A.N. Grover, J.
1. A suit was instituted under Order XXI, Rule 63 of the Code of Civil Procedure for a declaration that the property in dispute comprising certain house situate in Subzi Mandi Delhi was the property of the petitioner and was not liable to attachment and sale in execution, of the decree for Rs. 8,750.75 nP. obtained by one Shiv Narain defendant No. 1 against the plaintiff's husband Jit Singh. This suit was valued for purposes of court-tee at Rs. 230/- and the same value was fixed for the purposes of jurisdiction. The defendant decree-holder raised an objection in the trial Court that the suit was not properly valued for purposes of court-fee and jurisdiction. The trial Court's decision was as follows:
'The objection giving rise to issue No. 1 was not pressed by the learned counsel for the defendant and I do not see otherwise how the jurisdictional value fixed in the plaint is improper. The issue is decided in favour of the plaintiff and against the defendant.'
After the suit had been decided the plaintiff filed an appeal before the learned Senior Sub Judge. In the memorandum of appeal no ground was taken on the question of the undervaluation of the suit but later on an application was made that the correct valuation of the suit was more than Rs. 5,000/-, because it had to be valued either according to the decree in execution of which the property had been attached or according to its market value and in either casa the value would be more than Rs. 5,000/- with the result that an appeal would lie to this Court and not to the Court of the Senior Sub Judge. This application has been dismissed by the learned Senior Sub Judge and the plaintiff has come up to this Court on the re visional side.
2. It has been contended by the learned counsel for the petitioner that it is settled by now that in suits of this nature the valuation has to be according to the value of the decree in execution of which the properly has been attached or the value of the attached property itself. For this purpose my attention has been invited to Bishnu v. Lal Singh, 55 Pun Re 1906 and Shiv Ram v. Khurshed Ahmed, 1 Lah LJ 87 and it may be mentioned that the learned counsel for the contesting respondent does not dispute the correctness of the law laid down in these cases. It is submitted on behalf of the petitioner that the valuation had to be more than Rs. 5,0007- in either event and if by mistake or oversight the valuation was shown as Rs. 230/- that would not debar the Court from determining the correct valuation in order to decide the forum of appeal. It is also pointed out that Section 11 of the Suits Valuation Act, on which the learned Senior Sub Judge has relied, would have no application to the present case because the appeal has not so far been decided.
The principle enunciated in Bansilal Lalchand v. Bhikubai, AIR 1948 Bom 8 has been invoked. In that case what had happened was that the plaintiffs claimed a declaration that a certain sate deed was not binding upon them and a permanent injunction was also claimed restraining the respondents from taking possession of the property sold to them under that document. For the purposes of court-fee the plaintiffs had valued their claim at Rs. 205/- whereas for the purposes of jurisdiction the claim was valued at Rs. 15,000/-. A decree was passed giving the plaintiffs certain reliefs. Against that decree an appeal was preferred to the High Court. Before the High Court an objection was taken that by virtue of Section 8 of the Suits Valuation ACT the valuation of the suit had to be the same as the valuation for purposes of court-fees and, therefore, the jurisdictional value would be Rs. 205/- in which case the appeal would lie not to the High Court but to the District Court.
The following observations of the Bombay Bench arenoteworthy:
'It may be that in certain special cases as a result of very unusual circumstances the Court may feel justified in folding that the plaintiff should not be permitted to raise such a contention in appeal. Otherwise, in such cases, where the plaintiff has, through mistake, oversight or carelessness set out two inconsistent valuations, and the said Inconsistency is not detected by any of the parties and not ordered to be rectified by the trial Court, it seems to us very doubtful if the plaintiff could properly be held to be estopped from contending even in appeal that the valuation for the purpose of jurisdiction is wrong and that the appeal presented to this Court on the basis of that valuation is incompetent. In such cases the essential elements of estoppel may not at all be present.'
