P.V. Dixit, J.
1. The appellant instituted a suit against the respondent for getting possession of 4/5th share of a house situated in Khakrobpura, Bhopal, alleging that she had purchased the house by a registered sale-deed dated 17-4-1926 and was the exclusive owner of the same; that her husband died on 15-11-1948; that on the death of her husband the defendant-respondent came to pay a condolence visit to her; and that he continued to stay in the house and gradually took illegal possession of a portion of the house which, according to her, was to the extent of 4/5th of the house. The plaintiff proceeded to allege that the defendant refused to give up possession of the house and that his possession was that of a trespasser. The suit was instituted in the court of Munsiff. Bhopal, whose pecuniary jurisdiction was limited to Rs. 1000/-. The plaintiff valued the portion of the house that was in the occupation of the defendant at Rs. 800/- and accordingly paid ad valorem court-fee on the plaint.
2. The defendant resisted the suit contending that he inherited the house from his father and that the plaintiff was the widow of his grandfather and was entitled to only one-eighth share in the house. We also raised the objection that the suit was not properly called lor purposes of court-fee and jurisdiction.
3. The trial court found that the plaintiff was the sole and exclusive owner of the house and the defendant's possession of a portion of the house was that of a trespasser. Accordingly, the plaintiff's claim for possession of 4/5th share of the house in the defendant's occupation was decreed. The learned Munsiff also held that the valuation put by the plaintiff on the portion of the house in the defendant's occupation was correct and that the suit had been properly valued for purposes of court-fees. The defendant then appealed to the court of the district judge of Bhopal The learned additional district judge of Bhopal, who heard the appeal, without expressing any opinion on the merits of the plaintiff's claim, reversed the decision of the trial court and remanded the suit for trial of the question of the valuation of tho suit for purposes of court-fees and jurisdiction and for an enquiry into the description and specification of the property of which the plaintiff sought possession.
The learned additional district judge took the view that under Order 20 Rule 9 C. P. C., it was necessary for the plaintiff to give in the plaint a description of the property which was sufficient to identify the same and that in the absence of such specification and description of the portion of the house which was said to be in the possession of the defendant, the decree passed by the learned Munsiff was incapable of execution; and that the court-fee paid by the plaintiff valuing her claim at Rs. 800/- seemed to be insufficient as her suit being against the trespasser, she was liable to pay court-fee on the market value of the portion of the house which was said to be in the possession of the defendant and that if the market value of this portion exceeded Rs. 1000/- the learned Munsiff would not have any jurisdiction to try the suit. The learned Additional District Judge observed that according to the evidence on record it appeared that the market value of the house in question was in the neighbourhood of Rs. 15000/- and that on this basis proper court-fee had not at all been paid on the plaint.
4. Mr. Chitale, learned counsel for the appellant, argued that the learned additional district judge erred in thinking that the decree was incapable of execution as the plaintiff had not given sufficient description of the property of which she sought possession. It was said that what the plaintiff desired was the possession of all that portion of the house which was in actual occupation of the defendant and as the entire house belonged to the plaintiff it could not be said that there was any uncertainty as to the portion of the house from which the plaintiff desired to evict the defendant.
It was further said that the plaintiff had properly valued the portion, which was in the occupation of the defendant, at Rs. 800/- and that even if it were assumed that ihe market value of that portion exceeded Rs. 1000/- the decree passed by the trial Court could not be said to be a nullity and without jurisdiction in view of the provisions of Section 11 of the Suits Valuation Act, when the defendant had not shown that any prejudice was caused to him by the disposal of the suit on merits by the learned Munsiff. Reliance was placed on Kiran Singh v. Chaman Paswan, AIR 1954 SC 340.
5. In reply, Mr. Sanghi learned counsel for the respondent, submitted that in the absence of any specification of the portion of the house which was said to be in the occupation of the defendant the decree which had been passed by the trial court was incapable or execution and the learned additional district juge was right in remitting the case to the trial court for directing the plaintiff to get these particulars specified in the plaint and to file a proper map of the portion of the house of which she sought possession from the defendant.
