A.C. Sen, J.
1. This is an application under Article 133 of the Constitution for a Certificate in respect of the decree of a Division Bench of this Court in Second Appeal No. 819 of 1955 dated July 28, 1966 reversing the decree of the lower appellate court arising out of Title Suit No. 530 of 1956 of the Second Court of Munsif at Ali-pore.
2. On or about December 23, 1953. one Purnendu Narayan Roy Deb Barman, since deceased predecessor-in-interest of the respondent No. 1 along with the respondent No. 2, instituted in the First Court of the Munsif at Alipore a suit for eviction of the petitioner from flat No. 2 on the around floor of premises No. 136B Rash Behari Avenue, Ballygunge, Calcutta. The said suit on transfer to the second Court of the Munsif at Alipore was renumbered as Title Suit No. 520 of 1956. The suit was decreed by the learned Munsif on December 20, 1957.
3. Against the said decree the petitioner preferred an appeal before the learned District Judge of 24 Parganas at Alipore, which, on transfer to second court of the Subordinate Judge at Alipore, was registered as Title Appeal No. 205 of 1958. The said appeal was allowed by the learned Subordinate Judge by his judgment and decree dated August 9, 1958.
4. Against the said appellate decree the plaintiffs preferred a second appeal to this court being Second Appeal No. 819 of 1959. During the pendency of the said second appeal in this court, one of the plaintiffs, namely, Purnendu Narayan Roy Deb Burman having died the respondent No. 1 before us was substituted in his place in the said second appeal after setting aside abatement caused by the death of Purnendu Narayan. Long after such substitution, the respondents Nos. 1 and 2 before us by an indenture of sale dated May 31, 1965 sold and conveyed the entire premises No. 136B Rash Behari Avenue, of which the disputed premises form a part, to the respondent No. 3 before us. The said second appeal was allowed with costs by a Division Bench of his Court, of which one of us was a member, by its judgment and decree dated July 28, 1966. It is against this decree passed in second appeal by this Court that the petitioner intends to prefer an appeal to the Supreme Court.
5. The judgment of the Division Bench being one of reversal of the decree of the lower appellate court, the only thing to be established by the petitioner in that the valuation test laid down by Article 133 is satisfied in this case, unless we are satisfied that it is otherwise a fit case for appeal to the Supreme Court under Sub-clause (c) of Cause (1) of Article 132,
6. Let us first of all consider the question of valuation. The statement in paragraph 23 of the petition represents the petitioner's point of view. The material portion of the said para runs thus:
''That although for the purpose of court-fee and jurisdiction the suit was valued under section 7(xi), Clause (c) at Rs. 2,400, the subject matter of the suit is in respect of a tenancy in the ground floor of premises No. 136B, Rash Behari Avenue just opposite Deshapriya Park on Rash Behari Avenue, where the value of land is at least Rs. 25,000 per cottah. The building, of which the disputed premises form part, is a big four-storied buildings .....The said premises No. 136B. Rash Behari Avenue is worth several lacs of rupees and the value of the premises in suit is at least Rs. 50,000. The monthly rent of the tenancy in suit is Rs. 200, the capitalised value whereof is Rs. 48,000. As such, the amount or value of the subject matter of the dispute in the court of the first instance and still in dispute on appeal was and is in excess of Rs. 20,000'.
7. The petitioner seems to think that as the market value of the flat comprised in his tenancy is Rs. 48,000, the value of the subject matter in suit is in excess of Rs. 20,000. It is needless to point out that the value of the property is something different from the value of the subject matter in suit. The subject matter in dispute in the instant case is the tenancy that was created in favour of the petitioner. In para 23 of the petition nothing has been said as to the market value of the tenancy The market value of the sixteen annas interest in the disputed flat may be Rs. 48,000, but the market value of the tenants' interest cannot be Rs. 48,000. There are no materials on record from which the value of the subject matter in dispute in the court of first instance can be ascertained. The suit was valued at Rs. 2400 for the purpose of court fee and jurisdiction. Prima facie Rs. 2400 which is the value for the purpose of jurisdiction is to be taken as the value of the subject matter in dispute. If the petitioner contends that the value of the subject matter in dispute is above Rs. 20,000 onus lies on him, and he has not discharged the onus. Therefore, it must be taken that the value of the subject matter in dispute is Rs. 2400. Hence the petitioner is not entitled to get any Certificate as to valuation under (Sub-clause (a) of Cause (1) of Article 133. Mr. Mitter appearing on behalf of the petitioner, does not say that the petitioner can claim any Certificate under Sub-clause (a).
