. 70,000/- yielding an income of Rs. 2,000/- annually but the defendants had not maintained any accounts thereof, nor they got the same audited.
3. The plaintiff alleges that under the terms of the trust-deed, Ex. P-1, the defendants were bound to maintain accounts of the income of the trust property, and had to build a temple at village Badhaiya-Khera out of such income and to consecrate the deities therein, but contrary to the terms of the trust deed had failed to maintain any accounts or get them audited nor they have built any temple as enjoined in the trust deed. On the contrary the defendants had, it is alleged, removed the two deities from village Badhaiya-Khera to village Khera and installed them in a public temple there, contrary to the wishes of the late Bhaironprasad. This action of theirs, it was said, constitutes a breach of the trust and, therefore, the plaintiff seeks his own appointment, being the brother of the founder, as one of the two trustees, for the removal of the defendant No. 2 Arjunsingh, as a trustee, and for a mandatory injunction directing the defendants to restore back the deities Sri Radhakishan and Sri Laxminarayan to their original abode in village Badhaiya-Khera. 4. In paragraph 5 of the plaint, the plaintiff averred:
As the plaintiff is one of the eldest members of the family to which the private trust in question relates, and is the real brother of the creator of the trust, interested in giving effect to the purpose of the trust, he seeks his own appointment as one of the two trustees. In the prayer clause, the reliefs sought, inter alia, were:
(a) 'mandatory injunction directing the defendants to restore back the deities Sri Radhakrishna and Laxminarayan from Kheri to their original abode in village Badhaiya Khera.'
(b) 'the removal of the defendant No. 2 as a trustee of the trust created by Bhairon Prasad vide deed of trust dated 14-4-1934.'
(c) 'appointment of two new Trust-tees in place of the two original Trustees mentioned in the Trust-deed dated 14-4-1934 end delivery of possession of the Trust-property to them.'
5. The judgment under appeal is a composite one. The learned trial Judge has non-suited the plaintiff holding that the suit, as framed, is not properly constituted, as the plaintiff has no sufficient interest in the trust property and has no right to sue independent of the two deities, while substantially upholding his claim, as also made a direction in terms of Order 7, Rule 11 (b) of the Code of Civil Procedure, for the rejection of the plaint.
On merits, the learned trial Judge has held that (i) the trust-deed, Ex. P-1, created a valid religious endowment of the trust property to the two deities, Sri Badhakishan and Sri Laxminarayan; (ii) there was no need for the plaintiff to bring a suit under Section 8 of the Madhya Pradesh Public Trusts Act as the Registrar of Public Trusts has made no enquiry under Section 5 of the Act, nor recorded any findings or made any entries that the trust created by the deed, Exhibit P-1, was a public trust; (iii) the Registrar of Public Trusts was not a necessary party to the suit and, therefore, his non-joinder was not fatal; (iv) the trust was a private trust and not a public trust and, therefore, the suit was not hit by Section 92 of the Code, nor barred either under Section 27 (4) or Section 32 (1) of the Madhya Pradesh Public Trusts Act; (V) the defendant No. 2 Arjunsingh was by necessary implication bound to maintain accounts of the trust property, along with his co-trustee Patel Tilaksingh; (vi) the founder of the trust had directed that from the net savings of the income from the trust, a separate temple should be constructed at village Badhaiya-Khera and that the deities of Sri Badhakishan and Sri Laxminarayan should be installed therein, but the defendants, contrary to the terms of the deed, had failed to carry out these directions; (vii) there was apparent mismanagement of the trust property and that the shifting of the two deities to a public temple at village Khera was contrary to the terms of the trust-deed, Ex. P-1, as also the wishes of the late Bhaironprasad.