On the question of court-fee, it was argued by the learned counsel for the respondent that the plaintiff had valued her claim at twelve times the monthly rental value of the portion of the house which was in the occupation of the defendant and, had paid court-fee on it; that as the plaintiff's suit was for possession of immoveable property from a trespasser, the valuation should have been according to the market value of that portion; that the defendant had in his written-statement raised the objection as to the valuation of the suit and the jurisdiction of the court but issues on these points were not tried as preliminary issues by the learned Munsiff; that the evidence on record indicated that the market value of the portion of the house which was said to be in the possession of the defendant far exceeded Rs. 1000/-and that, therefore, the learned Munsiff had no jurisdiction to try the suit.
Learned counsel contended that Section 11 of the Suits Valuation Act had no applicability here, as the question relating to the valuation of the plaintiff's suit was not a matter of estimate or opinion bu't that it was one which related to the category under which the plaintiff's suit fell; and that just as Section 4 of the Court-fees Act was limited only to the question of valuation pure and simple and did not deal with question of over-valuation or under-valuation arising on account of erroneous classification of the suit, so also Section 11 of the Suits Valuation Act applied to only those cases where the valuation was matter o estimate or opinion and the over-valuation or undervaluation was not caused by erroneous classification of the suit due to misapplication of the sections of the court-fees Act. It was said that in AIR 1954 SC 340 the question of the applicability of Section 11 of the Suits Valuation Act to cases where over-valuation or under valuation was due to a wrong classification of the suit did not arise for consideration.
6. In my judgment, the decision of the learned additional district judge of Bhopal cannot be upheld. There is no uncertainty as to the portion of the house from which the defendant is sought to be evicted. According to the plaintiff the whole of the house belongs to her and the defendant respondent without any right and authority occupied a portion of the house and is refusing to restore possession of the same to the plaintiff. There is no dispute as to the identity of the house or its location. The defendant is required to quit altogether from the house.
When the defendant is required to give up possession of all that portion of the house which is in his occupation, then the portion of which the plaintiff is seeking delivery of possession is defined and ascertained. The decree passed by the trial court did not give a right to the defendant-respondent to remain in occupation of same portion of the house. It is not as if the plaintiff has admitted that the defendant is entitled to occupy some portion. That being so for the purposes of electing the defendant from the entire portion of the house which is in his occupation it is wholly immaterial whether he is occupying the Northern or Southern or Eastern or Western portion of the house or whether that por'ion is 4/5th of the entire house or more or less.
7. The learned Additional District Judge was also in error in thinking that the plaintiff had valued her suit at twelve times the monthy rental value of the portion of the house in the occupation of the defendant and that the learned trial Judge had not given my finding on the market value of that portion. What the plaintiff alleged was that the defendant was in illegal occupation of 4/5th of the house and that the letting value of this portion was Rs. 50/-per month. She put the valuation of Rs. 800/- on the portion that was in the occupation of the defendant and paid court-fees accordingly.
The learned Munsiff, accepting the evidence of P. W. 2 Nawabali held that the valuation put by the plaintiff was proper. The valuation of the suit was, therefore, according to the market value put by the plaintiff on the portion of the house said to be in the possession of the defendant. No question, therefore, arises as to the category under which the plaintiff's suit falls. The plaintiff had valued her claim according to her own idea of the market value of the portion of the house in suit and the defendant disputed this market value. If the learned additional district judge thought that the trial judge had wrongly decided the question of valuation to the detriment of the revenue it was open to him to proceed in accordance with Section 12 of the Court-fees Act.
Even if the learned judge of the lower appellate court had come to the conclusion that the market value of the portion in question exceeded the pecuniary jurisdiction of the court of Munsiff, the decree passed by the learned Munsiff could not be set aside as being a nullity, having regard to the provisions of Section 11 of the Suits Valuation Act. Ay has been pointed out by the Supreme Court in AIR 1954 SC 340 the principle underlying Section 11 of the suits valuation Ac is that
'a decree passed by a Court, which would have had no jurisdiction to hear a suit or appeal but for over valuation or under valuation is not to be treated as, what it would be but for the section, null and void and that an objection to jurisdiction based on over valuation or under valuation should be dealt with under that section and not otherwise... It provides that objection to the jurisdiction of a court based on over valuation or under valuation shall not be entertained by an appellate court except in the manner and to the extent mentioned in the section. It is a self-contained provision complete in itself, and no objection to jurisdiction based on overvaluation or under valuation can be raised otherwise than in accordance with it. ... The policy underlying sections 21 and 99 C. P. C. and S, 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a court on the merits and the judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdictions both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits'.
