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Tarakanta Das Chowdhury and ors. Vs. Kali Prasad (Kali Prasunna) Das Ghorai and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal447,53Ind.Cas.1001
AppellantTarakanta Das Chowdhury and ors.
RespondentKali Prasad (Kali Prasunna) Das Ghorai and ors.
Cases ReferredNilmony Singh v. Jagabandhu Roy
Excerpt:
appeal - interlocutory order, compliance with, whether destroys right of appeal--forum, proper--valuation of suit--adjudication by court--appellate court, how to be determined. - .....of convenience. they are as follows:plain- sub-tiffs' judge's valuation. valua-tion. rs. rs.title suit 3 appeal no. 26... 2,500 400' ' 4 ' ' 27... 2,100 260' ' 5 ' ' 28... 3,100 680' ' 11 ' ' 29... 3,500 950' '246 ' ' 30... 1,100 200.10 on the figure that we have adopted, the valuation in these suits will become re. 600, 390, 1,020, 1,425, and 300 respectively. all are, therefore, triable by a munsif, and three of them by a munsif who is not vested with special powers.11. a sixth suit mentioned in the judgment is not the subject of appeal, viz., title suit no. 247.12. on these findings the order of the subordinate judge was correct in regard to title suits nos. 3, 4, 5, 11 and 246 and wrong in regard to title suit no. 298.13. the result is that the appeal no. 290 is decreed, and it is.....
Judgment:

Walmsley, J.

1. This appeal is preferred by the plaintiffs and it arises in the following manner. The plaintiffs filed a suit (No. 298 of 1913) in the Court of the Subordinate Judge of Barieal for a declaration of their Zemindari right to some land, and they valued the suit at Rs. 5,100. The defendants urged that the valuation was excessive, and that the true value was not more than Rs. 1,000. The learned Subordinate Judge went into this question and found that the value of the property in suit was Rs. 1,385 and as there was then at Barisal a Munsif empowered to try suits up to Rs. 2,000 in value, he returned the plaint to be presented in the Munsif's Court. The plaintiffs amended the valuation and presented the plaint in the Munsif's Court under protest, and shortly afterwards preferred this appeal against the Subordinate Judge's order.

2. A preliminary objection was raised to the effect that the plaintiffs, having complied with the order, could not be allowed to question it, and in support of the objection reference was made to the case of Beni Madhub Das v. Jotindra Mohun Tagore 11 C. W. N. 765; 5 C. L. J. 580, The facts are similar, save that in the present instance the Pleader wrote on the plaint 'Amended under Court's order but without giving up our right of appeal' and re-filed to-day, 'without giving up the right of appeal.' It appears to me that the fact that the plaintiffs pointedly declared that they were going to appeal, distinguishes the present ease from the one quoted. We are now concerned only with the question whether their action took away their right of appeal, and I think we should hold that it did not.

3. Then the question arises, in what Court does the appeal lie? Is it to this Court on the ground that the valuation put on the suit by the plaintiffs exceeds Rs. 5,000, or to the District Judge's Court on the ground that the correct valuation as found by the learned Subordinate Judge is below Rs. 5.000. For the defendants reliance is placed on the case of Boidya Nath Adya v. Makhan Lal Adya 17 C. 680. That was a converse case. The plaintiff valued his suit at Rs. 4,200 and appealed to the District Judge against an order refusing to appoint a Receiver. This Court held that the valuation was unquestionably more than Rs. 5,000, and that the District Judge was not competent to deal with the appeal. The principle may be the same, but here i the valuation is itself questioned and is in fact the subject-matter of the appeal, although technically the appeal is against the order consequential on the finding as to valuation, whereas in the case cited I the application for appointment of Receiver was dealt with before there was any decision as to valuation. On the other hand, the plaintiffs rely upon the case of Nilmony Singh v. Jagabandhu Roy 23 C.536. That is practically on all fours with the present case, and the only difficulty that arises in applying the principle followed there lies in the remarks of the learned Judges about the valuation being bona fide: they said it might be wrong to determine the forum of appeal on the basis of plaintiff's valuation, if that valuation had been found to be excessive and intended to change the venue of the appeal. In the present case the defendants contend that the plaintiffs have deliberately overvalued the suit in order to avoid a plea of res judicata. The learned Judges, however, did not say that the valuation must be bona fide: they only expressed a doubt as to what would be the effect if the valuation were not bona fide. This question of the bona fides of plaintiff's valuation does not appear to have been raised again in any reported case. The difficulty of applying a rule that the valuations must be bona fide is considerable and the result might be embarrassing.