8. Mr. Mitter, however, contends that the petitioner certainly can claim a certificate as to valuation under Sub-clause (b) of Cause (1) of Article 133. He relies on Ram Lakshman Singh v. Girindra Mohan : AIR1963Cal13 in support of his contention. There on December 16, 1957, the respondent, Girindra Mohan Hazra filed a suit against the petitioner for ejectment from premises No. P-23, B. K. Paul Avenue and for mesne profits. The petitioner denied that he was a monthly tenant in respect of 'any premises within the meaning of the West Bengal Premises Tenancy Act. 1956'. On February 18, 1958, the respondent filed a petition under Section 17(3) of the said Act for striking out defence on the ground that the petitioner had failed to deposit all arrears of rent within the time allowed by Section 17(1). On February 24, 1958 the petitioner filed objection stating that he was not a tenant of any premises, that he was a tenant of a piece of land and that the Premises Tenancy Act of 1956 did not apply to the case. On April 8, 1958 the learned Judge of the City Civil Court allowed the application under Section 17(3) and passed an order for striking out the defence against delivery of possession. This order was affirmed by the High Court on revision. The petitioner thereafter applied for the amendment of the written statement. He stated that he was a thika tenant and prayed that he should be allowed to amend the written statement accordingly. This petition for amendment was rejected and the suit for eviction was decreed ex parte.
9. The appeal preferred by the tenant petitioner to the High Court was ultimately dismissed by the High Court. Thereafter the tenant petitioner applied under Article 133 of the Constitution for leave to appeal to the Supreme Court. The Judgment of the High Court being one of affirmance the petitioner was required to establish that there were substantial questions of law involved and that the valuation test, as required by Sub-clauses (a) and (b) of Clause (1) of Article 133 was satisfied. On the question of valuation the High Court was of opinion that the case satisfied the test required by Sub-clause (b). The relevant portion from the judgment of Bose, C. J. is quoted below: 'Dealing with the question of valuation it appears from the plaint that the plaintiff landlord valued the suit at Rs. 1780. .... This was obviously done for the purpose of payment of Court fees, and the valuation was made under Section 7(ii) of the Court Fees Act .... According to this section the valuation on made for ejectment was Rs. 140 X 12 i.e. Rs. 1680 and for rent Rs. 100. In the absence of any material as to what was the value of the subject matter in dispute in the court of first instance the petitioner has attempted to bring his case within Article 133(1)(b) of the Constitution ..... Reliance has been placed by the learned Advocate for the petitioner on a decision of the. Allahabad High Court reported in : AIR1956All348 . Central Talkies v. Dwarka Prasad .....Now it appears to us that in Clause (b) of Article 133 the emphasis is laid on the value of the property ..... It is also clear from the decision of the Allahabad High Court that the learned Judges of the Division Bench were fully alive to the fact that the word 'property' in Article 133(1)(b) has reference to some property other than the property which is the subject matter in dispute ..... In the case before us it is not disputed that the market value of the property from which the petitioner is sought to be evicted is more than Rs. 20,000.....So if the principle of the Allahabad decision which is supported by the decision of the Division Bench of this Court reported in ILR 44 Cal 119: (AIR 1917 Cal 496) and which we accept as applied to the facts of this case there can be no difficulty in coming to the conclusion that the valuation test as required by Art. 133(1)(b) is satisfied in this Case'