8. Under Sub-section (1) of Section 11 of the Suits Valuation Act, though an appellate court is given power to entertain an objection as to under valuation or overvaluation of a suit, if either of the conditions mentioned in Clause (a) or those mentioned in Clause (b) are fulfilled, Sub-section (2) of Section 11 shows that the appellate court cannot give effect to such an objection although taken in proper time in the lower court unless the error has prejudicially affected the disposal of the suit on merits. That sub-section says that even if the objection is taken in proper time but the appellate court is not satisfied that the disposal on the merits has been prejudicially affected, it should dispose of the appeal as if there had been no defect of jurisdiction. The Supreme Court also observed in AIR 1954 SC 340.
'There is considerable authority in the Indian Courts that Clauses (a) and (b) of Section 11 of (the Suits Valuation Act should be read conjunctively, notwithstanding the use of the word 'or'. If that is the correct interpretation, the plaintiffs wouJ3 be precluded from raising the objection about jurisdiction in an appellate court. But even it the two provisions are to be construed disjunctively, and the parlies held entitled under Section 11(1)(b) to raise the objection for the first time in the appellate court, even then the requirement as to prejudice has to be satisfied ....'
Here the objection as to under valuation was no doubt taken in the trial court. But the defendant has not shown in what way he has been prejudiced by the trial of the suit on merits by the learned Munsiff. The learned Additional District Judge was, therefore, not right in setting aside the decision of the learned Munsiff on the supposition that as the market value of the property in dispute would have on proper enquiry exceeded Rs. 1000/- the learned Munsiff would have had no jurisdiction to try the suit.
9. In this view of the matter, it is really not necessary for me to consider the contention put forward by the learned counsel for the respondent that Section 11 of the Suits Valuation Act does not apply to a case where the over valuation or under valuation is due to misapplication of the sections of the Court-fees Act and raises a question of the classification of the suit for purposes of valuation. But even if it is assumed that the question of the valuation of the plaintiff's suit is as to its category, Section 11 would, in my opinion, still apply.
There is nothing in Section 11 or in the decision of the Supreme Court to show that its applicability is limited only to those cases where the valuation is a matter of estimate or opinion and does not cover the question of over valuation or under valuation arising on account of the category under which a certain suit falls. So far as the applicability of Section 11 is concerned, in principle no distinction can be drawn between the cause of the over valuation or under valuation.
In my opinion, whatever may be the cause of over valuation or under valuation, it would be still 'over valuation cr under valuation' for the applicability of Section 11. In Nana v. Mulchand, 21 Ind Cas 918: 9 Nag LR 161 it has been held that Section 11 of the Suits Valuation Act applies also to an erroneous valuation of a suit made under some mistake of law and is not confined to over valuations or under valuations designedly made by the plaintiff.
10. I am therefore, of the opinion that the learned additional district judge was not right in setting aside the decision of the learned Munsiff and remitting the case to him for further trial on the grounds that he did.
11. Learned counsel for the respondent also raised the objection as to the competency of the present appeal. It was said that the order of remand made by the learned additional district judge was not under Order 41 Rule 23 C. P. C. and was, therefore, not appearable. It is no doubt true that in the instant case the trial court had not disposed of the whole suit on any preliminary point and the decision of learned additional district judge could not be said to be a decision reversing the adjudication of the trial court on a preliminary point and, therefore, the order of remand did not fall under Order 41 Rule 23 C. P. C.
There can be no appeal from an order of remand unless it falls under Order 41 Rule 23 C. P. C. or, as observed by a Division Bench of !his Court in Sheolal v. Jugal Kishore, AIR 1940 Nag 349, unless it can be said to amount to a decree within the meaning of Section 2(2) C. P. C. In that case, it was also held that if a Judge purported to act under Order 41 Rule 23 C. P. C. and if the matter did not in fact fall under that rule, then no appeal would lie. The findings given by the learned Additional District Judge do not determine the rights of the parties with regard to all or any of the matters in controversy in the suit. They merely direct the trial court to determine certain processory rights before proceeding to decide substantive rights in controversy between the parties.
The order of remand seems to me to be one under Section 151 C. P, C. and even if it is not appealable it is open to revision. In remanding the case, the learned Additional District Judge has clearly acted illegally and with material irregularity in the exercise of his jurisdiction. Treating this appeal, therefore, as a revision I would set aside the order of the learned Additional District Judge and direct him to dispose of the appeal preferred by the defendant on merits according to law. In the circumstances of the case, parties shall bear their own costs in this court.