1. In this case two questions arise for consideration with reference to the value of the subject-matter. The judgment complained of is a judgment of reversal and if the subject matter is of 5he value of Rs. 10,000 the appellants to England are entitled to a certificate.
2. It is said first that the appellants to England, namely, the plaintiffs are estopped from alleging that the value of the subject-matter amounts to Rs. 10,000. It appears that in this suit the valuation which was put upon the plaint for the purpose of Court-fee, was, apart from mesne profits a valuation of some Rs. 930 only and it is said that the plaintiffs having failed in the first Court brought an appeal to the Court of the District Judge on the footing that the value of the subject matter was under Rs. 5,000. The District Judge having found in their favour and the High Court in second appeal having been against them and they now being desirous of proceeding further on appeal it is said that they are estopped because they cannot approbate and reprobate and that their action in taking their appeal to the Court of the District Judge means that they took an advantage on the basis that the valuation of the suit was much lower than what it is now said to be.
3. In my judgment the cases cited to us do not cover the present case. There are two cases Kristo Indro Saha v. Huromonee Dassee  1 I.A. 84 and Bubu Lekraj Roy v. Kanhya Singh  1 I.A. 317. The case at pages 317 does not, in my judgment touch the point at all. The case at page is an authority for this - and so far as I can see only for this - that where a defendant took an advantage by accepting a high valuation and proceeded to appeal to the High Court direct, he could not afterwards allege that the real value was lower when, the plaintiff wanted to go to the Privy Council. For this purpose the view of the law appears to be that for an appellant to proceed to a higher Court immediately is to take an advantage but it is not so far as I know to be found anywhere laid down that to proceed to a lower Court and take a chance of what the lower Court would do is to take an advantage. It has in my short experience been generally accepted in this Court that the mere fast that a low valuation is put on a plaint for the purpose of Court-fee and consequently for the purpose of jurisdiction should not be allowed to operate as estoppel against the plaintiff on the question of value for the purpose of Privy Council appeals. There is perhaps a good deal to be said in favour of such a rule being introduced but there is a great deal to be said against such a rule being introduced by judicial decision. The cases Hari Mohan Misser v. Surendra Narain Singh  31 Cal. 301 and Kumar Basanta Kumar Roy v. Secretary of Stats for India  14 C.W.N. 872 seam to me to take the matter no further than I have said and I am of opinion that we are entitled to go into the real value for the purpose of considering whether a certificate should be granted. This is not a case in which the higher valuation would have meant that the trial would have had to be in a different Court. I reserve my opinion as to such a case.
4. It appears that the suit as framed asked for vacant possession by ejecting the defendants. It appears further that the appeal which succeeded in this Court was an appeal from a decree of The District Judge which in its final formg ranted that very prayer, namely, khas possession by ejecting the defendants.
5. The learned Subordinate Judge to whom this matter of valuation was referred has dealt with the matter on the basis that whatever happens in this suit the plaintiffs cannot really get vacant possession by ejecting the defendants. He has taken it to be a fact that tenants have been settled upon this land in a way that binds the plaintiffs and that there-fore one has to allow merely the value that the plaintiffs will be likely to make out of this land by taking rent from persons who are already established on the land. In that way the learned Subordinate Judge prefers to deal with the matter on a rental basis. He has also dealt with the matter from the point of view of the value of the produce of the land. He finds in the end that as regards the claim for mesne profits the plaintiffs case now is represented by a produce value of Rs. 6,552 on the basis that the gross value of the yield is Rs. 6 a bigha, that the net value which the plaintiffs could make would be at Rs. 3 and that the plaintiffs in that way can make out a claim for mssne profits at Rs. 6,552. It follows, therefore, that if it can be shown that the value of the land itself apart from mesne profits is as much as Rs. 9-1-48 the plaintiffs have made out their right to a certificate. The learned Judge says that the value is only Rs. 3236 and he does that by taking general evidence of witnesses some of whom gave one figure and some another. It is objected that they were speaking not really of the value of the land at all but were speaking merely of the rates that appear in documents which show sales of tenants right and it must be very evident that it is impossible to arrive at any degree of exactness upon the evidence which was before the learned Subordinate Judge.
6. Looking at the whole matter I am satisfied that the learned Subordinate Judge, in this case has adopted an estimate which is distinctly conservative. I cannot help noticing that for 146 bighas at Rs. 3 a bigha, at 12 years purchase only, a figure would be obtained of Rs. 5,256 and looking at the form of the plaintiffs suit, the form of the decree which was obtained from the District Judge and to the materials in the very careful report of the Subordinate Judge I am satisfied that we are not over-estimating the value of the plaintiffs' claim if we say that it is Rs. 10,000.
7. For these reasons I think that this case must be treated as one where a certificate must issue that the case is a fit one for appeal to His Majesty in Council under Section 110 of the Code.
8. We make no order as to costs on either side whether in this application or in the proceedings before the Subordinate Judge.
9. I agree.