4. Reference was also made to the Full Bench decision in the case of Ijjatulla Bhuyan v. Chandra Mohan Banerjee 34 C. 954; 6 C. L. J. 256; 11 C. W. N. 133(F. B.). The question was different, but in Mookerjee, J.'s judgment some useful remarks are made and I think we should act upon his view; 'The forum of appeal depends not upon the value as adjudged, but upon the value as accepted by the plaintiff after adjudication.' Here, save for the compliance with the Subordinate Judge's order, the plaintiffs still maintain that the valuation exceeds Rs. 5,000. I think we should hold that in consequence the appeal lies to this Court.

5. Now to come to the merits of the case. The questions to be determined are the annual value and the number of years' purchase to be allowed. The learned Judge finds the nett annual value to be Rs. 1388, The plaintiffs contend that this s wrong, and that it ^should be about Rs. 320. Their argument is based on the results of proceedings under Section 105 of the Tenancy Act, but I fail to see how they can make those decisions a basis, for the defendants were not the tenants set up by the plaintiffs. If the plaintiffs' facts are correct, those proceedings took place between parties who had no interest in the land, and the judgments are valueless. On the contrary, the figure taken by the learned Judge is the -plaintiffs' own statement in the plaint, and on their allegations it is at least doubtful whether they could successfully maintain a suit for the variation of the rent.

6. Another objection to the plaintiffs' argument is that this ground is not set out in the grounds of appeal. There is a reference to the Record of Rights in the fifth ground, but there is no evidence that the plaintiffs, if successful in this suit, would be entitled to recover seven rupees per kani from their tenants, and further no formal evidence has been given as to the extent of a hint. I think that in regard to the nett annual income we must uphold the finding of the learned Subordinate Judge.

7. With regard to the number of years' purchase, the learned Subordinate Judge says that there are two kabalas showing sale of the Zamindari right at ten years' purchase, and two showing twenty-five years' purchase: He thinks the latter an unsafe criterion because there are valuable 'hats' on the land sold, and numerous jalkars. I think this reasoning is unsound. In the first place, these four kabalas taken together only cover a two-annas share, and it is hardly wise to come to a conclusion on the transfer of such small shares. Secondly, the presence of 'hats and jalkars' undoubtedly creates the possibility of an expanding, income, but I doubt whether that possibility is enough to account for the difference between ten and twenty five. The question, however, is not to be determined by what has been paid for a share in this particular Zamindari, but on the basis of what is commonly regarded as a fair return for money laid out in landed property.

8. When land is acquired compulsorily, claimant demands as much as twenty-five years' purchase, and I think the number given is generally from fifteen to twenty. In the present instance I think the plaintiffs should be allowed to value their suit at fifteen years' purchase of the nett annual value, that is to say, at Rs. 2,077-8-0.

9. Five other suits connected with the present one were filed by the plaintiffs, four in the Court of the Subordinate Judge and one in the Court of the Munsif: the last was transferred to the Court of the Subordinate Judge to be tried with the others. Similar orders were passed on them, and the appeals, preferred in the District Judge's Court, have been called up to this Court for the sake of convenience. They are as follows:

Plain- Sub-tiffs' Judge's valuation. Valua-tion. Rs. Rs.Title Suit 3 Appeal No. 26... 2,500 400' ' 4 ' ' 27... 2,100 260' ' 5 ' ' 28... 3,100 680' ' 11 ' ' 29... 3,500 950' '246 ' ' 30... 1,100 200

.10 On the figure that we have adopted, the valuation in these suits will become Re. 600, 390, 1,020, 1,425, and 300 respectively. All are, therefore, triable by a Munsif, and three of them by a Munsif who is not vested with special powers.

11. A sixth suit mentioned in the judgment is not the subject of appeal, viz., Title Suit No. 247.

12. On these findings the order of the Subordinate Judge was correct in regard to Title Suits Nos. 3, 4, 5, 11 and 246 and wrong in regard to Title Suit No. 298.

13. The result is that the Appeal No. 290 is decreed, and it is ordered that the plaint be returned to the Court of the Subordinate Judge, where the suit will proceed according to law; while the other appeals are dismissed. Each party will bear his own costs in this Court in all these appeals. In Appeal No. 290 the parties will bear their own costs in the lower Courts also.

Shamsul Huda, J.

15. The faots of this owe are fully stated in the judgment of my learned brother and it is not necessary to repeat them.

16. It the question were res integra, I would have felt considerable difficulty in holding that when a question of valuation is put in issue and is determined Upon evidence, adduced by the parties, by a Court competent to decide such a question, that the value of the suit for purposes of Section 21 of the Civil Courts Act is not the value so determined but the value which the plaintiff has thought it St to put on his own suit. In this case even according to our own valuation the appeal lay to the Court of the District Judge and not to this Court. However, having regard to the decision of this Court in Nilmony Singh v. Jagabandhu Roy (3), I feel constrained to hold that an appeal lies to this Court.

17. On the question of valuation I agree with the decision arrived at by my learned brother.


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