10. Bose, C. J who delivered the judgment decided the question of valuation in favour of the monthly tenant by applying the principle 'adopted by the Allahabad High Court in : AIR1956All348 . There the plaintiff brought a suit for ejectment of a tenant from a cinema house which was worth more than Rs. 20,000 after obtaining the required permission of the Rent Controller. The suit was dismissed by the court below on the ground that permission was invalid. On second appeal the High Court decreed the suit on the ground that the permission was valid The defendant tenant applied for leave under Article 133 of the Constitution. It was held that the appeal proposed to be filed in the Supreme Court satisfied the requirements of Article 133(1)(b) of the Constitution. As to the real import of Article 133(1)(b) their Lordships of the Allahabad High Court said this: 'The first point that has been argued before us is that the phrase 'of the like amount or value' qualifies not the word 'property' but the words 'some claim or question'. . . This contention is not acceptable to us. On the plain reading of the words, according to the ordinary rules of grammar, the phrase 'of the like amount or value' coming immediately after the word 'property' qualifies the said word.' Their Lordships distinguished between the two Sub-clauses (a) and (b) in the following manner: 'Another point which is noteworthy is that, which under Sub-clause (1) it is the 'subject matter of the dispute' which should be worth Rs. 20,000/- or more, it is the 'property' under Sub-clause (b) which is to be of that value.' As to the implication of 'property' in Sub-clause (b) their Lordships said : 'It has been interpreted to mean some property which may be other than the subject matter of the dispute and which may be affected by the decision in the suit.
11. Their Lordships ultimately came to the following conclusion : 'Applying these principles to the facts of the present case one finds that, although the right of tenancy which the applicants claim may be worth less than Rs. 20,000/-, they are certainly laying claim to possession over the building of the cinema. That property, as already stated, is, by common consent, worth considerably more than Rs. 20,000. Therefore, the present case does, in our opinion, involve directly claim in respect of property worth Rs. 20,000/- and it satisfies the requirement of Sub-clause (b) of Article 133(1) of the Constitution.'
12. The Division Benches of both the High Courts placed reliance on Surendra Nath Roy v. Dwarka Nath, ILR 44 Cal 119: AIR 1917 Cal 496. There the plaintiffs brought an action for ejectment against the defendant from a plot of land measuring 1 bigha 18 cottahs situate within the municipality of Calcutta. The defence was that the defendant was not a tenant from year to year as alleged by the plaintiffs but a Mokarari Mourusi tenant. The rent being only Rs. 4-4as-3p per year the suit was valued for purposes of court fees for determining the forum of trial at Rs. 4-4as-3p was instituted in the court of the Munsif-at Alipore. The learned Munsif decreed the suit On appeal the suit was dismissed as the lower appellate court came to the conclusion on the findings of fact arrived at by the Munsif that the tenancy was a permanent one. The plaintiffs then preferred a second appeal which was summarily dismissed by a Division Bench under Order 41, Rule 11, Code of Civil Procedure. The plaintiffs thereupon applied for leave to appeal to His Majesty in Council. The High Court remitted the case to the Munsif for the determination of the value of the subject matter of the suit, and he found that at the the date of the order of the High Court the value of the land in dispute was Rs. 11,400 at the rate of Rs. 300 per cottah. Sanderson C. J., on the question of valuation said: 'I think the value arrived at by Mr. Warnick (valuer) at Rs. 300 per cottah may be taken to have been the value of the property in 1914. Therefore the value of the property was about the requisite amount in December 1914, and for this reason the case comes within the second paragraph of Section 110 of the Code of Civil Procedure.' It may be mentioned that the second appeal was summarily dismissed in December 1914, that is why value in December 1914 was relevant Sanderson, C. J. further held that though the plaintiffs brought their suit in the Munsif's Court and paid court fees on the annual rental of Rs. 4-4-3 they were not debarred from subsequently raising the point that the property in dispute was in fact of the value of Rs. 11.400.
13. Mookerjee J. in a separate judgment concluded that there was no room for controversy that in the case before them the decree against which leave to appeal was sought did affect property of the value of Rs. 10,000 and upwards.