6. The appeal must fail on two grounds. First of all, the appeal does not meet with the mandatory requirements of Order 41', Rule 1 of the Code of Civil Procedure, as the memorandum of appeal is not accompanied by a certified copy of the decree. There can toe no doubt that in the instant case, the decree is a formal expression of adjudication of the rights of the parties and, therefore, constitutes a 'decree' within the meaning of Section 2(2) of the Code. That being so, the judgment recorded by the learned trial Judge was, in fact, followed by a decree. The plaintiff instead of filing a regular appeal under Section 96 of the Code against the decree on payment of ad valorem court-fees, filed the appeal under Section 96 read with Section 2(2) of the Code treating, the judgment to be an order under Order 7, Rule 11 (b) of the Code rejecting the plaint That was clearly not permissible.
7. From the nature of the findings arrived at, it is quite apparent that the learned trial Judge has dismissed the plaintiff's suit on merits. The operative part of the judgment reads as follows:--
'A. The plaintiff is required to pay deficit court-fees of Rs. 1,365/- within one month from today without fail, failing which the plaint shall stand rejected automatically under Order 7, Rule 11, Civil P. C. without further reference to this Court The fact of payment or nonpayment of the deficit court-fees be noted in the order sheet and thereafter the decree be drawn up.
B. On merits, the suit for removal of Arjunsingh as a trustee and for appointment of two new trustees and for delivery of possession of trust properties mentioned in Ex. P-1 deed of endowment, for a mandatory injunction requiring restoration of two deities Sri Radhakishan and Sri Laxminarayan from Khera to residential house of defendant No. 1 Smt Rajrani at village Badhaiya Khera, fails entirely and the same is hereby dismissed. In the decree the details of the lands be given as per Ex. P-8 Jamabandi while the description of the house and utensils and moveables (excepting cattle heads) shall be as per Ex. P-1.'
In view of this, the plaintiff's remedy was by way of an appeal against the decree. The requirement of Order 41, Rule 1 of the Code of Civil Procedure that certified copy of the decree should be filed along with the memorandum of appeal is mandatory, and, therefore, in the absence of the decree, the filing of the appeal by the plaintiff was incomplete, defective and incompetent. [See, Jagat Dhish Bhargava v. Jawahar Lal Bhargava, AIR 1961 SC 832). The appeal must, therefore, fail on that account.
8. The contention based on Bibhas Mohan Mukherjee v. Hari Charan Baner-jee, AIR 1961 Cal 491 (FB) is wholly misconceived. The decision of their Lordships of the Calcutta High Court turned on the meaning of the word 'dismissed' contained in Section 8B(3) of the Court-fees Act, which was a special provision inserted by local amendment. There, there was no decision on the merits. Section 8-B (3) of the Court-fees Act, Bengal Amendment, provided for dismissal of a suit for non-payment of court-fees. Their Lordships held, whether the suit was dismissed under Section 8-B (3) of the Court-fees Act or whether the plaint be rejected under Order 7, Rule 11 (c) of the Code, the result ultimately was the same. In substance, the dismissal of the suit under Section 8-B (3) of the Court-fees Act was an order of dismissal of the plaint. The decision in Bibhag Mohan Mukherjee v. Hari Charan Banerjee (Supra), is therefore, clearly distinguishable. In the present case, the plaintiff's suit has been dismissed after an adjudication on merits. The judgment appealed from, in reality, was not a mere order for rejection of the plaint but also one for dismissal of the suit. It must, therefore, be held that no appeal lay without a decree, as laid down in Jagat Dhish Bhargava v. Jawahar Lal Bhargava, (AIR 1961 SC 832) (supra).
9. In the second place, the appeal must also fail on merits. The learned trial Judge has held that the relief of re-moval of trustees and appointment of two new trustees does not fall under Schedule II, Article 18 (b), but it is governed by the residuary clause in Schedule II, Article 17 (vi) of the Court-fees Act. For the applicability of this clause, the suit must be incapable of valuation in terms of money and must not be otherwise provided for by the Act. These conditions must co-exist. Placing reliance on the decision in Nathabhai Devidas v. Vaghjibhai Jhaverbhai, AIR 1928 Bom 20 it is urged that the view of the learned trial Judge that Article 18 (b) concerns an application for appointment of new trustees under Sections 34, 72, 73 or 74 of the Trusts Act and not a suit founded on Section 73 or 74 of the Act, is not correct. The contention cannot be accepted.
