1. This is an application by the defendant in the suit for a certificate that the case is a fit one for, appeal to His Majesty in Council.
2. The suit was brought by the plaintiff to establish his title to, and recover possession of certain plots of land measuring about 4 cottas and 9 chittaks situated in the town of Howrah.
3. The suit was brought in the learned Munsiff' Court and the subject matter of the suit was valued at Rs. 872. The defendants objected to the valuation and thereupon the learned Munsiff took evidence and found that the value of the subject matter of the suit, was at least Rs. 600 per cotta and he accordingly returned the plaint to the plaintiff for presentation to the proper Court.
4. The suit was then filed in the Court of the learned Subordinate Judge and the value of the subject matter of the suit was stated to be Rs. 2,737-8-0. It is obvious that the plaintiff adopted the valuation which the learned Munsiff had arrived at after taking the evidence, to which I have already referred. In-the Court of the learned Subordinate Judge one of the defendants raised an objection to the amended valuation alleging that the value of the dispute land was Rs. 1000 per cotta acd consequently an issue was raised upon the point, viz., 'Was the plaint undervalued and in sufficiently stamped.' It appears, how ever, from the learned Judge's record that the point was not pressed and he therefore decided this point in favour or the plaintiff.
5. The learned Subordinate Judge decided the suit and made a decree in the plaintiff's favour in part.
6. The defendants then appealed to the learned District Judge and in the Court they raised no objection to the learned Subordinate Judge's finding on the issue in re3peet of the value. On the contrary they valued their appeal to the lower appellate Court at the figure which the plaintiff had named, namely Rs. 2,737-8-0. It may, therefore, be taken that the defendant acquiesced in the valuation which the plaintiff had placed on the subject matter of the suit. The learned District Judge allowed the appeal presented by the defendants and dismissed the suit. Thereupon the plaintiff appealed to the High Court and the learned Judges, who heard the appeal, reversed the decision of the lower appellate Court and restored that of the learned Subordinate Judge.
7. The defendants now desire to appeal to His Majesty in Council. The judgment of the High Court reversed the decision of the lower appellate Court, and therefore the only question which it is necessary to consider is that of value. There is a dispute as to the value and the applicant has asked that the dispute should be referred under Order 45, Rule 5.
8. It is material to notice the first two grounds of the petition. The first is as follows:
For that the Hon'ble Court erred in law in interfering with the findings of fact arrived at by the Court of appeal below.
and the second ground is
that the findings of the lower appellate Court being clear, specific and unambiguous and being based upon the evidence in the record this Hon'ble Court could not in law set aside those findings even if they were improper or perverse. It is therefore clear that one of the main grounds upon which the defendants rely in respect of the appeal to the Judicial Committee of the Privy Council is that the learned Judges of this Court ought to have accepted the findings of fact of the lower appellate Court. The defendants now allege that the value of the subject matter of the suit and the value of the subject matter in dispute on appeal are Rs. 10,000 or upwards.
9. If they had substantiated this allegation in the Court of the learned Subordinate Judge, they would have had no appeal to the lower appellate Court and to obtain the findings of fact which were arrived at by the lower Court and upon which they now rely. If they had established the allegation, which they now make as to the value of the subject matter of the suit, the appeal from the learned Subordinate Judge would have been to the High Court direct, and the discretion of the learned Judges of the High Court would not have been fettered by the findings of fact of the lower appellate Court.
10. We have been referred to the case of Mutusawmy Jagavera Naiker v. Yenkataswara Yettia  10 M.I.A. 313. The facts are no means the same as in this case but some of the expressions of opinion are relevant to the question now under consideration. Lord Chelmsford in delivering the opinion is reported to have said at page 321:
Supposing that, upon the face of the plaint, it appeared the demand was really beyond the value of Rs. 25,00, it was competent to the defendant to have pleaded to the jurisdiction of the Court but no such course was taken, and a decision having been given, and an appeal made to the High Court, both parties proceed on the footing and upon the admission that the sum in dispute is under Rs. 10,000, the appealable amount to Her Majesty in Council. Supposing, therefore, that an application had been made to the High Court for leave to appeal, it would not have been competent to the parties, in this state of circumstances, to turn round and say that the value was above Rs. 10,000; and if not so, the High Court would have had no power to give leave to appeal.
11. In the case now under discussion the defendants took objection to the jurisdiction of the learned Subordinate Judge. They however abandoned the objection to the jurisdiction. They acquiesced in the valuation placed upon the subject matter of the suit and obtained the advantage of an appeal to the lower appellate Court as a ground for appeal to His Majesty in Council.
12. In my judgment having regard to the facts of this case it is not one in which this Court ought to refer the matter to the Court of first instance for a report as to the value of the subject matter of the suit.
13. The learned vakil who appeared for the defendants in reply argued that this case came within the second paragraph of Section 110 of the Code of Civil Procedure. In my judgment that paragraph does not apply to the facts of this case, indeed the learned Counsel who appeared on the previous occasion based his case upon the first paragraph of Section 110.
14. For these reasons in my judgment this application must be dismissed with costs - 5 gold mohurs.
15. I agree, and have nothing to add.