14. As both the learned Judges were of opinion that the decree involved a sub-stantial question of law, the necessary certificate was granted under paragraph 2 of Section 110, Civil Procedure Code
15. It may be noted that Sanderson C. J. thought that the valuation test under para 2 of Section 110, Civil Procedure Code was satisfied because 'the property which was in dispute' was in fact of the value of Rs. 11,400. This will be evident, from the following passage occurring in his judgment: 'Speaking for myself, I do not think that the plaintiff is debarred from raising the point that the property which is in dispute is in fact of the value of Rs. 11,400. If the property in dispute were valued at Rs. 11,400 certificate would have been given under the first paragraph' His Lordships evidently meant property other than the subject matter in dispute. It is needless to point out that the petition for leave to appeal to the Privy Council was made by the plaintiffs, who were the owners of the lands in the occupation of the defendant and that the decree sought to be appealed from affected their proprietary interest in the disputed lands. The subject matter of the dispute was no doubt the tenancy of the defendant, but the decree passed by the High Court affected not only the tenancy but also the reversion of the plaintiffs. The value of the revertion would have been nominal if the decree of the High Court stood, whereas the value of the reversion would have been almost the full market value, at the date of the High Court's decree, of the lands in question unencumbered by the tenancy of the defendant. It is for his reason that Mookerjee J. said: 'In my opinion, it is perfectly plain that under Section 110 the point of time to be considered is the date of the judgment under appeal. If this principle is adopted, there is no room for controversy that in the case before us. the decree against which leave to appeal is sought does affect property of the value of Rs. 10,000 and upwards.' Mookerjee J. quoted with approval the following observations of Lord Chelmsford in Macfarlane v. Leclaire, 0862) 15 Moo. PC 181: 'That the judgment is to be looked at as it affects the interests of the party who is prejudiced by it and who seeks to relieve himself from it by appeal; if there is to be a limit of value at all. that seems evidently the right principle on which to measure it. The proper measure of value for determining the question of the right of appeal, is the value of the judgment '
16. Surendra case ILR 44 Cal 119 (AIR 1917 Cal 496) decided by Sanderson C. J. and Mookerjee J of our High Court is really distinguishable on fact from : AIR1956All348 and from Ram Lakshman's case : AIR1963Cal13 . In both the latter cases it is the tenant who applied for leave to appeal to the Supreme Court; and in the the case decided by our High Court, namely Ram Lakshman's case, the tenancy was from month to month, In Brijmohan's case, the nature of the tenancy is not mentioned in the judgment, but it seems it was also a tenancy from month to month. Therefore, in both the cases the value of the judgment cannot exceed the value of the subject matter in disputes, namely the tenancy. Allahabad High Court proceeded on the footing that the right of tenancy which the applicants claim may be worth less than Rs. 20,000/-'. In Ram Lakshman's case too their Lordships granted leave under Sub-clause (b) in the absence of any materials as to what was the value of the subject matter in dispute in the court of first instance. The judgment of the High Court affected only the tenancy and nothing else. Therefore, there were no materials on record to show what was the value of the property, that is, the tenancy in question affected by the judgment. Hence the tenant petitioner, on the principle laid down in urendra's case, ILR 44 Cal 119: (AIR 1917 Cal 496) was not entitled to any Certificate under Sub-clause (b). As a matter of fact the principle laid down In Surendra's case, ILR 44 Cal 119: (AIR 1917 Cal 496) does not warrant the conclusion arrived at by the Allahabad High Court in Brijmohan's case by the Division Bench of our High Court, in Ram Lakshman's case.
