1. The suit out of which this application arises, was valued at Rs. 2,162-14-9, and the appeal to this Court, against which it is desired to appeal to His Majesty in Council, was valued at Rs. 2,860-14-9. The decision of this Court on appeal reversed that of the Court of first instance, and, in order that this application for leave to appeal may be granted, it is necessary for the applicant to show that the value is over Rs. 10,000. In order to satisfy us on this point, the applicant in his application states that the decision of this Court indirectly involves a claim to property valued at more than Rs. 10,000, and, secondly, that the present market value of the land, the subject-matter of the suit, is over Rs. 10,000.
2. The learned Vakil for the applicant has argued that under the terms of the contract entered into between his client and the opposite party, it was arranged that his clients should be given a lease of all the lands in village Algi, though the greater portion was then covered by the river. The terms of the contract were embodied in the kabuliat of 1837, and all the lands of village Algi were included. At the time of the revenue survey the lands of Algi covered 1180 acres, the value of which would be over Rs. 38,000.
3. In our opinion this first contention of the applicant cannot prevail.
4 The dowl qabuliat covered 2 drones, 12 krants and 16 gundas of land carrying a rental of Rs. 143-5-9 and contained a provision that if the lands on subsequent measurement be found, in consequence of alluvion or otherwise, to be more in area, then additional rent was to be paid for the additional area, but if found to be less, then there would be a proportionate abatement of the rent as mentioned in the dowl. It appears that after the execution of this document, the lessor obtained decrees in different suits for additional rent for additional area, and the lessee obtained remission of rent on account of land which had diluviated. Portions of the land which were under water or had diluviated have now reformed on the original site of mouzah Algi and of these the defendant took possession under the terms of the qabuliat. The plaintiff's claim was that the defendant had no right to take possession of these lands, because he bad in a previous suit obtained a remission of rent for lands, originally covered by his settlement, which had subsequently diluviated. The defendant claimed to be entitled to the land under the terms of the settlement.
5. The real question, therefore, for determination between the parties was the interpretation of the contract entered into between the predecessor-in-interest of the plaintiff, and the predecessor-in-interest of the defendant. So far as it affected the land actually in existence, at the time the suit was brought. The suit was valued on a valuation of the land at the time of its institution and in our opinion this course was correct, and must be taken to determine the valuation of the land in suit for the purposes of the present appeal. The contention on behalf of the applicant is that we ought to take into consideration in estimating the value of the subject matter of the appeal not merely the lands which existed when the suit was instituted, but also lands which possibly may be formed by alluvion in the course of future years. We can find no authority that would justify us in basing the valuation for the purposes of this appeal on such hypothetical conditions, and we are, therefore, of opinion that the first contention advanced on behalf of the applicant must fail.
6. We are also of opinion that the second contention fails. It is suggested that we ought to send the case down to the lower Court under the provisions of Rule 5, Order XLV, in order that that Court may enquire and report what is the present value of the land in suit, it being suggested that in the interval between the institution of the suit and the filing of the present application, the lands which are the subject of the suit have increased in value. We can find no authority to support the view that for the purposes of determining the value of the property in suit in the present appeal, we can direct an enquiry as regards its value as existing at the time of the appeal and disregard the value as it existed at the time when the suit was instituted. The rule does not seem to bear the interpretation it is desired to place on it. It appears to us that the amount or value of the subject-matter in dispute on appeal, must be dependent on the amount or value of the subject-matter in the Court of first instance. We are unable to accept the contention advanced before us in support of the application as it might lead to serious inconvenience and difficulties.
7. We have already mentioned that the value of the property in dispute is only Rs. 2,860-14-9 and we can find no reason which would justify us in holding that the present application is concerned with property of over Rs. 10,000 in value.
8. The result, however, is that sufficient grounds for granting the application not having been made out, it must be refused with costs--five gold mohurs.