It was finally held that the appeal was not entertainable by the Nigh Court. The learned counsel for the petitioner says that since the law is well settled with regard to valuation in a suit of the present nature, the same principle would apply and, therefore, it should be deemed that the true valuation was either the value of the decree in execution of which the property has been attached or the value, of the property itself, with regard to which declaration was sought which exceeded Rs. 5,000/-. The plaintiff, therefore was not estopped from contending that the true jurisdictional value was such that an appeal lay only to the High Court and not to the Court of the Senior Sub-Judge. The position in the Bombay case was somewhat different, the main point of distinction being that in the present case an objection had been specifically taken by the defendant with regard to valuation and when the Court decided that the valuation had been correctly made, no objection was taken against that decision in the memorandum of appeal which was preferred before the learned Senior Sub-Judge. The plaintiff himself had fixed that valuation and no affidavit was filed before the learned Senior Sub-Judge that wrong valuation had been given through mistake, oversight or carelessness. Moreover, in the Bombay case Section 8 itself laid down in mandatory terms that the valuation for purposes of jurisdiction would be the same as that for purposes of court-fees.
In the present case it would have been a matter for argument and decision whether the valuation would be Rs. 8750.75 nP. being the value of the decretal amount or Rs. 30.000/- which was alleged to be the value of the house in dispute. In such circumstances when a valuation had been fixed by the plaintiff himself on the basis of which the suit was tried, in my opinion the principle laid down in the earlier Bombay cases namely, Balkrishna Narayan Sawant v. Jankibai Sitara Sanzgiri, 22 Bom LR 289 : (AIR 1920 Bom 105 (2)) and Gajramjl Jasramji v. Somnath Bhudardas, 42 Bom LR 443 : (AIR 1940 Bom 242), would be applicable. In the first case a suit had been filed to obtain a declaration and an injunction and the plaintiff had valued his claim for purposes of court-fees at Rs. 135/- and for the purpose of jurisdiction at Rs. 16,000/-. The suit was tried by the first Class Subordinate Judge under his special jurisdiction. The plaintiff appealed to the High Court but later on urged that the appeal lay to the District Court and not to the High Court Inasmuch as the valuation of the court-fees as mentioned in the plaint was the true value for the purposes of Jurisdiction also. The Bench held that on the special facts of the case the plaintiff must be taken to have filed the suit properly in the Court below under its special Jurisdiction and to have filed the appeal properly in the High Court.
In the second case which has been discussed at page 11 in AIR 1948 Bom 8, the plaintiff had filed a suit for a declaration that certain property was either public or private religious property and for taking accounts of the management of the property. Originally the claim had been valued by the plaintiff at Rs. 220/- and the plaint was presented in the Court of a Subordinate Judge of the Second Class. The deft, objected to the land valuation on the ground that the property was really worth Rs. 10,000/-. The objection was upheld and the suit was transferred to the Court of competent jurisdiction. That Court proceeded to deal with the suit and decided it. Against that decree, the defendant preferred an appeal to the High Court and at the hearing raised a preliminary objection that the suit fell under Section 7(iv) (c) and (f) and under Section 8 the claim must be held to be less than Rs. 5,000/-.
It was pointed out in that case that at an early stage in the suit a contention was expressly raised by the defendant as to the proper value for the purpose of jurisdiction and that contention had been upheld, with the result that the suit had been transferred to the First Class Subordinate Judge. The learned Judges took the view that this decision as to value for the purposes of Jurisdiction was acquiesced by the plaintiff and that as a result, at subsequent stages of the same proceedings the plaintiff could not be permitted to raise a contention contrary to the said finding. Divatia J. put this position against the plaintiff on the ground of estoppel, whereas Broomfield J. held that the plaintiff could not be permitted to approbate and reprobate. The principles of estoppel and approbate and reprobate would clearly apply to the present case because the plaintiff never corrected or sought to correct the valuation or raise the question of valuation in the trial Court at the proper stage. I would, therefore, hold that he is not entitled now to reopen that question and urge that the appeal lies to this Court and not to the Court of the Senior Sub-Judge. The petition is dismissed but in the circumstances I make no order as to costs.