17. So far as the Allahabad case is concerned, cinema house in the occupation of the applicant as a monthly tenant was worth more than Rs. 20,000/-. From that it does not necessarily follow that the claim to possess the cinema as a tenant was worth more than Rs. 20,000/-or that the judgment to be appealed from affected property worth more than Rupees 20,000/-. The process of reasoning of the Allahabad High Court is as follows: ' although the right of tenancy which the applicants claim may be worth less than Rs. 20,000/-, they are certainly laying claim to possession over the building of the cinema house. That property. . . .is, by common consent, worth considerably more than Rs. 20,000. Therefore the present case does. . . .involve directly a claim in respect of property worth Rs. 20,000 and it satisfies the requirement of Sub-clause (b) of Article 133(1) of the Constitution.' Their Lordships of the Allahabad High Court seem to think that as the appellant were claiming their tenancy right in the cinema they were, therefore, claiming the cinema itself. But that is not so. They were claiming the lease-hold interest in the cinema and not the sixteen annas interest as owner The limited interest of a tenant is as much property as the reversion or sixteen annas interest of the owner unencumbered by the tenancy. The applicants were laying claim to possession over the building. They were not claiming any interest in the reversion. That claim itself was property. That property certainly was not worth more than Rs. 20,000/-. Therefore their Lordships were not justified in saying that the case involved directly a claim in respect of property worth Rupees 20,000/-. The case involved directly the tenancy right, which is a species of property, and this tenancy right was worth less than Rs. 20,000. Therefore the case involved directly a claim in respect of property, worth less than Rs. 20,000/-. The fallacy lay in equalling the right of tenancy in the cinema house with the cinema house Itself.
18. In Ram Lakshman's case also the monthly tenant laid claim only to the tenancy right in the lands in question and not to the lands themselves, simply because the value of the lands in question exceeded Rs. 20,000/- it could not be said that the decree affected property worth more than Rs. 20,000/-. There were no materials on record from which the value of the leasehold property could be ascertained.
19. In both the cases, namely the case of Brijmohan and the case of Ram Lakshman no property other than the leasehold was involved within the meaning of Sub-clause (b) of Article 133(1) of the Constitution. Therefore even assuming that Sub-clause (b) was ap-licable the valuation test required by the said sub-clause was not satisfied.
20. The recent decision of the Supreme Court in Chittarmal v. Pannalal : 2SCR751 clearly shows that the two cases discussed above at considerable length were not correctly decided. In the case before the Supreme Court the applicant for leave to appeal to the Supreme Court commenced on July 2, 1951 an action against the respondents claiming a decree for Rs. 10,665 and for rendition of accounts is respect of the balance of sale proceeds of 104 bales of cotton purchased by him through the agency of the respondents. The petitioner claimed that 104 bales of cotton were sold by the respondents as his agent in May 1948 for Rs. 27,267-13-6 and without settling the account sent a demand draft for Rs. 11,000/- which was cashed and four cheques of the aggregate value of Rs. 13,000 that were dishonoured. The suit was for Rs. 10,665 being the amount due on the foot of the dishonoured cheques and interest thereon at the rate of 6 per cent per annum between July 2, 1947 to July 1, 1951 less Rs. 4000 subsequently received. The applicant also claimed a decree for the balance of the price after giving credit for commission etc. and claimed rendition if accounts. The trial court passed a decree directing that account be taken for ascertaining the amount due in respect of the entire transaction of 104 bales, and appointed a Commissioner for taking accounts. The High Court of Rajasthan reversed the decree on the ground that the transactions in respect of which the claim was made by the applicant were those of an unregistered firm constituted the applicant and another.
21. The counsel for the applicant urged that as the judgment of the High Court directly involved a claim question respecting property of the value of not less than Rs. 20,000/- the applicant was entitled to a Certificate under Sub-clause (b) of Article 133(1) as of right. His argument was two-fold. At first he argued that the judgment of the High Court involved a question relating to the right of the petitioner respecting 104 bales of cotton sold for more than Rs. 27,000/-. Secondly, he urged that on the report of the Commissioner for accounts that Rs. 12,089-14-6 with interest at 6 per cent from May 14, 1948 was due to the applicant the total claim would exceed Rs. 20,000/- at the date of the High Court's decree. Both the arguments were rejected by the Supreme Court.
22. The Supreme Court was of the opinion that 'if in a proposed appeal there is no claim or question raised respecting property other than the subject matter Clause (a) will apply; if there is involved in the appeal a claim or question respecting property of an amount or value not less than Rs. 20,000 in addition to or other than the subject matter of the dispute Clause (b) will apply.'
