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Mahamad HossaIn Khan Vs. Mansur Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1934Cal809,153Ind.Cas.366
AppellantMahamad HossaIn Khan
RespondentMansur Ali and ors.
Cases ReferredMangamma v. Mahalakshmamma
Excerpt:
- .....were confined only to the banks of a khal called the jinjira khal and did not extend to the land in suit. in the plaint the plaintiff valued the disputed rights at rs. 2000, the injunction at rs. 100 and the declaration at rs. 150 and he paid court-fees on the aggregate amount of rs. 2,250. the suit was laid in the court of the subordinate judge; that learned judge decreed it.2. the defendants appealed to the district judge on the basis of the plaintiff's valuation aforesaid. the district judge modified the trial court's decree in some respects in defendants' favour. the plaintiff preferred a second appeal to this court which was dismissed. he then makes this application. for the purposes of the appeal which he intends to prefer and in order to bring the case within para. 1,.....
Judgment:
ORDER

1. This is an application by the plaintiff for leave to prefer an appeal to His Majesty in Council. The plaintiff instituted the suit asking for a permanent injunction on the defendants, with reference to a plot of land, restraining them from mooring any boat of paddy on the plot carrying on paddy business thereon and also exercising other rights incidental to the said business on it and praying further for a declaration that the defendants have no right to carry on their Gulla business on the said land. The defendants resisted the claim alleging that they had acquired the rights which were disputed on behalf of the plaintiff, under a grant from some predecessor of the plaintiff, but the plaintiff, on the other hand, contended that the rights which his predecessor had conferred were confined only to the banks of a khal called the Jinjira Khal and did not extend to the land in suit. In the plaint the plaintiff valued the disputed rights at Rs. 2000, the injunction at Rs. 100 and the declaration at Rs. 150 and he paid court-fees on the aggregate amount of Rs. 2,250. The suit was laid in the Court of the Subordinate Judge; that learned Judge decreed it.

2. The defendants appealed to the District Judge on the basis of the plaintiff's valuation aforesaid. The District Judge modified the trial Court's decree in some respects in defendants' favour. The plaintiff preferred a second appeal to this Court which was dismissed. He then makes this application. For the purposes of the appeal which he intends to prefer and in order to bring the case within para. 1, Section 110 of the Code, the plaintiff has valued the subject matter of the suit at over Rs. 10,000 on two alternative modes of calculation set out respectively in Schedules A and B to his application. They are as follows: (A) that the Gulla business fetches the defendants an income, which capitalized is well over Rs. 10,000 and that the same would go to the plaintiff if the defendants' right to conduct the said business on the said land is negatived and the plaintiff carries it on there ; (B) that the business which the plaintiff carries on his other lands is interfered with by the defendants' business to an extent, the loss in consequence of which, if capitalized, far exceeds Rs. 10,000; also that the losses which the plaintiff's tenants suffer for the same reason aggregate a like amount. It may be observed here that the mode of calculation stated in Schedule B was never suggested at any previous stage' of the suit. The question for consideration is whether the plaintiff is at liberty to go back upon his own valuation as given in the plaint and adopt one of the two valuations indicated in the aforesaid schedules.

3. Most of the cases cited on behalf of the plaintiff are authorities for a proposition, which cannot be disputed, namely, that a party who has previously made a valuation of his suit or appeal for the purpose of court-fees is not always precluded from adopting for his proposed appeal a higher valuation as representing the actual or market-value of the claim made in the suit. We do not consider it necessary to discuss these cases because they are not oases in which the valuation of the reliefs claimed has to be made for the purposes of court-fees at their actual or market-values. The case before us was one in which the plaintiff, though he had a wide discretion in the matter, had to value his claim at its actual or market value. He already valued it in his plaint in a particular way; and when he has done so he cannot, in our opinion, be allowed to show that such value did not represent the real value. More over by reason of the fact that he valued the suit at Rs. 2,250, he was able to take the defendants through three Courts up to now, one of which Courts the latter could have avoided if the suit had been originally laid at over rupees 10,000. In such circumstances we are clearly of opinion that the plaintiff is precluded from showing that his valuation as given in the plaint was not real or from setting up such valuations as he now puts forward in Schedules A and B to his application. We consider it sufficient to refer to the decisions in Mahendra Narain Roy v. Janaki Nath Boy, 1931 Cal 417, and Radha Narain v. Purna Chandra, 1930 Cal 737, and the order in P. A. Appeal No. 62 of 1931 dated 11th January 1932, in support of the view we take.

4. For the above reason the plaintiff's first attempt which was to bring the case within para. 1, Section 110 of the Code must fail. He has next argued that the case fulfils the requirements of para. 2 of that section. But the applicability of this paragraph to the present case has not been endeavoured to make out, in view of the interpretation put upon it by the decision of Subrmania Ayyar v. Sellammal, 1916 Mad 985 which has been approved of by the Judicial Committee in Mangamma v. Mahalakshmamma, 1930 PC 44. The plaintiff's next attempt has been to establish that the appeal involves some substantial question of law so that even though the requirement as to value is not satisfied a certificate might issue as Under Section 109, Clause (o). The two grounds which are stated in this connexion are first that the defendants are not persons who may have the benefit of the provisions contained in Section 4 Regulation 11 of 1825; and second that the grant on which the defendants have succeeded was one in respect of property which was not in existence at its date and might only come into existence in future and was accordingly invalid.

5. Neither of these contentions in our opinion, is a substantial one. The defendants' right has been affirmed upon a construction, concurrently maintained by the two Courts below, of the terms of a grant to which no exception of the nature suggested can possibly be taken. Indeed, no such objection appears to have been indicated in any of the Courts up to now. Again, it is not on the law contained in Section 4, Regulation 11 of 1825 that they have succeeded but only upon a right which the plaintiffs predecessor had expressly conveyed in their favour. We see no substance in any of the two grounds aforesaid. The application is dismissed with coats five gold mohurs.


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