N.G. Chandavarkar, Kt., J.
1. The respondents as plaintiffs filed Suit No. 48 of 1908 in the Court of the Subordinate Judge, First Class, Thana, for a partition of the property in dispute. In their plaint the market value stated was such as to make the suit triable only by the First Class Subordinate Judge. That Judge made over the trial of the suit to the Joint Subordinate Judge at Thana. He had no jurisdiction to try it, if the market value stated in the plaint was correct. Neither party raised any objection on the ground of jurisdiction; no issue was raised relating to it. So the trial proceeded on the merits and the Joint Subordinate Judge, after taking evidence on the issues raised, passed a decree for partition in favour of the present respondents.
2. The appellants on appeal to the District Court raised for the first time the question of jurisdiction on the strength of the market value stated in the plaint. That Court overruled the objection on the ground that Section 11 of the Suits Valuation Act (No. VII of 1887), furnished a bar to it, and that the record showed that ' the undervaluation (?), if any, had not prejudicially affected the disposal of the suit on the merits '.
3. In this second appeal the objection has been renewed, and, in support of it Ramayya v. Subbarayudn ILR (1889) Mad. 25 is cited. That decision, no doubt, supports the contention. But the principle governing the question of jurisdiction in such cases is laid down by our Court in several cases, of which the leading authority is Lakshman Bhatkar v. Babaji Bhatkar ILR (1883) 8 Bom. 31. There it was said :--'What prima facie determines the jurisdiction is the claim or subject-matter of the claim as estimated by the plaintiff and, this determination having given the jurisdiction, the jurisdiction itself continues, whatever the extent of the suit, unless a different principle comes into operation to prevent such a result or to make the proceedings from the first abortive.'
4. In the present case, the market value stated in the plaint prima facie determined the jurisdiction. It was not conclusive and binding on the plaintiffs so as to estop them from disputing its correctness or seeking its amendment merely because they had stated it in the plaint. When the trial commenced before the Joint Subordinate Judge, it was open to the defendant to rely on the statement in the plaint and dispute the jurisdiction of the Court. Had that been done, the plaintiffs might have asked for amendment and perhaps satisfied the Court by evidence that the market value had been over-estimated in the plaint. Neither party raised any question as to want of jurisdiction arising from the allegation in the plaint. And by their conduct and silence they treated the market value to be of the amount sufficient to give jurisdiction to the Court. They dispensed with proof on the question by their tacit admissions and thus the principle of law laid down in Section 58 of the Indian Evidence Act came into operation and prevented the result of the statement of the market value in the plaint.
5. But it is urged that parties cannot by consent give jurisdiction where none exists. That is so where the law confers no jurisdiction. But here the consent is not given to jurisdiction where none exists. Here the consent related to the question of the market value. No doubt the question of jurisdiction depended on that question. But all that the law has said is that a suit relating to property, the market value of which is of or exceeds a certain amount (Rs. 5,000), shall not be tried by a Second Class Subordinate Judge. To bring that law into operation, the market value must be determined by evidence, where it is in issue. If it is not in issue and is taken to be Rs. 5,000 or more, there is no jurisdiction and parties by consent cannot give it. But where it is not in issue and parties agree, expressly or by conduct, to treat the suit as one for property of lesser value than Rs. 5,000, the maxim of law does not apply. The law does not prevent parties from waiving inquiry by the Court as to facts necessary for the determination of the question as to jurisdiction, where that question depends on facts to be ascertained. See Biru Mahata v. Shyama Churn Khawas ILR (1895) Cal. 483 .
6. The only other point urged before us was on the question of mesne profits. It was not raised in either of the Courts below and involves no question of law not dependent on evidence. We must, therefore, decline to entertain it in second appeal.
7. The decree is confirmed with costs.
8. The defendant by his own conduct led the Judge in the trying Court to suppose that he had jurisdiction to try this suit, or at least by his conduct prevented the Judge from suspecting that there could be any doubt as to whether he had jurisdiction. The defendant's conduct also I think raises a presumption that for his part he did not accept the valuation of the property set out in the plaint, for had he accepted that valuation, the question of jurisdiction should have been raised. After the defendant's own conduct had led to this presumption, finding that the case was decided against him, he wishes in appeal to raise the question of jurisdiction. That question can only be decided definitely by ascertaining on evidence what is the value of the property. Having regard to the defendant's conduct the question is certainly a matter of doubt. This is a second appeal, and I do not think we ought to allow the defendant to solve this difficulty by now remanding the case in order to enable him to adduce evidence on the point.