10. In Nathabhai Devidas v. Vaghjibhai Jhaverbhai, (AIR 1928 Bom 20) (Supra) the Court was not dealing with the question of court-fees i. e., whether a suit of this kind would fall under Schedule II, Article 18 (b). The observation there that applications for removal of trustees can undoubtedly be brought by a suit is, therefore, not conclusive of the matter. The relief sought by the plaintiff, in substance, is a combination of two reliefs viz., relief of removal of trustees and appointment of two new trustees, including himself being the brother of the founder, and relief of possession of the suit lands and house. The relief for appointment of new trustees under Section 73 or 74 of the Trusts Act is clearly incapable of valuation in terms of money and is also not otherwise provided for by the Act and, therefore, is covered by Schedule II, Article 17 (vi). The word 'application' in Schedule II, Article 18 (b) cannot, in our opinion, be read as a 'suit'. The relief of possession had to be valued under Section 7(iv)(d) of Court-fees Act. When the plaint is read as a whole, it is quite clear that the plaintiff is virtually seeking the relief of possession. The decision of the learned trial Judge, therefore, calls for no interference.
11. We may, however, observe that the contention raised by the respondent based on Section 12 of the Court-fees Act cannot be accepted. The finality attached to the decision of the learned trial Judge under Section 12, does not stand in the way of the plaintiff in questioning the correctness of that decision. The point is concluded by the decision of their Lordships in Nemi Chand v. The Edward Mills Co. Ltd., AIR 1953 SC 28 where they observed :--
'the finality declared by Section 12 of the Court-fees Act means that the parties cannot impugn such a decision by preferring an appeal but that it does not confer on such decisions a complete immunity from examination in a higher Court. In other words, Section 12 when it says that such a decision shall be final between the parties only makes the decision of the Court on a question of court-fee non-appealable and places it on the same footing as other interlocutory non-appealable orders under the Code and it does no more than that.'
'If a decision under Section 12 is reached by assuming jurisdiction which the Court does not possess or without observing the formalities which are prescribed for reaching such a decision, the order obviously would be revisable by the 'High Court in the exercise of revisional powers'. Similarly, when a party thinking that a decision under Section 12 is palpably wrong takes the risk of his plaint 'being rejected or suit dismissed and then appeals from the order rejecting the plaint or from the decree dismissing the suit but not from the decision on the question of court-fee, then it is open to him to challenge the interlocutory order even on the question of court-fee made in the suit or appeal. The word 'finality' construed in the limited sense in which it is often used in statutes means that no appeal lies from an order of this character as such and it means no more than that.'
12. The suit must also fail for another reason. The respondent No. 1 has made an application under Order 41, Rule 27 of the Code of Civil Procedure, for taking on record the order of the Registrar of Public Trusts, Patna, dated 23-8-1975 by which the trust has been declared to be a 'public trust' under Section 5 of the Madhya Pradesh Public Trusts Act. We are of the view that it is necessary to take the document on record as additional evidence under O. 41, R. 27 of the Code, for a proper and effectual adjudication of the suit. The document is, accordingly, taken on record. The finality of that order cannot be assailed except by a suit under Section 8 of the Act. No such suit has evidently been filed by the plaintiff. The trust, therefore, be regarded as a 'public trust' within the meaning of Section 2 (4) of the Act That being so, the jurisdiction of the Civil Court is clearly barred under Section 27 (4) of the Act, from entertaining a suit relating to a public trust under Section 92 of the Code of Civil Procedure, in respect of which an application can be made under Section 26 of the Act. The remedy of the plaintiff, therefore, now lies by way of an application under Section 26 of the Madhya Pradesh Public Trusts Act. Incidentally, we may advert to the document, Ex. D-3, which shows that the plaintiff had himself applied for registration of the trust as a 'Public Trust';
13. The result, therefore, is that the appeal fails and is dismissed with costs. Counsel's fee as per schedule or certificate whichever is less.