23. The Supreme Court was of opinion that the judgment of the Rajasthan High Court did not involve any claim or question relating to the 104 bales of cotton sold by the defendant, because what was challenged was not the agent's right to sell the bales, but the agent's right to retain the price received by him. The subject matter in dispute being a claim for money the Supreme Court held that the judgment did not involve any claim or question relating to property in addition to or other than the subject matter in dispute of the value of Rs. 20,000.
24. The Supreme Court gave the following reason for discarding the second branch of the argument: 'It is true that by his petition the petitioner claims restoration of the decree of the Trial Court, and by adding interest at the rate of 6 P. C. per annum to the petitioner's claim as awarded under the report of the Commissioner, the claim of the petitioner on appeal exceeds Rs. 20,000. But this is still the subject matter in dispute, the judgment does not involve any claim or question respecting property in addition to or other than the subject matter of the suit.'
25. If we apply the above principle to the facts of the instant case we are bound to hold that the judgment deliver-ed by the High Court does not involve any claim or question respecting property in addition to or other than the subject matter of the suit The subject matter of the suit is the tenancy of the applicant for leave to appeal and the judgment of the High Court too is exclusively confined to the disputed tenancy. As has been indicated by the Supreme Court in the case just cited, Sub-clause (b) of Article 133(1) is not attracted unless the judgment sought to be challenged in appeal involves any claim or question in respect of any property in addition to or other than the subject matter in dispute. It follows as a corollary that if any question in respect of any property in addition to or other than the subject matter in dispute is involved in the judgment, Sub-clause (b) will not be attracted unless the value of such property is at least Rs. 20,000. There is no question of applying Sub-clause (b) where no such property is involved in the judgment under appeal.
26. As in the instant case no claim or question relating to any property other than the tenancy, which is the subject matter of the suit, is involved the petitioner is not entitled to any Certificate under Sub- Clause (b). We are not expressing any opinion as to whether Sub-clause (b) would have been attracted if instead of the tenant the landlord was the applicant for leave to appeal to the Supreme Court. We have already indicated that the petitioner is not entitled to any Certificate under Sub-clause (a). As to Sub-clause (c), it cannot be doubted for a moment that no certificate can be granted under that sub-clause, as it is nothing but an ordinary suit for eviction instituted by a landlord against his tenant.
27. Before parting with the case we would like to point out that the recent decision of the Supreme Court noted above endorses the view taken by Lahari C. J. and Bachawat J. in Ram Baran v. Ram Mohit : AIR1961Cal537 , wherein their Lordships held that in order to come under Sub-clause (b) it is necessary for the petitioner to prove that the decision complained of affect directly or indirectly some claim or question respecting property which is not the subject matter of the suit. In that case arising out of a suit for pre-emption the value of the immovable property, which was the subject matter of the suit was Rs. 40,000/- at the date of the High Court's decree but the value of the subject matter in the court of first instance was given as Rs. 14000. The Certificate under Sub-clause (b) was refused and Lahari C. J. gave the following reason: 'As the decision complained of in this case does not directly or indirectly affect any claim or property other than the subject matter of the suit. I am unable to hold that the petitioner is entitled to a certificate under Article 133(1)(b) of the Constitution. It is needless to point out that the Division Bench of our High Court deciding the case of Ram Lakshman : AIR1963Cal13 and the Division Bench of the Allahabad High Court deciding the case of : AIR1956All348 failed to note the distinction between the subject matter in suit and any property in addition to or other than the subject matter in dispute. The Allahabad High Court thought that as the tenant claimed the right to possess the cinema house, therefore the case involved directly a claim to the cinema house. If that were so, then the claim to the cinema house would have been the subject matter in dispute and no question of Certificate under Sub-clause (b) would have arisen. As a matter of fact the tenancy alone was the subject matter in dispute and the reversion or any other property in addition to or other than the subject matter was not involved in that case. The position was the same with regard to the decision of the Division Bench of the Calcutta High Court in Ram Lakshman's case : AIR1963Cal13 . We, therefore, cannot follow those two decisions in view of the recent pronouncement of the Supreme Court in Chittarmal's case : 2SCR751 .
28. In the result the application for leave to appeal is dismissed and Certificate under Article 133 of the Constitution refused. There will be no order as to cost.
29 I agree.